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Judgment
P. Sathasivam, J.—Son of the detenu-Mohammed Ali challenges the detention order of the first respondent dated 15-2-2001, passed under
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (''COFEPOSA'' in short) in this petition. The detenu-Mohammed
Ali was a passenger intending to go to Kuala Lumpur by Air India flight. He was intercepted by Customs Officer. From his checked in baggage
US Dollars 11700 equivalent to Rs.5,22,240/- was recovered. They have also claimed to have recovered Indian currencies of Rs.1 lakh and they
were seized. A statement was recorded from the detenu to the effect that he is a licensed manpower consultant that the licence was granted by
Ministry of Labour of Central Government, that he had won a contract with M/s. W.R.P. Company, Malaysia to send as many 747 workers, that
he had already sent 40 workers. For the next batch, he had collected Rs.17,000/- from each to meet the expenses like visa, medical check up,
initial payment to provident fund, etc., and when he was taking the currencies, he was apprehended, arrested and remanded to custody.
The detention order was passed to prevent the detenu from smuggling goods. The detenu filed a writ petition before this Court seeking an order
not to detain him under COFEPOSA. The said writ petition was dismissed by this Court and ultimately, in SLP by an order dated 13-10-2003,
the Honourable Supreme Court passed an order permitting withdrawal of his SLP with liberty to raise all grounds after surrender. Thereafter, on
21-10-2003, the detenu surrendered before the Additional Chief Metropolitan Magistrate, Economic Offences-I, Egmore, Chennai. He was
remanded in pursuance of the order of the Supreme Court.
Heard Mr. B. Kumar, learned senior counsel for the petitioner, Mr. A. Navaneethakrishnan, learned Additional Public Prosecutor for first
respondent and Mrs. Vanathi Srinivasan, Additional Central Government Standing counsel for 2nd respondent.
Though several contentions have been raised challenging the impugned order of detention, Mr. B. Kumar, learned senior counsel for the
petitioner at the foremost, contended that a legible copy of remand order dated 10-12-2000, a relied upon document by the detaining authority,
was not furnished to the detenu which prevented him in making effective representation and infringes the right guaranteed under Article 22(5) of the
Constitution of India. In support of his contention, straight away he took us to the relevant portion supplied to the detenu. It is seen that the
sponsoring authority-Superintendent of Customs, Prosecution Unit (AIR), Customs House, Chennai-1 filed an application before the Additional
Chief Metropolitan Magistrate-E.O.1, Egmore, Chennai seeking an order to remand the detenu to judicial custody. The said application is dated
10-12-2000. On the same day, the learned Additional Chief Metropolitan Magistrate-E.O.I, Egmore, Chennai, passed an order remanding him to
judicial custody till 22-12-2000. The application of the Superintendent of Customs and the order of the learned Additional Chief Metropolitan
Magistrate dated 10-12-2000 finds a place at pages 55,56, and 57 of the paper book supplied to the detenu. By drawing our attention to the said
order of remand dated 10-12-2000, Mr. B. Kumar, learned senior counsel, would contend that inasmuch as the said document is a relied upon
document by the detaining authority, the detenu is entitled to a legible copy of the same to make an effective representation. According to him, the
said order, which is a hand-written order passed by the learned Judicial Officer, is not legible and readable. In the light of the said objection, we
also perused the copy of the said order furnished to the detenu, and placed before this Court as well as the copy of the same available with the
Additional Public Prosecutor. The hand written order dated 10-12-2000 is not legible and readable. Though learned Additional Public Prosecutor
is in a position to read one or two sentences here and there, admittedly he could not able to read the entire order. Para 1 sub-clause (iv) of the
grounds of detention refers to the remand order of Additional Chief Metropolitan Magistrate dated 10-12-2000. The following reference found in
that paragraph is extracted hereunder:
Para 1(iv) Accordingly, you were arrested on 10-12-2000 by the Customs Department and produced before the Addl. C.M.M.,E.O.1, Chennai
at his residence who remanded you to judicial custody till 22-12-2000. At the time of remand you have not made any complaint against the
officers and you told that 1000 Dollars of Basic dollar Quota was also seized by the Official. Your passports are ordered to be retained in the
Court.
The remand order is not a referred document. On the other hand, undoubtedly, it is a relied upon document by the detaining authority while passing
the order of detention. In such a circumstance, the detenu is entitled not only a copy of the said order, but the same must be legible and readable in
order to make effective representation to the concerned authority.
It is also brought to our notice that after knowing that the remand order supplied to the detenu is not legible, the detenu himself made a
representation from Central Prison, Chennai-3 on 18-11-2003 to the Government requesting for supply of clean readable copies of pages 54, 57,
62, 63 and 64 of the documents. Unfortunately, the Government in their letter dated 3-12-2003, sent a reply to the detenu stating that only clear
copies of the above pages have been supplied to him. We have already referred to the difficulties expressed by the learned Additional Public
Prosecutor in reading the copy of the order dated 10-12-2000 supplied to the detenu. In spite of best efforts, we also could not read the entire
order. As rightly argued by the learned senior counsel for the petitioner, even persons conversant with this subject are not in a position to read the
order of remand which is a relied upon document; hence it would be difficult for a person like detenu to read and understand the illegible copy in
order to make an effective representation. It is worthwhile to refer the decision of the supreme Court in Dharmista Bhagat v. State of Karnataka,
reported in 1990 Supreme Court Cases (Cri) 39. While considering non-supply of legible, vital document in spite of the request made, after
referring to Article 22(5) of the Constitution of India, Their Lordships have held: (para 5)
5....Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which
had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list
of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as
well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e. panchnama dated February 12, 1988 in spite
of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa Vs. State of
Maharashtra, has observed that: (SCC p.710)
The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of
the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention, as has been held by this Court in the
two cases cited by counsel. The detenu is, therefore, entitled to be released. He is accordingly directed to be released forthwith.
We have already held that the remand order dated 10-12-2000 supplied to the detenu is illegible and in spite of his request for supply of a clean
and readable copy thereof, the same was turned down by the Government which cannot be accepted. We are satisfied that the detenu was denied
the opportunity of making effective representation and as such, there was a clear contravention of the right guaranteed by Article 22(5) of the
Constitution. The order of detention is, therefore, set aside and the petition is allowed. The detenu is directed to be set at liberty forthwith from the
custody unless his detention is required for any other cause.
Before parting with this case, we are constrained to express our displeasure that most of the Remand or Remand Extension orders passed by
the Judicial Officers happen to be hand written orders and they are not legible and readable. We are aware of the fact that the accused persons are
often being taken to the residences of the Judicial Officers even at late hours for the purpose of getting remand and they may not have sufficient
assistance to get their orders typed. However, it is relevant to note that in matters pertaining to arrest and preventive detention etc., the remand
order is very much relied on by the detaining authority. In such a circumstance, the accused/detenus are entitled copy of the same and it should be
legible and readable, otherwise it will not serve any purpose. One cannot think or presume that furnishing of such copy of order is an empty
formality in order to mere comply with the statutory provisions of law. In this case, the remand order is a hand written order passed by the
Additional Chief Metropolitan Magistrate, E.O.1. The Judicial Officers make sure that the Remand or Remand Extension orders are legible and
readable, even if they are hand written ones. Unfortunately, neither the detaining authority nor the persons who assisted the authority nor the
Government had taken care to furnish legible and readable copy to the detenu, who is not only an aggrieved person, but also entitled the same as
per law. At least, on receipt of the representation from the detenu, the authority concerned should have taken some efforts to secure a legible copy
with the assistance of the judicial officer concerned. We hope and expect that all judicial officers, particularly those who are dealing with criminal
matters while passing the order of remand or extending the remand, ensure that their orders are legible and readable.