Bombay High Court
Mohammed Ilyas Ahmed vs The State Of Maharashtra And Ors. on 22 June, 1999
Equivalent citations: (2000)102BOMLR104
Bench: Vishnu Sahai, T.K. Chandrashekhara Das
JUDGMENT Chandrashekhara Das, J.
1. The Petitioner Is the brother of one Mohammed Aiyaz Ahmed, who was detained by the order dated 6th June, 1998 issued by the Secretary to the Government of Maharashtra, Home Department (Preventive Detention) under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act) and also by the Government Order No. PSA 1098/8 SPL. 3(A). Annexure 'A' is the said order of detention and Annexure 'B' is the grounds of detention which was passed on the same day; both were served on the detenu on 26.6.1998.
2. The detention order has been challenged by the Petitioner on several grounds. However the learned Counsel for the petitioner Mrs. A.N.Z. Ansari has pressed before us only one ground. The said ground has taken as ground 4(v) of the petition. The said ground in short is that, in para 6 of the grounds of detention, though it has been stated that the search of the briefcase belonging to the detenu resulted in recovery of nine documents, all are in incriminating nature, only four of those documents were served on the petitioner along with the order of detention. This, according to the learned Counsel for the petitioner, would vitiate the order of detention as the detenu's right under Article 22(5) of the Constitution is impaired. For better appreciation of her contention, we extract the relevant portion of the ground 4(v) of the writ petition, which runs as under :
(v) The Petitioner says and submits that in paragraph 6 of the grounds of detention the Detaining Authority has drawn the following vital conclusions :
6. Search of the black coloured briefcase resulted in the recovery of following documents of incriminating nature :
(1) Air-India Ticket No. 3098 44184336580 for the Sector Riyadh-Mumbai-Hyderabad-Mumbai-Riyadh issued by M/s. Kingdom Wings Travels & Tourism Agency 7148224 on 2nd November, 1997.
(2) Indian Airlines Ticket No. 05827916876 for the sector Hyderabad Sharjah-Hyderabad issued by M/s. NASR Travels 14341725 dated 11th December, 1997.
(3) Receipt No. 032529 dated 12.12.97 of M/s Stic Travels Pvt. Ltd., for Rs. 16691/- cash, issuing office HYD Particulars I 9700709.
(4) Receipt of M/s. Br. EST. Bakarman, Nos. 03869, 03870 and 08197 for purchase of gold.
(5) Letter to the General Manager (Engg.) W.S. & S. Maint. Dr. No. 1, Goshamahal, Hyderabad, bearing No, 625 dt. 1.5.96 bearing your name and signature, G.P.E. Azampura Section dt. 1.5.96.
(6) Bank cheque Book of M/s. Union Bank of India, Chilkadapolly, Hyderabad - 500 020, containing 16 cheques leaves No. from 159185 to 159200, SB A/c. No. 5578 name Mr. Aiyaz Ahmed.
(7) A laminated card having your photograph and having name of Saudi Holland! Bank, purported to be an Identity card.
(8) Bunch of documents containing 8 paper leaves pertaining to your purported to be your medical records.
(9) Sales/Purchase voucher NU.V.NU-35298603 dt. 13th Dec., 97 of M/s. U.A.E. Exchange Centre. Deira Dubai Branch.
The Petitioner says and submits that these documents were seized under a panchanama dt. 13.12.1997. The Detaining Authority, thus having incorporated the above said documents by reference and the Detaining Authority thus, having allowed his mind to be adversely influenced by the contents of abovesaid documents and called them "as incriminating documents" it was incumbent upon the Detaining Authority to have furnished to the detenu all the abovesaid documents part passu alongwith the grounds of detention. The Petitioner says and submits that the Detaining Authority had furnished to the detenue only the documents at Serial Nos. (1), (2), (5), (8) & (9). The petitioner says and submits that the Detaining Authority fails to furnish the documents at Serial Nos. (3), (4), (6) and (7), to the detenu port passu the grounds of detention as those documents were of incriminating nature. The petitioner says and submits that the Detaining Authority having failed to have furnished to the detenu, the copies of the abovesaid documents, and as those documents, in law, are part and parcel of the grounds of detention and as they-form an integral part of the grounds, the non-furnishing of the copies of the said incriminating documents, amounts to non-communication of the grounds of detention themselves to the detenu. The detenu, as a result was also thereby denied the earliest opportunity of making an effective representation against the impugned order of detention. The impugned order of detention, is accordingly violated of both the facet of Article 22(5) of the Constitution and as such it is per se mala fide, ab initio. null and void.
3. A reply has been filed by Shri G.S. Sandhu, Secretary, Government of Maharashtra, Home Department (Preventive Detention), the Detaining Authority. He stated in his reply that though those documents, which were recovered from the detenu are incriminating documents, only document Nos. (1), (2), (5), and (8) were forwarded by Sponsoring Authority for his consideration and those documents, which were not forwarded are not vital documents because all these documents are receipts, cheque books, laminated identity card of the petitioner and therefore the petitioner cannot have any grievance for the non-supply of those documents. In the reply of the Detaining Authority, it is stated in para 10, which is extracted below :
10. With reference to paragraph 4(v) of the writ petition, I say that the documents mentioned at Sr. Nos. 3, 4, 6 and 7 were not forwarded by the Sponsoring Authority for my consideration. I say that the documents mentioned above were the personal papers of the detenu, viz., receipts, cheque book and laminated identity card. I say that these documents are mentioned in the Grounds of Detention byway of reference to the recovery of the black coloured briefcase from the detenu in which the documents mentioned were found. I deny that there is no non-supply of documents. I further deny that because of non-supply of documents, mentioned above the detenu's right under Article 22(5) are violated. I say that the documents mentioned above are the personal documents of the detenu and he had full knowledge of the said documents which were seized under panchanama. I deny that it was incumbent upon me to have furnished to the detenu all the above mentioned documents port passu alongwith the Grounds of Detention. I deny that the Order of Detention as violative of both the facets of Article 22(5) of the Constitution of India.
4. The Sponsoring Authority also filed a reply to the above allegations of the petitioner. Shri Malkit Singh, Assistant Commissioner of Customs, COFEPOSA Cell AIRport, Mumbai, Sponsoring Authority, has controverted the allegations of the petitioner. It is stated in para 5 of the reply of the Sponsoring Authority, thus :
5. With reference to Ground No. 4(v) of the Petition, I say that the papers mentioned in para No. 6 of the detention are personal papers of the detenu and as stated the claim of the detenu that non-supply of these documents would Impair his defence, does not stand as he was having full knowledge of the contents of these documents. In any event, I say that in ground No. 4(v) of the petition, documents mentioned were recovered from the person of the detenu. Even assuming without admitting, that the documents were not supplied the said documents were of not vital importance and therefore, It cannot be said that the documents would have adversely influenced the mind of the Detaining Authority. I say that the documents at Serial Nos. 3 and 4 are receipts documents and at Serial No. 6 is a Bank cheque book of the Petitioner and documents at Serial No. 7 is an Identity Card of the detenu. I say that these documents were within the knowledge of the detenu as they were his personal documents and cannot be considered as vital documents for the purpose of considering the proposal for detention. I say that though these documents are mentioned in grounds of detention, it is respectfully submitted that the Detaining Authority has made reference to those documents and non-supply of such documents would not impair the subjective satisfaction of the Detaining Authority....
5. What is contended by the Detaining Authority and Sponsoring Authority in their reply is that though those documents are styled as incriminating documents, in para 6 of the detention order, infact those documents are not vital. In other words they contend that those documents belong to the petitioner, who is well aware of the contents of those documents and that those documents do not constitute the primary material of facts which influenced the mind of the Detaining Authority, for forming his subjective satisfaction.
6. To meet this contention of the respondents Mrs. Ansari the learned Counsel for the petitioner, brought to our notice a decision of the Division Bench of this Court rendered at Panaji Bench in Jose Sebastian Kenedy Appllinario Alomao v. Union of India and Ors. 1992 (1) Crimes 752. The case of the detenu in that case is that while making search of the residential premises of the petitioner, therein certain incriminating documents have been recovered and the panchanama has been drawn for that purpose. It is the case of the petitioner therein that though panchanama alone was furnished to him along with the detention order those documents listed in the panchanama were not furnished though documents was styled in the panchanama as incriminating nature. The learned Judges of this Court held that when the Detaining Authority styles certain set of documents as incriminating nature those documents should be considered as vital and non-supply of that documents vitiated the order of detention. The observation of the Division Bench contained in para 11 of the judgment runs as follows:
11. Once the Detaining Authority itself has styled the documents seized during the searches of residential premises of S/Shri Ronnie Rodriques, Roy Miranda, Mingunl Francies Fernandes, Reginald Rodriques, Basco Rodriques and J.J. Saixas as incriminating documents and when these documents by themselves were not placed before the Detaining Authority, it is difficult to accept as contended by the learned Counsel for the respondents that these documents are not vital or do not constitute basic material. It is indeed true that copies of panchanamas have been furnished to the detenu and the panchanamas suggest that documents refered to as incriminating documents were seized, that either on the reasonable belief that they are required for the inquiry and in the matter of investigation or on the ground that they are useful and relevant for the purpose of making the detention order. In a tabular form at Annexure 'D' to the petition a reference has been made to these panchanamas to show what documents were seized, therefrom. Admittedly, none of these branded as incriminating documents were placed before the Detaining Authority and yet the Detaining Authority while formulating the grounds has in terms said that these are incriminating documents. This expression clearly cannot say that they are documents by which the detenu incriminates himself in the offence and in this context it is not possible to say that such documents are not vital or do not constitute any basic material so as to held that subjective satisfaction is not impaired. If this being the position, then, it must be held that there was no application of mind by the Detaining Authority and the order of detention therefore in its turn is vitiated. Once we come to this position, the other challenge in the petition namely, that the documents referred to as incriminating documents were not furnished, also become good challenge and on that ground also the detention stands vitiated.
7. This case has been taken by the State of Goa to the Supreme Court in SLP as S.L.P. No. 2/92 with S.L.P. Nos. 3, 7 and 8 of 1992. By judgment dated 17.1.1992 the Supreme Court has upheld the judgment of the Division Bench of this Court and dismissed the S.L.P. of the State of Goa. The Supreme Court has given its approval for the observation made by the Division Bench of this Court in the above decision. The judgment of the Supreme Court in S.L.P. No. 2/92 runs as under:-
We have heard learned Counsel for the parties. Mr. G.L. Sanghi, learned Senior Advocate appearing for the State of Goa has taken us through the grounds of detention, other material on record and the judgment of the High Court:. The High Court quashed the detention orders on the following reasons:-
Once the Detaining Authority itself has styled the documents seized during the searches of residential premises of S/Shri Ronnie Rodriques, Roy Miranda, Minguel Francis Fernandes, Reginald Rodriques, Bosco Rodriques and J.J., Saixas as incriminating documents, and when these documents by themselves were not placed before the Detaining Authority, it is difficult to accept as contended by the learned Counsel for the respondents that these documents are not vital or do not constitute basic material. It is indeed true that copies of panchanamas have been furnished to the detenu and the panchanamas suggest that documents referred to as incriminating documents were seized, that too either on the reasonable belief that they are required for the inquiry and in the matter of investigation or on the ground that they are useful and relevant for the purpose of making the detention order. In a tabular form at Annexure 'D' to the petition a reference has been made to those panchanamas to show that documents were seized therefrom. Admittedly none of those branded as incriminating documents were placed before the Detaining Authority and yet the Detaining Authority while formulating the grounds has in terms said that those are incriminating documents. This expression clearly connotes that they are documents by which the detenu incriminates himself in the offence and in this context it is not possible to say that such documents are not vital or do not constitute any basic material so as to held that subjective satisfaction is not impaired. If this being the position, then, it must be held that there was no application of mind by the Detaining Authority and the order of detention therefore in its turn is vitiated. Once we come to this position, the other challenge in the petition, namely, that the documents referred to as incriminating documents were not furnished, also became good challenge and on that ground also the detention stands vitiated.
We see no infirmity in the judgment of the High Court. We agree with the reasoning and conclusions reached by the High Court. We, therefore, find no ground to interfere with the orders impugned in these Special Leave Petitions. These Special Leave Petitions are accordingly dismissed.
8. Mr. Rajiv Patil the learned A.P.P. strenuously contended that though in the detention order certain documents were mentioned, which was recovered from the petitioner as an incriminating nature, that does not become a vital or important document and the non-supply of which vitiate the order of detention. He also submits that vital documents are only those documents which form the basic material and facts for forming a subjective satisfaction of the Detaining Authority. In support of his argument he quoted the following decisions of the Supreme Court in (1) L.M.S. Ummu Salerno v. B.B. Gujarat . (2) Haridas Amarchand Shah of Bombay v. K.L. Verma and Ors. (3) Madan Lai Anand v. Union of India and Ors. and Ibrahim Shareef M. Madhufushi v. Union of India and Ors. .
We have perused these judgments and we find that in all those decisions, the Supreme Court trid to postulate the characteristic of the vital documents, non-supply of which would vitiate the detention order. These decisions cannot be considered as authorities for the proposition that though the documents are styled as incriminating, still they cannot be treated as vital document, non-supply of which vitiate order of detention. But in view of the direct decision of Division Bench (supra), which was approved by the Supreme Court, it is unnecessary for us to take up the task of inquiring as to whether the particular documents, which was not supplied to the petitioner are vital documents or not. As we observed earlier it is stated by the Detaining Authority in para 6 that those nine documents which were recovered as incriminating nature, and in view of the decision of this Court and as approved by the Supreme Court, all the incriminating documents should be considered as vital documents, non-supply of which will definitely vitiate the detention order, as this will effect the right of the detenu under Article 22(5) of the Constitution.
9. In view of this, we find that the detention order is liable to be quashed only on this ground, which violates the Article 22(5) of the Constitution of India.
10. In the result the writ petition is allowed. The impugned order Annexure 'A' and Annexure 'B' are quashed. Rule is made absolute. The Detenu is directed to be released forthwith unless he is wanted for any other offence.
Certified copy expedited.