Rakesh Kumar Agarwal vs State of U.P.& Ors.

M. K. Mukherji, C. J.

Pursuant to an order of detention made by the State Government under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on July 8, 1991, the petitioner has been detained with a view to preventing him from smuggling goods and transporting, concealing and keeping smuggled goods. Aggrieved thereby, he has filed this petition under Article 226 of the Constitution of India seeking a Writ of Habeas Corpus. The basic facts constituting the grounds of detention need not be stated as the petition must succeed for noncompliance of Constitutional requirement.

Un controvertible and un controverted facts placed before us indicate that immediately after being detained the petitioner sent a letter to the Home Secretary of the State Government on 2971991 Annexure3 to the writ petition which was received by his office on August 3, 1991, wherein he stated that certain documents, which were annexed to the grounds of detention served upon him, were in English and as he did not know English, Hindi translations of those documents might be furnished to him to enable him to make an effective representation. A list of those documents were also detailed therein. We further find that he renewed his request on August 6, 1991 by sending a similar letter (Annexure4 to the writ petition), which was admittedly received on August 8, 1991. The request was not heeded to; and, on the contrary, treating those letters as representations made by the petitioner against his detention, the State Government rejected the same.

It is true law that a detenu has a constitutional right of making an effective representation against his detention and in that context, the petitioner should have been given copies of those documents which he asked for. It was, however, submitted on behalf of the respondent State, relying upon certain averments made in the counteraffidavit filed by the detaining authority, that the contemporaneous records indicated that the detenu knew English and as such copies of documents asked for by him in the two letters referred to earlier were not given to him. We would have appreciated the above contention of the detaining authority if it had replied to the letters of the detenu and pointed out to him that his requests were unjustified and asked him to make an effective representation on the basis of documents already supplied to him. Instead of so doing, the detaining authority took the above quoted two letters of the detenu as his representations which were admittedly not his representations as in those letters the petitioner asked for Hindi "copies of certain documents specifically stating that those were required by him to make an effective representation. That necessarily means that the petitioner was deprived of his right of making an effective representation.

On the conclusion as above, we allow this petition and direct that the petitioner be released forthwith unless he is wanted in any other case.

A copy of the operative part of this order may be given today to the learned counsel for the petitioner on payment of usual charges.