Mohd. Shakeel Wahid Ahmed Vs. State of
Maharashtra & Ors [1983] INSC 32 (31 March 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) MISRA RANGNATH TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1983 AIR 541 1983 SCR (2) 614 1983
SCALE (1)308
CITATOR INFO :
R 1987 SC1472 (14) D 1987 SC1748 (11,12) D
1988 SC 222 (11)
ACT:
Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act 1974-Two persons detained in respect of
some transaction-Advisory Board was of view no sufficient cause for detention
of one of them-Failure to place view of the Board before detaining authority
while passing order of detention of the other-Whether vitiated order of
detention.
HEADNOTE:
The Customs officials intercepted a ship off Bombay
and seized from it various articles worth several lakhs of rupees. None of the
seven persons on board the ship possessed any documents authorising them to
import the goods. On August 19, 1981, S. one of the seven persons on board the
ship, was detained under the provisions of Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974; but the Advisory Board reported
that there was in its opinion no sufficient cause for his detention. He was
therefore released.
By an order dated November 7, 1981 the
petitioner, who was also one of the persons on board the same ship, was detained
under the COFEPOSA in respect of the same transaction. While dismissing the
habeas corpus petition filed by the petitioner's wife, the High Court was of
opinion that three out of the four grounds on which the petitioner was detained
were bad for one reason or the other but that the first ground was enough to
sustain the order of detention in that important material relevant to that
ground was neither placed before nor considered by the detaining authority
while passing the order of detention.
In the petition under Article 32 of the
Constitution it was contended on behalf of the petitioner that had the
detaining authority in the instant case been apprised that the Advisory Board,
on examining an identical ground in the case of S had reported that there was
no sufficient cause for detention of S who was involved in the same
transaction, it might not have passed the order of detention against the
petitioner which is based on similar facts and that its failure to place such
highly relevant and important material before the detaining authority has
vitiated the order of detention.
Allowing the petition,
HELD: The failure of the State Government to
place before the detaining authority the opinion which the Advisory Board had
recorded in favour of another detenu who was detained partly on a ground
relating to 615 the same incident deprived the detaining authority of an
opportunity to apply its mind to a piece of evidence which was relevant, if not
binding. In other words, the detaining authority did not, because it could not,
apply its mind to a circumstance which reasonably could have affected its
decision whether or not to pass an order of detention against the petitioner.
[618 B-H] The opinion of the Board may not have been binding on the detaining
authority but it cannot be gain said that the fact that the Board had recorded
such an opinion on identical facts involving a common ground was at least a
relevant circumstance which ought to have been placed before the detaining
authority in the case. The ground on which the High Court upheld the order of
detention was similar to one of the grounds on which S was detained, the
transaction being one and the same as also the incident on which the two orders
of detention were based. This is why the opinion of the Board in the earlier
case became relevant in the present case. [618 D-F] It may be that there were
other grounds on which S was detained and that the Advisory Board might have
come to the conclusion that since these grounds were not enough to justify his
detention there was no sufficient cause for detaining him. But it is not as if
the opinion of the Board was binding on the detaining authority. The substance
of the matter is that the detaining authority in this case failed to apply its
mind to a highly relevant circumstance that an order of detention passed on the
ground on which the detention of the petitioner rested, in addition to
something more, was not sustained by the Advisory Board in the case of S. The
reasonable probability that, since the Advisory Board had not sustained S's
detention on a ground which was common to him and the petitioner, the detaining
authority would have, if at all, passed the order of detention against the
petitioner on the remaining three grounds only cannot be excluded. Those three
grounds had been held to be bad by the High Court. [619 E-H] The explanation of
the detaining authority that the Board's opinion dated October 19, 1981 came
into existence after he had passed the order of detention on October 8, 1981 is
not correct. When the order of detention was passed on November 7, 1981 the
Board's opinion in Ss' case was available to the State Government nearly three
weeks before that date and it was the duty of the State Government to place
that opinion before the detaining authority. [620 E-F]
ORIGINAL JURISDICTION: Writ Petition (Crl.)
No. 1369 of 1982.
(Under Article 32 of the Constitution.) Ram
Jethamalani and Miss Rani Jethmalani for the Petitioner.
O.P. Rana and Mr. M.N. Shroff for Respondents
Nos. 1 & 2.
K.G. Bhagat, Addl. Sol. General, N.C.
Talukadar,. Miss A. Subhashini and Girish Chandra for Respondent No. 3.
616 The Judgment of the Court was delivered
by CHANDRACHUD, C.J. By this Writ Petition under Article 32 of the
Constitution, the petitioner Mohd. Shakeel Wahid Ahmed challenges the validity
of an order of detention dated November 7, 1981 passed against him by the first
respondent, the State of Maharashtra, under Section 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974, herein
referred to as 'the Act'.
Earlier, the petitioner's wife had filed a
habeas corpus petition in the Bombay High Court for the release of the
petitioner, but that petition (Writ Petition No. 579 of 1982) was dismissed by
the High Court on October 28, 1982.
The High Court held that three out of the
four grounds on which the petitioner was detained were bad for one reason or
another but that the remaining ground, namely, ground No. 1 did not suffer from
any defect and was enough to sustain the order of detention. While upholding
the detention on one of the four grounds only, the High Court relied upon the provisions
of section 5-A of the Act by which an order of detention made on two or more
grounds is to be deemed to have been made separately on each of such grounds
and consequently, such an order cannot be deemed to be invalid merely because
some of the grounds are: (i) vague, (ii) non- existent, (iii) not relevant,
(iv) not connected or not proximately connected with such person or (v) invalid
for and other reason whatsoever.
As stated above, three out of the four
grounds on which the petitioner was detained have been held to be bad by the
High Court. Those grounds are mentioned in paragraphs 5.2, 5.3 and 6.1 of the
grounds furnished to the petitioner.
Grounds 5.2 and 5.3 were held to be bad
because they were neither relevant nor did they bear any "nexus, direct or
indirect, with the detenu". It would appear from the judgment of the High
Court that this position was not controverted by the learned Public Prosecutor.
In so far as the fourth ground mentioned in paragraph 6.1 is concerned, the
High Court held that it was bad because important material which was relevant
to that ground was neither placed before nor considered by the detaining
authority while passing the order of detention. In view of the judgment of the
High Court, only one out of the four grounds of detention, namely, the ground
mentioned in paragraph 1.1 of the grounds furnished to the detenu requires
consideration by us.
This petition along with a few other
petitions was referred to the Constitution Bench for considering the validity
of sections 5-A 617 and 11 of the Act. We have already set out the purport of
section 5-A. Section 11, which authorises the revocation of detention orders,
provides by sub-section 2 that the revocation of a detention order shall not
bar the making of another order under section 3 against the same person. In
view of the conclusion which we have reached in this petition, it is
unnecessary to consider the validity of these sections.
The surviving ground of detention contains
the allegation that, working on a secret information received on January 13,
1981, the officers of the Marine and Preventive Wing of the Collectorate of
Customs (Preventive), Bombay, intercepted a vessel named 'Manek Prasad' in the
sea off World' at Bombay on February 2, 1981 at about 2 p.m. and seized
therefrom wrist-watches valued at Rs. 18, 89, 935/-, textiles valued at Rs. 18,
20 675, miscellaneous goods valued at Rs. 18, 769 - and Indian currency of Rs.
1,540/- and 188 U.A.E. Dhirams. It is alleged that none of the seven persons
who were on board the ship possessed any documents authorising them to import
the aforesaid goods. The various sub-paras of this ground refer to the material
which connects the petitioner with the illegal import of the goods seized from
the ship.
Shri Jethmalani who appears on behalf of the
petitioner contends that the first ground of detention is bad for several
reasons, most of which are directed to the question as to whether the detaining
authority had applied its mind to the relevant facts and circumstances bearing on
the question of the petitioner's detention. Only one of these reasons is valid
and has to be accepted That reason is as follows:
The petitioner was detained under an order
dated November 7, 1981. Prior to that, one Shamsi was detained under an order
dated August 19, 1981 passed by the same Government of Maharashtra After
considering the reference and the materials placed before it in Shamsi's case,
the Advisory Board reported to the State Government on October 19, 1981 that
there was in its opinion no sufficient cause for Shamsi's detention. Shamsi was
released, as he had to be, in pursuance of the Advisory Board's opinion.
It is urged by Shri Jethmalani that one of
the grounds on which Shamsi was detained being the same as ground No. 1 in this
case, the fact that the Advisory Board had reported that there was 618 no
sufficient cause for Shamsi's detention ought to have been placed before the
detaining authority which passed the order of detention against the petitioner.
According to the learned counsel, the failure of the State Government to place
a highly relevant and important piece of material before the detaining
authority vitiates the order of detention. If the detaining authority in the
instant case were apprised that the Advisory Board had reported on examining,
inter alia, an identical ground that there was no sufficient cause for
detention of another person involved in the same transaction, it may not have
passed the order of detention against the petitioner, which is based on similar
facts. This submission is well-founded and must be accepted.
It is clear that Shamsi was detained for
engaging in a smuggling activity arising out of the same incident and
transaction which forms the subject-matter of ground No. 1 in the instant case.
The opinion of the Advisory Board that there was no sufficient cause for
Shamsi's detention may not have been binding on the detaining authority which
ordered the detention of the petitioner but, it cannot be gainsaid that the
fact the Advisory Board had recorded such an opinion on identical facts
involving a common ground was at least a relevant circumstance which ought to
have been placed before the detaining authority in this case. Since three out
of the four grounds on which the petitioner was detained have been held to be
bad by the High Court, we have to proceed on the basis that the petitioner was
detained and could validly be detained on the remaining ground only. That
ground is similar to one of the grounds on which Shamsi was detained, the
transaction being one and the same, as also the incident on which the two
orders of detention are based.
That is why the opinion of the Advisory Board
in Shamsi's case becomes relevant in the petitioner's case. The failure of the
State Government to place before the detaining authority in the instant case,
the opinion which the Advisory Board had recorded in favour of a detenu who was
detained partly on a ground relating to the same incident deprived the
detaining authority of an opportunity to apply its mind to a piece of evidence
which was relevant, if not binding. In other words, the detaining authority did
not, because it could not, apply its mind to a circumstance which, reasonably,
could have affected its decision whether or not to pass an order of detention
against the petitioner.
It is contended by Shri Rana, who appears on
behalf of the Government of Maharashtra, that there is distinction between the
619 petitioner's case and that of Shamsi since, the petitioner is the brother
of the consignor, Ashfaq, while Shamsi is not. Counsel contends that by reason
of this distinction in the facts of the two cases, the State Government was
justified in not placing before the detaining authority in this case the fact
that the Advisory Board had reported that there was no sufficient cause for
detaining Shamsi. We may assume that the petitioner is the brother of the
consignor Ashfaq, since in these proceedings we cannot determine the truth of
the various facts alleged by the detaining authority. But the question for
consideration is not whether the detaining authority would have been justified
in passing the order of detention against the petitioner, even after being
apprised of the opinion of the Advisory Board in Shamsi's case. The question is
whether the order of detention was passed in this case after applying the mind
to the relevant facts which bear upon the detention of the petitioner. It seems
to us plain that the opinion of the Advisory Board in Shamsi's case was, at any
rate, an important consideration which would and ought to have been taken into
account by the detaining authority in the instant case. That opportunity was
denied to it.
Shri Rana contends that there were other
grounds on which Shamsi was detained and the Advisory Board may have come to
the conclusion that since those grounds were not enough to justify Shamsi's
detention, there was no sufficient cause for detaining him. This argument also
overlooks that-it is not as if the opinion of the Advisory Board in Shamsi's
case was binding on the detaining authority in this case. The substance of the
matter is that the detaining authority in this case failed to apply its mind to
the highly relevant circumstance that an order of detention passed on the
ground on which the detention of the petitioner now rests, in addition to
something more, was not sustained by the Advisory Board in Shamsi's case. We
cannot exclude a reasonable probability that since the Advisory Board had not
sustained Shamsi's detention on a ground which was common to him and the
petitioner, namely, ground No. 1, the detaining authority would have, if at
all, passed the order of detention against the petitioner on the remaining
three grounds only. Those three grounds have been held to be bad by the High
Court and it is only by resorting to the provisions of section 5A of the Act
that the High Court upheld the detention of the petitioner.
Shri D.N. Capoor, Secretary to the Government
of Maharashtra, Home Department (Law and Order), has filed a 620
counter-affidavit in this Court in answer to the Writ Petition. In paragraph 14
of the said affidavit, Shri Capoor says that he had "ordered to issue
detention order on 8.10.1981", after considering the entire material very
carefully. Shri Capoor says that he formulated the grounds of detention
"contemporaneously" on 8.10.1981, that thereafter the order of
detention and the grounds of detention were got typed and the Customs
authorities were directed to supply to the detenu the copies of the statements
which were placed before him. According to Shri Capoor, it was after the
receipt of copies of all the documents that the order of detention was issued
on November 7, 1981. The explanation offered by Shri Capoor as to why the
opinion of the Advisory Board in Shamsi's case was not placed before him is
that the report of the Advisory Board in Shamsi's case which is dated October
19, 1981, was not in existence when he "formulated and ordered to issue
the detention order against the petitioner" in this case. We see quite
some difficulty in accepting this explanation. In the first place, the fact
that it was on October 8, 1981 that Shri Capoor had directed the detention of
the petitioner is a matter of no consequence. The order of detention was
issued, that is to say passed, on November 7, 1981 and we must have regard to
the state of circumstances which were in existence on that date. Shri Capoor
seems to suggest that the Advisory Board's opinion dated October 19, 1981 came
into existence after he had made up his mind to pass an order of detention
against the petitioner on October 8, 1981 and therefore he could not take, or
need not have taken, that opinion into account. The infirmity of this
explanation is that the order of detention was passed against the petitioner on
November 7, 1981 and the Advisory Board's opinion in Shamsi's case was
available to the State Government nearly three weeks before that date. If that
opinion were available before the order of detention was passed in this case,
it was the duty of the State Government to place that opinion before the
detaining authority in order to enable it to consider whether, an order of
detention could be passed against the petitioner despite that opinion
especially when, one of the grounds on which the two orders of detention are
based is identical and relates to the same incident. We would like to add that
having seen the original order of detention which was made available for our
inspection by the officers of the State Government, we were baffled to find
that though Shri Capoor's signature bears the date October 8, 1981, the column
for date, in the left hand corner at the bottom of the order of detention, has
remained or become blank.
621 For the reasons mentioned above, we set
aside the order of detention dated November 7, 1981 passed against the
petitioner by the Government of Maharashtra and direct that to the extent that
his detention is attributable to the said order of detention, he shall be
released forthwith.
P.B.R. Petition allowed.
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