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Andrew C. Schmidtz Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 132 of 1983
Judge
Reported in25(1984)DLT333
ActsForeign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3
AppellantAndrew C. Schmidtz
RespondentUnion of India and ors.
Advocates: Kapil Sibal,; U.K. Sharma,; D.K. Kapur and;
Excerpt:
- .....government of maharashtra in para 3 of the reply affidavit has stated that advisory board in their report dated 2nd june 1983 had opined that there is sufficient cause for detention of the petitioner. mr. b. k. chougule, special secretary to the government of maharashtra in the reply affidavit dated 18th january 1984 in para 15 has stated that the reply of the advisory board was received by the government on 3rd june 1983 and that the detention order was confirmed by the government of maharashtra on 13th june 1983. the learned counsel for the government of maharashtra produced before us the original report of the advisory board. as stated earlier the report bears the date 2nd june 1983. there is an endorsement on the report bearing date 2-6-1983 with initials of an officer. there is no.....
Judgment:

R.N. Aggarwal, J.

(1) The Government of Maharashtra.on 18th March,1983 passed an order under Sub-section (1) of Sub-section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter for the sake of brevity called (The Act') for the detention of Mr. Andrew Cornelius Schmidtz, a U.S.A. national with a view to preventing him from smuggling goods.

(2) By this petition under Article 226 of the Constitution of India the legality and virus of the aforesaid order have been challenged.

(3) Mr. Kapil Sibal, learned counsel for the petitioner has contended that there has been a violation of Section 8(e) of the Act, inasmuch as the Advisory Board did not submit its report to the detaining authority within Ii weeks from the date of detention of the petitioner.

(4) The relevant facts for the appreciation of this contention are that the petitioner was detained by an order dated 18th March 1983. As required by law the Government made a reference to the Advisory Board. The opinion given by the Advisory Board bears the date 2nd June 1983. The period of Ii weeks (the period within which the Advisory Board is required to submit the opinion) expired on 2nd June 1983.

(5) The petitioner in para 4.15 of the petition alleged that the Advisory Board had sent the report after the expiry of 11 weeks from the date of detention and, thereforee, the continuation of the detention of the petitioner is not legal.

(6) Mr. D.R. Chitre, Desk Officer, Home Department, Government of Maharashtra in para 3 of the reply affidavit has stated that Advisory Board in their report dated 2nd June 1983 had opined that there is sufficient cause for detention of the petitioner. Mr. B. K. Chougule, Special Secretary to the Government of Maharashtra in the reply affidavit dated 18th January 1984 in para 15 has stated that the reply of the Advisory Board was received by the Government on 3rd June 1983 and that the detention order was confirmed by the Government of Maharashtra on 13th June 1983. The learned counsel for the Government of Maharashtra produced before us the original report of the Advisory Board. As stated earlier the report bears the date 2nd June 1983. There is an endorsement on the report bearing date 2-6-1983 with initials of an officer. There is no averment on behalf of the respondents that the report was submitted by the Advisory Board on 2nd June 1983,-the date on which the Advisory Board had given its opinion.

(7) Section 8(e) of the Act which is relevant for the point under consideration reads as under:

'8(C)the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from, the person concerned, and if in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned.'

(8) It is clear from a reading of the above provision that the Advisory Board is to submit ifs opinion whether or not there is sufficient cause for the detention of the person concerned within Ii weeks from the date of dentention of the person concerned. It is not disputed that in the case in hand 11 weeks' period mentioned in sub-section (e) of Section 8 expired on 2nd June. The mere fact that the Advisory Board had expressed its opinion within the time of Ii weeks, in our opinion, would not be sufficient compliance of the provision of Section 8(c). The Advisory Board, it seems to us, is required to submit its opinion to the Government within 11 weeks from the date of detention. The word 'submit', it seems to us, in the context of Section 8(c) means to send the report to the concerned authority. Mr. Sibal contended that the word 'submit' means handing over or making available the report to the Government and according to Mr. Sibal this has to be done within 11 weeks from the date of detention. We regret we are unable to agree with Mr. Sibal in this interpretation of the expression 'submit' used in Section 8(c). We, however, do agree with him that there is no definite avernment on behalf of the respondents in their reply affidavits that the Advisory Board had submitted the report to the Government on 2nd June. The Government of Maharashtra in its affidavit dated 18th of January 1984 in para 15 has stated that the report of the Advisory Board was received by the Government on 3rd June 1983. In the absence of any definite averment that the Advisory Board had submitted its report on 2nd June, the possibility that the report was submitted by the Advisory Board on 3rd June and it was received by the Government, the same day, cannot be ruled out.

(9) We were inclined to give an opportunity to the respondents to file affidavits whether the report was or was not submitted by the Advisory Board on 2nd June but we find that the petitioner has b .'en in detention for more than 10 months and his period of detention is to come to an end on .18th March. thereforee, we are not inclined to give any further opportunity to the respondents to file fresh affidavits,

(10) In the view we have taken there is a clear non-compliance of the provision of Section 8(c) and the detention would be vitiated. We allow the petition and quash the order of detention.


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