Per Shah, J.:— This is a writ petition for issuance of a writ of Habeas Corpus under Article 226 of the Constitution of India quashing the detention order of Caitaniho D'Souza @ Caitain son of Jacinto Tome D'Souza dated May 25, 1985, issued by the 3rd respondent, the Administrator of Goa, Daman & Diu, and the subsequent declaration dated August 9, 1985, issued by the 2nd respondent, the Addl. Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter for short referred to as ‘the Act’). The petition has been filed by Smt. Veronica Caitaninho D'Souza, the wife of the detenu. The 3rd respondent passed the order dated May 25, 1985, under sub-section (1) of section 3 of the Act on being satisfied that it was necessary to detain the petitioner with a View to preventing him from smuggling goods. The grounds of detention were formulated and are dated May 25, 1985. The grounds of detention together with the relevant material on which the grounds are based were served on the detenu on July 14, 1985, along with the order of detention. Thereafter, on August 9, 1985, the 2nd respondent issued a declaration under sub-section (1) of section 9 of the Act as amended by the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendement) Act, 1984. The declaration was served on the detenu on August 17, 1985. The present petition is filed on September 16, 1985, challenging both the order of detention and declaration under section 9(1).
2. The grounds of detention disclose that on the night of November 30, 1984, an incident of seizure of contraband goods consisting of textiles and spares of watches in 85 packets valued by the customs authorities at Rs. 21,10,638.00 m.v The landing of the goods and the consequent seizure thereof took place at Betalbatim. The police authorities who conducted the seizure under a panchanama handed over the goods to the customs authorities. During the course of the investigation, the customs authorities recorded the statements of various persons including that of the detenu. On the material placed before it, the detaining authority reached the conclusion that the detenu along with another was responsible for the clandestine landing of the contraband goods in question on that night at Betaibatim. Para-6 of the grounds mentions that the detenu along with others was responsible for the clandestine landing of the said contraband goods on that night at Betalbatim. Para-27 of the grounds mentions that on the basis of the material placed before it, the detaining authority was satisfied that the detenu was engaged in smuggling of goods valued at several lakhs of rupees into the country.
3. In support of the challenge to the impugned orders of detention and the subsequent declaration under section 9(1) Mr. Kermali urged before us the following contentions:
i) The grounds of detention clearly indicate that the mind of the detaining authority has been influenced by the fact that the detenu was an ‘ex-COFEPOSA three times detenu’ which is evident from the contents of para-6 of the grounds of detention wherein it is inter alia stated—
‘During the course of interrogation it was revealed that you (Shri Caitaninho D'Souza @ Caitan), an ex-COFEPOSA three times detenu and a number of other persons including Shri Justino Fernandes and Shri Marino Fernandes were responsible for the clandestine landing of contraband goods on the night of 30/11/1984 at Setalbatim.”
4. The detenu, however, was not furnished with any material such as copies of detention orders and the grounds on which such detention orders were passed. Failure to furnish this vital material which has influenced the mind of the detaining authority has resulted in dental of an opportunity to the detenu to make a proper representation;
ii) the correct facts relating to the prior detentions were either not placed before the detaining authority or the detaining authority has failed to apply its mind to the same for (a) the first detention was during the emergency when the detenu's right to move the Court was suspended and he was released on the lifting the emergency (b) the second detention order dated March 29, 1980, was quashed and set aside by the Supreme Court in Writ Petition No. 5677 of 1980 on December 12, 1980, and (c) the third detention order dated May 11, 1983, was also quashed by a Division Bench of this Court (Jahagirdar and Kamat, JJ.) in Writ Petition No. 28 of 1983 by order dated October 11, 1983. The detaining authority has thus relied on totally irrelevant and extraneous material while reaching the satisfaction as to the necessity of detention. Further, the detaining anthority's failure to call for the necessary information in relation to the past detentions passed against the detenu also displays non-application of mind on the part of the detaining authority;
iii) the detenu's right to make a representation against the declaration under section 9(1) has been impaired by reason of his being not furnished with any material on the basis of which the declaration, under section 9(1) was issued and renders the declaration as well as the order of detention vitiated on account of denial of an earliest opportunity to make an effective representation against the declaration;
iv) the declaration in so far as it discloses the satisfaction of the second respondent that the detenu was likely to smuggle goods ‘through’ the coast of Goa is not based on any material in as much as it is the case of the second respondent that the declaration is issued on the same material on which the detention order was issued and the grounds of detention furnished to the detenu do not disclose any material in that behalf;
v) the grounds of detention indicate that the detaining authority has relied on and was influenced by the information received on December 1, 1984, which led to the seizure of the contraband goods. The failure to furnish to the detenu the copy of the said information has resulted in denying the detenu his right to make an effective representation;
vi) the seizure being made by the police, the provisions of section 123 of the Customs Act were not applicable. The grounds of detention, however, disclose that the provisions of section 123 of the Customs Act have been invoked and relied on by the detaining authority which is indicative of non-application of mind on the part of the detaining authority and
vii) whereas the grounds of detention disclose the activity of only ‘abetting’ the smuggling of goods, the satisfaction reached is that the detenu had engaged himself in ‘smuggling’ of goods. This shows non-application of mind and also vitiates the satisfaction as being based on material which did not exists.
5. We do not think it necessary to traverse each one of these contentions urged by Mr. Karmali, since we are satisfied that the order of detention deserves to be quashed on the ground that the detenu was not communicated the material on the basis of which the declaration was issued which has resulted in denying the detenu the earliest opportunity of making effective representation against the said declaration. Even if the material placed before the second respondent was the same as was placed before the detaining authority, the detenu had a right to be informed about it when he was served with the impugned declaration to enable him to exercise his right of making a representation against the declaration at the earliest opportunity. The impugned declaration issued by the second respondent runs thus:
“WHEREAS Shri Caitaninho D'Souza @ Caitan s/o. Shri Jancinto Tome D'Souza has been detained on 14/7/1985 in pursuance of Order No. 14/11/85.HD(G) dated 25-5-1985 of the Government of Goa, Daman & Diu made under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, with a view to preventing him from Smuggling goods;
AND WHEREAS I, the undersigned, specially empowered in this behalf by the Central Government have carefully considered the material bearing on the matter in my possession;
NOW, THEREFORE, I, the undersigned, hereby declare that I am satisfied that the aforesaid Shri Caitaninho D'Souza @ Caitan is likely to smuggle goods into and through the coast of Goa, which is an area highly vulnerable to smuggling, as defined in Explanation 1 to section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
New Delhi,
(M.L WADHAWAN)
the 9th August,
ADDITIONAL SECRETARY TO GOVT. OF INDIA
6. It would appear from the contents of the declaration that it does not state that the material considered in order to reach the satisfaction about the necessity of issuing the declaration was the same which was placed before the detaining authority at the time of passing of the order of detention nor was the detenu informed while serving on him the order of declaration that the material relied on was the same.
7. There is no dispute that no material whatsoever was furnished to the detenu when he was served with the declaration under section 9(1). Indeed, the affidavit filed on behalf of respondent Nos. 1 and 2 by Shri Agnihotri, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, suggests that the detenu was given full opportunity to make a representation under section 9 since the material was enumerated in the grounds of detention itself. He has also taken the stand in his affidavit that since the law does not require that the detention order under section 3 and the declaration under section 9 of the Act be based on separate and distinct material it must be taken for granted that the detenu was supplied with the material on the basis of which the declaration was made and nothing prevented the detenu from exercising his right of making a representation against, the declaration. Even before us an identical arguments was advanced by Mr. Khandeparcar, the learned Counsel appearing for respondent Nos. 1 and 2. He maintained that there was no need to supply the material afresh to the detenu at the time of serving the declaration on him in as much as he was already furnished the material at the time when the detention order was served on him and it was only the same material on the basis of which the satisfaction of the necessity of issuing a declaration was reached by the second respondent.
8. In support of his submission as regards the validity of the declaration under section 9 Mr. Karmali relied on a decision of a Division Bench of the Bombay Bench of this Court (Coram: Shah & Khatri, JJ.), in 1(Criminal Writ Petition No. 170 of 1985, Jethmal Kapurchand Kothari v. Union of India decided on July 19, 1985). In that case the Court was called upon to consider the ambit and scope of section 9 of the Act as amended by COFEPOSA (Amendment Act 1984). In that decision the various implications of the issuance of declaration under section 9 have been pointed out. As observed in that decision declaration under section 9 can be issued with regard to persons carrying on only those prejudicial activities as are mentioned in clauses (a), (b) and (c) of sub-section (1) of section 9. On the other hand, section 3 under which an order of detention can be issued covers a wider range of activities and it is only when the Government or the Officer empowered by the Government is satisfied that prejudicial activity falls within one and more categories mentioned in section 9 that a declaration can be issued. Such a declaration has to be issued within five weeks of the detention of a person pursuant to an order under section 3(1). The consequence of a valid declaration under section 9 is two fold viz. that it extends the period of detention for a longer period without obtaining the opinion of the Advisory Board and further that on confirmation of detention by the State Government extending the period of detention from one year to two years. Moreover, once a declaration under section 9 is issued, the original section 8 gives place to section 8 as amended pursuant to section 9(2). Whereas the normal clause (b) of section 8 requires a reference by the Government to the Advisory Board to be made within a period of five weeks from the date of detention; on a declaration under section 9 the period gets extended to four month and two weeks. Again whereas in a normal case of detention clause (c) of section 8 requires the Advisory Board to submit its opinion within 11 weeks from the date of detention, on a declaration under section 9 the period during which the Advisory Board must submit its opinion is extended to five months and three weeks. The third important aspect is in relation to the satisfaction on the part of both the Advisory Board and the State Government. Whereas in the normal case of detention, under clause (c) of section 8 of the Advisory Board is required to give its opinion as to whether or not there is sufficient cause for the ‘detention’ of the person concerned; when a declaration under section 9 is issued, the Advisory Board has to give its opinion as to whether or not there is sufficient cause for the ‘continued detention’ of the person concerned. Again as far as the initial detention is concerned, it is on receipt of the opinion of the Advisory Board that there is sufficient cause for the detention of the person concerned that the Government has to apply its mind and take a decision as to whether the detention should be confirmed. If the declaration under section 9 is issued, the clause (f) of section 8 gets amended and the confirmation of the detention order by the Government can take place only if the Advisory Board has reported that there is in its opinion sufficient cause for the ‘continued detention’ (not merely sufficient cause for the ‘detention’ as is the case when there is no declaration issued) of a person. It is significant to note that the Parliament has taken care to use the expression ‘continued detention’ both in clauses (c) and (f) of section 8 on a declaration under section 9 being issued. It is clear that this additional word ‘continued’ is not merely a form but of substance since the issuance of a declaration has the drastic result of prolonging the period of detention from one year to two years by reason of the declaration. Bearing in mind these consequences viz. the continuance of detention, the detenu has a right to be afforded with the earliest opportunity of making an effective representation against the declaration under section 9(1). The detenu's right to be furnished with the material considered and relied on by the authority for the purpose of reaching the satisfaction of the necessity of issuing a declaration cannot be thwarted by informing him later that the same material was considered and relied on. It is not that in each and every case the declaration under section 9 can automatically follow on an order of detention under section 3(1) having been passed. Even if no fresh material is placed, the detenu has a right to know which part of the material already considered and relied on and furnished to the detenu at the time of serving the detention order under section 3(1) was considered and relied on by the competent authority while issuing the declaration. It is significant to notice that the authorities exercising powers under sections 3 and 9 need not be the same. As a matter of fact, in the present case the order of detention under section 3 was passed by the third respondent while the declaration was issued by the second respondent. The satisfaction of the second respondent, therefore, may or may not be based on the same material particularly having regard to the fact that the area of prejudicial activity is limited by the wording of clauses (a), (b) and (c) of sub-section (1) of section 9 which activity again has to be Carried on in the highly vulnerable areas as defined in the Explanation. It is, therefore, possible that a different material which was not present before the detaining authority might be taken into consideration by the authority issuing the declaration. The order in the present case does not give any idea what soever to the detenu as to what material has been relied on by the second respondent. It is not for the detenu to assume or imagine on his own that the material must be the same and proceed to make representation, in our view, therefore, it is the bounden duty of the authority issuing the declaration to furnish the material on which he has based his satisfaction. The second respondent who had issued the declaration has not filed the affidavit in the present case. Shri Agnihotri has, however, stated in his affidavit that the declaration is based upon the same material upon which the order of detention is made and, therefore, since all the material was already in the possession of the detenu he could have made an effective representation not only against the detention but also against the declaration made under section 9(1). The mere fact that it is subsequently disclosed to the detenu that the material is the same will not be enough in law. It is well settled that Article 22 enjoins that the detenu must be afforded the earliest opportunity of making a representation and, therefore, it is no defence to say that the material was already in possession of the detenu. We do not mean to say that where the authority issuing the declaration makes it clear simultaneously along with the declaration or in the declaration itself that he has relied on the same material, copies of which have already been supplied to the detenu, he should be given a second set of such material. In such a case it can be said to be a mere formality to furnish a second set of copies. However, when the detenu is not told while serving the declaration on him that the order is being issued on the same materiel it is incumbent on the authority to furnish the material to the detenu along with the declaration. It is only then that the detenu, would be in a position to effectively exercise his right of making a representation.
9. In 2(Mohd. Zakir v. Delhi Administration), (1982) 3 SCC 216 : A.I.R 1982 S.C 696, it has been clearly laid down that—
“It is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with. It is manifest that question of demanding the documents is wholly irrelevant. The infirmity in this regard is violative of constitutional safeguard enshrined in Article 22(5) of Constitution.”
10. The same principles would apply to the case of a declaration which has the effect of continuing the detention who has been detained pursuant to an order of detention under section 3(1). Even as regards section 9 the detenu has the constitutional right to make an effective representation and there is no question of his demanding the documents to enable him to make a representation against the declaration. In our view, therefore, the declaration under section 9 is liable to be quashed on the ground that the copies of documents relied on by the second respondent were not furnished to the detenu. Failure to furnish copies of documents clearly affects the valuable right of the detenu to be afforded the earliest opportunity of making an effective representation against the declaration. The impugned declaration under section 9(1), therefore, is liable to be quashed.
11. In the present case it is not disputed that the reference to the Advisory Board was not made within five weeks nor has the opinion of the Advisory Board been obtained within eleven weeks as required by the provisions of section 8 without the aid of section 9. The order of detention, therefore, must also fall through.
12. In the view that we have taken, we do not deem it necessary to deal with the other points urged on behalf of the detenu. In the result, the petition is allowed. The impugned order of detention dated May 25, 1985, and the impugned declaration dated August 9, 1985, are quashed and Get aside. We direct that the detenu be set at liberty forwith unless required in some other case. Rule made absolute accordingly.
Rule made absolute.