1986 (11) TMI 263 - SC - Indian Laws

Order of detention of the respondent No. 2 Mahendra V. Shah passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 was challenged by his nephew respondent No. 1 Held that - It is not necessary to mention in the grounds the reaction of the detaining authority in relation to every piece of evidence separately. Besides the recital in Annexure B that the detaining authority formed his opinion after consideration of the aforesaid document by itself clearly implied that he was not impressed by the statement therein. The detenu cannot therefore be heard to say that he was prejudiced in any manner. Considering Mr. Bobde contention that several other questions also arise in this case which have not been dealt with by the High Court. He appears to be right. The impugned judgment states that several other questions were also raised which were not necessary to be considered as the writ application was succeeding on the first point. Now in view of our finding mentioned above it becomes necessary to decide the other questions also. In the circumstances we think that the case should go back to the High Court for further hearing. Accordingly the impugned judgment is set aside and the matter is remanded for further hearing and disposal of the case in accordance with law.

Summary

Issues:
Challenge to detention order under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 before Gujarat High Court under Article 226 of the Constitution. Quashing of detention order by High Court. Special Appeal Application by State of Gujarat against High Court decision. Delay in serving detention order due to detenu's absconding. Allegations of involvement in smuggling activities. Retraction by co-conspirators not placed before detaining authority. Consideration of retraction by detaining authority. Necessity of affidavit by detaining authority. Mentioning of detaining authority's view in the grounds served on detenu. Need for detailed reasons in grounds. Remand of case to High Court for further hearing.

Analysis:

The case involved the challenge to a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 before the Gujarat High Court. The detention order was quashed by the High Court, leading to a Special Appeal Application by the State of Gujarat. The delay in serving the detention order was attributed to the detenu's absconding, with allegations of involvement in smuggling activities, including receiving contraband goods and being directly involved in the business.

One of the key issues raised was the retraction by co-conspirators not being placed before the detaining authority. The High Court held that this omission vitiated the detention order. However, the State argued that the retraction document was indeed considered by the detaining authority, as evidenced by the detailed note in the file. The Court found that the detaining authority had indeed taken the retraction into account, thereby rejecting the contention that the omission vitiated the order.

Another aspect raised was the necessity of an affidavit by the detaining authority. While not an essential requirement, the Court noted that in cases where such issues arise, an affidavit by the detaining authority should be filed. In this instance, a detailed note by the Home Minister and an affidavit by a Deputy Secretary were deemed sufficient to establish the detaining authority's consideration of the relevant documents.

The issue of mentioning the detaining authority's view in the grounds served on the detenu was also addressed. The Court held that the detaining authority's lack of credence towards certain statements did not need to be explicitly stated in the grounds. The detaining authority's inference and subjective satisfaction were considered adequately expressed in the grounds, and there was no requirement to detail every reaction to evidence separately.

Ultimately, the Court decided to remand the case to the High Court for further hearing, as several other questions raised in the case had not been addressed due to the writ application succeeding on the initial point. This remand was deemed necessary to ensure a comprehensive consideration of all relevant issues in accordance with the law.