SOPHIA GULAM MOHD. BHAM versus STATE OF MAHARASHTRA AND ORS.

Citation: [1999] SUPP. 1 S.C.R. 421 · Decided: 13-08-1999 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

SOPHIA GULAM MOHD. BRAM 
v. 
ST ATE OF MAHARASHTRA AND ORS. 
AUGUST 13, 1999 
[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] 
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 
not supplied-Affidavit of detaining authority denying non-supply of any 
material documents-Dismissal of petition by High Court-Whether detention 
is proper-Held, no-Detention violated the fundamental right. 
A 
B 
c· 
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 
same does not violate fundamental rights conferred under Article 22(5) of 
the Constitution of India. 
B 
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. 
D 
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 
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. 
G 
1433-F-G; A; 434-AJ 
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 en

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