MOHD. SHAKEEL WAHID AHMED v. STATE OF MAHARASHTRA & ORS

Citation: [1983] 2 S.C.R. 614

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, V.D. TULZAPURKAR, O. CHINNAPPA REDDY, A. VARADARAJAN, RANGANATH MISRA

Case summary

challenges the validity of an order of detention dated Nove b rned . 579 of 1982) w C dismissed by the High Court on October 28, 1982.

Judgment text

~~ 614 . MOHO. SHAKEEL WAHID AHMED v. · STATE OF MAHARASHTRA & ORS. March 31, 1983 [Y. V. CHA~DR·. ~CHUD, C. J. , V. D. TULZAPURKAR, 0. CH~~A REDDY', A. VARADARAJ'AN AND RANGANATH M! SRA,JJ. ) Conservation (If Foreign Exchange and Prevelllinn (lr S . . ' mugg11111 Act/vitfe! l •Act 1974-Two persons detalned In nspect of some lrllllsocr . r . . n: . I r. , . ron- Advisory Board was o1 vtew no m",cten cause ! ~r c. etentrofl ·of one r>ftht,. _ c Failure to place viell' of the Boar~ ~efore detammg autlwrity while /lOSsingordtr ofdetention ofthe other-Wl1etlrer vttratecl order ofdeft'ntiofl. · · The Customs officials intercepted a ship off Bombay and seized from it various articles worth severallakhs of rupees. None or the· seven persons '011 boatd the ship possesed any documents authorising them to import the goods. D On August 19; 1981, S. one of.

the se~cn persons on board the ship,was detained under the provisions of Conservation of Foreign Exchangeami Prevention ofSmuggling Activities Act, 1974 ; but the Advisory Boardreported that there was in its opinion no sufficient cause for his detrntion. He was therefore released. E By an orda dated November 7, 1981 the petitioner, who wa1 alsoone ofthe persons on board the ! jame ship, was detained under the COFEPOSA in re-spect of the sante transaction. Whilo. • dismissing the habrascorpus petition filed by the petitioner's wife, th~ High Court was ofopinion that time out of the four grounds on which the petitioner was delained were bad for one reason or the other but that the first ground was enough to)ustain the o. n! er ofdetention in that important material relevant to that ground was ntlther F placed before nor considered by th" detain. ina authority white passing the orderof det~ntion.

, ' In the petition under Article 32 of the Constitution it ~as contended ~· 1 behalfof the petitioner that had the detaining ouihority in the instant ' i been apprised that the Advisory Board on examining an identical JfO:On G In the case ofS had reported that there ~as no sufficient cause for d: the ofS who was involved in the same transaction It might not have pa and order ofdetention against the petitioner which is based on &:similar ! at'~rore that its failure to place such highly relevant and important matena the detaining authority has vitiated the order ofdetention. Allowing the petition, H . 'reth' ! neebc•o . . , . . HELD : l11e failure of the State Government to P ccordediJl I detalOtng authority the opinion which the AdvisorY Board had ~tatioltu ·• favour of another dctenu who was detained partly on a ground / ---~, ;· f, i ! : si! AICEBL AJ! MllD V. MAHARASHTRA 615= rived -the- detainins authority of an opportun't 'dent deP I • h 1 I Y o1 ....

~inti ieee of evidence w HC was re evant, if not binding 1 .. ,_... - · dto aP · d'd t b · • n ,... 11itS nlln bC detaining autho~I! Y I no ' ecause It could not, apply its . rP,,fords, I - tancc which reasonably could have arrected its decision oth" ircums fd · · h ·! l(ltOac ass an order o. etent1on agamst t epetitioner. [618 B-H] ~~ ornot toP . . tlll'~er . . . . . . . n of the. Board . may not hav~ been binding on the 0 110 'fhO P". ybut it cannot be gain said that the fact that the Board had 1 · authOJ1 · ' IC t . I . j~Uinill& pinion on 1dent1ca ac s mvo vmg a common ground· was B. 30 ' i ~~such °circumsmnce which ought to have been· placed before the· ' ' I 1 .. , . ' 111¢1ardehva~ty in this case. The ground on which the High Court upheld ' · · gauton f h . . I jet. ~~t1° (detention was. si! Jlilar to one o . t e. grounds,_ on which s. was ,. I t). l. ~rder. o~ transaction being; one and the same as also the incident on which. : ' ! j! P10ed• td c oft:etention were based.

This is why the opinion of the Board· ... ,11'0or ers . h ""'· · . ase became relevant m t e present case. [618 D-F] ': i 1\ibearher_c . . . · c ·• ~ Jl·lllliY·be tna. t there ~ere other grounds on whidh. ~ was. det~ined,_ and · th Addsory Board m•ght havc. corr. e to tt. e conclusiOn that smce these tW d~were not'enough to justify his detention ther'! was no sufficient cause r~ining,him. But it is not as ifthe opinion of the Board was binding ·thtdetaining authority. The substance of the I"Jattcr is that the detainina. :lllority10 this case failed to apply its mind to a highly relevant circutnstan~ D I i)lt,JO orderof d~tcntioo passed on the ground on which the detention of ' ~P. tlitioner rested, in addition to s. omething more,was not sustained by the . . . tGINAL JURISDICTION : Writ Petition (Crt): No. 1369 of i'·' . , ' • .. G l ' ·' i ' (Under Arr . . . · ; 10 tc 32 of the Constitution. )· ··~ I R • ' '• I t-: " i ; I Cliltletfunna/an/ and. Mis.

s Raui Jethmalani for the Petitioner. : I ' I : I 0 p D-.. · • i · ••~AU~a a . t 11 · & . , n" "sr. M. N. ShroIT for Respondents- Nos•. l . "' H ?.. \ ' j··' t w. ' I . ;-_,r~·· ~-SIIbtG. lJhagat Add ·.. r. 1 · Miss ! ·~ ~'llhill[and • . . I. Sol. General,. N. C. Talru\anar•. i~/ ~ / . . ·Ctrt. rh Chandra. for Respondent N. o. 3. '1 . I .. ~.. ·':'" . SUPREME COURT REPORTS .. . th~ Judgme~t·of the Court -.. vas delivered by . A ! ~ . . :C~NDRA~HUD, C. J. . . By this Writ Petition under' Af : of. the Constitution, the petitioner Mohd. Shakeel Wahidr ~~ 32 . challenges the validity of an order of detention dated Nove b rned . ·. fi mer 7 1981 passed ·agamst ht~ , by the rst respondent, the State of B Mabarashtra, under SectiOn 3 of the Conservation of · F . . f S I' A . . . . orergn Exchange and Prevention o mugg mg ctlVJties Act, 1974 h . · • h A ' E I' th · · • ' erctn refer,red to as . t e ct.

_ cation 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 ~e _have . reached in this p~tition; it is unnecessary to consider 'the validitY of these sections. ·, -- . -, . · - - ,. ,:. , I _. -. The su~iying ground ~f detention,co~tains the allegation tliat~ 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 . 'Maoek Prasad' in the . sea- off World'. at Bombay on February 2, 1981 at C · about 2 p. m. and seized- therefrom: . wrist-watches ~ valued. _ at Rs. 18~ 89,935/-, textiles valued at Rs. i 8, 20 675, miscellaneo\ls goods vai~ed at Rs. 18, 769'· and Indian currency. of. Rs. 1,540/- and JSS U. A:E. Dhirams. It is alleged that none of-the s~ven :persons.

who were on board the ship possessed any documents authorising ~em D to import the aforesaid goods. The various sub-paras of this ground • -~ referto the material whiCh connects the' petitioner with the i11egal imP,Ort Of the goods seized from the ship. , , . . , ·_ . Shri . ieth~alani who appears on . behalf ~f 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 d,etainingauthoii(y' had. applied its mind to the:releyant 'facts -and circumstances bearing on the question of the petitioner's detention. Only ':one ·of these reasons is valid- and has to be accepted- Tha( reason is as follows: - ·- . ;- ' i •.... _ ~ .... .. F · · The petitioner was detained under an order dated November 7;: 198L Prior to "that, one Shams-i was detained under an order; dated ·August 19, 1981 passed: by· 'the: ·sanie ·Government· of Maharashtra.

- ·After' con-sidering the reference and the 'materials ) placed beforeit)n Shamsi's case,. the ·Advisoiy Board reported to G-- . the State Government on- October 19. 1981- that there w~s in it-s' opinion no sufficient cause for Shamsi;s deteoti~n. 'Shamsi was released, as he; had to · be, in. pursuance of the Advisory Board•s ; _opioion. · · · - - · - ·· _ It is urged by Shri Jethmalani ·that one ofthe grounds on H ·; which Shamsi was detained being the . sat;1e as gr~undNo. ·I in this caser th. e'factthat th~-:Ad~isorr Bo~~d had· report. ed. that there wa~ - - ' __• - - - • ·J • - . ' ' ' _- -- - ' - 6is • · · • · ·· SUPREME COUR'f REPORTS ·· . [1983] 2 s:c. R. . . . . A.. ~~·sufficient cause for· Shamsi's detention· might to have b~en pl~ed · . before tlie detaining authority ~hich ·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 o. rder or'detention. ' If the detaining authority in the 'instant · • B; . 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 niay. not have passed· the ·order of detention against . ~ the petitioner, which is based on sunilar faCts~ This submission is · well-founded and must' be accepted. ' It is clear thai Shamsi was C' detained for -~gaging in a smuggling activity arising out or the sani·e incident and transaction which forms the subjeet-matter ofground 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 D of the petitioner but, it cannot be gainsaid that the fact the :Advisory Board had recorded such an ·. opimon on identical facts involving a . . ' common ground was at least ~ relevant. circumstance which. ought to have been placed before the detaining i:mthority in. this case. Since. three out. of the four. · grounds on which the petitioner was detaitied have been held to be bad by the ·High Court, we have to . E · proceed on' the basis that the petitioner was detained and could validly be detain. ed on the re'maiillng ground only. · That ground is similar·to one of ,the 'grounds. on which Shamsi. 'Yas detained, the transaction being one and the ·same, as also the incident on which· • . the two orders of detention are based~. That is why th~ opinion of .

f the Advisory Board in Shamsi's case becomes· r~levant. in the F : 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 ·~ecorded. in fav9ur 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 G · piece of . evidence ,which was. relevant, if not binding. ·In other w~rds? 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. · · · . H: ·. · . . . L.. :,. : ~ r '"' .. -.. .. . It is rontended by Shri' Rana, who appe·ars oti behalf of the Gove~ent of lv{aharashtra, that there is distinction between the SHAKEEL AHMED v. MA}fARASHTRA, (Chanarachud C. J. ) 619 . . ·. .

' pe~itioner's case and that of Shamsi since, the petitioner is the brother of the consignor, Ashfaq, while Shamsi is riot. Counsel contends that A by reason of this distinction in the facts of the two cases, the State. Governmei1t was justified in not placing before the detaining authority in this case the f find that tpough Shri ·Capoor's signature bears the date October 8, 1981, the column for date, in the left han() corner at the bottom of the order of detention, has remained or become blank. .. . ' . SHAKBBL AHMED v. MAHARASHTRA (ChandrachJ! d, C. J. ) 62. 1 . For the teasons mentioned above, we set aside tlie order of detention dated November 7, 1981 passed against the petitioner by 4 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. 1l .. y '