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Judgment
P. Sathasivam, J.—The petitioner is the father of the detenu by name Hameed Mohamed Rizwi, who was detained by the impugned
proceedings dated 31.03.2005 u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act
52 of 1974).
Heard Mr.B.Kumar learned Senior Counsel for petitioner, learned Additional Public Prosecutor for R-1 and learned Additional Central
Government Standing Counsel for R-2.
Even at the outset, learned Senior Counsel appearing for the petitioner contended that though the Detaining Authority has relied upon that the
detenu involved in two previous customs offences and registration numbers were furnished, yet, no document of any such particulars has been
given. Inasmuch as the detenu is entitled to get those particulars, the Detaining Authority seriously erred in not giving the details sought for by the
detenu. According to him, this has violated the mandate provided under Article 22(5) of the Constitution of India. With reference to the said claim,
it is brought to our notice that at the end of paragraph No. (vii) of the grounds of detention, the Detaining Authority has stated, ""... that previously
two cases were registered in your name under Customs Act for attempting to smuggle electronic goods and foreign currencies and that the
retraction is belated one and afterthought."" Again in paragraph No. (ix) of the grounds of detention, it is stated as under:-
You had involved in two previous Custom offences registered vide 1) O.S. No. 117/09.05.2000 for Rs. 2,28,000/- and 2)O.S. No.
130/23.01.2004 for Rs. 40,000/-.
With reference to the above assertion in the grounds of detention, learned Additional Public Prosecutor would submit that the Detaining
Authority has not relied on the said information and it is only referred in order to substantiate the facts stated. In paragraph No. 10 of the counter
affidavit, it is stated as follows:-
... The details of the previous offence were shown in the booklet so as to substantiate the facts that he is a regular and habitual offender.
(Emphasis supplied)
In other words, according to the learned Additional Public Prosecutor, the above referred two cases were shown as reference and not relied upon
by the Detaining Authority.
On going through the specific averments in paragraph Nos. (vii) and (ix) of the grounds of detention as well as the explanation offered in
paragraph No. 10 of the counter affidavit, we are unable to accept the submission made by the learned Additional Public Prosecutor. In this
regard, learned Senior Counsel appearing for the petitioner has relied on the decision of this Court dated 28.07.2005 rendered in HCP No. 296 of
2005. As rightly pointed out, in a similar claim made by the detenu and defence taken in the counter affidavit filed in that case, the Division Bench
has concluded thus:-
On a perusal of the grounds of detention, the letter dated 01.03.2005 and paragraph 6 of the counter, it is clear that these documents were taken
into consideration by the Detaining Authority and a conclusion was arrived at that since the detenu was indulging in smuggling activities in the past
four customs offences, he was to be considered as a habitual offender. Even though such a finding was arrived at on a consideration of those
documents, the stand taken by the respondents that those documents have not been relied upon and therefore, the detenu is not entitled to the
same is strange and the same is not acceptable.
As rightly observed by the Division Bench, it is clear that the two previous cases were taken into consideration by the Detaining Authority and a
conclusion was arrived at that since the detenu was indulging in smuggling activities in the past two customs offences and as stated in paragraph
No. 10 of the counter affidavit, he was to be considered as a habitual offender. In such circumstances, as rightly stated, the stand taken by the first
respondent that these documents have not been relied upon and therefore, the detenu is not entitled to the same is not acceptable.
Though learned Public Prosecutor relied on a Judgment of the Supreme Court reported in Madan Lal Anand Vs. Union of India and others, to
show that if the document is only referred in the grounds of detention, the same need not be supplied to the detenu, in the light of the factual details
as narrated above and the conclusion arrived at in almost similar circumstances in the Division Bench decision mentioned above, we are of the view
that while there is no dispute regarding the proposition of law, as pointed out, we are unable to accept the stand taken by the learned Additional
Public Prosecutor.
It is also brought to our notice that despite the demand by way of representation for supply of those documents, the same were not furnished,
which would deprive the right of the detenu to make effective representation based on those documents. We accept the contention raised by the
learned Senior Counsel for the petitioner and we are satisfied that the order of detention suffers from the said infirmity.
In the the light of what is stated above, the Habeas Corpus Petition is allowed. The impugned order of detention is set aside. The detenu is
directed to be set at liberty forthwith from the custody unless he is required in some other case or cause.