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Laxman Madhavdas Harwani Vs. Assistant Secretary to the Government of Maharashtra and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 1170 of 1980
Judge
Reported in1981CriLJ1095
ActsConservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
AppellantLaxman Madhavdas Harwani
RespondentAssistant Secretary to the Government of Maharashtra and Others
Excerpt:
.....detention, but ordinarily not later than 5 days, and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. kotwal on the other hand submitted that, since no complaint can be made if service of the inferences drawn as well as of copies of the data upon which such inferences are drawn is made within five days of detention even though no effective representation can be made for those five days, no complaint can be made that no effective representation has been possible for five days if incomplete service of the grounds is made complete within five days of the detention. merchant on behalf of the petitioner, namely, that the delay of 8 months in the passage of the order of detention rendered the subjective satisfaction of..........drawn by the detaining authority are served upon the detenu, even though this be within five days of detention, unaccompanied by copies of the data upon the basis of which the inferences are drawn, the service of the grounds is incomplete and the detention is void ab initio or, at any rate, the continued detention is invalid. it was his contention that incomplete service of the grounds cannot be made complete by service of copies of the data even if service is made within five days of detention. it was his submission that if the service of the grounds was incomplete the detenu was deprived of his fundamental right of making a representation against his detention at the earliest possible moment. mr. kotwal on the other hand submitted that, since no complaint can be made if service.....
Judgment:

Bharucha, J.

1. The petitioner is a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (now referred to as 'the Act'). This is a habeas corpus petition seeking his release from detention. The order of detention is dated 18th October, 1980. The petitioner was detained on 28th November, 1980. He was then served with the order of detention as also with the grounds of detention dated 18th October, 1980. On 2nd December, 1980 a letter was written to him by the second respondent enclosing therewith copies of the documents relied upon in the grounds of detention. According to the petitioner he was served with the grounds of detention on 4th December, 1980. In the affidavit filed on behalf of the second respondent, it is alleged that the said copies of the documents were received by the detenu on 3rd December 1980. We have verified from the record of the case that this is indeed the correct position.

2. It, therefore, appears that the petitioner was served with the grounds of detention on th day on which he was detained and was served with the copies of the said documents not later than five days from the date of detention. It is now a settled position of law that the grounds of detention must include not only the inferences that the detaining authority has drawn from the data available with him but also copies of that data; also that the grounds must be served upon the detenu as soon as may be after detention, but ordinarily not later than 5 days, and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. (See Ichhu Devi's case : [1981]1SCR640 ; Mangalbhai Patel's case, : 1981CriLJ331 ; Shalini Soni's case, : 1980CriLJ1487 and Gurdip Singh case. : 1981CriLJ2 ).

3. The argument that has been advance by Mr. Merchant, learned counsel for the detenu is that where, as in the instant case only the inferences drawn by the detaining authority are served upon the detenu, even though this be within five days of detention, unaccompanied by copies of the data upon the basis of which the inferences are drawn, the service of the grounds is incomplete and the detention is void ab initio or, at any rate, the continued detention is invalid. It was his contention that incomplete service of the grounds cannot be made complete by service of copies of the data even if service is made within five days of detention. It was his submission that if the service of the grounds was incomplete the detenu was deprived of his fundamental right of making a representation against his detention at the earliest possible moment. Mr. Kotwal on the other hand submitted that, since no complaint can be made if service of the inferences drawn as well as of copies of the data upon which such inferences are drawn is made within five days of detention even though no effective representation can be made for those five days, no complaint can be made that no effective representation has been possible for five days if incomplete service of the grounds is made complete within five days of the detention. In his submission, in such a case the order of detention did not become void ab initio nor was the continued detention illegal.

4. Our attention has been drawn to the judgment of the Supreme Court delivered on 6th January, 1981 in Criminal Writ petn. No. 6274 of 1980 Virendra Singh v. State of Maharashtra. In that matter the detenu under the Act was arrested on 1st November, 1980 pursuant to an order of detention of 9th October, 1980. On arrest he was supplied with the grounds of detention that is to say, the inferences drawn by the detaining authority; and he was supplied with copies of documents and materials, that is to say, of the date upon which the inferences had been drawn. On 5th November, 1980. He was, therefore, supplied with copies of the data within five days of his detention. The learned Judges, however, said that '.... as the documents and the materials forming the basis of the order of detention had not be supplied to the detenu along with the order of detention when the same was served on him the order is rendered void.' In coming to this conclusion the Court relied on the judgment in the case of Ichhu Devi : [1981]1SCR640 and Shalini Soni : 1980CriLJ1487 . We are bound by the judgment in Virendra Singh's case and must, following it, hold that the order of detention dated 18th October, 1980 in respect of the petitioner is void.

5. In this connection reference may also be made to the case of Gurdip Singh, : 1981CriLJ2 . The learned Judges there said that if the documents which form the basis of the order of detention are not served on the detenu along with the grounds of detention in the eye of law there will be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio. The order passed in regard to the petitioners is, therefore, declared void ab initio.

6. Coming as we do to this conclusion, we do not consider the other argument advanced by Mr. Merchant on behalf of the petitioner, namely, that the delay of 8 months in the passage of the order of detention rendered the subjective satisfaction of the detaining authority bad.

7. In the result the rule is made absolute.

8. The petitioner shall be released forthwith if not required in any other criminal case.

9. Petition allowed.


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