1983 (3) TMI 259 - SC - FEMA

Whether the detaining authority had applied its mind to the relevant facts and circumstances bearing on the question of the petitioner s detention? Held that - 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. 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

Summary

Issues:
1. Validity of the order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Consideration of grounds for detention and relevance of Advisory Board's opinion.
3. Failure to place relevant material before the detaining authority.
4. Compliance with procedural requirements in issuing the detention order.
5. Setting aside the order of detention and directing release of the petitioner.

Detailed Analysis:
1. The petitioner challenged the validity of an order of detention passed against him by the State of Maharashtra under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The High Court upheld the detention on one ground, relying on the Act's provision that an order made on multiple grounds is deemed separate. The Supreme Court considered the surviving ground, which alleged involvement in illegal imports, and the petitioner's contention that the first ground of detention was flawed.

2. The Supreme Court analyzed the relevance of the Advisory Board's opinion in another detainee's case, Shamsi, who was released due to insufficient cause for detention. The Court found that the State Government failed to present this crucial information to the detaining authority while passing the order against the petitioner. The Court emphasized that the Advisory Board's opinion on identical grounds should have been considered by the detaining authority, affecting the decision to detain the petitioner.

3. The Court rejected the argument that other grounds for Shamsi's detention justified the Advisory Board's opinion, emphasizing that the detaining authority failed to consider the significant circumstance that the Board did not sustain Shamsi's detention on a common ground with the petitioner. The Court found that this failure deprived the detaining authority of relevant information, impacting the decision to detain the petitioner.

4. The Court scrutinized the procedural compliance in issuing the detention order, noting discrepancies in the explanation provided by the Secretary to the Government of Maharashtra regarding the Advisory Board's opinion. The Court highlighted the importance of considering all relevant information before passing a detention order and raised concerns about the timing and presentation of crucial documents to the detaining authority.

5. Ultimately, the Supreme Court set aside the order of detention dated November 7, 1981, and directed the immediate release of the petitioner, attributing the decision to the failure to consider vital information and procedural irregularities in issuing the detention order. The petition was allowed, emphasizing the necessity of proper consideration of all relevant factors in detention proceedings.