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PETITIONER: UNION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: VASANBHARTHI AND OTHERS

DATE OF JUDGMENT01/03/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1216            1990 SCR  (1) 742  1990 SCC  (2) 275        JT 1990 (2)    36  1990 SCALE  (1)426

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling   Activities   Act,   1974:   s.   3(1)--Detention order--Detenu’s relatives should be informed of the order of detention and place of detention.

HEADNOTE:     The respondent was taken into custody in exercise of the powers  under  sub-s.  (1) of s. 3 of  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974  with a view to preventing him from engaging in  trans- porting smuggled goods. In the special criminal  application preferred  by  him  the High Court held  that  the  detenu’s relatives  were  not informed about the detention  order  or about the place where the detenu was detained. Consequently, the  order of detention was quashed and the detenu  was  di- rected to be set at liberty.     In  this appeal by special leave, it was  contended  for the Union of India that the detenu was already an undertrial prisoner  and  his  relatives had visited him  at  the  jail within  two days and, therefore, the non-communication of  a written intimation about the fact of passing of the order of detention and of the place of detention in pursuance of  the detention  order had no significance, and as such the  order cannot be said to be invalidated on that ground. Allowing the appeal, the Court,     HELD: 1. The family members of the detenu should not  be kept  in darkness by withholding the information  about  the passing of the order of detention and the place of detention thereby  preventing  them from having any  access  and  from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of  meet- ing  their  relations and getting any  help  or  assistance. [745C-D] A.K. Roy v. Union of India, [1982] 1 SCC 271, followed. In  the  instant case, however, the family  members  of  the detenu 743 had  sufficient knowledge about his detention by  virtue  of the mittimus issued as well the place of detention. The High Court  was,  therefore, not justified in setting  aside  the

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order. [745D-E]     2. The matter is remitted to the High Court for  consid- eration  of the other contentions raised by the  detenu.  He shall  not  be  taken into custody to  serve  the  unexpired period of detention till the matter is finally disposed  of. [745F-G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 750 of 1989.     From  the  Judgment  and Order dated  11.4.1988  of  the Gujarat High Court in Spl. Application No. 733 of 1987.     Kapil Sibal, Additional Solicitor General, A. Subba  Rao and P. Parmeshwaran for the Appellants. Vineet Kumar and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by     S.  RATNAVEL PANDIAN, J. This criminal appeal  preferred by the appellants, namely, Union of India and the Additional Secretary to the Government of India is against the judgment of the High Court of Gujarat at Ahmedabad in Special  Crimi- nal  Application No. 733 of 1987 dated 11.4.  1988  quashing the order of detention dated 19.6. 1987 passed by the second appellant in exercise of the powers under subsection (1)  of Section  3 of the Conservation of Foreign Exchange and  Pre- vention  of  Smuggling Activities Act, 1974 with a  view  to preventing  the first respondent, Vasanbharthi  Jivanbharthi from engaging in transporting smuggled goods. It seems  that the  first respondent (detenu) has challenged the  detention on  numerous  grounds, one of which being that none  of  the members of his household had been informed of the passing of the  impugned  order of detention and of the fact  that  the detenu  had  been taken into custody and also of  the  place where  the detenu was detained. This ground was only  subse- quently  added  by an amendment with the permission  of  the Court.  The High Court holding that the  detenu’s  relatives were  not  informed about the detention order or  about  the place  where the detenu was detained in compliance with  the observation  by  this Court in A.K. Roy v. Union  of  India, [1982] 1 SCC 271, concluded that the order has been vitiated by such non-compliance. Further, the High Court has rejected the plea of 744 the  appellants that the relatives of the detenu knew  about the  detention  order  as well the place  of  detention  and stated as follows: "Hence if the relatives of the detenu have not been informed and even if from the record, it is found that the  relatives had  come  to know about it from some source, the  order  of detention would most certainly be invalidated."     In  the result, the order of detention was  quashed  and the detenu was directed to be set as liberty.     Mr. Kapil Sibal, the learned Additional Solicitor Gener- al  has assailed the finding of the High Court stating  that the  respondent  No. 1 (detenu) was  already  an  undertrial prisoner  and his relatives inclusive of his maternal  uncle had visited him at the jail within two days and,  therefore, that the non-communication of a written intimation about the fact  of passing of the order of detention and of the  place of  detention  in pursuance of the detention order  have  no significance, and as such the observation made in A.K. Roy’s case  can hardly by availed of by the detenu and  the  order cannot  said to be invalidated on that ground. This plea  is taken specifically in paragraph 21 and in Grounds I & II  in

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paragraph  23  of the Special Leave  Petition.  Besides  the above stand taken in the SLP, the appellants have  reiterat- ed. the same in paragraph 9 of the application for  ex-parte stay of the Order of the High Court, the relevant portion of which reads thus: "The  affidavit  in opposition was filed on  behalf  of  the Union  of  India  that the detenu was  already  under  trial prisoner  and his relatives in fact knew that and also  that the maternal uncle had immediately, within two days, visited him  at the jail. Therefore. it was not necessary to  inform the  relatives of his detention and place of  detention,  as contemplated  in the decision of the Supreme Court  reported in A.I.R. 1982 SC 710 (A. K. Roy’s case)."     No counter is filed by the first respondent (detenu)  in opposition to the above plea of the appellants.     In  the above background, we shall now  examine  whether the  High Court is justified in setting aside the Order  for the reasons mentioned supra on the basis of the decision  in A.K. Roy’s case The  relevant portion of the observation in A.K. Roy’s  case reads thus: 745 "In  order  that  the procedure  attendent  upon  detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imper- ative that immediately after a person is taken in custody in pursuance  of  an  order of detention, the  members  of  his household,  preferably the parent, the child or the  spouse, must  be informed in writing of the passing of the order  of detention and of the fact that the detenu has been taken  in custody.  Intimation must also be given as to the  place  of detention,  including the place where the detenu  is  trans- ferred from time to time.     The object and purpose of the above observation, in  our view,  seem  to  be that the family members  of  the  detenu should  not be kept in darkness by withholding the  informa- tion  about  the passing of the order of detention  and  the place  of detention thereby preventing them from having  any access  and  from rendering any help or  assistance  to  the detenu  and similarly the detenu should not be  deprived  of the  privilege  of meeting their relations and  getting  any help or assistance.     Coming  to the present case, we are satisfied  that  the family members had sufficient knowledge about the  detention of  the detenu by virtue of the mittimus issued as well  the place  of detention. Therefore, no legitimate grievance  can be  made that there is contravention to the  observation  in A.K. Roy’s case.     Hence for the reasons mentioned above, we are unable  to agree with the view taken by the High Court and  accordingly we  set aside the impugned Judgment and remit the matter  to the  High  Court of Gujarat for consideration of  the  other contentions  raised by the detenu challenging the  order  of detention  and to dispose of the case on its merit. We  hope that  the High Court will give priority to this  matter  and dispose of the same expeditiously.     Taking into consideration of the fact that the detenu is now enlarged consequent upon the judgment of the High  Court which we have set aside, the detenu shall not be taken  into custody to serve the unexpired period of detention till  the matter is finally disposed of by the High Court. The Criminal Appeal is disposed of accordingly. P.S.S.                                                Appeal allowed. 746

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