Case Note & Summary
The petitioner, Mohd. Shakil Khan, uncle of the detenu Nadeem Shaikh, filed a writ petition under Article 226 of the Constitution of India challenging a detention order dated 25/10/2011 passed by the Principal Secretary to the Government of Maharashtra, Home Department, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detention order was served on the detenu on 29/10/2011 along with the grounds of detention and a list of documents. The grounds of detention mentioned that the detenu was released on bail in connection with certain offences, but the bail order was not supplied to him. The petitioner contended that the non-supply of the bail order violated the detenu's right to make an effective representation under Article 22(5) of the Constitution. The respondents argued that the bail order was not relied upon and was only a recital of facts. The Court examined the grounds and found that the fact of bail was a relevant circumstance considered by the detaining authority. The Court held that the bail order was a vital document necessary for the detenu to make an effective representation, and its non-supply amounted to a violation of Article 22(5). The Court quashed and set aside the detention order and directed the detenu to be set at liberty forthwith unless required in any other case.
Headnote
A) Preventive Detention - Right to Make Effective Representation - Article 22(5) of Constitution of India - Non-Supply of Bail Order - The detenu was detained under Section 3(1) of COFEPOSA Act, 1974. The grounds of detention referred to the fact that the detenu was released on bail, but the bail order was not supplied to him. The Court held that the bail order was a vital document necessary for the detenu to make an effective representation, and its non-supply violated Article 22(5). The detention order was quashed and set aside. (Paras 6-10) B) Preventive Detention - Safeguards - Article 22(5) of Constitution of India - Duty of Detaining Authority - The detaining authority must supply all documents relied upon in the grounds of detention to enable the detenu to make an effective representation. Failure to do so vitiates the detention order. (Paras 6-10)
Issue of Consideration
Whether the failure to supply a copy of the bail order to the detenu along with the grounds of detention violates his right to make an effective representation under Article 22(5) of the Constitution of India, thereby rendering the detention order invalid.
Final Decision
The Court allowed the petition, quashed and set aside the detention order dated 25/10/2011, and directed that the detenu be set at liberty forthwith unless required in any other case.
Law Points
- Right to make effective representation under Article 22(5)
- Non-supply of vital document vitiates detention
- COFEPOSA Act Section 3(1)
- Preventive detention safeguards
