TMI Blog1999 (8) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, Nas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 15,99,000/- to be handed over to Mr. Pramod. The search resulted in recovery of ₹ 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, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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