Sophia
Gulam Mohd. Bham Vs. State of Maharashtra & Ors [1999] INSC 271 (13 August
1999)
S.Saghir
Ahmad, D.P.Wadhwa 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 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) 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 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 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 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
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 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.
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." 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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