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Judgment
The complaint of the petitioner is that the remand order, the copy of which was sought for by the detenue in her representation was not supplied,
that it was not supplied is not disputed. It is however contended by the learned Additional Public Prosecutor that it is open to the detaining
authority to base his subjective satisfaction on the special report submitted by the sponsoring authority which sets out the fact of remand, and that
in this case, the detaining authority had based his subjective satisfaction on such special report. While it may be open to the detaining authority to
form his subjective satisfaction on materials, which he considers to be credible, that does not preclude the detenue from seeking documents which
are necessary for the purpose of making an effective representation. The fact that the detaining authority had not relied upon the documents sought
by the detenu does not cloth the detaining authority with the right now to furnish such documents.
As to whether the document which was not relied upon by the detaining authority has to be regarded as necessary for the purpose of making an
effective representation is always a question of fact.
In this case, the detaining authority made his order by taking note of the fact that the detenu was on remand. That fact he gathered from a
persual of the special report prepared by the sponsoring authority. It cannot of course be said that the detaining authority was in error in doing so.
It was open to him to act on such a report which he considered as reliable.
However, when the detenue sought the copy of the remand order in order to make an effective representation, there was a duty cast on the
authorities to furnish that order, as it is well known that the remand order is not only a judicial order, but one which would contain the complaint if
any made by the detenue at the time of the detenu''s production before the Magistrate regarding the ill treatment ,if any, suffered by the detenue at
the hands of the sponsoring authority. The fact that any such complaint had been made can only be established by the production of the remand
order. That fact cannot be expected to be gathered from the special report which may or may not correctly set out, all that had transpired at the
time the remand was ordered.
If the detenue considered it necessary to secure the copy of the remand order for the purpose of demonstrating that the special report had
omitted to state certain things contained in the remand order, especially regarding the complaint about the ill treatment of the detenue, such order
will have to be regarded as a document which is necessary for the purpose of enabling the detenue to make an effective representation. Non
supply of such copy would prejudice the detenue.
It has been repeatedly held by the Apex Court that the rights conferred on the detenue regarding the grounds of detention, and the right to make
an effective representation, are rights which are to be zealously safeguard, as the subjective satisfaction arrived at by the detaining authority is not
open for examination by the Court, unless it is found to be wholly unsupported by any material. The detaining authority, therefore, cannot on the
basis of his own assessment as to which document should be furnished, and which should not be furnished, deny to the detenue the document
which is necessary for the purpose of enabling the detenue to make an effective representation.
The continued detention of the detenue in this case, therefore, cannot be considered as a legal, after the detenue''s right to make an effective
representation had been prejudiced by reason of non supply of remand order which had been sought by the detenue and which had been wrongly
refused to be supplied by the detaining authority.
We, therefore, allow this writ petition and direct the detaining authority to set the detenue at liberty forthwith, unless his continuance in custody is
required in any other case.