IMPORTANT POINTS
1. Non-supply of documents taken into consideration and relied on by the detaining authority in passing the detention order would amount to violation of fundamental right guaranteed to detenu under Article 22(5) vitiating the defention order.
2. The words "grounds" used in clause (5) of Article 22 means not only the narration or conclusions of facts, but also all materials on which those facts or conclusions which constitute "grounds" are based.

Headnote:(i) Conservation Foreign Exchange and Prevention of Smuggling Activites Act, 1974-Section 3(1)-Preventive detention-Non-supply of material document-Legal consequence of-Diaries seized under Panchanama during search-Diaries established link of detenu and other persons who were financier and kingpin of smuggling of diamond-Diaries and other documents were considered by detaining authority to come to conclusion that detenu was a carrier-Copies of diaries not supplied to detenu-Fundamental guranteed to detenu under Article 22(5) off constitution violated-Detention order quashed.
       Held : An effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22(5) of the Constitution which shows that when a person is detained in pusuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause or Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as maybe" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words "earliest opportunity" also carry the same philosophy that there should not be any detenu of making a representation against the order of detention. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language. The words "grounds" used in clause (5) of Article 22 means not only the narration or conclusions of facts, but also all materials on which those facts or conclusions which constitute "grounds" are based. (Paras 10 & 11)
       In the instant case in the grounds of detention it is clearly stated that premises No. B/13, Sikkanagar, V.P. Road, Mumbai-400004 was searched by the Custom Authorities on 11.8.1997 and besides the recovery of a sum of Rs. 15,99,000/-, documents (i) Super Deluxe Note Book containing 82 pages (ii) Super Deluxe Note Book containing 140 pages and (iii) Losse Note Sheets Sr. No. 1-42 were seized. These documents were duly signed by the "Panches" vide Panchnama dated 11.8.1997. It was on the basis of these documents as also on a consideration of the other documents, that the Detaining Authority came to the conclusion that Mr. Dinakarbhai Jogi was the kingpin while Mr. Pramod, Ajmeri and Noohu were the main financiers and organisers of the sumggling activities. The detenu was treated as a "carrier" for them. Two Super Deluxe Diaries as also certain loose sheets of papers seized from premises No. B/13, Sikkanagar, V.P. Road, Mumbai - 400004 appear to have revealed to the Detaining Authority the link between the aforesaid persons. These documents which were considered by the Detaining Authority were, therefore, extremely material as they constituted, along with other documents, the basis of the satisfaction of the Detaining Authority that in order to prevent the detenu from carrying on his smuggling activities, it was necessary to detain him under the Act. On a perusal of the documents referred to in the grounds of detention, the detaining Authority had come to the conclusion that Bham Faisal Gulam Mohammed was acting as a "carrier" for persons who were the king-pins, financiers and organisers of the whole smuggling activities. This infreence was drawn by the Detaining Authority on the basis of the documents referred to in grounds 13 and 14 of the detention order. The grounds of detention indicate that the smuggling activities were not being carried on by the detenu individually but he was acting as a "carrier" for a group of persons, namely, Mr. Dinakarbhai Jogi as the king-pin with Mr. Pramod, Mr. Ajmeri, Mr. Noohu, who were the main finaciers and organisers of the smuggling activities. The nexus between the detenu and the aforesaid persons was sought to be established on the basis of the documents recoversed from premises No. B/13, Sikkanagar, V.P. Road, Mumbai 400004, which was searched on 11.8.1997. It was at this place that the diaries as also loose note sheets were recovered. These diaries indicated transactions between the detenu as also other persons. including those named above, inter se. The documents recovered from the said premises, namely, B/13, Sikkanagar, V.P. Road, Mumbai 400004, were, undoubtedly, considered by the Detaining Authority. The diaries seized under `Panchnama dated 11.8.1997 positively established the link between the detenu and the parsons mentioned in Paras 13 and 14 of the grounds of detention and it was on the basis of these, as also other documents, that the Detaining Authority came to the conclustion that the detenu was a "Carrier". These deocuments were, therefore, extremely material documents which 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 of detention was required to be passed under Section 3(1) of the Act for preventing the detenu from carrying on his prejudcial activities. Admittedly, 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 ritht to make an effective representation against the order of detention to other authorities for setting aside the order of detention. This right was denied to the detenu. Therefore the detontion order is quashed. (Paras 7, 13 & 14).
       (ii) Constitution of India-Article 22(5)-Preventive detention-Communication of grounds of detention -"Grounds" in clause (5) means not only narration or conclustion of facts but also all materials on which those facts or condusions which constitute "grounds" are based. (Paras 10 & 11).

JUDGMENT

S. Saghir Ahmad, J.-Leave granted.

2. This appeal by Special Leave is directed against the judgment and order dated 21st of January, 1999, passed by the Bombay High Court, by which the Writ Petition in the nature of habeas corpus, preferred by the appellant, for the release of his brother Bham Faisal Gulam Mohammed, who was detained in jail in pursuance of the order dated 24th February, 1998, passed by Shri G.S. Sandhu, Secretary, Government of Maharashtra, Home Department (Preventive Detention), Mumbai, under Section 3(1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (52 of 1974) (for short, the Act ), was dismissed. The detention order reads as under :

"No. PSA 1097/89 SPL. 3(A). - Whereas I, G.S. Sandhu, Secretary to the Government of Maharashtra, Home Department (Preventive Detention), specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) vide Government Order, Home Department (Special), No. PSA 2096/35/SPL. 3(A), dated the 19th December 1996, am satisfied with respect to the person known as Shri Bham Faisal Gulam Mohammed (Age 22 years) residing at 24, Vasundra Apts., Warden Road, Mumbai 400026 that with a view to preventing him in future from smuggling of goods, it is necessary to make the following order:

In exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), I hereby direct that the said Shri Bham Faisal Gulam Mohammed be detained under the COFEPOSA Act..

2. In pursuanace of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 read with Government Order, Home Department No. SB. III/ISA-3974(V), dated the 18th December, 1974, I hereby further direct that the said Shri Bham Faisal Gulam Mohammed shall be detained in Mumbai Central Prison, Mumbai, for one week from the date of detention and in the Nasik Road Central Prison, Mumbai for one week from the date of detention and in the Nasik Road Central Prison, Mumbai, for one week from the date of detention and in the Nasik Road Central Prison, Nasik thereafter and shall be subject to the conditions laid down in the said Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974.

Sd/-

(G.S. Sandhu)

Secretary to the Government of Maharashtra Home Department (Preventive Detention) and Detaining Authority."

3. The grounds of detention as also the material in support of these grounds were also supplied to the detenu on the same day, namely, on 24th of February, 1998. A list of the copies of all documents (material) which were supplied to the detenu along with the grounds of detention was annexed with the grounds. This order of detention was challenged by the present appellant, who is the sister of the detenu, by filing a Writ Petition in the nature of habeas corpus in the Bombay High Court, but the same, as pointed out above, was dismissed. It is in these circumstances that the present appeal has been filed in this Court.

4. It appears that on 10.8.1997, the officers of the Air Intelligence Unit at Module I, Departure, Mumbai Airport, intercepted the detenu holding Indian Passport bearing No. A-3491330 issued at Ahmedabad on 30-6-97 valid till 7-2-1998 and also one old passport bearing No. E-2059399 issued at Bombay in his name on 8-2-1988. The detenu was found holding a Cathay Pacific Airline Passenger s ticket issued in his name for the flight No. CX-750 dated 10-8-97 BKK for the sector Mumbai-Bangkok, boarding No. 0281 Sect No. 31 H vide ticket No. 6296:077:461:2 issued on 1-8-97 and an open ticket bearing No. 6296:077:462:3 issued by Cathay Pacific for the sector Bangkok to Yangon. The detenu was found to have checked in one Dark Blue Zipper suitcase be

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