1988 (7) TMI 277 - HC - FEMA

Summary

Issues:
1. Legality of detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Challenge to the order based on failure to present vital documents before the detaining authority.
3. Issue regarding the detenu's desire to be represented by a next friend before the Advisory Board.

Analysis:
1. The detention order was issued by the Secretary to the Government of Maharashtra, Home Department under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to prevent the petitioner from smuggling goods. The grounds of detention included the detenu's involvement in smuggling gold bars concealed in his rectum, his admission of frequent trips abroad for smuggling purposes, and the necessity of detention to prevent future smuggling activities.

2. The challenge to the detention order was based on the contention that a vital document, the Magistrate's order directing retention of the detenu's passport, was not presented before the detaining authority. The court held that the failure to bring this specific direction to the attention of the detaining authority did not vitiate the order. The court distinguished a previous unreported decision where the retention of the passport was considered vital, emphasizing that each case must be assessed on its own merits.

3. Another contention raised was the detenu's desire to be represented by a next friend before the Advisory Board, which was not facilitated by the detaining authority. The court rejected this argument, stating that it was the detenu's responsibility to communicate with his next friend and not the duty of the detaining authority to ensure the next friend's presence. The court found no fault in the detaining authority's actions and upheld the detention order, ruling that it was legally sound.

In conclusion, the court dismissed the petition challenging the detention order, ruling in favor of the respondents and discharging the rule with no order as to costs. The judgment emphasized the specific circumstances of the case and the legal requirements under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in upholding the detention order.