Holding

The Supreme Court held that the detaining authority must furnish the detenu with all material documents forming the basis of the grounds of detention; failure to do so violates Article 22(5) and renders the detention order invalid.

Summary

The appellant, sister of Bham Faisal Gulam Mohammed, filed a habeas corpus petition challenging his preventive detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was arrested for attempting to smuggle diamonds and was supplied with grounds of detention, but the material documents (diaries, note‑books) on which those grounds were based were not furnished to him. The Bombay High Court dismissed the petition, relying on an affidavit that claimed the diaries were not material. The Supreme Court held that "grounds" under Article 22(5) of the Constitution includes all material on which the grounds are based, and that failure to supply such documents deprives the detenu of the earliest opportunity to make an effective representation, violating his fundamental right. Consequently, the detention order was declared invalid and the appellant’s appeal was allowed, directing the release of the detenu.

Issues considered

Whether non‑supply of material documents on which the grounds of preventive detention are based violates Article 22(5) of the Constitution.
Whether the term "grounds" in Article 22(5) includes the documents and other material relied upon by the detaining authority.
Whether the High Court erred in accepting the detaining authority’s affidavit that the diaries were not material.
Whether the detention order under COFEPOSA is void for non‑compliance with the procedural safeguards of Article 22(5).

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Constitution of Indias. Article 22(5)

Subjects

preventive detentionArticle 22(5)grounds of detentionmaterial documentsCOFEPOSAsmugglinghabeas corpusright to representation

Judgment

SOPHIA GULAM MOHD. BRAM A
v.
ST ATE OF MAHARASHTRA AND ORS.

AUGUST 13, 1999

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] B

Constitution of India, 1950-Article 22(5)-Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(/)-
Preventive Detention-Detenu arrested for smuggling activities-Grounds of
detention furnished-Detention challenged on the ground material documents c·
not supplied-Affidavit of detaining authority denying non-supply of any
material documents-Dismissal ofpetition by High Court-Whether detention
is proper-Held, no-Detention violated the fundamental right.

Preventive Detention-COFEPOSA, I974-Section 3(/)-Grounds of D
detention-Held, grounds mean not only narration of facts but also all
materials on which the grounds are based

Constitution of India, 1950-Artic/e 22-Detention-Requirements of-
Explained

The appellant filed a Writ of Habeas Corpus before the Bombay High E
Court for release of her brother who was detained in jail under Section 3(1)
of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (Act 52of1974). The detenu was arrested while trying
to smuggle various types of diamonds out of India. During the course of
investigation by Customs Authorities various places were searched and F
certain documents were recovered from one of such premises.

The detenu was supplied with grounds of detention and the material
documents relevant for the detention. The grounds of detention mentioned
about the documents which were recovered during the search of a certain .
premises through which the connection between the detenu and the smuggling G
activities, was established.

The appellant challenged the detention on the ground that the detenu
was not supplied with the copies of diaries recovered from the premises. The
High Court dismissed the writ petition. The High Court relied on the affidavit
~1 H
422 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A filed by the detaining authority and found that the document referred to in
paras 13 & 14 of the grounds were not to be supplied to the detenu since
they had no bearing at all to the detenu, and that the failure to furnish the

B
same does not violate fundamental rights conferred under Article 22(5) of
the Constitution of India.

In appeal to this Court the appellant contended that a large number of
-
documents had been seized on the search of the premises in Mumbai 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, but copies of
those documents were not supplied to the detenu with the result that effective
C opportunity of hearing, as contemplated by Article 22(5) of the Constitution
was not provided and thus the detention order stands vitiated.

Allowing the Appeal the Court

HELD: 1. The diaries seized under Panchanama dated 11.8.1997
positively establish the link between the detenu and the persons mentioned
D in the grounds of detention and it was on the basis of these, as also other
documents, that the Detaining Authority came to the conclusion that the
detenu was a "Carrier". These documents 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
E of detention was required to be passed under Section 3(1) ofCOFEPOSA for
preventing the detenu from carrying on his prejudicial activities. 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
F of detention. The right was denied to the detenu. The reasoning and findings
recorded by the High Court 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 Article 22(5) of the Constitution is not correct.
1433-F-G; A; 434-AJ
G
2. The contents of para 9 of the Affidavit of detaining authority indicates
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 averments in para 10 of the affidavit
H .
positively contradict the recitals in para 9 of the affidavit The self-contradictory
S.G. BHAM v. STATE OF MAHARASHTRA 423

affidavit could not have been relied upon by the High Court. [433-D-E-F) A
3. The right to be communicated the grounds of detention flows frorn
Article 22(5) while the right to be supplied all the ~aterial 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 B
the order is based are communicated to 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 C
"grounds" are based. (429-E-F)

Prakash Chandra Mehta v. Commissioner & Secretary, Govt. of Kera/a
& Ors., AIR (1986) SC 687; [1985) Supp. SCC 144; (1985) 3 SCR 697,
relied on.

4. When a person is detained in pursuance of an order made for
D
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 a person detained by this clause of Article 22 and if any of E
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 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. [429-C-DI
F

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 779
of 1999.

From the Judgment and Order dated 19/21.1.99 of the Bombay
High Court in Crl.W.P. No .. 468 of 1998. G
Suresh Gupta, Maksud Khan, Manoj K. Mishra and A.S. Bhasme for the
Appellant.

J.G. Shah, S.S. Shinde and d.B. Sathe for the Respondents.

The Judgment of the Court was delivered by H
424 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A 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
B 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:-
c "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
D 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:

E 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.

F 2. In pursuance 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 Gu lam Mohammed shall be
detained in Mumbai Central Prison, Mumbai, for one week from the
G 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) Orde_r, 1974.
Sd/-
H (G.S. Sandhu)
S.G. BHAM v. STATEOFMAHARASHTRA[S. SAGHIRAHMAD,J.] 425

Secretary to the Government of Maharashtra Home Department A
(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 B
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.
c
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 D
Airline Passenger's ticket issued in his name for the flight No. CX-750 dated
I0-8-97 BKK for the sector Mumbai-Bangkok, boarding No. 0281 Seat No. 31
H vide ticket No.6296:077:46 l :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 E
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 p
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 G
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 l l -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 H
426 ,, SUPREME COURT REPORTS (1999) SUPP. I S.C.R. \

A 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 panc~as which were also seized
B 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:-
c "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 find figures. However, from
the diaries it is seen that there are transactions totally over 50 lakhs
D 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

E
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 s~rved to Mr. Ajmeri as the said place was found locked
in spite of various attempts.
F
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 :
G
"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
H is necessary to detain you under the COFEPOSA Act, 1974."
S.G. BHAM v. STA TE OF MAHARASHTRA [S. SAGfUR AHMAD, J.] 427

Learned counsel appearing on behalf of the appellant has contended A
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 B
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, C
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 D
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, E
V.P. Road, Mumbai - 400 004 appear to have revealed to the Detaining Authority
the link between the aforesaid persons. These documents which were
corsidered 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. F

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 G
of the appellant's brother, namely, Bham Faisal G1•lam 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:- H
428 SUPREME COURT REPORTS (1999] SUPP. I S.C.R.

A "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
B 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
c 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 representation, 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 '
D 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
E
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 o;der of detention but
F 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
G 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 :

H "When any person is detained in pursuance of an order made under
S.G. BHAM v. STATEOFMAHARASHTRA[S. SAGHIRAHMAD,J.] 429

any law providing for preventive detention, the authority making the A·
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 B
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 theoperson detained by this
clause of Article 22 and if any of the rights is violated, in the sense that either C
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 D
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 E
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 to 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.
F
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 v. Commissioner & Secretary, Govt. of Kera/a & Ors., AIR
[1986] SC 687 = (1985) Supp. SCC 144 = (1985) 3 SCR 697, in which an order 0
of detention was passed under Section 3 (I) 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 H
430 . SUPREME COURT REPORTS [1999] SUPP. ! S.C.R.

A 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.
B 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,
C 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
D 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 alit:z,
that requirements of Article 22 (5) were not complied with, relied upon the
affidavit of the Detaining Authority and found that the documents referred
E 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
F 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. ~6, page nos. 79-85 of the list of documents. I say
that the diaries referred in para 13 of the grounds were seized on
l l .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
G
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
H the present detenu. I reiterate that the said diaries and the entries
S.G. BHAM v. STATE OF MAHARASHTRA (S. SAGHIR AHMAD, J.] 431

therein did not constitute the basic facts upon which I had arrived at A
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 B
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 C
view of this, it is denied that the order of detention is ma/a 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 D
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 pa.nchnama dated t t .8. t 997 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 E
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 F
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 G
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 H
)'--

432 SUPREME COURT REPORTS (1999) SUPP. l S.C.R.

A 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.
B
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 a group of persons, namely, Mr. Dinakarbhai Jogi as 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
c 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
D 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
E 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 natnes of Chhaganlal, Pratap Bhai,
Yogesh Bhai, Ajmeri, Mukesh Bhai and Noohu besides many more
F 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, he Detaining Authority in his affidavit could not legally say
G
that the diaries were not considered by him and only the 'Panchnama', which
was placed before him, was considered. The affidavit, instead of supporting •r
the grounds of detention, contradicts the recitals and, therefore, oil this
ground alone, the High Court should have rejected the affidavit. Moreover,

H
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 : ...
S.G. BHAM v. STA TE OF MAHARASHTRA [S. SAGHIRAHMAD, J.] 433

"I say that the present Detention Order is in no way based on the said A
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 B
the present detenu."
I

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 C
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 D
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 E
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 atlidavit. 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 F
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, 9s
also other documents, that the' Detaining Authority came to the conclusion
that the detenu was a "carrier". These documents were, therefore, extremely
material documents which w;ere taken into consideration by the Detaining G
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 prejudicial 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 H
434 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A 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
B 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.

VM Appeal allowed.

"