V.B. Bansal, J.
(1) Bhagat Raj a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (as amended), hereinafter referred to as 'the Act', has filed this writ petition under Article 226 of the Constitution of India r/w Section 482 Criminal Procedure Code . praying that the detention order dated l-8-1990 may be quashed and be may be set at liberty.
(2) On 1-8-1990 Mahinder Prasad, Joint Secretary to the Govt. of India exercising the powers under Section 3(1) of the Act passed an order for the detention of Bhagat Raj with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange The order was served on the petitioner on 108-1990. However, grounds of detention Along with the documents relied upon were supplied to him on 14-8-1990.
(3) Briefly stated the facts leading for the passed for the said order are as under:
(4) There was a specific information with the Enforcement Directorate that Bhagat Raj and his employee Prem Kumar were indulging in unauthorised purchase and sale of foreign exchange and gold on very large scale. Accordingly on 28-3-1990 a search of shop No. 4456, Katra Raiji, Pahar Ganj resulted in the recovery of Rs. 68,0l0 and documents besides Rs. 1500.00 from the person of Prem Kumar. A sum of Rs. 2,20,000.00 and documents were recovered from the residential premises of Bhagat Raj. On the same day a sum of Rs.9,000.00 and documents were recovered from the residential premises of aforesaid Prem Kumar.
(5) Statement of Prem Kumar was recorded by the Officer of the Enforcement Directorate under Section 4 of the Act Statements of other persons including Panna Lal, Manohar Lal and Hava Singh were also recorded. Bhagat Lal. was, however, not available. On the basis of the material collected by the officers of the Enforcement Directorate a reference was made to the detaining authority who passed the aforesaid under.
(6) A reference was made to the Advisory Board for opinion on 16-8-1990 and on getting the report, the order of detention of the petitioner was confirmed on 24th September. 1990.
(7) I have heard Shri Naveen Malhotra, learned counsel for the petitioner and Shri Jagdev Singh, learned counsel for respondents 1 and 2. I have gone through the records.
(8) The petitioner has taken many grounds challenging his detention. Learned counsel for the petitioner has. however, restricted his submission on one point namely delay in the supply of legible copies of the documents relied upon by the detaining authority for the detention of the petitioner.
(9) Learned counsel for the petitioner has submitted that a representation dated 27-8-1990 was made by she petitioner to the detaining authority for the supply or legible copies of the documents relied upon which have been supplied only on 12-11-1990 He has, thus, submitted that the petitioner has been deprived of his valuable right of making an effective representation against his detention on account of which the detention of the petitioner is bad.
(10) This ground has specifically been taken by the petitioner in para 9 and 10 of the petition It has been claimed by the petitioner the documents A-l, A-2, A-5, B-29, E-5, F-5, F-6, G-2, G4, G6, A 5. B-46. B-57, C-X, C-6. C-Z, D-3, D 4, D-5, D-14, D-2i. D-20, D-22, D-23, D-24, D-25, E-l. E-2. E-3, E-4. E-5 and E-7 are illegible. He has, thus, submitted that these were the documents required to be supplied to the petitioner pari passu with the grounds of detention and the documents being illegible it cannot be said that the requirement of law has been fulfillled. Learned counsel for the respondents 1and 2 has submitted that the representation made by the petitioner was duly considered by the Central Govt. and was rejected on 18-9-1990. He has also submitted that as per the direction in the memorandum dated 18-9-1990 additional documents were supplied to the detenu on 12-11-1990. He has, thus, submitted that there has not been any violation of the provisions of law and petitioner is not entitled to any benefit,
(11) I have given.my thoughtful consideration to this submission and I am clearly of the view that there has been an inordinate delay on the part of the respondents to supply legible copies of the documents relied upon to the petitioner. Article 22(5) of the Constitution of India provides that when a person is detained in pursuance of an order made under law providing for preventive detention the authority making the order has to communicate to such person the grounds on which the order has been made. The person so detained has to be afforded an earliest opportunity of making a representation against the said order of detention. A person is detained not by way of punishment for any offence, it is rather a detention with a view to prevent him from indulging in objectionable activities. In this way preventive detention is a serious invasion of personal liberty. thereforee, the safeguards provided under Article 22(5) of the Constitution must be strictly enforced by the Courts.
(12) The first question for consideration is as to whether the documents supplied to the petitioner with the grounds of detention are illegible as claimed by him.
(13) I have gone through the documents which were supplied to the petitioner Along with the grounds of detention and the copies subsequently supplied on 12-11-1990 Some of the documents apparently are illegible and not possible to make out as to what is contained in them. Reference in this regard could be made to F-6.G 2, G 4, G 6. B 57, C-10, C-Y, C-Z, D-21, D-22, D-23, D-24, and E-2. These documents have been shown to learned counsel for the respondents I and 2 and he. too, was not in a position to read all of them It may also be noted that document D-4 as supplied Along with the grounds of detention is incomplete and in this regard learned counsel for the petitioner had shown the complete copy of 'his document as supplied (in 12-11-1990. It has. thus, been proved on record by the petitioner that the documents, referred to above, supplied to the petitioner Along with the grounds of detention were not legible.
(14) Now the question for consideration is as to what is the effect of these documents being not legible. Law is well settled that a petitioner has a fundamental right of making an effective representation against the detention and there is a corresponding obligation on the appropriate authorities to consider the said representation expeditiously. On account of the documents being not legible, submission of learned counsel for the petitioner has been that the petitioner has been prejudiced and has been deprived io his right of making an effective representation, in this way, the detention order is liable to be quashed. Learned counsel for respondents 1 and 2 has, however, submitted that merely because some of the documents were not legible cannot be a ground to hold that the petitioner has been prejudiced in his right of making a representation. He has also submitted that the petitioner has to show as to in what manner he has been prejudiced on account of the copies being not legible. He has further submitted that the petitioner has failed to indicate any prejudice caused to him and thus prayed that this submission may be rejected.
(15) It is not disputed that the documents which have been found to be illegible are those which were relied upon by the detaining authority for subjective satisfaction against the petitioner These are, thus, the relied upon documents which were required to be furnished to the petitioner Along with the grounds of detention. Can we in these circumstances, say that these has been a compliance of this mandatory provision of supplying the relied upon documents to the petitioner. Then answer would obviously be in negative. It is not a case where the petitioner was asking for the copies of the documents which are only referred to and not actually relied upon. In such circumstances, there could be an argument that the petitioner is required to indicate in which manner he has been prejudiced. The case Kamarunnisa v. Uoi and another. Judgments Today 1990 (4) SC 7 relied upon by the learned counsel for the .respondent, thus, cannot be applicable to the facts of this case. In the said judgment the question was with regard to supply of documents referred to but not relied upon. It was in these circumstances, that the Supreme Court concluded that demand of any and every document merely because it is referred to in the grounds cannot vitiate the detention order and that detenu must indicate that failure to supply the documents had impaired his right to make an effective and purposeful representation.
(16) It is the admitted case of the respondents that the documents were necessary to be considered by the detaining authority and that was the reason that all these documents were relied upon for coming to a subjective satisfaction by the detaining authority. The supply of illegible copies pari passu with the grounds of detention cannot be said to be a compliance with regard to the supply of documents and in the eyes of law it would be presumed that the documents which are illegible have in fact not been supplied. Thus there is a default on the part of the detaining authority in supplying the relied upon documents and thus, the petitioner has been deprived of his right of making an effective representation against the order of detention. On this ground the order of detention cannot be sustained. I find support for this view from the case Bhupinder Singh v. Union of India and another 1987 SCC (Cri) 328. The aforesaid case has been followed by the Supreme Court in Criminal Appeal No. 258/89 Smt. Dharmista Bhagat v. State of Karnataka and another, decided on 7-4-1990. These judgment have been followed by various courts in India including this Court in numerous cases and reference can be made in this regard to the case Vijay Bhawsingh v. U.O.I. and others. Criminal Writ No 240/89 decided by a Division Bench of this Court on 15-9-1989, a Criminal Writ No. 75-76/90. Musharaf v. U.O.I. and others, decided on 23-7-1990.
(17) In the circumstances, discussed above I have no hesitation in coming to the conclusion that the petitioner was not served with legible copies pari passu with the grounds of detention and legible copies were supplied only on 12-1 1-1990 while the order of confirmation had been passed on 24-9-1990 after receiving the report of the Advisory Board. There has, thus, been violation of the provision contained in Article 22(5) of the Constitution of India and so the order of detention is liable to be quashed.
(18) As a result the petition is allowed, rule is made absolute. Order of detention dated 1-8-1990 is quashed. The petitioner is ordered to be released forthwith, if not required in any other case.