Judgment:
Santosh Duggal, J.
(1) The petitioner is under detention in pursuance of an order of detention dated 9th March 1988 passed by the Government of Kerala under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short) on the view that the detention of the petitioner was necessary for preventing him, from abetting the smuggling of gold and dealing in smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled gold. The provisions thus of sub-sections (ii) and (iv) of Section 3(1) of Cofeposa Act were invoked.
(2) The facts, as set out in the grounds of detention, reveal that one Thiruthy Mohamed Kutty landed at Trivendrum Airport on 27th June, 1987 from Sharjah and on suspicion his baggage was checked and one bed was found to contain, on being cut open, 43 gold biscuits and 3 gold coins, wrapped in separate coloured paper bit and covered with adhesive tape, totally weighing 5,009.500 gms. of the value of Rs. 13,59,045.00 Finding it to be a case where gold had been smuggled into India in the shape of biscuits and coins stealthily and surreptitiously in violation of the provisions contained in Customs Act, 1962 and thus liable for confiscation to the Government, the same was seized under a mabazar duly prepared and the aforesaid Thiruthy Mohamed Kutty was taken into custody along with other relevant documents such as Air India boarding pass ; Air India ticket used from SharJah to Trivendrum as well as his Air India ticket from Bombay to Ahu Dhabi ; Air India luggage tag and his Indian passport together with other four documents and photographs which were Seriallly numbered 'I' to '5'.
(3) On the same day, Thiruthy Mohamed Kutty made statement to the authorities under section 108 of the Customs Act, revealing that he was employed at Abu Dhabi as a domestic servant in the house of a Arab and that on arrival at Trivendrum airport, his baggage was searched by custom officer on duty, and the detailed examination of the bed had yielded the recovery of 43 gold biscuits as well as 3 gold coins and that this bed containing the aforesaid gold had been entrusted to him by one Kammu at Abu Dhabi, who was a native of Mambram in Malappuram District and that the said Kammu was known to him and so he had agreed to carry the bed with gold and coins concealed therein, in consideration of the remuneration offered to him by said, Kammu. He revealed that Kammu's instructions were that he was to take the bed to his house at his (Kutty's) native place and deliver the same to two persons who would call on him with Kammu's photograph and that the document marked '2', which had also been seized from him amongst others, was given to him by Kammu at Abu Dhabi along with bed with instructions that it should also be given to the persons who would come to collect the bed and then they would pay him the agreed remuneration. According to Thiruthy Mohamed Kutty, Kammu had further directed that in case nobody turned up to collect the bed, then he should go to Mambram i.e. Kammu's village and enquire about his residence at a stationary shop in the village near the mosque and entrust the bed and the letter to some one at his house and collect his remuneration, He further revealed that the said Kammu was engaged in collecting money from persons at Abu Dhabi and sending that to India as 'tube money'. After narrating certain other details of search of Kutty's house on 28th June 19^7, the grounds straightaway proceeded to say that on 8th October, 1987, the house of Erukulangara Kunhimohamed i.e. the detenu was searched and there two paper packets containing Indian currency of Rs. l,20,000.00 in six bindles of 100 numbers of Rs. 100.00 denomination in each packet were recovered from the secret cavity of a wooden table found in one of the rooms in the house ; besides one Air India ticket and five other documents which were marked as 1' to '6'. This Indian currency was also seized on the reasonable belief that they were the sale proceeds of the foreign gold biscuits and were, thereforee, liable to confiscation to the Government. The Air India tickets and other documents were also seized for further action.
(4) It is stated further that the petitioner made a voluntary statement after his arrest on 9th October, 1987 to the officers of the Custom Intelligence and Investigation Unit, Cochin and he disclosed amongst other facts that the gold sent by Kammu through Kutty was to be collected by him and that document marked '2' seized from said Kutty was a note meant for him, detailing instructions and that but for the seizure of the gold, he would have gone and collected the same under instructions from Kammu, as conveyed by Kammu by means of a letter. The details of the documents seized from the house of the petitioner, also refer to a photograph of Kutty, which allegedly Kammu had sent to the petitioner, and the letter dated 4th October, 1987, allegedly sent by Kammu to the petitioner containing instructions in the manner stated to have been revealed by Kutty or the petitioner , in their respective statements under section 108 of the Customs Act. The reason which are summed up at the end, in the grounds of detention, as leading to the subjective satisfaction of the detaining authority, that it was necessary to detain him under the provisions of section 3(1)(ii) and (iv) of the Copeposa Act are to the effect that gold worth Rs.l3,59,045.00 in 295 the shape of 43 biscuits and 3 gold coins had been smuggled into India by Kutty as having been sent by Kammu with instructions to the petitioner to disburse the sale proceeds of the said gold to different persons, named in the letter earlier sent to him by said Kammu, and that earlier also, he had received 10 gold biscuits of 10 grams each as having been sent by his cousin Kammu from Abu Dhabi through a person and that the Indian currency recovered from his house was the sale proceeds of the said gold meant for disbursement to different persons by way of compensatory payments. This later allegation is based on the information furnished by the petitioner in bids statement under section 108 of the Customs Act which was retracted subsequently on 17th October, 1987 by means of a petition addressed to the Collector of Customs, Cochin with a copy to the Additional Chief Judicial Magistrate (Economic offences), Ernakulam disclaiming every part thereof and further alleging that the statement had been extracted from him forcibly and that he was made to sign the same without being aware of the contents thereof.
(5) The detention is challenged on a number of grounds in this writ petition filed under Article 226 of the Constitution of India seeking issuance of a writ of habeas corpus or any other appropriate writ, order or direction for his immediate release and for quashing the order of detention dated 9th March, 1988 passed by respondent No. 2, namely, State of Kerala through the Secretary (Home).
(6) During arguments Mr. Rohit Kochhar, appearing for the petitioner , took up an entirely new point, which being a point of law and going to the root of the matter, was allowed to be taken. Mr. Kochhar submitted that a reading of paragraphs 3 and 4 of the counter affidavit filed on behalf of respondents No 2 and 4, namely. State of Kerala and Superintendent, Central Prison. Trivendrum, where the petitioner was lodged, reveals that while passing the detention order, the detaining authority was influenced by the material which was not, at all, disclosed, to the petitioner while serving the detention order or the grounds of detention on him. He pointed out that the narrative in this reply, is to the effect, that along with the seizure of the contraband gold from Kutty on 27th May. 1987, 5 incriminating documents were also seized from him and that one of these documents revealed that gold along with the bed was to be handed over to 'Machu of Kammu'. It is further asserted in the counter affidavit sworn by an Additional Secretary to Government of Kerala, Home Department that enquiries made by the Customs Department investigating officers revealed that Erukulangara Kunbimohammed, namely, the petitioner was Kammu's aunt's son and that Kammu used to call him Machu The affidavit goes on to aver that it was on the basis of this information that the officers searched the residence of the petitioner on 8th October, 1 987 when recovery of Indian currency of Rs. 1.20.000.00 and six documents, allegedly of incriminating nature, was effected.
(7) Mr. Kochhar argued that this is, according to the stand now taken by respondent No. 2, namely, the detaining authority, a connecting link which led the officers to the search of the house of the petitioner on 8th October, 1987 on the basis of intelligence gathered by the investigating officers of the Customs Department about petitioner's relationship with Kammu and also the fact that one of the documents recovered from Kutty 296 had given the name of the person to whom the gold was to be handed over as Machu and that it is the petitioner who is nicknamed as Machu by the said Kammu. According to Mr. Kochhar, this was a relevant material according to the detaining authority and it was on the basis thereof that the custom authorities were able to trace the person for whom the smuggled gold was meant and that being so, it was obligatory on the part of the detaining authority to disclose the same to the petitioner with the grounds of detention. He contended that there is not even a whisper of a suggestion in the grounds of detention about any such information having come to the knowledge of the customs authorities and further that even the documents seized from Kutty are not shown to be containing the name of the person for whom the gold was meant and that the case was rather set up differently, namely, the said Kutty had instructions to hand over the gold to the two persons who would approach him at his house with his (Kammu's) photograph . it is, thereforee, according to Mr. Kochhar, a case where the petitioner had been deprived of his constitutional right of making an effective representation as guaranteed to him by Article 22(5) of the Constitution because in the absence of the material which was in the possession of the sponsoring authority or the detaining authority, being disclosed to the petitioner and on the basis of which he was linked with Kammu, who had allegedly sent the gold through Kutty. he was denied all opportunities to controvert the facts now set out against him and that this alone will vitiate the legality of the detention order.
(8) The learned counsel cited two judgments of the Supreme Court support of his plea that in such an event the detention order becomes liable to be quashed and petitioner is entitled to be released forthwith. The first case in this regard is reported as : 1974CriLJ690 , (Bhut Nath Mate v. The State of West Bengal), where it was held that one of the fundamental constitutional mandate was that the detaining authority shall communicate to the detenu 'grounds on which the order has been made' and that this meant that: 'nothing less than all the material grounds which operate to create that subjective satisfaction in the authority which spells suspension of the citizen's liberty'. In this reported case, the detention was ordered under the provisions of Maintenance of Internal Security Act on the allegations based on three specific instances, namely, on three given dates the petitioner: and his associates had broken open wagons and looted away tea. However, it turned out that when the case was put up before the District Magistrate, who was detaining authority, a complete dossier about the entire history sheet of the petitioner was placed before him and then it was mentioned that besides those specific cases some of the instances of his recent anti-social and criminal activities, which were prejudicial to the maintenance of the supply and services essential to the community as detailed hereinafter, had also come to notice. The instance or instances of alleged anti-social and criminal activities were, however, not communicated to the detenu in the grounds of detention and it was for this reason that it 3s held that the constitutional mandate had been violated inasmuch as all the material facts which had influenced the subjective satisfaction of the detaining authority had not been communicated to the petitioner therein, thus violating his constitutional right of effective representation. The detention order in that case was thus held to be liable to be set aside and the petitioner released forthwith.
(9) Same principle has been reiterated in another authority, also reported in : 1974CriLJ805 , (Deben Das v. The State of West Bengal), where also incidentally the detention order was ordered by invoking the provisions of section 3 of the Maintenance of Internal Security Act, 1971 and where the ground of detention was a solitary incident of wagon breaking by the detenu but in the affidavit of the District Magistrate filed as a counter to the writ petition ; it was alleged that the detenu was a notorious wagon breaker and in that situation it was held that it was clear from the affidavit of the District Magistrate that be had taken into consideration the material which was not communicated to the detenu and, thereforee , the detention was bad.
(10) The principle enunciated in both the abovementioned authorities, particularly the last mentioned authority is on all fours to the present case because here also some material incriminating to the petitioner has been revealed for the first time in the counter affidavit filed on behalf of the detaining authority, in reply to the writ petition and at no earlier stage it was communicated to the petitioner so as to enable him to make an effective representation against the allegations contained therein. Faced with this clear principle laid down by the Supreme Court and the averments made in the counter reply, the learned counsel appearing for respondents No. 2 and 4 as also for Union of India could not offer any comments.
(11) Finding justification in the plea advanced by Mr.Kochhar that the material now revealed in the counter affidavit, as referred to above, is a very material circumstance which must have weighed with the detaining authority in arriving at his subjective satisfaction, and that in the absence of this material there was, in fact, no evidence to connect the petitioner with this smuggled gold or the objectionable activities of Kammu, and the grounds of detention did not reveal any link because the narrative contained therein abruptly reveals that after recording statement of Kutty who, it is pertinent to note, did not name the petitioner by any reference; straightway and that too after gap of four months, petitioner's house was raided.
(12) I, thereforee, find ii to be a case where no other point needs be taken up for consideration and that the detention order is liable to be quashed on this ground alone, namely, withholding of the material facts from the detenu while conveying the grounds of detention to him, thereby depriving him his constitutional right of an effective representation against the facts which must have weighed with the detaining authority, while passing the detention order.
(13) This is, thereforee, a case where the detention order is liable to be quashed. It is ordered accordingly. The rule is coafirmed. The petition is allowed and it is directed that the petitioner be released forthwith, if no required in any other matter, or proceedings.