State Of Tamil Nadu & Anr vs Abdullah Kadher Batcha & Anr

1. Challenge in this appeal is to the judgment rendered by a Division Bench of the Madras High Court quashing the order of detention passed under the provisions of Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the `Act') in respect of one Abdullah Kadher Batcha (hereinafter referred to as the `detenu') who was directed to be detained. The order of detention was passed on 11.8.1999. The detenu made a 1 representation on 4.9.1999. It is the stand of the detenu that he had sought for some documents including the judgment passed by the High Court in Writ Petition No.13514 of 1999 which was dismissed on 10.8.1999. The Writ Petition was filed by the detenu on the apprehension that he may be detained under the Act. In the representation the detenu made a reference to the judgment dated 10.8.1999 and also to the writ petition. It was pointed out in paragraph 7(x) that in order to make the effective and meaningful representation, the detenu requires the copy of the order passed by the High Court. A request was made to supply the copy at an early date. It was stated in the representation that the detenu did not know English and, therefore, representation which was made in English language was prepared under his instruction and was read over and explained to him in Tamil. State Government rejected the request by communication dated 21.9.1999 and it was indicated that the documents were not relied upon for the purpose of detention. Copy of the order of the writ petition was however supplied. High Court observed that in view of non supply of the documents a protection available, under Article 22(5) of the Constitution of India, 1950 (in short the `Constitution'), was violated.

2. The High Court further held that in the absence of the required 2 documents the detention was rendered illegal and accordingly the habeas corpus petition was allowed.

3. In support of the appeal it has been stated that the documents in question which were requested by the detenu to be supplied had nothing to do with the order of detention. It was pointed out that there is a difference between the narration of facts and the ground of detention. Undisputedly, the copy of the order in the writ petition which was sought was in fact supplied though at a later point of time. It is not understood as to how the order passed in writ petition which was dismissed can be a document about which the detenu had no knowledge. The High Court erroneously came to the conclusion that the relied upon documents were not supplied. Actually, the factual scenario is just to the contrary.

9. The High Court has lost sight of the relevant factors and, therefore, the impugned order of the High Court is clearly unsustainable and is therefore set aside.

11. Considering the nature of the order of detention which is essentially preventive in character, it would be appropriate for the State Government and the detaining authority to consider whether there is any need to take the detenu back to detention for serving the remainder of the period of detention which was indicated in the order of detention. The exercise shall be undertaken within two months.

12. The appeal is allowed to the aforesaid extent.