The Kerala High Court in Nushath Koyamu v. Union of India & Ors. observed that failure to supply the documents which were relied upon by the detaining authority for arriving at the subjective satisfaction to pass the detention order affects the rights of the detenus under Article 22(5) of the Constitution of India, particularly when they specifically requested for them.
Expressing concern the Court observed that "Inspite of a specific request, as seen from Ext. P12 in the above cases, we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been an infraction of the right of the detenus to make an effective representation seeking release."
The Court also referred to the decision of the Supreme Court in Atma Ram Vaidya v. State of Bombay wherein it was observed that:
10. “To put, it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage. The grounds may have been considered sufficient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to
him. In our opinion, this appears to be the true measure of the procedural rights of the detained person under Article 22 (5).”
12 . “The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. In our opinion, it is therefore clear that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have the earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity”.
The Court, therefore, quashed the detention of the detenus in the instant case.