-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1179 OF 2007 Mrs.Shabnum Syed Ahmed Kalanter Zadeh, an Indian inhabitant, residing at Choti Bibi House, 1st floor, Plot No.63, Amin Imambada Jail Road (North), Mumbai--9. : Petitioner (Sister-in-law of the detenu) V/s. 1. The State of Maharashtra, through the Secretary to the Government of Maharashtra, Home Department, Mantralaya, Mumbai--32. 2. Anna Dani, The Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority, Mantralaya, Mumbai--32. 3. The Superintendent of Prison, Mumbai Central Prison, Arthur Road, Mumbai. 4. The Superintendent of Prison, Nasik Road Central Prison, Nasik. : Respondents ... Mrs.A.M.Z.Ansari for the petitioner. Mr.S.R.Borulkar, Public Prosecutor for the respondents. ... CORAM : BILAL NAZKI & S.A.BOBDE,JJ. Date of Reserving the ) : 08.2.2008 Judgement. ) Date of Pronouncing ) : 14.2.2008 the Judgement. ) -: 2 :- JUDGEMENT (Per S.A. Bobde,J.) 1. The petitioner is the sister-in-law of the detenu, one Syed Mohammad Kalanter Zadeh, who has been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the "COFEPOSA Act"). The detenu is a resident of India, but is a National of Iran. The petitioner has challenged the order of detention dated 2.6.2007 issued by the respondent no.2, the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority, directing his detention with a view to preventing him in future from smuggling of goods. The order of detention was served on the detenu along with the grounds of detention. 2. The order of detention is based on several antecedents of the detenu which suggest that action had been taken in the past against him for illegal importing or smuggling of saffron. Having regard, however, to the controversy raised in the petition, it is sufficient to refer to the statements in paragraphs 11, 12, 13 and 15 of the grounds of detention wherein the Detaining Authority has stated as follows:- "11. A search was carried out under Search -: 3 :- Warrant No.SW/03/07 on 05.01.2007 at your residential premises at Chothi Bibi House, 1st Floor, Plot No.63, Amin Imambada, Jail Road (North), Mumbai and amongst others the following incriminating documents were recovered vide Panchanama dated 05.01.2007:- i) Show Cause Notice No.380/06/B/05-RA dated 08.04.2005 issued by Joint Secretary to Govt. of India, in Revision Application No.01/2005 dated 28.02.2005 filed by the Commissioner of Customs, CSI Airport, Sahar, Mumbai against Order-in-Appeal No.03/2005 AP ‘B’ dated 20.01.05 passed by Commissioner of Customs (Appeals), CSI Airport, Mumbai, which indicates that you had tried to smuggle four zipper bags containing 58 kgs of Saffron on 08.11.2004 at CSI Airport, Sahar, Mumbai. ii) An Application for Discharge under Section 245 of CrPC 1973 dated 24.07.2000 wherein it shows that you were arrested by Customs, Ahmedabad for -: 4 :- smuggling activity of Saffron. Admittedly, a copy of the show cause notice has not been furnished to the detenu. 3. The relevance of the show cause notice can be seen from the fact that the Detaining Authority proceeded to state that the Adjudicating Authority stated in the order in pursuance of the show cause notice as follows: "Although the pax was found to be a frequent visitor to India and in the past he was subjected to ITC actions in respect of saffron only, no order can be passed beyond the scope of the show cause notice issued. However, since adjudicating authority could not go beyond the realm of Show Cause Notice, the re-shipment of saffron was allowed therein." The Detaining Authority was thus of view that the Adjudicating Authority could not go beyond the realm of the show cause notice and, therefore, allowed the re-shipment of saffron. In conclusion, the Detaining Authority has stated: -: 5 :- "......... I am satisfied that, unless detained, you are likely to continue to engage in aforesaid prejudicial activities in future also, and therefore it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to prevent you in future from smuggling goods." 4. The learned counsel for the petitioner submitted that the detention order is vitiated on the ground that though the Detaining Authority has relied on the documents seized from the detenu as incriminating documents and she has not supplied a copy of one of the documents. Nonetheless, the Detaining Authority has relied on the said documents to eventually reach the subjective satisfaction that it is necessary to detain the detenu. 5. The respondent no.2 Detaining Authority has filed an affidavit-in-reply and has denied that the incriminating documents were vital documents and that the failure to supply them to the detenu has not, in any way, affected the rights of the detenu to make an effective representation under Article 22(5) of the Constitution of India. In fact, in a subsequent additional affidavit, -: 6 :- the Detaining Authority has reiterated her view that the documents were not vital and has further stated: "These were though incriminating documents they were not vital documents. These documents were not basis for arriving at my subjective satisfaction while issuing the Order of Detention." 6. Having considered the matter at length, we consider this view of the Detaining Authority as unfortunate, particularly since it is a matter affecting the liberty of a person and the constitutional right to make an effective representation under Article 22(5) of the Constitution of India. We are unable to accept or even understand how a document which can be incriminating may not be vital. If this submission of the Detaining Authority were accepted, it would mean that a certain piece of evidence may be incriminating; it may result in the conclusion that he is liable for being detained without trial and yet the document may be considered as not vital and, therefore, not supplied to the detenu. This obviously cannot be permitted. It is well-settled that material which is taken into account by the Detaining Authority must be supplied to the detenu along -: 7 :- with the grounds of detention. 7. The Detaining Authority has also taken a stand that the document pertains to a past case of the detenu and was not germane to her subjective satisfaction even though the detention order is passed in view of the fact in law that the detenu is likely to "continue to engage in aforesaid prejudicial activities." It must be noted that the Detaining Authority has, in the grounds of detention, referred to the show cause notice preceding the detention order and come to the conclusion that the Adjudicating Authority had to allow re-shipment of the goods because it could not go beyond the scope of the show cause notice. 8. In this view of the matter, it is clear that the subjective satisfaction of the Detaining Authority is vitiated and there has been denial of the right to make an effective representation, having regard to Article 22(5) of the Constitution of India. This being so, it is not necessary to consider the applicability of section 5A of the COFEPOSA Act. 9. In the result, the petition succeeds. The detenu Syed Mohammed Kalanter Zadeh shall be released forthwith, unless he is required in any other case. The rule is -: 8 :- made absolute in the aforesaid terms. (BILAL NAZKI, J.) (S.A. BOBDE, J.)