Jamal Mohideen alias Sheik Dawood vs The State of Tamil Nadu

Padmini Jesudurai, J.—The Petitioner, who has been detained by the Respondent u/s 3(l)(i) of the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act 1974, for having indulged in smuggling of goods, has filed the present petition under Article 226 of the

Constitution of India, challenging the above detention and seeking a writ of Habeas Corpus for his release.

The facts which culminated in the order of detention, have been set forth in detail in the grounds of detention. The same would show that on 28th

March, 1987 one Segu Adam arrived from a Srilankan flight carrying three baggages. He made an oral declaration. When he was questioned by

Customs Officers as to whether he had any contraband goods like gold, diamonds etc., he replied in the negative. On suspicion the Customs

Officers examined his Batta black colour slippers worn by him by cutting them open and found 18 gold rods, concealed in the right leg slipper and

12 gold rods concealed in the left leg slipper. The same were seized. On the same day, the Customs officers noticed a pair of slippers lying

abandoned in waiting hall in the airport. The right leg slipper was found tO coutain(sic) 13 gold rods and the left leg slipper if gold rods. The gold

rods were seized. The above Segu Adam when questioned that his friend Segu Abdul Kader of Avuyadayapattinam, Ammapattinam, Pudukottai

Dt., who travelled with him in the same flight, gave him the two slippers for wearing them and returning them back to him outside Trichi airport

customs hall, for which he was promised a sum of Rs. 1,000 and his friend told him that gold rods were concealed in the slippers and that, while he

was caught and the gold discovered, his friend was also wearing slippers with gold rods concealed in the.m. He further stated that the gold rods in

the four slippers belonged to his friend Segu Abdul Kader. On 22nd April, 1987 one Segu Abdul Khader was produced before the above Segu

Adam but the latter denied that the person produced was not the friend, he referred to, who had travelled with him in the flight. Segu Abdul Kader

when questioned denied complicity in smuggling. Enquiries made revealed that the Petitioner who belongs to Kattaipattinam village was the owner

of the contraband gold seized from Segu Adam and from the slippers abandoned on 28th March, 1987, at Trichi airport. The Petitioner was

examined and he gave a voluntary statement admitting that he had handed over the slippers with the gold to Segu Adam and he had travelled in the

same flight as Segu Abdul Kader, under a passport purchased for Rs. 1,500 from one unknown broker by replacing his photo in the passport. On

these materials the Respondent was satisfied that the Petitioner had indulged in smuggling which could not be prevented by the ordinary law of the

land and which needed an order of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

He, therefore, passed the impugned order on 26th November, 1987.

Thiru B. Kumar, learned Counsel for the Petitioner, inter alia contended that the Respondent besides relying upon the statement said to have

been made by the petitioner admitting his complicity in the smuggling, had also relied on the enquiries which had been made and which revealed

that the detenu was the owner of the contraband gold seized From Segu Adam and from the abandoned slippers. Paragraphs of the grounds of

detention made this clear. Learned Counsel, therefore, contended that besides the statement of the Petitioner, the Respondent who had admittedly

relied upon other materials also for drawing the subjective satisfaction for the detention ought to have made those materials available to the

Petitioner in order to enable him to make an effective representation against the detention. Failure to make available the above materials, would

vitiate the entire detention.

Learned Public Prosecutor countered the above contention on the ground that the enquiries referred to in paragraph 6 of the grounds of

detention were only discrete enquiries of Customs officials, which were considered by the Respondent along with the statement of the Petitioner

and that, therefore, even assuming that the documents about the discrete enquiries had not been supplied to the Petitioner, the same would not

vitiate the order of detention, since there was overwhelming evidence for arriving at the subjective satisfaction.

The right of the detenu to make an effective representation against the detention flows from the Constitution. In order to make that right effective

a detenu is entitled to be supplied with all the basic facts and materials, to draw the subjective satisfaction for the detention. The detenu has to be

supplied with all the basic facts and materials relied upon for detention. This has been made clear by the Supreme Court as early as in 1975 in

Khudiram Das Vs. The State of West Bengal and Others, where the Court made the following observation:

It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact

weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed, by a mere statement of the

detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it

has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether

there was any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining

authority and for that purpose, the Court can certainly require the detaining authority to produce and made available to the court the entire record

of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority.

Following the above principle again in Mohd. Dhana Ali Khan Vs. State of West Bengal, the Supreme Court struck down a detention since the

detaining authority, besides the materials that had been referred to in the grounds of detention, had also relied upon certain other materials for

arriving at the subjective satisfaction. In that case the detenu had been detained under the Maintenance of Internal Security Act 1971, for having

committed robbery in a running train. Besides the materials relating to the incident, the detaining authority admitted that the history sheet of the

detenu in which it was alleged that the detenu had been previously involved in four other similar incidents, relating to theft in running trains had also

been relied upon by the detaining authority. Copy of this history sheet had not been furnished to the detenu. Under these circumstances, the

Supreme Court held as follows:

In these circumstances, therefore, we are satisfied that the District Magistrate before passing the order of detention had other materials also before

him. It cannot be said to what extent the District Magistrate was influenced by the other materials and not by the material which is mentioned in the

ground of detention. Thus the order of detention suffers from a very serious infirmity which goes to the root of the matter.

It has, therefore, to be seen whether on the facts of this case, the Respondent has relied upon the enquires that had been made which revealed

that the Petitioner was the owner of the gold seized from Segu Adam and the gold in the abandoned slippers. The relevant portion of Paragraph 6

of the grounds of detention is as follows:

Enquiries made revealed that one Jamal Mohideen alias Sheik Dawood of Kottaipattinam village was the owner of the contraband gold seized

from Segu Adam and from the slippers abandoned on 22nd August, 1987 at Trichi airport.

In order to appreciate, to what extent the result of the enquiries had been relied upon by the Respondent for the subjective satisfaction, it would be

relevant to consider that had preceded these enquiries. On 28th August, 1987 Segu Adam was intercepted and examined. Though the grounds of

detention would seem to indicate, that Segu Adam had told the Customs officers that his friend had travelled under the name Segu Abdul Kader

Avudayampattinam, Ammapattinam, Pudukottai District, we are unable to see any such passage in the statement of Segu Adam. Segu Adam has

merely stated that his friend Segu Abdul Kader, Avudayampattinam, Ammapattinam, Pudukottai District, had travelled with him in the flight and

had given him the two slippers with the gold rods and that the gold rods belonged to that friend Segu Abdul Kader. In that context, one Segu

Abdul Kader''s son of Maulana Abubacker bad obtained anticipatory bail and after that on 21st April, 1987, had appeared before the

Superintendent, Trichi Airport. When Segu Abdul Kader was put up for identification before Segu Adam the latter had stated that Segu Abdul

Kader was not the friend who travelled with him in that flight. Segu Abdul Kader also denied having been involved in this smuggling activity.

Enquiries conducted on the basis of the statement of Segu Adam had come to be a dead end. It is at that stage that further enquiry on new lines

had been made. Till then, there was nothing to connect the Petitioner with this act of smuggling. The statement of Segu Adam and the statement of

Segu Abdul Kader had not in any way implicated the Petitioner. It is then, the enquiries, referred to in paragraph 6 commence. Paragraph 6 of the

grounds(sic) of detention extracted above show, that H HfnUries(sic)reveal that the detenu who belongs to Kattipattinam, village, was the owner

of the conraband gold seized from Segu Adam and from the abandoned slippers. One can reasonably infer that there should have been sufficient

material for the authorities to come to this conclusion, independent of the statement of Segu Adam. It could not be contended that the enquiries

made by the Customs officers made them suspect the complicity of the Petitioner, and on suspicion they questioned him and then found, that he

was not the owner of the gold. On the contrary, the finding that the Petitioner was the owner of the gold had already been arrived at on the basis of

the enquiries that preceded the examination of the Petitioner. It is ''clear'' therefore that the Respondent has substantially relied upon the enquiries

and the result thereof, in order to arrive at the subjective satisfaction, that the Petitioner was the owner of the gold seized that day. No doubt, the

subsequent statement of the Petitioner which till this day, has not been retracted and the fact that the Petitioner has not chosen to send any reply to

the show cause notice, are very relevant materials for arriving at the subjective satisfaction. Whatever that be, the grounds of detention clearly

show that subjective satisfaction has been arrived at, not only on the statement of the Petitioner, but. initially on the result of the enquiries made by

the customs officials. Applying the principles laid down by the Supreme Court in the decisions referred to above, we are bound to hold that it is

obligatory on the part of Respondent to supply the materials connected with that enquiry. It is not for the Respondent to contend, that besides the

information gathered in the discreet enquiries, there were other overwhelming evidence for detaining the Petitioner. The Petitioner is entitled to have

copies of all the materials, on the basis of which subjective satisfaction has been arrived at, as the Supreme Court has pointed out in the decision,

referred to above, the infirmity goes to the root of the detention. The order of detention has to be set aside.

In the result, the petition is allowed and the detenu shall be released forthwith unless he is required in connection with any other case.