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PETITIONER: MOHD. SHAKEEL WAHID AHMED

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT31/03/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1983 AIR  541            1983 SCR  (2) 614  1983 SCALE  (1)308  CITATOR INFO :  R          1987 SC1472  (14)  D          1987 SC1748  (11,12)  D          1988 SC 222  (11)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling  Activities   Act  1974-Two  persons  detained  in respect of  some transaction-Advisory  Board was  of view no sufficient cause  for detention  of one  of them-Failure  to place view  of the  Board before  detaining authority  while passing order  of detention  of the  other-Whether  vitiated order of detention.

HEADNOTE:      The Customs officials intercepted a ship off Bombay and seized from  it various  articles  worth  several  lakhs  of rupees.  None  of  the  seven  persons  on  board  the  ship possessed any  documents  authorising  them  to  import  the goods. On  August 19,  1981, S.  one of the seven persons on board  the  ship,  was  detained  under  the  provisions  of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974; but  the Advisory Board reported that there was  in  its  opinion  no  sufficient  cause  for  his detention. He was therefore released.      By an  order dated November 7, 1981 the petitioner, who was also  one of  the persons  on board  the same  ship, was detained  under   the  COFEPOSA   in  respect  of  the  same transaction. While  dismissing the  habeas  corpus  petition filed by  the petitioner’s  wife,  the  High  Court  was  of opinion that  three out  of the  four grounds  on which  the petitioner was detained were bad for one reason or the other but that the first ground was enough to sustain the order of detention in that important material relevant to that ground was neither  placed before  nor considered  by the detaining authority while passing the order of detention.      In the petition under Article 32 of the Constitution it was contended  on behalf  of the  petitioner  that  had  the detaining authority  in the  instant case been apprised that the Advisory  Board, on examining an identical ground in the

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case of  S had  reported that  there was no sufficient cause for detention of S who was involved in the same transaction, it might  not have passed the order of detention against the petitioner which  is based  on similar  facts and  that  its failure to place such highly relevant and important material before the  detaining authority  has vitiated  the order  of detention.      Allowing the petition, ^      HELD: The  failure of  the State  Government  to  place before  the   detaining  authority  the  opinion  which  the Advisory Board  had recorded in favour of another detenu who was detained partly on a ground relating to 615 the same  incident deprived  the detaining  authority of  an opportunity to  apply its  mind to a piece of evidence which was relevant,  if not binding. In other words, 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. [618 B-H]      The opinion  of the  Board may not have been binding on the detaining  authority but it cannot be gain said that the fact  that  the  Board  had  recorded  such  an  opinion  on identical facts  involving a  common ground  was at  least a relevant circumstance which ought to have been placed before the detaining authority in the case. The ground on which the High Court  upheld the order of detention was similar to one of the  grounds on  which S  was detained,  the  transaction being one and the same as also the incident on which the two orders of  detention were  based. This is why the opinion of the Board in the earlier case became relevant in the present case. [618 D-F]      It may  be that there were other grounds on which S was detained and  that the Advisory Board might have come to the conclusion that  since these  grounds  were  not  enough  to justify his  detention there  was no  sufficient  cause  for detaining him.  But it is not as if the opinion of the Board was binding on the detaining authority. The substance of the matter is  that the  detaining authority in this case failed to apply  its mind to a highly relevant circumstance that an order of  detention  passed  on  the  ground  on  which  the detention of the petitioner rested, in addition to something more, was not sustained by the Advisory Board in the case of S. The reasonable probability that, since the Advisory Board had not sustained S’s detention on a ground which was common to him  and the  petitioner, the  detaining authority  would have, if  at all,  passed the order of detention against the petitioner on  the remaining  three grounds  only cannot  be excluded. Those three grounds had been held to be bad by the High Court. [619 E-H]      The explanation  of the  detaining authority  that  the Board’s opinion  dated October  19, 1981 came into existence after he  had passed  the order  of detention  on October 8, 1981 is  not correct. When the order of detention was passed on November  7, 1981  the Board’s  opinion in  Ss’ case  was available to  the State Government nearly three weeks before that date  and it  was the  duty of  the State Government to place that opinion before the detaining authority. [620 E-F]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 1369 of 1982.

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    (Under Article 32 of the Constitution.)      Ram  Jethamalani  and  Miss  Rani  Jethmalani  for  the Petitioner.      O.P. Rana  and Mr. M.N. Shroff for Respondents Nos. 1 & 2.      K.G. Bhagat,  Addl. Sol. General, N.C. Talukadar,. Miss A. Subhashini and Girish Chandra for Respondent No. 3. 616      The Judgment of the Court was delivered by      CHANDRACHUD, C.J.  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  petitioner’s wife  had filed  a habeas  corpus petition in  the Bombay  High Court  for the  release of the petitioner, but  that petition  (Writ Petition  No.  579  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 not 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 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 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 four 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  for  considering  the validity of sections 5-A 617 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 detention 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 these sections.      The  surviving   ground  of   detention  contains   the

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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.      Shri Jethmalani who appears on behalf of 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  detaining authority had applied its mind to the  relevant facts  and  circumstances  bearing  on  the question of  the petitioner’s  detention. Only  one of these reasons is  valid and  has to  be accepted That reason is as follows:      The  petitioner  was  detained  under  an  order  dated November 7,  1981. Prior  to that,  one Shamsi  was detained under an  order dated  August 19,  1981 passed  by the  same Government of  Maharashtra After  considering the  reference and the  materials placed  before it  in Shamsi’s  case, the Advisory Board  reported to  the State Government on October 19, 1981  that there  was in its opinion no sufficient cause for Shamsi’s  detention. Shamsi  was released,  as he had to be, in pursuance of the Advisory Board’s opinion.      It is  urged by Shri Jethmalani that one of the grounds on which  Shamsi was detained being the same as ground No. 1 in this  case, the fact that the Advisory Board had reported that there was 618 no sufficient  cause for  Shamsi’s detention  ought to  have been placed  before the detaining authority which 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  order  of detention. If  the detaining  authority in  the instant 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  may not  have passed the order of detention against  the petitioner, which is based on similar facts. This submission is well-founded and must be accepted. It is  clear that  Shamsi was  detained for  engaging  in  a smuggling activity  arising out  of the  same  incident  and transaction which  forms the  subject-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  of the  petitioner but, it cannot be gainsaid that the  fact the  Advisory  Board  had  recorded  such  an opinion on  identical facts involving a common ground was at least a  relevant circumstance  which  ought  to  have  been placed before  the detaining  authority in  this case. Since three out  of the  four grounds  on which the petitioner was detained have been held to be bad by the High Court, we have to proceed on the basis that the petitioner was detained and could validly be detained on the remaining ground only. That ground is  similar to one of the grounds on which Shamsi was

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detained, the  transaction being  one and  the same, as also the incident on which the two orders of detention are based. That is  why the  opinion of  the Advisory Board in Shamsi’s case becomes  relevant in the 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 recorded  in favour  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  piece of evidence which was relevant, if not binding. In  other words,  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.      It is  contended by Shri Rana, who appears on behalf of the Government  of Maharashtra,  that there  is  distinction between the 619 petitioner’s case  and that  of Shamsi since, the petitioner is the  brother of  the consignor,  Ashfaq, while  Shamsi is not. Counsel  contends that by reason of this distinction in the facts  of  the  two  cases,  the  State  Government  was justified in  not placing  before the detaining authority in this case the fact 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   the  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  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  Shamsi’s  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 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 to be bad by  the High  Court and  it is  only by resorting to the provisions of  section 5A  of the  Act that  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 620

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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 Shamsi’s case was not placed before  him is  that the report of the Advisory Board in Shamsi’s 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  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  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 grounds 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 State Government,  we  were  baffled  to  find  that  though  Shri Capoor’s 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. 621      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 forthwith. P.B.R.                                     Petition allowed. 622