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PETITIONER: SOPHIA GULAM MOHD. BHAM

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       13/08/1999

BENCH: S.Saghir Ahmad, D.P.Wadhwa

JUDGMENT:

                          J  U  D  G  M  E  N  T          S.SAGHIR AHMAD, J.

              Leave granted.

     This  appeal by Special Leave is directed against  the judgment  and  order dated 21st of January, 1999, passed  by the  Bombay  High Court, by which the Writ Petition  in  the nature of habeas corpus, preferred by the appellant, for the release of his brother Bham

     Faisal  Gulam  Mohammed, who was detained in  jail  in pursuance  of the order dated 24th February, 1998, passed by Shri  G.S.   Sandhu, Secretary, Government  of  Maharashtra, Home   Department  (Preventive   Detention),  Mumbai,  under Section  3(1)  of the Conservation of Foreign  Exchange  and Prevention  of  Smuggling Activities Act, 1974 (52 of  1974) (for  short, ’the Act’), was dismissed.  The detention order reads as under:-

     "No.   PSA 1097/89 SPL.3(A).- Whereas I, G.S.  Sandhu, Secretary  to the Government of Maharashtra, Home Department (Preventive  Detention),  specially empowered under  Section 3(1)  of the Conservation of Foreign Exchange and Prevention of  Smuggling  Activities  Act,  1974   (52  of  1974)  vide Government  Order,  Home  Department   (Special),  No.   PSA 2096/35/SPL.3(A), dated the 19th December 1996, am satisfied with  respect to the person known as Shri Bham Faisal  Gulam Mohammed  (Age  22  years) residing at 24,  Vasundra  Apts., Warden  Road,  Mumbai 400026 that with a view to  preventing him  in  future from smuggling of goods, it is necessary  to make the following order:

     In exercise of the powers conferred by section 3(1) of the  Conservation  of  Foreign Exchange  and  Prevention  of Smuggling Activities Act, 1974 (52 of 1974), I hereby direct that  the  said Shri Bham Faisal Gulam Mohammed be  detained under the COFEPOSA Act.

     2.   In  pursuanace  of the  Conservation  of  Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions  of  Detention) Order, 1974 read with  Government Order,  Home  Department No.  SB.III/ISA-3974(V), dated  the 18th  December, 1974, I hereby further direct that the  said Shri  Bham Faisal Gulam Mohammed shall be detained in Mumbai Central  Prison,  Mumbai,  for  one week from  the  date  of

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detention  and  in  the  Nasik Road  Central  Prison,  Nasik thereafter  and shall be subject to the conditions laid down in  the said Conservation of Foreign Exchange and Prevention of   Smuggling   Activities   (Maharashtra   Conditions   of Detention)  Order, 1974.  Sd/- ( G.S.  Sandhu ) Secretary to the  Government  of Maharashtra Home Department  (Preventive Detention) and Detaining Authority."

     The  grounds  of  detention as also  the  material  in support of these grounds were also supplied to the detenu on the  same day, namely, on 24th of February, 1998.  A list of the  copies of all documents (material) which were  supplied to  the  detenu  along  with the grounds  of  detention  was annexed  with  the  grounds.  This order  of  detention  was challenged  by  the present appellant, who is the sister  of the  detenu,  by  filing a Writ Petition in  the  nature  of habeas  corpus  in the Bombay High Court, but the  same,  as pointed   out  above,  was  dismissed.    It  is  in   these circumstances that the present appeal has been filed in this Court.

     It  appears that on 10.8.1997, the officers of the Air Intelligence  Unit  at Module I, Departure, Mumbai  Airport, intercepted  the detenu holding Indian Passport bearing  No. A-3491330 issued at Ahmedabad on 30-6-97 valid till 7-2-1998 and  also one old passport bearing No.  E-2059399 issued  at Bombay  in  his  name  on 8-2-1988.  The  detenu  was  found holding  a Cathay Pacific Airline Passenger’s ticket  issued in his name for the flight No.  CX-750 dated 10-8-97 BKK for the sector Mumbai-Bangkok, boarding No.  0281 Seat No.  31 H vide  ticket No.6296:077:461:2 issued on 1-8-97 and an  open ticket  bearing No.  6296:077:462:3 issued by Cathay Pacific for  the sector Bangkok to Yangon.  The detenu was found  to have  checked  in one Dark Blue Zipper suitcase bearing  tag No.  CX-437726.  The suitcase was found to have false bottom in  which one cardboard rectangular shaped packet was  found concealed.   The  examination of the packet resulted in  the recovery  of  90  polythene  packets  of  cut  and  polished Diamonds  of different shapes and colours, which were valued by the Government approved valuer at Rs.  2,43,63,096.25 LMV and  the same were seized on the reasonable belief that they were to be smuggled out of India.

     The matter was investigated by the Custom Authorities. During  the  course  of  the  investigation  by  the  Custom Authorities,  various  places  were searched.   One  of  the places  searched was the premises No.B/13, Sikkanagar,  V.P. Road,  Mumbai - 400 004.  Regarding search of this premises, it is stated in the grounds of detention as under:-

     "6.  The search of the premises No.  B/13, Sikkanagar, V.P.  Road, Mumbai - 400 004, was conducted on 11-8-97.  Mr. Pramod   was  not  available  at   the  premises,  but   Mr. Pravinchandra Haridas Jogi was available.  During the course of  the  search, a person by name Mr.  Mohammed Salim  Abdul Hameed  brought  Rs.  15,99,000/- to be handed over  to  Mr. Pramod.  The search resulted in recovery of Rs.  15,99,000/- under the reasonable belief that it may be the sale proceeds of  the Diamonds seized and documents:  1) Super Delux  Note Book  - pages (1) to (82) (2) Super Delux Note Book Page (1)

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to  (140) and 3) Loose Note Sheets Sr.No.  (1) to (42)  duly signed  by the panchas which were also seized as they may be useful  for the relevant proceedings under the Customs  Act, 1962."

     It was further stated in paras 13, 14 and 15 of

     the grounds of detention as under:-

     "13.   On  verification  of the  diaries  seized  vide panchnama   dt.    11.8.97  from   the  residence   of   Mr. Pravinchandra  Haridas Jogi.  It is revealed that there  are in  all  various transactions in the last many  years  worth many  crores  of  rupees  with  codes,  names  and  figures. However,  from  the  diaries  it  is  seen  that  there  are transactions  totally  over  50 lakhs each in the  last  few months in the names of Chhaganlal, Pratap Bhai, Yogesh Bhai, Ajmeri,  Mukesh Bhai and Noohu besides many more transaction of  over  2  to 5 lakhs each with Vinod  bhai,  Pradeepbhai, Pramodbhai,   Prakash,  Haribhai,   Kaushik  Bhai,  Praveen, Preeti, Danjibhai and Rajeev bhai and other.

     14.   In spite of repeated summons issued to  Mohamood Hussain,  Dinakar  Haridas Jogi, Pramod bhai, Ashra, so  far they  have  not  come forward to give the statements  or  to clarify the further details or extend their co- operation in the  investigation.  However, summons could not be served to Mr.   Ajmeri as the said place was found locked in spite  of various attempts.

     15.  From the record, it appears that Mr.  Dinakarbhai Jogi  is the King pin and along with Mr.  Pramod, Ajmeri and Noohu are the main financers and organisers of the smuggling activities."

     In para 18 of the grounds, it is stated as under :

     "18.  From the prevailing circumstances it is apparent that  you  have  knowingly  been working as  a  carrier  for persons  who were dealing in smuggling of goods.  I am aware that  you  are  on bail at present and I am  satisfied  that unless  detained  you  are likely to continue to  engage  in similar  prejudicial activities in future also and therefore it is necessary to detain you under the COFEPOSA Act, 1974."

     Learned  counsel appearing on behalf of the  appellant has  contended  that  a large number of documents  had  been seized  on the search of the premises No.  B/13, Sikkanagar, V.P.  Road, Mumbai - 400 004, conducted on 11.8.1997 and all these  documents were considered by the Detaining Authority, as  set  out  in  paras  13, 14 and 15  of  the  grounds  of detention  (reproduced above), but copies of those documents were  not  supplied  to the detenu with the result  that  an effective opportunity of hearing, as contemplated by Article 22(5)  of  the  Constitution,  was   not  provided  and  the

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detention order, for this reason, stands vitiated.

     We have already reproduced above the relevant paras of the  grounds of detention.  In para 6, it is clearly  stated that  premises  No.  B/13, Sikkanagar, V.P.  Road, Mumbai  - 400  004 was searched by the Custom Authorities on 11.8.1997 and  besides  the  recovery  of  a  sum  of  Rs.15,99,000/-, documents  (i)  Super Deluxe Note Book containing  82  pages (ii)  Super Deluxe Note Book containing 140 pages and  (iii) Loose Note Sheets Sr.No.  1-42 were seized.  These documents were  duly  signed  by the "Panches"  vide  Panchnama  dated 11.8.1997.   It was on the basis of these documents as  also on  a  consideration  of  the   other  documents,  that  the Detaining   Authority  came  to   the  conclusion  that  Mr. Dinakarbhai  Jogi was the kingpin while Mr.  Pramod,  Ajmeri and  Noohu  were the main financiers and organisers  of  the smuggling activities.  The detenu was treated as a "carrier" for  them.   Two Super Deluxe Diaries as also certain  loose sheets of papers seized from premises No.  B/13, Sikkanagar, V.P.   Road, Mumbai - 400 004 appear to have revealed to the Detaining  Authority the link between the aforesaid persons. These  documents  which  were considered  by  the  Detaining Authority  were,  therefore,  extremely   material  as  they constituted,  along  with other documents, the basis of  the satisfaction  of  the Detaining Authority that in  order  to prevent   the   detenu  from   carrying  on  his   smuggling activities, it was necessary to detain him under the Act.

     Admittedly, copies of the documents seized on a search of  the premises No.  B/13, Sikkanagar, V.P.  Road, Mumbai - 400  004  were  not  supplied to the  detenu  although  they constituted  extremely material document on a  consideration of  which  the Detaining Authority felt satisfied  that  the detention  of  the appellant’s brother, namely, Bham  Faisal Gulam  Mohammed  was  necessary and, therefore,  passed  the impugned order of detention under the Act.

     In paras 21, 22 and 23 of the grounds of detention, it was stated as under:-

     "21.   I  further inform you that you have a right  to make  a representation to the Detaining Authority against my Order  of  Detention.   Should  you  wish  to  make  such  a representation,  you  should address it to the Secretary  to the  Government of Maharashtra, Home Department  (Preventive Detention) and Detaining Authority, Mantralaya, Mumbai - 400 032,  through  the Superintendent of the Jail where you  are detained.

     22.   I  further inform you that you have a  right  to make representation to the State Government against my Order of Detention.  Should you wish to make such a representation you  should address it to the Hon’ble Deputy Chief  Minister (Home),   Mantralaya,   Mumbai  -   400  032,  through   the Superintendent  of  the  Jail where you  are  detained.   To facilitate  expeditious consideration of your representtion, you  may  request the Superintendent of Jail where  you  are detained  to forward your representation to the  undersigned so  that  the  Home Department can put up the  case  to  the Minister   along   with   your    representation   for   his

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consideration.

     23.   I further inform you that you have also a  right to  make a representation to the Central Government  against my  order  of detention and you may if you desire, make  the representation  and address it to the Secretary,  Government of  India, Ministry of Finance (Department of Revenue),  New Delhi, through the Superintendent of the Jail, where you are detained."

     The  detenu was thus informed that he has a right  not only  to  make a representation to the  Detaining  Authority against  the  order  of  detention but  also  to  the  State Government and the Central Government.

     Now,  an effective representation can be made  against the  order  of  detention only when copies of  the  material documents  which  were  considered and relied  upon  by  the Detaining   Authority  in  forming   his  opinion  that  the detention  of Bham Faisal Gulam Mohammed was necessary, were supplied  to him.  It is only when he has looked into  those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the  Detaining  Authority, State or Central  Government,  as laid  down  in  Article  22 (5) of  the  Constitution  which provides as under :

     "When  any person is detained in pursuance of an order made  under any law providing for preventive detention,  the authority  making  the  order  shall, as  soon  as  may  be, communicate  to  such person the grounds on which the  order has  been made and shall afford him the earliest opportunity of making a representation against the order."

     The  above will show that when a person is detained in pursuance  of an order made for preventive detention, he has to  be provided the grounds on which the order was made.  He has also to be afforded the earliest opportunity of making a representation  against  that order.  Both the  requirements have to be complied with by the authorities making the order of detention.  These are the rights guaranteed to the person detained  by  this  clause of Article 22 and if any  of  the rights is violated, in the sense that either the grounds are not  communicated or opportunity of making a  representation is  not afforded at the earliest, the detention order  would become  bad.   The  use  of the words "as soon  as  may  be" indicate  a  positive  action on the part of  the  Detaining Authority  in  supplying  the grounds of  detention.   There should  not  be any delay in supplying the grounds on  which the  order of detention was based to the detenu.  The use of the  words  "earliest  opportunity"   also  carry  the  same philosophy  that there should not be any delay in  affording an   adequate  opportunity  to  the   detenu  of  making   a representation against the order of detention.  The right to be  communicated the grounds of detention flows from Article 22(5)  while  the right to be supplied all the  material  on which  the  grounds are based flows from the right given  to the  detenu  to make a representation against the  order  of detention.   A  representation can be made and the order  of detention can be assailed only when all the grounds on which

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the  order  is  based are communicated the  detenu  and  the material on which those grounds are based are also disclosed and  copies thereof are supplied to the person detained,  in his own language.

     The  words "grounds" used in clause (5) of Article  22 means  not  only the narration or conclusions of facts,  but also all materials on which those facts or conclusions which constitute  "grounds"  are based.  In Prakash Chandra  Mehta vs.   Commissioner & Secretary, Govt.  of Kerala & Ors.  AIR 1986 SC 687 = (1985) Supp.

     SCC 144 = (1985) 3 SCR 697, in which an order of

     detention was passed under Section 3 (1) of the

     Conservation of Foreign Exchange & Prevention of

     Smuggling Activities Act, this Court, while examining

     the  concept  of  "grounds"  used  in  Article  22(5), observed

     that   the   word   "grounds"   has  to   receive   an interpretation

     which would keep it meaningfully in tune with the

     contemporary notions.  It was explained that the

     expression "grounds" includes not only conclusions of

     facts but also all the "basic facts" on which those

     conclusions were founded.  The "basic facts" are

     different   from   subsidiary     facts   or   further particulars.

     The order of detention, in the instant case, is

     based only on one ground which is to the effect that

     Bham Faisal Gulam Mohammed was, on 10.8.1997, held at

     the  Mumbai Airport and on his search being taken,  he was

     found in possession of Diamonds which he was trying to

     smuggle out of India.

     As pointed out earlier, copies of the documents

     which  were  seized on a search made at  premises  No. B/13,

     Sikkanagar, V.P.  Road, Mumbai-400 004, admittedly

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     considered  by the Detaining Authority, were not given to

     Bham Faisal Gulam Mohammed.  On a perusal of the

     documents referred to in the grounds of detention, the

     Detaining  Authority  had come to the conclusion  that Bham

     Faisal Gulam Mohammed was acting as a "carrier" for

     persons who were the king-pins, financiers and

     organisers of the whole smuggling activities.  This

     inference was drawn by the Detaining Authority on the

     basis  of the documents referred to in grounds 13  and 14

     of the detention order.  The Bombay High Court, before

     which  the  question  of non-supply of  documents  was raised

     and the order of detention was challenged on grounds,

     inter  alia, that requirements of Article 22 (5)  were not

     complied with, relied upon the affidavit of the

     Detaining Authority and found that the documents

     referred to in Paras 13 and 14 of the grounds were not

     to  be  supplied  to  the  detenu  and  there  was  no infraction

     of sub-clause (5) of Article 22 of the Constitution.

     The  relevant portion of the affidavit relied upon  by the

     Bombay High Court in the impugned judgment is to the

     following effect :

     "9.   With  reference to para 4(v) of the petition,  I say  that  though  the copies of the diaries have  not  been supplied to the detenu, the copy of panchanama dated 11.8.97 has  been  supplied to the detenu which appears at Sr.   No. 26, page nos.79-85 of the list of documents.  I say that the diaries  referred  in para 13 of the grounds were seized  on 11.8.1997  from the residence of Mr.  Pravinchandra  Haridas Jogi.   I say that the present Detention Order is in no  way based  on  the said diaries or the entries therein.  I  have made  a  passing reference to the diary entries to  complete the  narration  of  facts  in the said  case.   These  diary entries  are in no way concerned with the detenu.  His  name does  not  figure in any of the entries in the  said  diary. Hence  I  have not placed any reliance thereon, for  issuing

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the  order  of  detention  against the  present  detenu.   I reiterate  that the said diaries and the entries therein did not  constitute the basic facts upon which I had arrived  at my  subjective  satisfaction  while  passing  the  order  of detention.   I  say  that the said diaries and  the  entries therein  were not vital documents for the purpose of passing the  order  of  detention  against   the  detenu.   In   the circumstances, the non-supply of the said diaries or entries made  therein,  does not vitiate the order of detention.   I deny that I have been influenced by the contents of the said diaries adversely or otherwise and the question therefore of furnishing  the  copies thereof to the detenu would not  and did not arise.  I deny that non-supply of the diaries or the entries  therein amounts to non-communication of the grounds of  detention  as alleged.  I deny that the detenu has  been denied  the  earliest  opportunity  to  make  an   effective representation.   In  view  of this, it is denied  that  the order of detention is mala fide, ab initio null and void, as also  it  violates  the  facets of Article  22  (5)  of  the Constitution of India.

     10.   With reference to para 4(vi) of the petition, it is  stated  that  the  proposal  along  with  the  documents mentioned  in  the list of documents was placed  before  me, after  considering  the  same, I came to the  conclusion  as stated  in para 13 of the grounds of detention.  It is  true that  though  the  diaries   seized  under  panchnama  dated 11.8.1997  were  not placed before me, it is submitted  that the  panchnama dated 11.8.1997 had been placed before me and the  copies  thereof  have  been   supplied  to  the  detenu alongwith  the  other  documents with annexure ’A’  and  ’B’ which  is  at pages 79-85 of the list of documents.  It  is, therefore,  denied that the conclusion drawn by me is  based on non- existing and illusory facts and materials."

     On the basis of the above averments, the Bombay

     High Court recorded its findings as under :

     "In  the  light of the above  elucidating  explanation given in paras 9 and 10 of the reply affidavit and the rival contention made by the learned Public Prosecutor basing upon the  legal  ratio above referred, we are of  the  considered view  that  mere  referring of paragraphs 13 and 14  of  the grounds  of  detention, is a mere extraction of recovery  of the  diaries  and  the relevant entries  contained  therein, however,  which has no bearing at all to the detenu but as a matter  of sequence it has been done so and that, therefore, it does not amount to any importance or vital thing taken to formulate  the  grounds of detention and that, therefore  no copies  need  be given to the detenu and failure to  furnish the same does not violate fundamental rights conferred under Article  22 (5) of the Constitution of India to the  detenu. Therefore this ground also must fail."

     We must say that we do not agree with the

     reasoning and findings recorded by the High Court.

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     The grounds of detention indicate that the

     smuggling activities were not being carried on by the

     detenu  individually but he was acting as a  "carrier" for  the king-pin with Mr.  Pramod, Mr.  Ajmeri, Mr.  Noohu, who were the main financiers and organisers of the smuggling activities.   The nexus between the detenu and the aforesaid persons  was  sought to be established on the basis  of  the documents  recovered  from premises No.   B/13,  Sikkanagar, V.P.  Road, Mumbai 400 004, which was searched on 11.8.1997. It  was  at this place that the diaries as also  loose  note sheets were recovered.  These diaries indicated transactions between  the  detenu as also other persons, including  those named  above,  inter se.  The documents recovered  from  the said  premises, namely, B/13, Sikkanagar, V.P.  Road, Mumbai 400  004,  were,  undoubtedly, considered by  the  Detaining Authority  and it was, thereafter, that he proceeded to  say in Para 13 of the grounds of detention that :

     "On  verification of the diaries seized vide panchnama dt.   11.8.97  from  the  residence  of  Mr.   Pravinchandra Haridas  Jogi, it is revealed that there are in all  various transactions  in  the last many years worth many  crores  of rupees  with  codes, names and figures.  However,  from  the diaries  it is seen that there are transactions totally over 50  lakhs  each  in  the last few months  in  the  names  of Chhaganlal,  Pratap  Bhai, Yogesh Bhai, Ajmeri, Mukesh  Bhai and  Noohu  besides  many more transaction of over, 2  to  5 lakhs each with Vinodbhai, Pradeepbhai, Pramodbhai, Prakash, Haribhai,  Kaushik  Bhai,  Praveen,  Preeti,  Danjibhai  and Rajeev bhai and OTHERS."

     Having  thus stated in the grounds that the  documents were  taken  into consideration, the Detaining Authority  in his  affidavit  could not legally say that the diaries  were not  considered  by him and only the ’Panchnama’, which  was placed  before him, was considered.  The affidavit,  instead of  supporting  the  grounds of detention,  contradicts  the recitals  and,  therefore,  on this ground alone,  the  High Court should have rejected the affidavit.  Moreover, the two paragraphs   of   the  affidavit    extracted   above,   are self-contradictory.   In  Para  9  of  the  affidavit,   the Detaining Authority says, inter alia, as under :

     "I  say that the present Detention Order is in no  way based  on  the said diaries or the entries therein.  I  have made  a  passing reference to the diary entries to  complete the  narration  of  facts  in the said  case.   These  diary entries  are in no way concerned with the detenu.  His  name does  not  figure in any of the entries in the  said  diary. Hence  I  have not placed any reliance thereon, for  issuing the order of detention against the present detenu."

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     It is further stated in this Para as under :

     "I deny that I have been influenced by the contents of the  said  diaries adversely or otherwise and  the  question therefore  of  furnishing the copies thereof to  the  detenu would  not and did not arise.  I deny that non-supply of the diaries  or the entries therein amounts to non-communication of the grounds of detention as alleged."

     These  quotations  indicate  that   the  diaries  were considered  and  looked into by the Detaining Authority  and only then he came to know that the diary entries were, in no way,  concerned  with  the detenu, or that the name  of  the detenu  did  not  figure in any of the entries in  the  said diary.   The further recital that, "I deny that I have  been influenced  by the contents of the said diaries adversely or otherwise..............." also

     indicates that the Detaining Authority had looked into the  diaries.   In the face of this averment, the  averments made  in Para 10 of the affidavit to the effect that "It  is true  that  though the diaries seized under panchnama  dated 11.8.1997  WERE  NOT PLACED BEFORE ME, it is submitted  that the  panchnama dated 11.8.1997 had been placed before me and the   copies   thereof   have     been   supplied   to   the detenu................",  positively contradict the recitals in   Para  9  of   the  affidavit.   The  self-contradictory affidavit  could  hardly have been relied upon by  the  High Court.   The  fact  remains that the  diaries  seized  under ’Panchnama’  dated 11.8.1997 positively established the link between the detenu and the persons mentioned in Paras 13 and 14  of  the grounds of detention and it was on the basis  of these,  as  also  the  conclusion  that  the  detenu  was  a "CARRIER".   These  documents   were,  therefore,  extremely material  documents  which were taken into consideration  by the  Detaining  Authority and it was on the basis  of  these documents, together with other materials, that the Detaining Authority  felt  satisfied  that an order of  detention  was required  to  be  passed under Section 3(1) of the  Act  for preventing  the  detenu  from  carrying  on  his  prejudcial activities.   Admittedly, copies of these documents were not supplied  to the detenu, which resulted in violation of  the Fundamental  Right guaranteed to him under Article 22(5)  of the  Constitution  under which he had the right to  make  an effective  representation against the order of detention  to other  authorities for setting aside the order of detention. This right was denied to the detenu.

     For  the reasons stated above, the appeal is  allowed. The  order of detention dated 24.2.1998 passed under Section 3(1)  of  the  Act is quashed with the direction  that  Bham Faisal  Gulam Mohammed (the detenu) shall be set at  liberty forthwith  unless  his detention is required in  some  other case.

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