LexKAMARUNNISSA ETC. ETC. versus UNION OF INDIA AND ORS.
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KAMARUNNISSA ETC. ETC. A v. UNION OF INDIA AND ORS. SEPTEMBER 14, 1990 [A.M. AHMADI AND S.C. AGRAWAL, JJ.] B Preventive Detention: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3-Detention order-Can be passed against the person in custodv-Non-supply of documents on demand-No hard and fast rule can be laid down- Detenu must show that non-supply of documents has impaired his right C to make an effective and purposeful representation. Declaration-Non-supply of documents-If documents-Relied upon for the purpose of declaration are same as supplied to the detenu alongwith the detention order-It is unnecessary to supply these afresh. Detention Order-Detenu in custody-Subjective satisfaction- Detenu charged with 'bailable' offence-Whether expression 'bailable' used in the grounds of detention disclosed non-application of mind? Context in which expression 'bailable' was used it cannot be said that there was non-application of mind. . The petitioners are the wives of three detenus who had been detained under an order dated 10th November, 1989 passed under sub- section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against each of them with a view to preventing them from smuggling goods' - The order of detention D E ·as well as the grounds of detention dated November IO, 1989 were F served on the three detenus on 21st November, 1989 while they were already in jail custody on remand following their arrest at the Sahar International Airport on October 5, 1989 when on suspicion they were searched which resulted in the recovery of diamonds, precious stones and foreign currency which they had planned to smuggle out. Thereafter on December 20, 1989 a declaration under section 9(1) of the Act was G passed in respect of each detenu which was served on them within the time allowed by law_ Thereupon the wives of all the three detenus filed separate habeas corpus writ petitions in the High Court of Bombay. Four contentions .were raised before the High Court namely, (I) since the detenus were in custody their detention was unwarranted; (2) the detaining authori.ty had betrayed non-application of mind by describing H 4:57 A B c D E 458 SUPREME COURT REPORTS [ 1990] Supp. 1 S.C.R. the offence as 'bailable'; (3) the representation of the detenus dated 18th December, 1989 had not been disposed of promptly and there was inordinate delay; and (4) the authorities had failed to supply certain crucial documents called for by the detenus thereby depriving them of the opportunity of making an effective representation. The High Court negatived all the contentions and dismissed the writ petitions. Against that the wives of the detenus have filed Special Leave Peti· tions and also separate writ petitions under Article 32 of the Constitu- tion raising several contentions including those negatived by the High Court. Dismissing all the Special Leave Petitions and Writ Petitions and upholding the view taken by the High Court this, Court, HELD: Even in the case of a person in custody a detention order can validly be passed (I) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. [278F ·G] It is not sufficient to say that the detenu was not supplied the copies of the documents in time on demand but it must further be shown that non-supply has impaired the detenu's right to make an effective and purposeful representation. [281B I Demand of any and every document, however irrelevant it may be, merely on the ground that there 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 F the detenu must show that failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right, however slight or insingificant it may be. [281B·Cl Vijay Narain Singh v. State of Bihar, [1984] 3 S.C.C. 14; Dharmendra Suganchand Chelawat v. Union of India, [1990) I S.C.C. G 746; Ra
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