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MOHO. SHAKEEL WAHID AHMED

v.·

STATE OF MAHARASHTRA & ORS.

March 31, 1983

[Y.V. CHA~DR.~CHUD, C.J., V.D. TULZAPURKAR, 0. CH~~A

REDDY', A. VARADARAJ'AN AND RANGANATH M!SRA, JJ.)

Conservation (If Foreign Exchange and Prevelllinn (lr S 1. d . ' mugg 1111 Act/vitfe!l •Act 1974-Two persons detalne In nspect of some lrllllsocr .r . .n: . I r. , . ron- Advisory Board was o1 vtew no m", cten cause !r c.etentrofl of one r>ftht,._

Failure to place vi ell' of the Boar~ efore detammg autlwrity while /lOSsing ordtr of detention of the other-Wl1etlrer vttratecl order of deft'ntiofl.

 The Customs officials intercepted a ship off Bombay and seized from it various articles worth severallakhs of rupees. None or the seven persons '011 boatd the ship possesed any documents authorising them to import the goods.

On August 19; 1981, S. one of. the secn persons on board the ship, was detained under the provisions of Conservation of Foreign Exchange ami Prevention of Smuggling Activities Act, 1974 ; but the Advisory Board reported that there was in its opinion no sufficient cause for his detrntion. He was therefore released.

By an orda dated November 7, 1981 the petitioner, who wa1 also one of the persons on board the !jame ship, was detained under the COFEPOSA in re-spect of the sante transaction. Whilo.• dismissing the habras corpus petition filed by the petitioner's wife, th~ High Court was of opinion that time out of the four grounds on which the petitioner was delained were bad for one reason or the other but that the first ground was enough to)ustain the o.n!er of detention in that important material relevant to that ground was ntlther placed before nor considered by th" detain.ina authority white passing the order of detntion. , '

In the petition under Article 32 of the Constitution it as contended ~· behalf of the petitioner that had the detaining ouihority in the instant ' 1 i been apprised that the Advisory Board on examining an identical JfO:On In the case of S had reported that there as no sufficient cause for d: the of S who was involved in the same transaction It might not have pa and order of detention against the petitioner which is based on &:similar !at'rore

that its failure to place such highly relevant and important matena the detaining authority has vitiated the order of detention.

Allowing the petition,

. 'reth' !nee bc•o . . , . .HELD : l11e failure of the State Government to P ccorded iJl I

favour of another dctenu who was detained partly on a ground detalOtng authority the opinion which the AdvisorY Board had tatioltu ·•

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si!AICEBL AJ!MllD V. MAHARASHTRA 615=

d Prived -thedetainins authority of an opportun 't 1 'dent e I • h 1 I Y o .... inti ieee of evidence w HC was re evant, if not binding 1 ..,_ ... - d to a P d 'd t b • n ,...11 itS nlln bC detaining autho~I!Y I no ' ecause It could not, apply its .rP,, fords, I - tancc which reasonably could have arrected its decision oth" ircums f d · h ·!l(ltO a c ass an order o. etent1on agamst t e petitioner. [618 B-H] ~~ or not to P . .

tlll'er . . . . . . . n of the. Board. may not hav~ been binding on the

'fhO 0P1" 1 . 0 1y but it cannot be gain said that the fact that the Board had authOJ1 ' I C t .

I . j~Uinill& pinion on 1dent1ca ac s mvo vmg a common ground was ~such

30 1°circumsmnce which ought to have been placed before the

111¢1 a rdehvaty in this case. The ground on which the High Court upheld · gauton f h . jet.~t1° (detention was.si!Jlilar to one o . t e. grounds,_ on which s. was

t).l.rder. o~ transaction being; one and the same as also the incident on which.

j!P10ed• td c of t:etention were based. This is why the opinion of the Board ...,11'0or ers . h ""' . ase became relevant m t e present case. [618 D-F] 1\ibearher_c . . . ·

JllllliYbe tna.t there ere other grounds on whidh .~ was. detined,_ and th Addsory Board m•ght havc.corr.e to tt.e conclusiOn that smce these tW d~ were not' enough to justify his detention ther'! was no sufficient cause rining, him. But it is not as if the opinion of the Board was binding

thtdetaining authority. The substance of the I"Jattcr is that the detain ina. :lllority 10 this case failed to apply its mind to a highly relevant circutnstan~

i)lt, JO order of dtcntioo passed on the ground on which the detention of

~P.tlitioner rested, in addition to s.omething more, was not sustained by the .

A61i10ry Board in the case of S. The.rcasonable probability that, since the Mrisory Board had not sustain:d S's detention on a grouud which was

lll!r!IOI! to him and the petitioner, the detaining .authority would have, if at ail, pt!lfd the order of detention agninst the petitioner-on the remaining, th1~

onlyeaonot be cxcludt:d. Those threo grounds had been held to be bid by the Hich Cour. (619 EH]

The ~Planation of the detaining authority that the Board's op1010n :;:.october 19, 1981 came into existence after he had passed the order of

1on on October 8, 1981 is not correct. When the ord.:r or detention.

~J:l"<< on Novembell7, 1981 the Board's opinion in Ss' cac w; ls availabl~

~1J f Stitt Government. ne.lr)y three week$ bef01 r. that date and .it was the- theStiltrGovernment t'o plac~ that Clpinion before the detainin& ty. (620 E-F]

1932.0!>.tGINAL JURISDICTION : Writ Petition (Crt): No. 1369 of I

(Under Arr .1 . . tc 0 32 of the Constitution.)· R •

Clilt letfunna/an/ and.Mis.s Raui Jethmalani for the Petitioner. 0 p D-.. • • •~AUa a .t 11 & ., n" "sr. M.N. Shro IT for Respondents- Nos •. l . "' t w. '

~- SIIbt G. lJhagat Add .. r. 1 Miss ~'llhill[ and • . . I. Sol. General,. N.C. Talru\anar •. / . . Ctrt.rh Chandra. for Respondent N.o. 3 .

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SUPREME COURT REPORTS .. .

th~ Judgmet of the Court -..vas delivered by

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. . :C~NDRA~HUD, C.J . .. By this Writ Petition under' A f : of.the Constitution, the petitioner Mohd. Shakeel Wahidr ~~ 32 . challenges the validity of an order of detention dated Nove b rned . ·. fi mer 7 1981 passed agamst ht~ , by the rst respondent, the State of Mabarashtra, under SectiOn 3 of the Conservation of F . . f S I'

A . . . . orergn Exchange and Prevention o mugg mg ctlVJties Act, 1974 h . • h A '

E I' th · • ' erctn refer, red to as . t e ct. _<ar ter, e pet1t10ner s wife had filed habeas corpus petition _in te. Bomba~ Hi~~ Court for the release a~ the petitioner, but that petitiOn (Wnt PetitiOn No. 579 of 1982) w C dismissed by the High Court on October 28, 1982. The High Cou~

held that three out of the four grounds on which the petitioner was det!J.ined were bad for one reason or another but that the remaining ground, namely, ground No. 1 did not suffer from any defectand 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 5A of the Act by which an order or detention mad.;; on two or more grounds is to be deemed to -.baie ·.n

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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, (jji) not relevan~

(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 ground~ are mentioned in paragraphs 5.2,. 5.3 and 6:1 of the grounds furnished to the petitioner. Grounds 5.2 ~~ 5.3 were held to be bad because they were neither relevant nor d they bear any "nexus, direct or indirect, with the detenu". It woul .. was . appear from the judgment of the High Court that this posttJon th I far as ' nqt controverted by the learned Public Prosecutor. n so H'gb fourth ground mentioned in paragraph 6.1 is' conceme~, the ite G . Court held that it was bad because importnt material wch a:y the

vant to that ground was neither placed before .nor coll5tder . ., of deta. . h . .

In vJel•

tntng aut onty while passing the order of detcnttoo. ounds the judgment of the High Court. only one out of the four f 0rtJte ; I of detention, namely, the ground mentioned in p; lragraph 1•

grounds furnished to the detenu requires consideration byus.

. ~~ This petition along with a few other petitions as re ·ns 5~ the Constitution Bench for considerin~ the validity ofsectJ . '

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sH-~EEL AliMED v. MA~ARASHTRA ( Chandrachud, C.J.) 61 ~

and 11 of the Act. We-have already set out the purport of section 5-A. Section 11, _which authorises the revocation of. detention -A orders,. provides by sub-section 2 that th-e _revc;>cation 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 e _have . reached in this ptition; it is unnecessary to consider 'the validitY of these sections. ·, -- . -, . - - ,. , :.

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The suiying ground f detention, cotains the allegation tliat~ 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 .'Maoek

Prasad' in the . seaoff World'. at Bombay on February 2, 1981 at C about 2 p.m. and seizedtherefrom: . wrist-watches valued._ at Rs. 18~ 89,935/-, textiles valued at Rs. i 8, 20 675, miscellaneo\ls goods

vaied at Rs. 18, 769' and Indian currency. of. Rs. 1,540/- and JSS U.A:E. Dhirams. It is alleged that none of-the sven :persons. who were on board the ship possessed any documents authorising em D to import the aforesaid goods. The various sub-paras of this ground • refer to the material whiCh connects the' petitioner with the i11egal

imP, Ort Of the goods seized from the ship., , . . , _ .

Shri .iethalani who appears on . behalf f 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 d, etainingauthoii(y' had. applied its mind to the:releyant 'facts -and circumstances bearing on the question of the petitioner's detention.

Only ':one of these reasons is validand has to be accepted- Tha( reason is as follows: - ·- . ;- '

i • ...._ .... .. The petitioner was detained under an order dated November 7;: 198L Prior to "that, one Shams-i was detained under an order; dated August 19, 1981 passed: by 'the: sanie Government of Maharashtra.- After' con-sidering the reference and the 'materials placed beforeit)n Shamsi's case,. the Advisoiy Board reported to the State Government on- October 19. 1981that there ws in it-s' opinion no sufficient cause for Shamsi; s deteotin. 'Shamsi was released, as he; had to be, in. pursuance of the Advisory Board•s; _opioion. · - - - ··

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_ It is urged by Shri Jethmalani that one of the grounds on H ·; which Shamsi was detained being the . sat;1e as grund No.· I in this caser th.e'factthat th~ - :Adisorr Bo~d had report.ed.that there wa~

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6is • · • ·· SUPREME COUR'f REPORTS · . [1983] 2 s:c.R. . . . .

A.. ~sufficient cause for Shamsi's detention might to have ben pled .before tlie detaining authority hich 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 o.rder or'detention.' If the detaining authority in the 'instant B; . 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 niay.not have passed the order of detention against . the petitioner, which is based on sunilar faCts~ This submission is

 well-founded and must' be accepted.' It is clear thai Shamsi was C' detained for -gaging in a smuggling activity arising out or the sanie

incident and transaction which forms the subjeet-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 D of the petitioner but, it cannot be gainsaid that the fact the :Advisory Board had recorded such an ·. opimon on identical facts involving a . . ' common ground was at least relevant. circumstance which. ought to have been placed before the detaining i:mthority in. this case.

Since. three out. of the four.· grounds on which the petitioner was detaitied have been held to be bad by the High Court, we have to . E proceed on' the basis that the petitioner was detained and could validly be detain.ed on the re'maiillng ground only. That ground is similar to one of , the 'grounds. on which Shamsi.'Yas detained, the transaction being one and the same, as also the incident on which • . the two orders of detention are based~. That is why th~ opinion of the Advisory Board in Shamsi's case becomes rlevant. in the F : 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 ecorded. in fav9ur 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 G piece of .evidence , which was. relevant, if not binding. In other

wrds? 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. · ·

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: r '"' .. -.. .. . It is ron tended by Shri' Rana, who appears oti behalf of the Goveent of lv{aharashtra, that there is distinction between the

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SHAKEEL AHMED v. MA}fARASHTRA, (Chanarachud C.J.) 619 . . ·. . '

peitioner's case and that of Shamsi since, the petitioner is the brother of the consignor, Ashfaq, while Shamsi is riot. Counsel contends that by reason of this distinction in the facts of the two cases, the State.

Governmei1t was justified in not placing before the detaining authority in this case the f<J.ct 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. tlie 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 p, rder of detention was passed in thiscase 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 n 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 tQ be bad by e

High Court and it is only by resorting to the provisions of section SA of the Act that the High Court upheld the detention of the .. ;_ petitioner.

Shri D.N. Capoor, Secretary to the Government of tdaharashtra1 Home Department (l-aw nc; l Order), has 1Ued ll

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620 SUPREME COUltT REPORTS

[1983} 2 S.C.R,

counter-affidavit in this Court in answer to the Writ Petition. In paragraph 14 of the said affidavit, Shri Capoor says that he had "orderedto issue detention order on 8.10.1981'\ after considering

$.~ entire material very carefully. Shri Capoor says that lle formu lat¢d tlle grounds of detention "contemporaneously'' on 8.10.1981, th!it thereafter the ordr of detention and the grounds of <.tetention

we'got typed and the Customs authorities were directed to supply t<)lhe detehu the copies of the statements which were placed before him. Acc;:ording to Shri Capoor, it was after the receipt of copies of all the docUJl1ents that the order of detention was issued on

ovember 7; 1981 The expla.,:ation offered by Shri Capoor as to why the 6pinioti 6f the Advisory Board in, Sham&i's case was not

placed befO're . him is' that the report of the Advhory Bord in S}lamsi's case which, is dated October 19, 1981, was not in existence v\iheri he 'forniulated and ordered to issue the detention order against the petitioner'' in this case. We see quite some difficulty in aeceptfng this explanation. In thefirst place, the fact that it was Of\

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 regai:d to the .state 9f 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 cUe was available to the State Government nearly. three weeks before that date. Ifthat opinion were available before the order .of

detention was passed in this case, it was the duty of the. State

Goverrunent 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, dne of the grounds on which the two orders of detention are . based is identical and relats to tlle same incident. We would like .to add that haVing sn the original order of detention which was made

vailable for out inspection by the officers of th~ State Government. we were bafiled tt> find that tpough Shri Capoor's signature bears the date October 8, 1981, the column for date, in the left han() corner at the bottom of the order of detention, has remained or become blank. ..

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SHAKBBL AHMED v. MAHARASHTRA (ChandrachJ!d, C.J.) 62.1

.For the teasons mentioned above, we set aside tlie order of detention dated November 7, 1981 passed against the petitioner by 4 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. 1l