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Judgment
Vishnu Sahai, J.—Through this petition preferred under Article 226 of the Constitution of India the Petitioner - detenu, has impugned the detention order dated 12th May, 1999 passed by the 1st Respondent Mr. R.H. Mendonca, Commissioner of Police, Greater Mumbai, detaining him under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (No. LV of 1981)(Amendment 1996).
The detention order along with the grounds of detention also dated May 29, 1999, was served on the Petitioner - detenu on July 6, 1999. True copies of the detention order and the grounds of detention are annexed as Annexures "A" and "B" respectively to this writ petition.
We have heard learned Counsel for the parties. Although Mr. U.N. Tripathi learned Counsel for the Petitioner has pleaded a large number of grounds in the petition running from grounds 8A to 8H but since, in our view, this Petition deserves to succeed on ground 8F of the Petition we are not adverting to the other grounds of challenge and to the prejudicial activities of the petitioner - detenu contained in the grounds of detention which have necessitated the issuance of the impugned order.
Ground 8F in short is that a number of documents which were wholly and / or, partly illegible and thus not readable were supplied to the petitioner - detenu and hence his right to make a representation under Article 22(5) of the Constitution of India was impaired.
In the contention of Mr. Tripathi one such document was copy of the bail application of the Petitioner detenu, moved in C.R. No. 564/98 of Mahim Police Station u/s 399/402 of the I.P.C. read with Section 4(26) of the of the Indian Arms Act, read with Section 37(a) of the Bombay Police Act, Mr. Tripathi urged that the said C.R., as is apparent from para 4(a) to para 4(iii) of the grounds of detention, is one of the grounds on which the impugned detention order is founded.
Mr. S.G. Deshmukh learned Counsel for the respondents does not dispute that the copy of the said bail application is practically wholly illegible and the said C.R. is a ground of detention.
In such a factual matrix the inescapable conclusion is that copy of a vital document which was more or less practically illegible was supplied to the Petitioner detenu. This being the position in our judgment, Mr. Tripathi is justified in canvassing that the Petitioner detenu was deprived of his right of making an effective representation.
There is another reason as to why this petition deserves to be allowed. It is common ground between counsel for the parties that when the impugned detention order was passed the Petitioner detenu was on bail in C.R. No. 564/98 of Mahim Police Station referred to above.
The Supreme Court in paragraph 12(6) of the decision in Abdul Sathar Ibrahim Manik Vs. Union of India and others, observed as under:
12(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the Detaining Authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
A perusal of the paragraph 12(6) extracted from Abdul Sathar Ibrahim Manik Vs. Union of India and others, would show that if the detenu is on bail at the time of the passing of the detention order then copy of the bail application should be supplied to him. This is obviously because bail application is a vital document and the detenu is entitled to copies of vital documents so that he can make an effective representation under Article 22(5) of the Constitution of India.
On dictates of a common sense we feel no hesitation in concluding that when in para 12(6) of Abdul Sathar Ibrahim Manik Vs. Union of India and others, the Supreme Court held that if the detenu was on bail, at the time of the passing of the detention order, copy of the bail application should be supplied to him, it obviously meant that the said copy should be a legible copy and we say this because if the copy furnished is not a legible one the detenu''s right to make a representation under Article 22(5) of the Constitution of India; would be relegated to an illusory one and cease to be an effective right.
It is true that Article 22(5) of the Constitution of India only gives the detenu the earliest opportunity of making a representation against a impugned detention order but it is implicit that the expression representation'' used in the said Article envisages of an effective representation and not an illusory one. And to repeat when copy of a vital document which is practically illegible is supplied to the detenu his right of making an effective representation is relegated to an illusory one.
We accordingly allow this petition; quash the impugned detention order; direct that the Petitioner detenu Ajju @ Hajidali Sabdarali Mirza Baig be released forthwith unless wanted in some other case; and make the rule absolute.