S.B. Sinha, J.
1. This application for Issuance of a writ of or in the nature of Habeas Corpus has been filed for quashing of an order of detention dated 16.6.99 passed by the Joint Secretary to the Government of India, Ministry of Finance Department of Revenue in terms of provisions of section 3(1) of the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to for the sake of brevity as the 'said Act').
2. Before considering the matter on merit, we may refer to the following chronological events.
3. The petitioner was arrested by the Detective Department, Calcutta Police on an allegation that he was carrying cash of Rs. 35.300/- in Case No. 18 dated 24.1.97 under section 21/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner was granted ball on 8.8.97. According to the petitioner, he and his wife was arrested from their house at Dum Dum by the Narcotic Control Bureau on 8.11.98 and as they were not produced before an appropriate Court, they filed two applications on 9.11.98 and 11.11.98 one before the learned 12th Additional District and Sessions Judge, Alipore and another before the learned Special Judge, whereupon the learned Special Judge made an order on 9.11.98 directing that a proper application be made before a proper forum. The petitioner in connection with the earlier caes was to appear before the learned Special Judge at Alipore on 11.11.98 and on that date again an application was filed stating that he had already been arrested by the police and therefore, was unable to appear. On 12.11.98 the petitioner was produced in connection with N.D.P.S. Case No. 42 of 1998 and he was released on bail on 8.1.99 by the learned City Sessions Court acting as Special Judge. The petitioner had appear before the said Court on 21.1.99. Admittedly, an application for cancellation of ball in terms of section 439(2) of the Code of Criminal Procedure is pending consideration before this Court. The Zonal Director, attached to the Directorate General, Narcotic Control Bureau madea proposal on 26.2.99 for the detention of the petitioner. Inter alia, stating, 'Please find enclosed a proposal in ten sets for detention of Jamat All Mondal @ Tapan Das @ Mejo, who was arrested with 1 kg. of Heroin on 11.11.98 on Strand Road, Calcutta, opposite to the office of Shipping Corporation of India, Calcutta. The proposal contains a compendium, history sheet and information under specific proforma. The proposed under-detenu is at present on ball. in earlier occasion also, he managed to get bail in the another case of 2.4 kgs. of heroin booked by Calcutta Police. it is, therefore, necessary to detain him under P1TNDPS Act in order to prevent him from Illicit trafficking in narcotic drugs. There is every possibility of his absconding. Along with the said letter information in specific pro forma had been given wherein it was alleged, 'Persuant to a specific Information, officers of NCB, Calcutta seized 1 kg. Heroin recovered from the side box of black coloured YAMAHA motorcycle bearing No. WB-01-L-4175 of Jamat All Mondal. The above Jamat All Mondal was intercepted on Strand Road opposite to Shipping Corporation and search was conducted by I.O., of NCB in presence of Gazetted Officer and two independent witnesses on the spot. Sri Jamat All Mondal in his voluntary statement confessed the recovery of Heroin from his possession..... in hiswritten statement, he confessed that, he was engaged in this business from five years back-14. Language or script known to the proposed detenu Bengali-15. Jail, where to be detained, if so, accepted : Presidency Jail, Alipore Calcutta (W.B.)'
4. The authority issued the order of detention on 16.6.99 which was served upon the petitioner on 2.7.99. On 3rd July, 1999, the petitioner had again filed an application stating that he had been arrested without assigning any reason. A similar application was again filed on 5.7.99 before the learned Special Judge. The detaining authority allegedly served the grounds of detention on 2.7.99 along with the ground of detention and some documents and admittedly the remaining documents were served on 15.7.99. in this connection the detaining authority in his affidavit-in-opposition stated-
The statements made in paragraph 1A of the petition are partly matters of record and partly allegations. Save and except what are matters of record and unless expressly admitted hereinafter all allegations, statements and submissions made therein are denied and disputed. it is categorically denied that on 2.7.99 at the time of arrest no order of detention along with the grounds of arrest has been served upon the petitioner. The order of detention was served upon the petitioner on July 2, 1999 then and there on the spot after he was apprehended strictly in accordance with law. Immediately thereafter on the same day i.e. on July 2, 1999 the grounds of detention was served upon the petitioner and along with the grounds of detention all the documents relied upon and on which the order of detention was based were supplied to him. On July 15, 1999 the English translated copy of the voluntary statement of the petitioner recorded on November 11,1998, the Bengali translated copy of the petition of complaint, the copy of the application for cancellation of ball moved on behalf of NCB at Calcutta High Court against the petitioner and its Bengali translated copy were supplied tothe petitioner, when the reasons were duly recorded in writing in terms of section 3(3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. However, the copy of the voluntary statement of the petitioner recorded on November 11, 1999 in Bengali and the copy of the complaint were supplied to the detenu/petitioner immediately after his detention on July 2, 1999 along with the grounds of arrest and the copies of the relief upon documents. I further categorically deny that the detention order is illegal. I state that neither the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1985 nor Article 22(5) of the Constitution envisages granting of opportunity to a detenu to make representation before the execution of detention order as such on the allegations of not granting any opportunity to make representation at the pre-detention stage the order of detention does not stand vitiated. I categorically deny that there is any inordinate delay in executing detention order. The detention order was issued on June 16, 1999 soon thereafter the same was executed on July 2, 1999 within a period of 2 weeks, in the meantime genuine efforts were made to serve the order of detention upon the petitioner but he was not available. I categorically deny that there had been unlawful detention and the detenu/petitioner has been deprived of his liberty without the authority of law and the grounds of detention are baseless, concocted, motivated and there was no fresh cause of action for which the prevention order was passed and such order is not specific and are vague, concocted, baseless and while issuing the detention order no legal formalities were followed. I state in the Instant writ application the detenu/petitioner has failed to make out any case, even remotely, showing violation of the constitutional safeguards embodied in Article 22(5) of the Constitution.'
5. The detenu had made three different representations to three different authorities on 30th July, 1999; but whereas the detaining authority rejected the said representation on 23.8.99, the Central Government rejected thesaid representation on 25.8.99.
6. Mr. Ghosh, learned senior counsel appearing on behalf of the petitioner, had raised several contentions in support of this application, but having regard to the one of the grounds, we are of the opinion that it is not necessary to consider all the questions raised at the Bar. Admittedly, along with the grounds of detention, 8 documents have not been supplied which are as follows :--
1. Bengali version of the proposal of which the English version is at page 7.
2. Bengali version of information--English version-Page 8
3. Bengali version of History sheet--English version-Page 10
4. Bengali version of compendium--English version-Page 11 to 13
5. Bengali version of petition dated 9.11.98--English version-Pages 43 to 45
6. Bengali version of order dated 9.11.98---English version-Page 46-47
7. Bengali version of order dated 11.11.98--English version Page 48
8. Bengali version of petition dated 11.11.98--English version Page 49
whereas some documents have been supplied after service of the order of detention as admitted in paragraph 5 of the affidavit-in-opposition (supra), which are--(a) purported statement of the detenu recorded on 11.11.98, (b) Bengali version of the petition of complaint; (c) Copy of the application for cancellation of bail and (d) Bengali translation of the application for cancellation of bail. it further appears that one document being bail petition dated 8.1.99 which is at pages 38 to 48 is Illegible. The question which arises for consideration is as to whether the said documents ought to have been supplied to the detenu at all or noT.
7. According to the learned counsel appearing on behalf of the respondent Union of India, Items No. 1 to 4 mentioned hereinbefore are not the documents whereupon the detaining authority relied upon. The learned counsel, however, admits that items No.5 to 8 which were annexures to the bail application dated 8.1.99 had not been supplied. When questioned, the learned counsel while conceding that the translated copy of the annexures appended to the application for bail, whereupon reliance has been placed by the detaining authority in his order of detention, inter alia, submitted that as the petitioner had all along been aware of the contents of the said documents as would appear from his application for ball which is at page 38 of the paper book, substance whereof had been disclosed. The learned counsel in support of his aforementioned contention has placed strong reliance upon a decision of the Apex Court in Mst. L.M.S. Umma Saleema v. B.B. Gujaral and anr. reported in 1981 Crl LJ 889. On the otherhand, Mr. Ghosh, learned counsel appearing on behalf of the petitioner, relied upon Shalini Soni's case reported in : 1980CriLJ1487 , Kirti Kumar Chamanlal Kundaliya v. Union of India & Ors. reported in : [1981]2SCR718 . Kamala Kanyalal Khoshalani v. State of Maharashtra Anr. reported in : 1981CriLJ353 .
8. In view of several decisions of the Apex Court as also of this Court it has not been and could not be disputed that the documents are required to be supplied in a language which the detenu would be able to follow. Supply of such documents must be made Irrespective of the fact that the detunu is aware of the contents thereof. (See Ibrahim Ahmed Bhatti v. State of Gujarat & Ors. reported in : [1983]1SCR540 , Kubic Dorusz v. Union of India &Ors.; reported in : 1990CriLJ796 . Lallubhai Jogibhai Patti v. Union of India and Ors. reported in : 1981CriLJ288 , M. Ahmed Kutty v. Union of India reported in : 1990(47)ELT188(SC) and Amit Kumar Agarwall & Ors. v. Union of India reported in 1998 Cal Crl LR 109). Similar view has been taken by a Division Bench of this Court in 1996(2) CLJ 259.
9. The order of detention categorically shows that the application for bail filed by the petitioner had been relied upon as would appear from paragraph 6 of the grounds of detention. As indicated hereinbefore, even the detaining authority in the list of documents supplied to the detenu referred thereto as one of the documents upon which reliance has been placed by him. The only question which, therefore, arises for consideration is as to whether the detaining authority could supply a truncated document. Annexures appended to a document are part of the document, particularly, when such annexures disclose vital fact to the effect that the petitioner had in fact been arrested much prior to 11.11.98, i.e. on 8.11.98, whereupon orders havealso been passed on 9.11.98. The order of ball passed in favour of the petitioner If taken Into consideration together with the aforementioned vital document. In our opinion, could lead the concerned authority empowered to take a decision on the petitioner's representation to arrive at a finding that the detention of the petitioner was not Justified and/or otherwise has been made for unauthorised purposes. Apart from the fact that while supplying copies of the documents, the detaining authority is not only obliged to supply such documents, whereupon reliance has been placed by him and which would have a nexus with the right of the detenu to file effective representation, such documents must be complete in all regards and must also be legible. There is no dispute in this proposition that translated copy of such documents must also be supplied in a language which the detenu understands. As noticed hereinbefore, even in the Information slip appended with the proposal made by the Zonal Director his specific statement has been made that the language or script known to the detenu is Bengali. In Mst. LMS Ummu Saleema's case (supra), the Apex Court had no occasion to consider this aspect of the matter. The Apex Court in the fact of that case relying upon or on the basis of its earlier decision in Khudiram Das v. State of West Bengal reported in : [1975]2SCR832 , stated that the constitutional requirement under Article 22(5) was to be taken as Insistence that the basic fact and particulars which Influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. The Apex Court in several decisions as noticed hereinbefore, has categorically held that the question as to whether that any prejudice has been caused to the detenu and/or documents which had not been supplied were already known to him would be of no moment. Reference in this connection, maybe made to Mehrunissa v. State of Maharashtra reported in : 1981CriLJ1283 . M. Ahmed Kutty v. Union of India reported in : 1990(47)ELT188(SC) and Ab. Sathar Ibrahim Manik (reported in : 1991CriLJ3291 ).
10. Keeping in view the admitted fact that Bengali version of the Items No. 5 to 8 aforementioned had not been supplied, we are of the opinion that the order of detention cannot be sustained as it is well settled that history of liberty is history of procedural safeguard.
11. For the reasons aforementioned, we quash the order of detention dated 16.6.99 passed by the respondent No. 2 and direct that the petitioner be set at liberty forthwith, unless he is already in detention in connection with any other case.
Let this order be communicated to the Superintendent Presidency Jail, Calcutta, wherein the detenu is said to be in detention forthwith.
M.H.S. Ansari. J.
12. I agree.
13. Appeal allowed