Chinnappa Reddy, J. - (1.) In this application under Art. 32 of the Constitution, we are concerned with the question of the legality of the detention of Jahaubar Moulana under the provision of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. On August 6, 1980, a car in which the detenu Jahaubar Moulana was travelling was intercepted by Customs Officers near Perumber-Kandigal diversion road an Tiruchirappalli-Madras G. S. T. Road. On a search of the car, 768 Wrist watches of foreign origin and 1560 semi-precious stones were found ingeniously concealed in the panelling of the front doors and the cavity between the petrol tank and the steel plate covering the petrol tank. The goods which were valued at Rs. 2,95,188/- were seized by the Customs Officers along with the car. On 7-8-80 the detenu. Jahaubar Moulana, was interrogated and a statement was recorded which incriminated himself and others. He was taken before the Magistrate on 8-8-80 and was remanded to custody. He was granted interim bail on 12-8-80 and the bail was finally confirmed on 16-8-80. On 14-8-80 the detenu claims to have sent a communication addressed to the Assistant Collector of Customs, Cuddalore, in which, according to him, he retracted from the statement made by him on 7-8-80 and claimed that the earlier statement had been obtained from him by torturing him. According to the case of the detenu this communication was sent by him under Certificate of posting. Subsequently, on 31-10-80, Shri B. B. Gujral, Additional Secretary to the Govt. of India, Ministry of Finance made an order of preventive detention against the detenu Jahaubar Moulana under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. The order of detention and the grounds of detention were served on Jahaubar Moulana on 2-2-81. According to the respondent they could not be served earlier as Jahaubar Maulana was not available and was avoiding service and arrest. The detenu made a representation on 4-2-81. The representation was rejected by the detaining authority, Shri B. B. Gujral on 19-2-81.
(2.) Shri Ram Jethamalani, learned counsel for the detenu urged that material documents upon which reliance was placed in the order of detention were not supplied to the detenu along with the grounds of detention and the detenu was thereby prevented from making an effective representation. He was thus denied the Fundamental Right of representation. He was thus denied the Fundamental Right afforded to him under Art. 22 (5) of the Constitution. The two documents which according to Mr. Jethmalani were not supplied to the detenu were (1) record of investigation revealing the trunk telephone calls booked from Telephone No. 315 at. Kila Karai to telephone No. 27115 at Madras on 15-7-80, 18-7-80, 24-7-80, 26-7-80, 27-7-80, 29-7-80, 6-8-80, 29-7-80, 6-8-80 and 7-8-80; and (2) record of investigation relating to the petrol which was put into Jeep No. TMC 1850 owned by Shri Shamsuddin, brother of the detenu.
(3.) In paragraph 4 of the grounds of detention it is mentioned that when premises No. 66, Malayappan St. Mannady, Madras was being searched on 7-8-80, a telephone call was received at telephone No. 27115 was in the premises, from telephone No. 315 Kila Karai enquiring about the arrival of the detenu. The information about the call was verified with reference to the record of trunk calls and it was found that on the various dates mentioned trunk calls had been booked from telephone No. 315 at Kilakarai to telephone No. 27115 at Madras. The reference to the record of trunk calls was made for the purpose of verifying the trunk call which was received on 7-8-80 at telephone No. 27115 in the premises No. 66 Malayappan Street when the Customs Officers were there. After carefully perusing the grounds of detention we find it impossible to hold that the record of trunk calls was one of the documents upon which the detaining authority had relied in making the order of detention.;