Holding

A detention order under COFEPOSA is invalid and must be quashed where the delay in its issuance is unexplained and material documents are not placed before the detaining authority, thereby depriving the detainee of the right to make an effective representation.

Summary

The appellant, Managing Director of an exporting company, was alleged to have misdeclared the value and description of alloy steel exports and to have routed excess proceeds through hawala, leading to investigations by the Directorate of Revenue Intelligence. He was arrested in October 2003, released on bail in January 2004, and a proposal for his detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was approved in December 2004, but the detention order was finally issued only on 5 April 2005. The appellant challenged the order on grounds of unexplained delay, failure to place material documents before the detaining authority, and lack of application of mind, arguing that the order should be quashed to avoid civil liabilities under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The Supreme Court held that a substantial portion of the delay was unexplained, that vital documents were not supplied to the detainee despite being material, and that the detaining authority did not apply its mind, thereby vitiating the order. Consequently, the Court set aside the High Court’s decision and quashed the detention order, allowing the appeal.

Issues considered

The adequacy of explanation for the delay between the proposal for detention and the issuance of the detention order under COFEPOSA.
Whether material documents were required to be placed before the detaining authority and supplied to the detainee for effective representation.
Whether the detaining authority applied its mind in arriving at the subjective satisfaction for detention.
Whether the detention order should be quashed to prevent civil liability under SAFEMA.

Legislation cited

Subjects

detention orderCOFEPOSAunexplained delaymaterial documentsright to representationArticle 22(5)SAFEMAquashing of detentionforeign exchange violationsmuggling

Judgment

ADISHWAR JAIN A
v.
UNION OF INDIA AND ANR.

OCTOBER 19, 2006

[S.B. SINHA AND DAL VEER BHANDARI, JJ.] B

Smugglers and Foreign Exchange Manipulators (Forfeiture ofProperty)
Act, 1976-Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974-Section 3-Detention order against detenue for
smuggling of goods-Detention period over and detenue re/eased-
c·
Proceedings under SEFEMA against detenue-Quashing of, detention order,
to avoid civil liabilities-Held: There was unexplained delay in passing
• detention order, material documents were not placed before the Detaining
Authority and the material documents were not supplied to the detenue-
Thus, detention order quashed. D
Appellant-Managing Director of a company was entitled to credits under
the Duty Entitlement Pass Book Scheme upon export of alloy steel. He
allegedly misdeclared the value and description of goods upon procuring fake
and false bills through one P. Appellant was arrested on 13.10.2003 and he
,. was discharged on bail on 6.01.2004. The proposal for detention was sent on E
25.06.2004 which was approved on 02.12.2004. On 20.12.2004, the authorities
of Directorate of Revenue Intelligence stated that activities of the appellants
after I I.I0.20Q3- were not under scrutiny and requested the Bank to defreeze
his bank accounts. Thereafter, on 05.04.2005, detention order was passed
under the Conservation of Foreign Exchange and Prevention of Smuggling F
Activities Act, 1974. Appellant filed writ of Habeas Corpus challenging the
detention order on the ground of unexplained delay in passing the detention
order. High Court dismissed the petition. Letters patent appeal was 11lso
dismissed.

Thereafter, proceeding under Smugglers and Foreign Exchange G
Manipulators (Forfeiture of Property) Act, 1976 was initiated against the
appellant. Hence, the present appeal challenging the legality or validity of the
detention order on the grounds of non-placement of vital material documents
before the detaining authority; non-supply of documents relied on or referred
801
H
802 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A to in the detention order; and non-application of mind on the part of the
detaining authority. Meanwhile, the period of detention was over and the
appellant was released from custody.

Allowing the appeal, the Court

B HELD: 1.1. If delay is sufficiently explained, the same would not be a
ground for quashing an order of detention under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, but in the instant
case a major part of delay remains unexplained. The fact that the proposal for
detention was made on 02.12.2004, the order of detention was passed after
four months cannot be understood. In the meantime on 20.12.2004, the
C authorities of the DRJ had clearly stated that transactions after 11.10.2003
were not under the scrutiny and all the bank accounts of the appellant were
defreezed. The said documents were material. Therefore, it was difficult to
appreciate why order of detention could not be passed on the basis of the
materials gathered by them. (806-G-H; 806-B-C; 806-F-H)
D
1.2. Ordinarily this Court should not exercise discretionary jurisdiction
under Article 136 of the Constitution of India by allowing appellant to raise
new grounds but, this may have to be done as an order of detention may have
to be considered from a different angle. It may be true that the period of
detention is over. It may further be true that appellant had remained in
E detention for the entire period but it is one thing to say that the writ of Habeas ...
-
Corpus in this circumstance cannot be issued but it is another thing to say
that an order of detention is required to be quashed so as to enable the detainee
to avoid his civil liabilities under Smugglers and Foreii\n Exchange
Manipulators (Forfeiture of Property) Act, 1976 as also to protect his own
F reputation. (808-H; 809-A-B(

1.3. With regard to non-placement of material documents before the
detaining authority, respondent contended that the appellant obstructed the
proceedings by initiating various civil litigations. But, indisputably, those
documents involving the civil court proceedings were not placed before the
G detaining authority. If the same had not been done, not only the delay, in
issuing the order of detention stood unexplained but also thereby the order
itself would become vitiated. Furthermore, the civil court proceedings were
over on 19.11.2004. Evidently, the detaining authority did not take immediate
steps to detain the appellant. Why the documents pertaining to the proceedings
of the Civil Court had not been placed before the detaining authority has not
H been explained. On their own showing, respondents admitted that they were
ADISHWAR JAIN v. U.0.1. 803
relevant documents. (809-C; 809-G-H; 810-A-BI A
1.4. All documents which are not material are not necessary to be
supplied. What is necessary to be supplied is the relevant and the material
documents, thus, all relevant documents must be supplied so as to enable the
detenue to make an effective representation which is his fundamental right
under Article 22(5) of the Constitution of India. Right to make an effective B
representation is also a statutory right. The statements of appellant and P
were material. They could not have been withheld. If original of the said
documents were not available, xeroxed copies thereof could have been made
available to him. Moreover, the detaining authority while relying on the said
documents in one part of the order of detention could not have stated in another C
part that he was not relying thereupon. The very fact that the detaining
authority had referred to the said statements in extenso in the detention order
is itself a pointer to the fact that he had relied upon the said documents. Even
"' in the earlier part of the impugned order of detention, i.e. detaining authority
appears to have drawn his own conclusions. Therefore, the judgment of the
High Court cannot be sustained. It is set aside and the order of detention passed D
against the appellant is quashed. (813-C-G)

Sunila Jain v. Union of India and Anr., (20061 3 SCC 321, relied on.

Kamarunnissa v. Union of India and Anr., (199111 SCC 128,
..... distinguished. E
Rajendrakumar Natvarlal Shah v. State of Gujarat and Ors., (1988) 3
SCC 153; Rajinder Arora v. Union of India and Ors., [2006) 4 SCC 796; Sk.
Serajulv. State a/West Bengal, (1975) 2 SCC 78; Abdul Salam Alias Thiyyan
Sia Thiyyan Mohammad, Detenu No. 962, General Prison, Trivandrum v. Union
of India and Ors., (1990) 3 SCC 15; P. Saravanan v. State of T.N. and Ors., F
(2001) 10 SCC 212 and Ahamed Nassar v. State of Tamil Nadu and Ors.,
(1999) 8 sec 473, referred to.

CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 4563 of2006.

From the Final Judgment and Order dated 30.3.2006 of the High Court G
of Punjab and Haryana at Chandigarh in L.P.A. No. 17/2006.

Mukul Rohatgi, Aparajita Singh, Vikram Choudhary and D. Mahesh
Babu for the Appellant.

Vikas Singh, A.S.G., Chinmoy Pradip Sharma, Amrita Narayan and B. H
804 SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A Krishna Prasad for the Respondent Union of India.
R.K. Rathore, M.K. Venna and Arun K. Sinha for the State of Punjab.

The Judgment of the Court was def ivered by

B S.B. SINHA, J. Leave granted.

Appellant before us was detained under Section 3 of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for
short "COFEPOSA"). He is the Managing Director of a company, registered
and incorporated under the provisions of the Companies Act, known as M/
C s. Sundesh Springs Private Limited. It was an exporter and held a valid licence
therefor. The company was to export products of alloy steel. Upon exporting
of alloy steel, it was entitled to credits under the Duty Entitlement Pass Book
(DEPB) Scheme introduced by the Government of India with an object of
encouraging exports. He allegedly misdeclared both the value and description
of goods upon procuring fake and false bills through one Prabhjot Singh. The
D said Prabhjot Singh was said to have been operating three finns, viz. Mis. S.P.
Industrial Corporation, M/s. Aaysons (India) and M/s. P.J. Sales Corporation,
Ludhiana. It was allegedly found that non-alloy steel, bars, rods, etc. of value
ranging from Rs. 15/- to Rs. 17/- per kg. were exported in the guise of alloy
steel forgings, bars, rods, etc. by declaring their value thereof from Rs. 1101
E - to Rs. 150/- per kg. and the export proceeds over and above the actual price
were being routed through Hawala Channel. The officers of the Directorate
..
of Revenue Intelligence (ORI) searched the factory as well as the residential
premises of Appellant and that of Prabhjot Singh. Various incriminating
documents were recovered. Appellant and the said Prabhjot Singh made
statements under Section I 08 of the Customs Act. Prabhjot Singh allegedly
F admitted to have supplied fake bills to units owned and controlled by Appellant
on commission basis without actual supply of the goods. It was also found
that Appellant had declared goods exported as "alloy steel" whereas after the
tests conducted by Central Revenue Control Laboratory, they were fourd to
be "other than alloy steel", i.e., non-alloy. The Consul (Economic), Consulate
G General of India at Dubai allegedly confirmed the existence of a parallel set
of export invoices. Invoices with a higher value were presented before the
Indian Customs Authorities with a view to avail DEPB incentives but in fact
invoices with a lower value were presented for clearance.

On the aforementioned allegations, an order of detention was issued on
H 5.4.2005. Appellant moved for issuance of a writ of Habeas Corpus before the
ADISHWARJAIN v. U.0.1. [S.B. SINHA, J.] 805

- High Court of Judicature of Punjab and Haryana. The said writ petition was A
dismissed by an order dated 23 .11.2005 by a learned Single Judge. A letters
patent appeal, concededly which was not maintainable, was filed thereagainst
which was dismissed by reason of the impugned judgment.

Although before the High Court, the principal ground urged on behalf
of Appellant in questioning the legality or validity of the order of detention B
was unexplained delay in passing the order of detention which did not find
favour with the High Court. Before us, several other grounds, viz., non
placement of vital/ material documents before the detaining authority, non-
supply of documents relied on or referred to in the order of detention as also
non-application of mind on the part of the detaining authority had been C
raised. In the meantime admittedly the period of detention being over, Appellant
had been set at large. He was released from custody on 17.5.2006. This appeal,
however, has been pressed as a proceeding under the Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short
"SAFEMA"), has been initiated against Appellant.
D
We may first deal with the question of unexplained delay. In this regard
we may notice the following dates.

On 13. I0.2003, Appellant was arrested. He was discharged on bail on
6.1.2004. Several inquiries were conducted both inside and outside India. A
report in relation to overseas inquiry was received on 12.5.2004. On 25.6.2004 E
proposal of detention was sent which was approved on 2.12.2004. On
20.12.2004, the authorities of the DRI stated that transactions after 11.10.2003
were not under scrutiny. Furthennore, the authorities of the DRI by a letter
dated 28.02.2005 requested the Bank to defreeze the bank accounts of
Appellants. The order of detention was passed on 5.4.2005. F
The learned Additional Solicitor General, who appeared on behalf of
Respondent has drawn our attention to a long list of dates showing that
searches were conducted and statements of a large number of persons had
to be recorded. The final order of detention was preceded not only on the
basis of raids conducted in various premises, recording of statements of a G
large number of witnesses, carrying on intensive inquiries both within India
and outside India, obtaining test reports from three different laboratories but
also the fact that despite notices Appellant and his associates did not cooperate
with the investigating authorities. They initiated various civil proceedings
from time to time, obtained various interim orders and, thus, delay in passing H
806 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A the order of detention cannot be said to have not been explained.
Learned counsel would contend that keeping in view the nature and
magnitude of an offence under COFEPOSA, a distinction must be made
between an order of detention passed under COFEPOSA vis-a-vis other Acts
as per the law laid down by this Court in Rajendrakumar Natvarlal Shah v.
B State of Gujarat and Ors., [1988] 3 sec 153 and in that view of the matter
the High Court must be held to have arrived at a correct decision.

Indisputably, delay to some extent stands explained. But, we fail to
understand as to why despite the fact that the proposal for detention was
made on 2.12.2004, the order of detention was passed after four months. We
C must also notice that in the meantime on 20.12.2004, the authorities of the DRI
had clearly stated that transactions after 11. I0.2003 were not under the scrutiny
stating:

" .. .In our letter mentioned above, your office was requested not to
D issue the DEPB scripts to M/s. Gimar Impex Limited and M/s. Siri
Amar Exports, only in respect of the pending application, if any, filed
by these parties up to the date of action i.e. I I.I 0.2003 as the past
exports were under scrutiny being doubtful as per the intelligence
received in this office. This office never intended to stop the export
incentives occurring to the parties, after the date of action i.e.
E 11. I0.2003. In the civil, your office letter No. B.L.-2/Misc. Am-2003/
Ldh dated 17.05.2004 is being referred, which is not received in this
office. You are, therefore, requested to supply photocopy of the said
letter to the bearer of this letter as this letter is required for filing reply
to the Hon 'hie Court."
F Furthermore, as noticed hereinbefore, the authorities of the DRI by a
letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of
Appellant.

The said documents, in our opinion, were material.
G It was, therefore, difficult to appreciate why order of detention could
not be passed on the basis of the materials gathered by them.

It is no doubt tme that if the delay is sufficiently explained, the same
would not be a ground for quashing an order of detention under COFEPOSA,
H but as in this case a major part of delay remains unexplained.
ADISHWARJAIN v. U.0.1. [S.B. SINHA,J.) 807
We may also place on record that Sen., J. in Rajendrakumar Natvar/a/ A
Shah (supra), while laying down various stages of the procedures leading to
an order of detention, opined that rule as to unexplained delay in taking action
is not inflexible and a detention under COFEPOSA may be considered from
a different angle.

The question came up for consideration recently in Rajinder Arora v. B
Union of India and Ors., [2006] 4 SCC 796 wherein it has been held:

"Furthermore no explanation whatsoever has been offered by the
Respondent as to why the order of detention has been issued after
such a long time. The said question has also not been examined by
the authorities before issuing the order of detention. C
The question as regard delay in issuing the order of detention has
been held to be a valid ground for quashing an order of detention by
this Court in T.D. Abdul Rahman v. State of Kera/a and Ors., AIR
(1990) SC 225 stating:
D
"The conspectus of the above decisions can be summarised thus: The
question whether the prejudicial activities of a person necessitating
to pass an order of detention is proximate to the time when the order
is made or the live-link between the prejudicial activities and the
purpose of detention is snapped depends on the facts and
circumstances of each case. No hard and fast rule can be precisely E
formulated that would be applicable under all circumstances and no
exhaustive guidelines can be laid down in that behalf. It follows that
the test of proximity is not a rigid or mechanical test by merely
counting number of months between the offending acts and the order
of detention. However, when there is undue and long delay between F
the prejudicial activities and the passing of detention order, the court
has to scrutinise whether the detaining authority has satisfactorily
examined such a delay and afforded a tenable and reasonable
explanation as to why such a delay has occasioned, when called upon
to answer and further the court has to investigate whether the causal
connection has been broken in the circumstances of each case. G
Similarly when there is unsatisfactory and unexplained delay between
the date of order of detention and the date of securing the arrest of
the detenu, such a delay would throw considerable doubt on the
genuineness of the subjective satisfaction of the detaining authority H
808 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A leading to a legitimate inference that the detaining authority was not
really and genuinely satisfied as regards the necessity for detaining
the detenu with a view to preventing him from acting in a prejudicial
manner."

The delay caused in this case in issuing the order of detention
B has not been explained. In fact, no reason in that behalf whatsoever
has been assigned at all."

Delay, as is well known, at botb stages has to be explained. The court
is required to consider the question having regard to the overall picture. We
may notice that in Sk. Serajul v. State of West Bengal, [1975] 2 SCC 78, this
C Court opined:

"There was thus delay at both stages and this delay, unless
satisfactorily explained, would throw considerable doubt on the
genuineness of the subjective satisfaction of the District Magistrate,
Burdwan recited in the order of detention. It would be reasonable to
D assume that if the District Magistrate of Burdwan was really and
genuinely satisfied after proper application of mind to the materials
before him that it was necessary to detain the petitioner with a view
to preventing him from acting in a prejudicial manner, he would have
acted with greater promptitude both in making the order of detention
E as also in securing the arrest of the petitioner, and the petitioner
would not have been allowed to remain at large for such a long period
of time to carry on his nefarious activities ... "

In Abdul Salam Alias Thiyyan S/o Thiyyan Mohammad, Detenu No.
962, General Prison, Trivandrum v. Union of India and Ors., [ 1990] 3 SCC
F 15 whereupon the learned Additional Solicitor General has placed strong
reliance, this Court found that there had been potentiality or likelihood of
prejudicial activities and, thus, or mere delay, as long as, it is explained, the
court may not strike down the detention.

In the instant case, we have noticed hereinbefore that the authorities
G of DRl themselves categorically stated that the activities of Appellant after
11. l 0.2003 were not in question and in fact all the bank accounts were
defreezed.

Although learned Additional Solicitor General may be correct in his

H
submissions that ordinarily we should not exercise our discretionary jurisdiction
-
.. ADISI-IWAR JAIN v. U.0.I. (S.B. SINHA. l. J 809
under Article 136 of the Constitution of India by allowing Appellant to raise A
new grounds but, in our opinion, we may have to do so as an order of
detention may have to be considered from a different angle. It may be true
that the period of detention is over. It may further be true that Appellant had
remained in detention for the entire period but it is one thing to say that the
writ of Habeas Corpus in this circumstances cannot issue but it is another B
thing to say that an order of detention is required to be quashed so as to
enable the detainee to avoid his civil liabilities under SAFEMA as also protect
his own reputation.

In a case of this nature, we do not think, in view of the admitted facts,
that we would not permit Appellant to raise the said questions. C
So far as the question of non-placement of material documents before
the detaining authority is concerned, we may notice the following dates:

(i) By a letter dated 5.7.2002, the authorities of ORI stated that
Appellant stood exonerated for earlier years after detailed
examination.
D

(ii) By a letter dated 20.12.2004, the authorities of DR! stated that
transactions after I I. I 0.2003 were not under scrutiny and by
letters dated 28.2.2005 and 7.3.2005, the bank accounts of
Appellant were defreezed.
E
(iii) By reason of the Civil Court by orders dated 7.5.2004 and
31.5.2004, the bank accounts ofM/s. Gimar and Shri Amar were
defreezed. ·

(iv) By an order dated 13.8.2004, the Tribunal ordered release of
goods. F
(v) By orders dated 31.8.2004 and 28. I 0.2004, the Civil Judge directed
release of documents to Appellant.

(vi) By an order dated 18.11.2004, the Civil Court issued contempt
notice to the authorities of DR! for non-release of documents
and the authorities of ORI made a statement before the court G
that the documents are being returned.

We have noticed hereinbefore that learned Additional Solicitor General
contended that Appellant obstructed the proceedings by initiating various
civil litigations. But, indisputably, those documents involving the civil court
H
810 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A proceedings were not placed before the detaining authority. If the same had
not been done, not only the delay, in issuing the order of detention stood
unexplained but also thereby the order itself would become vitiated.
Furthermore, the civil court proceedings were over on 19.11.2004. Evidently,
the detaining authority did not take immediate steps to detain Appellant. Why
B the documents pertaining to the proceedings of the Civil Court had not been
placed before the detaining authority has not been explained. On their. own
showing, Respondents admit that they were relevant documents.

The question has been considered by this Court in Rajinder Arora
(supra) stating:
c "Admittedly, furthermore, the status report called for from the
Customs Department has not been taken into consideration by the
competent authorities.

A Division Bench of this Court in K.S. Nagamuthu v. State of
Tamil Nadu & Ors., (2005) 9 SCALE 534 struck down an order of.
D detention on the ground that the relevant material had been withheld
from the detaining authority; which in that case was a letter of the
detenu retracting from confession made by him."

In P. Saravanan v. State of T.N. and Ors., (2001] 10 SCC 212, it was
E stated:
"When we went through the grounds of detention enumerated by the
detaining authority we noticed that th.ere is no escape from the
conclusion that the subjective satisfaction arrived at by the detaining
authority was the cumulative result of all the grounds mentioned
F therein. It is difficult for us to say that the detaining authority would
have come to the subjective satisfaction solely on the strength of the
confession attributed to the petitioner dated 7-11-1999, particularly
because it was retracted by him. It is possible to presume that the
confession made by the co-accused Sowkath Ali would also have
contributed to the final opinion that the confession made by the
G petitioner on 7-11-1999 can safely be relied on. What would have been
the position if the detaining authority was apprised of the fact that
Sowkath Ali had retracted his confession, is not for us to make a
retrospective judgment at this distance of time."

In Ahamed Nassar v. State o/Tamil Nadu and Ors., [1999] 8 SCC 473,
H this Court opined: ..
ADISHWAR JAIN v. U.0.1. [S.B. SINHA, J.] 811
-
.- "The question is not whether the srcond part of the contents of those A
letters was relevant or not but whether they were placed before the
detaining authority for his consideration. There could be no two
opinions on it. It contains the very stand of the detenu of whatever
worth. What else would be relevant if not this? It may be that the
detaining authority might have come to the same conclusion as the
sponsoring authority but its contents are relevant which could not be B
withheld by the sponsoring authority. The letter dated 19-4-1999 reached
the sponsoring authority and reached well within time for it being
placed before the detaining authority. There is an obligation cast on
the sponsoring authority to place it before the detaining authority,
which has not been done. Even the letter dated 23-4-1999 which C
reached the Secretary concerned at 3.00 p.m. on 26-4-1999 was much
before the formal detention order dated 28-4- I999. The Secretary
concerned was obliged to place the same before the detaining authority.
The respondent authority was not right in not placing it as it contains
not only what is already referred to in the bail application dated
1-4-1999 but something more. D
The statements of Appellant and Prabhjot Singh were noticed by the
detaining authority. It had specifically been referred to in extenso in the order
of detention. It is, however, stated that the records were tampered with at the
instance of Appellant. The self-inculpatory statements of Appellant and those E
of Prabhjot Singh were said to have been taken off the file. Respondents
contended that on first information report was registered against Appellant
as also one sepoy Narender Singh. But the said information report was.
registered only on 6.4.2005 and not prior to the date of order of detention.

In paragraph 36 of the order of detention, the detaining authority stated: F

"In view of the facts mentioned above, I have no hesitation in arriving
at the conclusion that you have through your acts of omission and
commission indulged in prejudicial activities as narrated above.
Considering the nature and gravity of the offence, the well planned
manner in which you have engaged yourself in such prejudicial G
activities and your role therein as brought out above, all of which
reflect your high potentiality and propensity to indulge in such
prejudicial activities in future, I am satisfied that there is a need to
prevent you from indulging in such prejudicial activities in future by
detention under COFEPOSA Act, 1974 with a view to preventing you
H
812 SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A from smuggling goods in future."

We have been taken through the order of detention. The statements of
Appellant and the said Prabhjot Singh were recorded therein in extenso.
Recording of such statement must have been made from the xeroxed copies
of such documents which were available with the detaining authority. The
B self-inculpatory statements of Appellant as also Prabhjot Singh purported to
have been made in terms of Section I08 of the Customs Act were required
to be considered before the order of detention could be passed. The same
was not done. The original of such documents might not been available with
the detaining authority but admittedly the xeroxed copies were. It has not
C been denied or disputed that even the xeroxed copies of the said documents
had not been supplied to the detenue. It may be true that Appellant in his
representation dated 14.06.2005 requested for showing him the original
documents referred to or mentioned in the grounds of detention but then at
least the xeroxed copies thereof should have been made available to him.

D Learned Additional Solicitor General submitted that due to non-supply
of documents which were not vital or have merely been referred to as incidental,
the order of detention may not become vitiated as was been held by this
CourtinKamarunnissav. Unionof!ndiaandAnr., [1991] l SCC 128. The said
decision was rendered in a different fact situation. In the said decision, this
Court stated the law, thus:
E
" .. .If, merely an incidental reference is made to some part of the
investigation concerning a co-accused in the grounds of detention
which has no relevance to the case set up against the detenus it is
difficult to understand how the detenus could contend that they were
denied the right to make an effective representation. ft is not sufficient
F to scy that the detenus were not supplied the copies of the documents
in time on demand but it must further be shown that the non-supply
has impaired the detenu's right to make an effective and purposeful
representation. Demand of any or every document, however irrelevant
it may be for the concerned detenu, merely on the ground that there
G is a reference thereto in the grounds of detention, cannot vitiate an
otherwise legal detention order. No hard and fast rule can be laid
down in this behalf but what is essential is that the detenu must show.
that the failure to supply the documents before the meeting of the
Advisory Board had impaired or prejudiced his right, however slight
or insignificant it may be. In the present case, except stating that the
H documents were not supplied before the meeting of the Advisory
ADISHWARJAIN v. U.O.L [S.B. SINHA, J.] 813
B.:iard, there is no pleading that it had resulted in the impairment of A
his right nor could counsel for the petitieners point out any such
prejudice. We are, therefore, of the opinion that the view taken by the
Bombay High Court in this behalf is unassailable."

(Emphasis supplied)
B
What is, therefore, relevant was as to whether the documents were
material. If the documents were material so as to enable the detenue to make
an effective representation which is his constitutional as also statutory right,
non-supply thereof would vitiate the order of detention.

It is a trite law that all documents which are not material are not C
necessary to be supplied. What is necessary to be supplied is the relevant
and the material documents, but, thus, all relevant documents must be supplied
so as to enable the detenue to make an effective representation which is his
fundamental right under Article 22(5) of the Constitution of India. Right to
make an effective representation is also a statutory right. [See Sunila Jain v. D
Union of India and Anr., [2006] 3 SCC 321]

In this case, the statements of" Appellant and Prabhjot Singh, in our
opinion, were material. They could not have been withheld. If original of the
said documents were not available, xeroxed copies thereof could have been
made available to him. E
The detaining authority moreover while relying on the said documents
in one part of the order of detention could not have stated in another part
that he was not relying thereupon. The very fact that he had referred to the
said statements in extenso is itself a pointer to the fact that he had relied upon
the said documents. Even in the earlier part of the impugned order of detention, F
i.e. detaining authority appears to have drawn his own conclusions.

In view of our findings aforementioned, it is not necessary to consider
the contention raised by Mr. Mukul Rohtagi that order of detention suffers
from non-application of mind. The judgment of the High Court, therefore,
cannot be sustained. It is set aside accordingly and the order of detention G
passed against Appellant is quashed. The appeal is allowed. No costs.

N.J. Appeal allowed.