Decided on August 12,1983

Sarojben Pravinchandra Kinariwala Appellant


PER MANKAD, J. - (1.) PETITIONER who is mother of one Vijay Kinariwala (hereinafter referred to as the "detenu") has filed this petition under Article 226 of the Constitution of India for issuance of a writ of habeas corpus for release of the detenu who has been detained by an order Annexure 'A' dated June 3, 1983, passed by the Government of Gujarat, in exercise of the powers conferred on it by sub -section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSAA").
(2.) THE grounds on which the impugned detention order was passed were as follows. The Customs Officers of Ahmedabad received an intelligence report that contra -band gold was to be delivered to the detenu between 16 -00 and 17 -00 hours on April 19, 1983 opposite Kwality Restaurant near Kankaria, Ahmedabad by a person who was to come in a sky blue coloured ambassador car bearing registration No. GJB 5281. In pursuance of this intelligence report, the Customs Officers kept vigil near the said Kwality Restaurant. At about 16 -00 hours, the Officers noticed one sky blue coloured car bearing No. GJB 5281 occupied by two persons coming towards the Kwality Restaurant. No sooner the car was parked opposite the Kwality Restaurant, the detenu accompanied by one person on a scooter approached the said car. The detenu got into the car and was engaged in conversation with two occupants thereof, while the person accompanying him on the scooter remained seated on the scooter at some distance. The Customs Officers surrounded the car. On seeing the Customs Officers, the detenu attempted to escape, and while doing so, assaulted the Customs Officers with a pipe which he had taken out from the car. The officers, however, caught hold of the detenu and the situation was brought under control with the help of the police in the mobile van which was near that place. Two occupants of the car disclosed their names to be Fakir Mohmad of Jam Khambhalia and Mohmad Adil of Bombay. The Customs Officers did not think it advisable to search the car at that place as it was an open place and crowd had collected. Therefore, the car along with its occupants was brought to the Customs Office under police escort. The detenu was brought to the Customs Office in the police van, whereas Fakir Mohmad and Mohmad Adil were brought in their own car duly escorted. The car was thoroughly rummaged in presence of the Panchas. 232 slabs of foreign marked gold each weighing 10 tolas, valued at Rs. 48,72,000/ -and Indian currency of Rs. 4,600/ - were recovered from the car as a result of the search. The Customs Officers seized gold and the Indian currency under the reasonable belief that they were liable to confiscation under the Customs Act, 1962. The aforesaid car was also seized under the provisions of the Customs Act. Statements of the detenu, Fakir Mohmad and Mohmad Adil were recorded under Section 108 of the Customs Act. In the view which we are taking, we do not consider it necessary to refer to these statements in detail. It may, however, be mentioned here that reference to these statements has been made in the grounds on which the detention order is made. (Annexure 'C').
(3.) IT is the case of the respondents that the gold seized from the car was to be delivered to the detenu. After taking into consideration the above facts and the statements of Fakir Mohmad, and Mohmad Adil and the detenu, the detaining authority was satisfied that contraband gold recovered from the aforesaid ambassador car was to be delivered to the detenu. The detenu was attributed with the knowledge about the contents of the car, namely, contraband gold and Indian currency. Therefore, considering all the facts and circumstances, including the fact that the detenu who was arrested under the Customs Act was released on bail, came to the conclusion that if the detenu was not detained under COFEPOSAA, he was likely to continue his activities of dealing in smuggled goods. The detaining authority was satisfied that there was sufficient cause to pass detention order against the detenu under COFEPOSAA with a view to preventing the detenu from dealing in smuggled goods. It was on the above grounds that the impugned order of detention was passed. The detention order has been challenged on several grounds. We, however, do not consider it necessary to set out or deal with all the grounds of challenge, since in our opinion, for the reasons which we shall presently state, the petition must succeed on one ground, namely, that a copy of the intelligence report on which reliance is placed by the detaining authority in passing the detention order is not supplied to the detenu. It is contended that intelligence report was an important and relevant document which was considered by the detaining authority in passing the impugned order and, therefore, unless a copy thereof was given to the detenu, he was not in a position to exercise his right of making representation under Article 22(5) of the Constitution of India effectively. On the other hand, the stand which is taken up on behalf of the respondents is that copy of the intelligence report was not supplied to the detenu in public interest in exercise of the powers conferred on the detaining authority under the provisions of Article 22 (6) of the Constitution of India. It is submitted that disclosure of the intelligence report to the detenu would have resulted into reprisal and the source of information thereafter would not have been available to the authority. It is further urged that reference to the intelligence report in the grounds of detention was only a casual reference. In other words, according to the respondents the order of detention was not based or founded on such report. Therefore, as held by the Supreme Court in Mst. L. M. S. Ummu Saleema v. B. B. Gujral and Another, AIR 1981 SC 1191, failure to supply copy of such report to the detenu will not render the detention order invalid.;

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