THE STATE OF MANIPUR & ORSversusBUYAMAYUM ABDUL HANAN @ ANAND & ANR.

760                      [2022]REPORTS
               SUPREME COURT   15 S.C.R. 760               [2022] 15 S.C.R.


A                     THE STATE OF MANIPUR & ORS.
                                        v.
            BUYAMAYUM ABDUL HANAN @ ANAND & ANR.
                       (Criminal Appeal No. 1819 of 2022)
B                             OCTOBER 19, 2022
             [AJAY RASTOGI AND C. T. RAVIKUMAR, JJ.]
             Constitution of India – Art. 22(5) – Right to make
      representation – Preventive Detention – Non-supply of legible copies
      of documents relied upon by detaining authority – Denial of
C
      effective representation – Respondent no.1 was subjected to
      preventive detention under 1988 Act – High Court set aside the
      order of detention passed on the premise that the appellants failed
      to supply the legible copies of documents relied upon while passing
      the order of detention – On appeal, held: Right to make
D     representation is a fundamental right of the detenu u/Art. 22(5) –
      Supply of illegible copy of documents relied upon by the detaining
      authority has deprived the respondent in making an effective
      representation and denial thereof will hold the order of detention
      illegal – Further, though the respondent failed to question before
      the detaining authority that illegible or blurred copies were supplied
E
      to him, but the right to make representation being a fundamental
      right, the detenu is always entitled to be supplied with the legible
      copies of the documents relied upon by the detaining authority –
      Information made in the grounds of detention enables him to make
      an effective representation – No error committed by High Court in
F     setting aside the order of preventive detention – Prevention of Illicit
      Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
           Constitution of India – Art. 22(5) – Rights conferred under –
      Discussed.
            Constitution of India – Art. 22(5) – Held: Refusal to supply
G     the documents requested by the detenu or supply of illegible or
      blurred copies of the documents relied upon by the detaining
      authority amounts to violation of Art. 22(5) – However, whether an
      opportunity has been afforded to make an effective representation
      always depends on the facts and circumstances of each case.
H
                                       760
 THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDUL                          761
              HANAN @ ANAND & ANR.

      Dismissing the appeals, the Court                                  A
       HELD: 1.1 Article 22(5) of the Constitution confers two
rights on the detenu, firstly, the right to be informed of the grounds
on which the order of detention has been made and, secondly, to
be afforded an earliest opportunity to make a representation
against the order of detention. Right to make a representation           B
implies that the detenu should have all the information that will
enable him to make an effective representation. No doubt, this
right is again subject to the right or privilege given by clause (6).
At the same time, refusal to supply the documents requested by
the detenu or supply of illegible or blurred copies of the documents
relied upon by the detaining authority amounts to violation of           C
Article 22(5) of the Constitution. Although it is true that whether
an opportunity has been afforded to make an effective
representation always depends on the facts and circumstances of
each case. [Paras 16, 17][767-F-H; 768-A]
       1.2 The right to make representation is a fundamental right       D
of the detenu under Article 22(5) of the Constitution and supply
of the illegible copy of documents which has been relied upon by
the detaining authority indeed has deprived him in making an
effective representation and denial thereof will hold the order of
detention illegal and not in accordance with the procedure               E
contemplated under law. It is the admitted case of the parties
that respondent no.1 has failed to question before the detaining
authority that illegible or blurred copies were supplied to him
which were relied upon while passing the order of detention, but
the right to make representation being a fundamental right under
Article 22(5) of the Constitution in order to make effective             F
representation, the detenu is always entitled to be supplied with
the legible copies of the documents relied upon by the detaining
authority and such information made in the grounds of detention
enables him to make an effective representation. [Paras 21,
22][770-F-H; 771-A-B]                                                    G
       1.3 It was specifically raised by the respondents in their
writ petition and the reference has been made in para 9 of the
petition referred to and in the pleadings on record, there was no
denial in the counter filed by the appellants before the High Court
                                                                         H
762            SUPREME COURT REPORTS                    [2022] 15 S.C.R.


A     that the documents which were supplied and relied upon by the
      detaining authority were legible and that has not denied
      respondent no.1 in making effective representation while
      questioning the order of detention and once this fact remain
      uncontroverted from the records as being placed before the High
      Court in writ petition filed under Article 226 of the Constitution
B
      and the legal principles being settled, there is no substance in
      the submissions that merely because respondent no.1 has failed
      to raise this question before the detaining authority which go
      into root of the matter to take away the right vested in the
      appellant/detenu in assailing the order of detention while availing
C     the remedy available to him under Article 226 of the Constitution
      of India. The right of personal liberty and individual freedom which
      is probably the most cherished is not, in any manner, arbitrarily
      to be taken away from him even temporarily without following
      the procedure prescribed by law and once the detenu was able to
      satisfy while assailing the order of detention before the High Court
D
      in exercise of jurisdiction Article 226 of the Constitution holding
      that the grounds of detention did not satisfy the rigors of proof as
      a foundational effect which has enabled him in making effective
      representation in assailing the order of detention in view of the
      protection provided under Article 22(5) of the Constitution, the
E     same renders the order of detention illegal and no error is
      committed by the High Court in setting aside the order of
      preventive detention under the impugned judgment.[Paras 23,
      24][771-C-H]
            Bhupinder Singh v. Union of India & Others (1987) 2
F           SCC 234; Ramchandra A. Kamat v. Union of India and
            Others (1980) 2 SCC 270 : [1980] 2 SCR 1072; Union
            of India v. Ranu Bhandari (2008) 17 SCC 348 : [2008]
            13 SCR 582 – relied on.
            Smt. Dharmista Bhagat v. State of Karnataka &
G           Another (1989) 2 Supp SCC 155 : 1990 (1) JT 192;
            Manjit Singh Grewal @ Gogi v. Union of India & Ors.
            (1990) Supp. SCC 59; Mehrunissa v. State of
            Maharashtra (1981) 2 SCC 709 – referred to.


H
 THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDUL                              763
              HANAN @ ANAND & ANR.

                        Case Law Reference                                   A
[1980] 2 SCR 1072                      relied on              Para 18
[2008] 13 SCR 582                      relied on              Para 20
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1819 of 2022.                                                                B
     From the Judgment and Order dated 28.10.2021 of the High Court
of Manipur at Imphal in W.P. (Crl.) No. 20 of 2021.
      With
      Criminal Appeal No. 1820 of 2022.
                                                                             C
     Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Anupam
Ngangom, Wahengbam Immanuel Meitei, Advs. for the Appellants.
      K. K. Natraj, ASG, Ms. Prerna Singh (AC), Shailesh Madiyal,
Sanjay Nuli, Vinayak Sharma, Nakul Chengappa K. K., Mukesh Kumar
Maroria, Advs., for the Respondents.                                         D
      The Judgment of the Court was delivered by
      RASTOGI, J.
      1. Leave granted.
        2. The instant appeals are directed against the decision of the      E
High Court of Manipur dated 28th October, 2021 and 16th September,
2021 setting aside the order of detention passed under Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
(hereinafter referred to as “the Act 1988”) on the premise that the
appellants failed to supply the legible copies of documents which were       F
relied upon by the appellants while passing the order of detention under
the provisions of the Act 1988.
       3. Respondent no. 1, in both the appeals, was released pursuant
to the order impugned dated 28th October, 2021 passed by the High
Court and the period of detention of one year also expired.
                                                                             G
      4. Notice was issued by this Court on 18th April, 2022, but no one
appeared on behalf of respondent no. 1 despite service of notice.
      5. On the last date of hearing, i.e., 1st September 2022, this Court
requested Ms. Prerna Singh, learned Advocate to appear as Amicus
                                                                             H
764             SUPREME COURT REPORTS                            [2022] 15 S.C.R.


A     Curiae on behalf of respondent no.1 in both the appeals which she
      voluntarily accepted and assisted the Court.
             6. We have heard learned counsel for the appellants, Ms. Prerna
      Singh, Amicus Curiae on behalf of the respondent no. 1 in both the
      appeals as well as learned counsel for respondent no. 2 and with their
B     assistance perused the material on record.
            7. The challenge in the writ petition originally filed on behalf of
      respondent no.1 was the order of detention dated 17th May, 2021 and
      the grounds of detention dated 22nd May, 2021 passed by the Special
      Secretary (Home), Government of Manipur, whereby respondent no.1
C     was subjected to preventive detention under the provisions of the Act
      1988.
              8. The main thrust on which the writ petition was filed under
      Article 226 of the Constitution assailing the order of detention was that
      respondent no.1 was not supplied with legible copies of the documents
D     relied upon by the detaining authority while passing the order of detention
      and that has taken away the valuable right of respondent no.1 in making
      an effective representation. The right to make a representation is a
      fundamental right and non-supply of the legible copies of the documents
      relied upon by the authorities in passing the order of detention is in violation
      of Article 22(5) of the Constitution and placed reliance on the judgments
E     of this Court in Smt. Dharmista Bhagat v. State of Karnataka &
      Another1, Manjit Singh Grewal @ Gogi v. Union of India & Ors.2,
      Mehrunissa v. State of Maharashtra3 and Bhupinder Singh v. Union
      of India & Others4.
            9. The Division Bench of the High Court placed reliance on the
F     aforesaid judgments of this Court and set aside the order of detention
      dated 17 th May, 2021 passed by the Special Secretary (Home),
      Government of Manipur.
            10. Respondent no.1 in his writ petition, para 9 and ground (e) in
      particular, has stated that the documents which formed the basis of the
G     grounds of detention at pages 31, 33, 35, 37, 38 are illegible and all blurred
      and not readable and as such respondent no.1 could not make an effective

      1
        1989 Supp (2) SCC 155
      2
        1990 (Supp.) SCC 59
      3
        (1981) 2 SCC 709
H     4
        (1987) 2 SCC 234
 THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDUL                               765
     HANAN @ ANAND & ANR. [AJAY RASTOGI, J.]

representation before the detaining authority and enclosed the grounds        A
of detention dated 22nd May, 2021 along with the petition. Para 9 of the
writ petition and ground (e) are extracted hereinbelow:
      “9. That, it is pertinent to mention herein that the documents which
      form the basis of the grounds of detention at page no.31, 33, 35,
      37, 38 enclosed herewith are all blurred and not readable and as        B
      such the detenu could not make an effective representation before
      the detaining authority, therefore, the impugned order and
      subsequent orders are liable to be set aside. The blurred and
      unreadable original documents furnished to the detenu while he
      was under detention have been filed along with the writ petition.
      A true copy of the documents which are not readable enclosed in         C
      the grounds of detention dated 22.05.2021 is enclosed herewith
      and marked as Annexure-A/3.”
          “e. For, that the documents which form the basis of the grounds
              of detention and enclosed herewith are not readable and
              could not make an effective representation and as such          D
              the detention order is liable to be set aside.”
       11. In the counter affidavit filed by the appellants before the High
Court, the only justification tendered was that all the relevant documents
relied upon by the detaining authority were supplied to respondent no.1
and he did not make any such request in his representation of the             E
documents relied upon by the detaining authority either being blurred or
illegible at any stage during pendency of the proceedings until the final
order of detention came to be passed by the detaining authority. The
extract of relevant para no.10 of counter affidavit is reproduced
hereunder:                                                                    F
      “10. That, with reference to Para Nos.9 and 15(e) of the Writ
           Petition, the deponent begs to submit that all legible
           documents which form the basis of the grounds of detention
           were furnished to the detenu. Moreover, the detenu while
           submitting his representation could have sought any relevant       G
           document from the Detaining Authority as done in other
           cases. However, the petitioner did not mention any such
           request in his representation submitted to the detaining
           authority. Original acknowledgement receipt annexed hereto
           and marked as A.”
                                                                              H
766             SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A            12. Likewise, in Writ Petition (Crl.) No.15 of 2021 before the
      High Court, similar averments were made. Extracts of para 9 and ground
      (e) are reproduced hereunder:
            “9. That, it is pertinent to mention herein that the documents
                which form the basis of the grounds of detention at page
B               nos.79, 81, 83, 85, 87, 89, 93, 95 enclosed herewith are all
                blurred and not readable and even then the respondent No.1
                furnished incomplete documents while furnishing the
                documents of ground of detention to the petitioner (left behind
                most of the pages of documents annexed in ground of
                detention). The petitioner has filed the documents in original
C               before the Hon’ble Court, furnished by the respondent no.1
                and as such the detenu could not make an effective
                representation before the detaining authority, therefore, the
                impugned order are liable to be set aside.
                      A true copy of the documents which are not readable
D                 enclosed in the grounds of detention dated 22.05.2021 is
                  enclosed herewith and marked as Annexure-A/3.”
                  “e. For, that the documents which form the basis of the
                      grounds of detention and enclosed herewith are not
                      readable and could not make an effective representation
E                     and as such the detention order is liable to be set aside.”
             13. In the counter affidavit filed by the appellants to the aforesaid
      writ petition before the High Court, in para 9, the appellants replied as
      under:

F            “9. That with reference to Para No.9 of the criminal petition, it
                 is submitted that while serving grounds of detention all
                 relevant documents were enclosed. Moreover, the detenu
                 while submitting her representation done in other cases.
                 However, the petitioner did not mention any such request in
                 her representation submitted to the detaining authority.
G                Annexure R/4 is the true copy of the Ground of detention.”
            14. Learned counsel for the appellants has not disputed the
      proposition settled by this Court that supply of legible copies of the
      documents relied upon by the detaining authority is a sine qua non for
      making an effective representation which is the fundamental right of
H
 THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDUL                                767
     HANAN @ ANAND & ANR. [AJAY RASTOGI, J.]

detenu guaranteed under Article 22(5) of the Constitution. The only            A
submission made by learned counsel for the appellants is that respondent
no.1, at no stage, raised any objection that the pages of the documents
relied upon by the detaining authority in the grounds of detention were
illegible or blurred which, in any manner, has denied him the opportunity
of making representation and the objection was raised, for the first time,
                                                                               B
before the High Court and not at any stage before the detaining authority.
In the given facts and circumstances, learned counsel submits that the
interference made by the High Court in setting aside the order of detention
is not legally sustainable and deserves to be interfered with by this Court.
       15. Learned Amicus Curiae appearing on behalf of respondent
no. 1 supported the order of the High Court and submitted that once it is      C
settled that the supply of legible copies of documents relied upon by the
detaining authority is a sine qua non for making an effective
representation to be a part of his fundamental right under Article 22(5)
of the Constitution and once this specific allegation was made by
respondent no. 1 in the writ petition with facts and particulars and also      D
the pages which, according to him, were illegible and blurred and that
has deprived respondent no.1 in making an effective representation, denial
thereof was indeed in violation of Article 22(5) of the Constitution and
once the fundamental right has been infringed, even if it was not raised
before the detaining authority, that will not take away the fundamental
right conferred by law to respondent no.1 in assailing order of detention      E
as permissible to him under the law and once this fact remains
uncontroverted, no error has been committed by the High Court in setting
aside the order of detention.
      16. Article 22(5) of the Constitution confers two rights on the
detenu, firstly, the right to be informed of the grounds on which the order    F
of detention has been made and, secondly, to be afforded an earliest
opportunity to make a representation against the order of detention.
       17. It is well settled that right to make a representation implies
that the detenu should have all the information that will enable him to
make an effective representation. No doubt, this right is again subject to     G
the right or privilege given by clause (6). At the same time, refusal to
supply the documents requested by the detenu or supply of illegible or
blurred copies of the documents relied upon by the detaining authority
amounts to violation of Article 22(5) of the Constitution. Although it is
true that whether an opportunity has been afforded to make an effective        H
768                SUPREME COURT REPORTS                        [2022] 15 S.C.R.


A     representation always depends on the facts and circumstances of each
      case.
            18. What will be the effect when the detune is deprived of effective
      representation or denial of supply of relied upon documents by the
      detaining authority has been considered by this Court in Ramchandra
B     A. Kamat v. Union of India and Others5 as under:
               “6. The right to make a representation is a fundamental right.
               The representation thus made should be considered expeditiously
               by the government. In order to make an effective representation,
               the detenu is entitled to obtain information relating to the grounds
C              of detention. When the grounds of detention are served on the
               detenu, he is entitled to ask for copies of the statements and
               documents referred to in the grounds of detention to enable him
               to make an effective representation. When the detenu makes a
               request for such documents, they should be supplied to him
D              expeditiously. The detaining authority in preparing the grounds
               would have referred to the statements and documents relied on in
               the grounds of detention and would be ordinarily available with
               him — when copies of such documents are asked for by the detenu
               the detaining authority should be in a position to supply them with
               reasonable expedition. What is reasonable expedition will depend
E              on the facts of each case.”
             19. What will be the effect of non-supply of legible copies of the
      documents relied upon by the detaining authority has been considered
      by this Court in Bhupinder Singh (supra) as under:

F              “1. On 3-10-1985 the officers of the Enforcement Directorate
               searched House No. B.20, Gujranwala Town, Part II, Delhi and
               recovered certain quantity of foreign exchange. It appears that
               the petitioner was not immediately available. He was called and
               interrogated. He made a statement which was recorded by the
               officers of the Enforcement Directorate. On 19-3-1986 an order
G              for detention of the petitioner was made by Shri M.L. Wadhawan,
               Additional Secretary to the Government of India, Ministry of
               Finance, Department of Revenue, New Delhi. The petitioner was
               arrested on 16-4-1986 and served with a copy of the order of
               detention. Grounds of detention were served on him four days
H     5
          (1980) 2 SCC 270
THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDUL                            769
    HANAN @ ANAND & ANR. [AJAY RASTOGI, J.]

   later. On 12-5-1986 he was produced before the Advisory Board.         A
   He made a complaint before the Advisory Board that the copies
   of documents which were supplied to him along with the grounds
   of detention were not legible and he also placed before the Advisory
   Board a copy of a representation said to have been made by him
   for supply of legible copies of documents. There is a controversy
                                                                          B
   whether this representation was made on 8-5-1986 or 12-5-1986.
   From the original files produced before us we find that the
   representation was typed on 8-5-1986, but actually signed by the
   detenu on 12-5-1986. But that would not make any difference for
   the purposes of this case. On 19-5-1986 the Under-Secretary to
   the Government of India conceded the demand of the detenu for          C
   legible copies of documents and directed the Directorate of
   Enforcement to supply a duplicate set of documents to the
   petitioner. A copy of this letter was also sent to the detenu and
   was acknowledged by him on 21-5-1986. There is a controversy
   as regards the date on which the legible copies of documents
                                                                          D
   were actually given to the detenu. According to the detenu they
   were served on him on 1-7-1986, whereas according to the
   counter-affidavit of Shri S.K. Chowdhry, Under-Secretary in the
   Ministry of Finance, the documents were supplied on 21-6-1986.
   It does not make any difference whether the documents were
   supplied on 21-6-1986 or on 1-7-1986 since we find that even           E
   before legible copies of documents were supplied to the detenu,
   the detention order was confirmed on 14-6-1986. The detenu was
   thus clearly denied the opportunity of making a representation
   and there was therefore a clear contravention of the right
   guaranteed by Article 22 of the Constitution. The detenu is entitled
                                                                          F
   to be set at liberty. We are told that the detenu is now on parole.
   He need not surrender.”
   and later in Manjit Singh Grewal (supra) as under:
   “3. It appears that the appellant had asked for certain copies of
   the documents which admittedly were there with the respondent          G
   – Union of India. Copies of the documents were supplied, but the
   same were not legible. This position is also apparent. It is not
   necessary in the facts of this case to go into the question whether
   these documents were relevant or material.”
                                                                          H
770               SUPREME COURT REPORTS                           [2022] 15 S.C.R.


A            20. Learned counsel also relied upon the judgment of this Court in
      Union of India v. Ranu Bhandari6 wherein it was held in paras 27 and
      31 as under:
               “27. It has also been the consistent view that when a detention
               order is passed all the material relied upon by the detaining authority
B              in making such an order, must be supplied to the detenu to enable
               him to make an effective representation against the detention order
               in compliance with Article 22(5) of the Constitution, irrespective
               of whether he had knowledge of the same or not. These have
               been recognised by this Court as the minimum safeguards to ensure
               that preventive detention laws, which are an evil necessity, do not
C
               become instruments of oppression in the hands of the authorities
               concerned or to avoid criminal proceedings which would entail a
               proper investigation.
               28-30. xxx xxx xxx
D              31. Of course, in Radhakrishnan Prabhakaran case [(2000) 9
               SCC 170] it was also made clear that there is no legal requirement
               that a copy of every document mentioned in the order has to be
               supplied to the detenu. What is, therefore, imperative is that copies
               of such documents which had been relied upon by the detaining
               authority for reaching the satisfaction that in the interest of the
E              State and its citizens the preventive detention of the detenu is
               necessary, have to be supplied to him. Furthermore, if in this case,
               the detenu’s representation and writ petition had been placed
               before the detaining authority, which according to the detenu
               contained his entire defence to the allegations made against him,
F              the same may have weighed with the detaining authority as to the
               necessity of issuing the order of detention at all.”
             21. Thus, the legal position has been settled by this Court that the
      right to make representation is a fundamental right of the detenu under
      Article 22(5) of the Constitution and supply of the illegible copy of
G     documents which has been relied upon by the detaining authority indeed
      has deprived him in making an effective representation and denial thereof
      will hold the order of detention illegal and not in accordance with the
      procedure contemplated under law.

      6
H         (2008) 17 SCC 348
 THE STATE OF MANIPUR & ORS. v. BUYAMAYUM ABDUL                                771
     HANAN @ ANAND & ANR. [AJAY RASTOGI, J.]

       22. It is the admitted case of the parties that respondent no.1 has     A
failed to question before the detaining authority that illegible or blurred
copies were supplied to him which were relied upon while passing the
order of detention, but the right to make representation being a
fundamental right under Article 22(5) of the Constitution in order to make
effective representation, the detenu is always entitled to be supplied
                                                                               B
with the legible copies of the documents relied upon by the detaining
authority and such information made in the grounds of detention enables
him to make an effective representation.
       23. Proceeding on the principles which have now been settled by
this Court, it was specifically raised by the respondents in their writ
petition and the reference has been made in para 9 of the petition referred    C
to(supra) and in the pleadings on record, there was no denial in the
counter filed by the appellants before the High Court that the documents
which were supplied and relied upon by the detaining authority were
legible and that has not denied respondent no.1 in making effective
representation while questioning the order of detention and once this          D
fact remain uncontroverted from the records as being placed before the
High Court in writ petition filed under Article 226 of the Constitution and
the legal principles being settled, we find no substance in the submissions
made by learned counsel for the appellants that merely because
respondent no.1 has failed to raise this question before the detaining
authority which go into root of the matter to take away the right vested       E
in the appellant/detenu in assailing the order of detention while availing
the remedy available to him under Article 226 of the Constitution of
India.
       24. In other words, the right of personal liberty and individual
freedom which is probably the most cherished is not, in any manner,            F
arbitrarily to be taken away from him even temporarily without following
the procedure prescribed by law and once the detenu was able to satisfy
while assailing the order of detention before the High Court in exercise
of jurisdiction Article 226 of the Constitution holding that the grounds of
detention did not satisfy the rigors of proof as a foundational effect which   G
has enabled him in making effective representation in assailing the order
of detention in view of the protection provided under Article 22(5) of the
Constitution, the same renders the order of detention illegal and we find
no error being committed by the High Court in setting aside the order of
preventive detention under the impugned judgment.
                                                                               H
772             SUPREME COURT REPORTS                        [2022] 15 S.C.R.


A            25. Consequently, the appeals fail and are hereby dismissed.
             26. Pending application(s), if any, stand disposed of.

      Divya Pandey                                              Appeals dismissed.
      (Assisted by : Deepak Panwar, LCRA)
B




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D




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F




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