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Popatlal Amichand Shah Vs. State of Maharashtra and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petn. No. 17 of 1983
Judge
Reported in(1984)86BOMLR174
Acts Conservation of Foreign Exchange and Prevention of Smuggling (Activities) Act - Sections 3 and 3(3)
AppellantPopatlal Amichand Shah
RespondentState of Maharashtra and Another
Excerpt:
.....recent division bench decisions of this court namely :smt. the question as to what would happen it the representation was not considered, in good time, is dealt with in case of harish pahwa v. we would like to reproduce the relevant part of the judgment of the supreme court. it is well settled as a result of several decisions of this court that failure to comply with this safeguard, will render the detention void ab initio. 9. after taking into account the various decisions of the supreme court on the question before us, we are satisfied that the decisions relied upon by shri kotwal have not specifically decided as to whether the omission to supply the relevant material would make the detention orders void. as against that the decisions relied upon by shri karmali have dealt with this..........of several decisions of this court that failure to comply with this safeguard, will render the detention void ab initio. in view of the such admitted position the detention order dated 19th december, 1974 will have to be set aside'.it is thus clear that by this decision the supreme court has held that the detention was void ab initio and consequently the concerned detention order was set aside.9. after taking into account the various decisions of the supreme court on the question before us, we are satisfied that the decisions relied upon by shri kotwal have not specifically decided as to whether the omission to supply the relevant material would make the detention orders void. as against that the decisions relied upon by shri karmali have dealt with this point specifically and the.....
Judgment:

Gadgil, J.

1. By this petition the petitioner is challenging the detention order dated 3-4-1975 Ex. A to the petition. This order was issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act'). Along with the detention order the grounds of detention were also formulated and this can be seen from Ex. C to the petition. In pursuance of this detention order the petitioner was detained and in due course of time he was released in the month of March 1977 on revocation of emergency. It appears that on the basis of this detention order certain proceedings under the Smugglers and Foreign Exchange Manipulates (Forfeiture of Property) Act, 1976 (hereinafter referred to as the 'SAFEMA Act') have been initiated. There are certain penal consequences arising out of these SAFEMA proceedings. The petitioner, therefore, filed the present writ petition challenging the detention order as mentioned above.

2. In the petition, a number of grounds have been taken by the petitioner. However, it is not necessary to give the details of all these grounds as the petition can be conveniently decided on one of the grounds. We have already observed that there were a number of grounds of detention. As far as the ground No. 2 is concerned it is an admitted fact that the material on which that ground was formulated was not supplied to the petitioner. Shri Karmali contended, that the detention order is bad and void on account of this omission and that a necessary declaration may be issued. As against this Shri Kotwal, for the Respondents, submitted that non-supply of material on which grounds of detention are formulated would not render the 'detention order bad or void. According to him the only effect of such omission would be to make the continuance of the detention bad. In substance, he submitted that the detention order would be valid but the detention as such would be bad as the material has not been supplied. He based this submission on the ground that the omission of supply of material to the detenu would prejudicially affect the right of the detenu to make representation as contemplated by Art. 22(5) of the Constitution. It is in this way he urged that though the detention order is good, the detention and its continuance under that order would be bad. Shri Karmali urged that on account of omission to supply material, not only the detention but the detention order itself would be bad.

3. We have heard the learned advocates on behalf of both the parties about the abovementioned submissions. Shri Karmali as well as Shri Kotwal relied upon a number of Supreme Court decisions in support of their respective contentions. We would briefly refer to those various decisions.

4. In the first instance we would like to consider the decisions relied, upon by Shri Kotwal. In the case of Icchu Devi v. Union of India, reported in : [1981]1SCR640 , the material relied upon in the grounds of detention was not supplied. The Supreme Court accepted the contention about such non-supply. Shri Kotwal relied upon the following observations in para 6 of the judgment :

'There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied, upon in the grounds of detention should be furnished to the detenu along with the grounds of detention ...... If this requirement of Clause (5) of Article 22 read with Section 3, sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void'.

In case of Nainmal Pertap Mal v. Union of India, reported in : 1980CriLJ1479 , the grounds were supplied in English though the detenu was not knowing that language. The Supreme Court held that this vitiates the order of detention and that the continued detention under that order was declared invalid. In case of Suryakant v. State of Maharashtra, reported in : 1980CriLJ1480 , there is no specific order as to whether the detention order was declared invalid or continued detention was declared invalid. The final order only indicates that the Supreme Court directed the release of detenu. Of course in paragraph 12 of this judgment the Supreme Court has considered the nature of the right of the detenu to get the copies. It has held as follows :

'Time and again, this Court has pointed out that under Art. 22(5) of the Constitution, the detenu has got a twofold right. First, the detenu has a right to be served with the grounds of detention as soon as practicable, (under sub-section (3) of Section 3 of COFEPOSA, such grounds must be communicated to the detenu within five days, and in exceptional cases, for reasons to be recorded, within 15 days of his detention). The second right of the detenu, which is implicit in Art. 22(5), is that he should be furnished with all the basic facts and materials, with reasonable expedition which have been relied upon in the grounds of detention.'

In case of Tushar Thakker v. Union of India, reported, in : 1980CriLJ1492 , certain copies were not supplied along with the grounds of detention In addition, there was delay in supplying certain material. In para 14 the Supreme Court has observed that all this had vitiated the continuance of the detention. Similar were the facts in case of Kamla Kanhaiyalal Khushalani v. State of Maharashtra, reported in : 1981CriLJ353 , and in para 9 of the judgment Supreme Court held that the continued detention is void. Further, in case of Lallubhai Jogibhai v. Union of India, reported in : 1981CriLJ288 , there was similar deficiency viz. non-supply of some relevant material. The grounds were supplied in English though the detenu was not knowing English. In addition, the representation was considered after a delay. Shri Kotwal relied upon paras 14 and 21 of the judgment in which the Supreme Court has held that the continued detention of the detenu was illegal. In another case of Rattan Singh v. State of Punjab, reported in : 1982CriLJ146 , there was delay in considering the representation and paragraph 4 of the judgment shows that the Supreme Court found that the continued detention was illegal. There are a few more decisions relied upon by Shri Kotwal. However, it is not necessary to make a detailed mention thereof. Suffice it to say that in case of Sunil Dutt v. Union of India, reported in : 1982CriLJ193 , the Supreme Court has observed that further detention of the detenu would be illegal while in case of Tara Chand v. State of Rajasthan, reported in : 1980CriLJ1015 , the Supreme Court has observed that on account of non-consideration of the representation with diligence, the detention becomes unconstitutional and void.

5. In all the above cases the Supreme Court has used the phraseology that the continued detention was bad. In the above paragraph we have underlined these words wherever they have occurred. It was urged by Shri Kotwal that all the abovementioned decisions of the Supreme Court would indicate that whenever there was an omission to supply the relevant material to the detenu, the Supreme Court has not set aside the detention order but has observed that the continued detention of the detenu would be illegal He, therefore, contended that these authorities would show that by implication the Supreme Court did not choose to quash the detention orders as they were initially valid.

6. Shri Karmali, for the Petitioner, argued that in all the abovementioned cases the Supreme Court has not specifically decided the question as to whether on account of non-supply of relevant material the detention orders would be void or illegal. According to him in each of these cases the primary relief that was claimed was for the release of the accused and that release was granted by the Supreme Court by saying that the continued detention was bad. It is true that there is no specific decision in the abovementioned cases that the detention orders are void but at the same time it is also material to note that these decisions have not held that the detention orders are good or valid, though the relevant material has not been supplied.

7. It would, therefore, be necessary to consider certain other decisions of the Supreme Court which have specifically dealt with the question as to whether the detention orders would be void for non-supply of the relevant material or for non-consideration of the representation. It is for this purpose that Shri Karmali relied upon some decisions. For example, in case of S. Gurdip Singh v. Union of India, reported in : 1981CriLJ2 , the relevant material was not supplied and the effect of such non-supply on the validity of the detention order has been discussed by the Supreme Court in following words (Paragraph 2) :

'In our opinion, this case is clearly concluded by two recent Division Bench decisions of this Court namely : Smt. Icchu Devi Choraria v. Union of India in Writ Petn. (Criminal) No. 2030 of 1980 decided on 9-9-1980 : (reported, in : [1981]1SCR640 ) and Smt. Shalini Soni v. Union of India. (Criminal Writ Petn. No. 4344 of 1980 decided, on 24-10-1980 : (reported in. : 1980CriLJ1487 . In both these cases, this Court has taken the view that on a proper construction of Art. 22(5) of the Constitution, the service of the grounds of detention on the detenu can be complete only if they are accompanied by the documents or materials on which the order of detention is based; for then alone will the detenu be able to make an effective representation. In other words, 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'.

In para 3 the Supreme Court has held that the detention of the detenu would be held to be without jurisdiction. In the case of M. M. Patel v. State of Maharashtra, reported, in : 1981CriLJ331 , there was similar deficiency-of non-supply of material. In para 20 the Supreme Court passed the following order :

'For these reasons, the order of detention passed by the State Government of Maharashtra dated February 12, 1980 detaining Bhalabhai Motiram Patel under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is set aside'.

Two more cases have been decided by the Supreme Court where there was non-supply of relevant material, and in the case of Mohd Zakir v. Delhi Administration, reported in : 1982CriLJ611 , the Supreme Court held that the continued orders of detention or continued orders are void, while in the case of Thakor Mulchandani v. Asst. Secy., Government of Maharashtra, reported in : 1982CriLJ1730 , the Supreme Court held that the orders of detention are void. The question as to what would happen it the representation was not considered, in good time, is dealt with in case of Harish Pahwa v. State of U.P., reported in : 1981CriLJ750 , and the Supreme Court held that on account of this omission the detention of the detenu would be unconstitutional.

8. Shri Karmali also relied upon an unreported decision of the Supreme Court in Criminal Appeal No. 188 of 1976 decided on 16-12-1982. There also the relevant material was not supplied. Initially the detention was challenged, in Delhi High Court. Writ petition was dismissed and the matter was taken up to the Supreme Court. But by the time the Supreme Court heard the matter the detention period was already over and the detenu was released. However, certain proceedings under the SAFEMA Act were initiated and hence the validity or otherwise of the detention order was important. We would like to reproduce the relevant part of the judgment of the Supreme Court. It reads as follows : 'At the outset two aspects may be made very clear. In the first place the detention having been effected on 19th December, 1974 and two years having elapsed the detenu has already been released from detention and in that sense the validity of the detention order has no bearing on the detenu's actual release. But admittedly proceedings under the Smugglers And Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 have been adopted against the detenu and his relatives whereunder their properties are sought to be attached and that is how the validity or otherwise of the detention order becomes relevant for the purpose of this appeal.' The Supreme Court further observed that ......

'It was not disputed before us by the counsel for the respondents that the aforesaid material was not supplied to the detenu either when the grounds were served or any time thereafter. Obviously, therefore, the detenu must be regarded as having been prejudiced in the matter of making an effective representation against his detention. It is well settled as a result of several decisions of this Court that failure to comply with this safeguard, will render the detention void ab initio. In view of the such admitted position the detention order dated 19th December, 1974 will have to be set aside'.

It is thus clear that by this decision the Supreme Court has held that the detention was void ab initio and consequently the concerned detention order was set aside.

9. After taking into account the various decisions of the Supreme Court on the question before us, we are satisfied that the decisions relied upon by Shri Kotwal have not specifically decided as to whether the omission to supply the relevant material would make the detention orders void. As against that the decisions relied upon by Shri Karmali have dealt with this point specifically and the Supreme Court has held that such an omission would render the detention order bad and void.

10. In view of this legal position as enunciated by the decisions of the Supreme Court (relied upon by Shri Karmali) we think that the impugned order of detention is liable to be quashed.

11. The rule is, therefore, made absolute. The impugned order of detention, Ex. A to the petition, dated 3-4-1975 is quashed as void and inoperative.

12. Petition allowed.


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