Case: Mohd. Shakeel Wahid Ahmed Vs. State Of Maharashtra &amp; Ors

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 petitioners wife had filed a habeas corpus petition in the Bombay High Court for the release of the petitioner, but that petition (Writ Petition No. 57 9 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 no t 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 reasonstated 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 f our 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 f or considering the validity of sections 5-A 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 detent ion 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 thesesurviving 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.y 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 petitioners wife had filed a habeas corpus petition in the Bombay High Court for the release of the petitioner, but that petition (Writ Petition No. 57 9 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 no t 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 section5A of the Actby 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) noned 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 f our 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 f or considering the validity of sectionsand 11 of the Act. We have already set out the purport of sectionSection 11, which authorises the revocation of detention orders, provides byng 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 therefromvalued at Rs. 18, 89,textiles valued at Rs. 18, 20 675, miscellaneous goods valued at Rs. 18, 769and 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 variousof this ground refer to the material which connects the petitioner with the illegal import of the goods seized from the ship.

Reasoning:
We cannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsis 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 deten tion 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 section5A of the Actthat 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 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 Shamsis case was not placed before him is that the re port of the Advisory Board in Shamsis 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 Boards 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 Novemb er 7, 1981 and the Advisory Boards opinion in Shamsis 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 g rounds 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 St ate Government, we were baffled to find that though Shri Capoors 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.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 releasedmay 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 detainingt 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 Shamsis 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 Shamsis 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 tocannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsis 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 deten tion 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 section5A of the Actthat 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 ain 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 Shamsis case was not placed before him is that the re port of the Advisory Board in Shamsis 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 Boards 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 Novemb er 7, 1981 and the Advisory Boards opinion in Shamsis 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 g rounds 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 St ate Government, we were baffled to find that though Shri Capoors 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.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