MAHESH GOPE v. STATE OF BIHAR

Heard learned counsel for the petitioner and learned counsel for the State. The petitioner has challenged his detention u/s 12 (2) of the Bihar Control of Crimes Act, 1981 vide, impugned order of District Magistrate, Patna, dated 09.07.2008. The main ground of challenge to the detention of petitioner is an admitted fact that petitioner was not supplied documents relating to two cases which have been separately mentioned as constituting criminal antecedents of the petitioner. Some other cases which have been mentioned as grounds of detention are dealt with separately in the order of detention and documents relating to those cases have admittedly been supplied to the petitioner. Learned counsel for the petitioner has submitted on the basis of some judgments of the Supreme Court that if documents relating to material facts considered by the authorities for the purpose of detention are not supplied then the detenu is prevented from making an effective representation and the order of detention would, therefore, stand vitiated. On the other hand learned counsel for the State has - 2 - submitted that the legal position in respect of aforesaid submission is clear from a recent judgement of the Hon’ble Supreme Court in the case of State of Tamilnadu & Anr. Vs Abdullah Kadher Batcha & Anr, 2009 (1), PLJR, SC 51. In this judgement the Apex Court has taken note of earlier judgements in the case of Radhakrishnan Prabhakaran Vs State of Tamilnadu & Others, 2000 (9) SCC 170 as well as in the case of J. Abdul Hakeem Vs State of Tamilnadu & others, 2005 (7) SCC 70 and in the case of Sunila Jain Vs Union of India & Anr. 2006 (3) SCC 321. Thereafter it has been held as follows:- “ 6. The court has a duty to see whether the non- supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/or whether non-supply was prejudicial to the detenu. Merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents.

While examining whether non-supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. ” The aforesaid discussion and observation of the Supreme Court makes it clear that there is distinction between non-supply of document which would prejudice a detenu in making an effective representation and other kinds of documents which are merely referred to for the purpose of narration of facts. In the present case the order of - 3 - detention is clear and categorical in disclosing that the grounds of detention are only two incidents leading to two substantive cases and the documents relating to those two cases have been supplied to the detenu. The narration of fact that the detenu has some criminal antecedents contains reference to two other cases. Without even assailing the cases cited merely as criminal antecedents petitioner was apparently in a position to make an effective representation against the order of detention which gives out clearly that only two grounds have been used for his detention. Hence considering the actual order passed in this case and applying the principle of prejudice, we find that non- supply of papers on some facts mentioned as narrative have not caused any prejudice to the petitioner and he has not been deprived of making an effective representation against his detention in the absence of those documents. His representation would be quite effective if he could successfully challenge the two grounds mentioned as ground of detention in the impugned order. No other ground has been urged on behalf of the petitioner. In view of aforesaid discussions and findings, we find no merit in the writ application. It is, accordingly, dismissed. (Shiva Kirti Singh,J.) BKS/ (J. N. Singh, J.)