9911796707
TMI Blog1990 (9) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, (hereinafter referred to as the Act ). Petitioner, in this writ petition, claims to be sister-in-law of one Ashok Sambhwani, who has been detained pursuant to the aforesaid order of detention. 2. The 2nd Respondent, on being subjectively satisfied that the activities of the detenu are prejudicial under the Act and with a view to preventing him from acting in any manner prejudicial to the augmentation of the foreign exchange, it is necessary to issue the order of detention. 3. No dispute is raised before us as regards the service of the order of detention, grounds of detention and the material relied upon by the Detaining Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of residence basis and later on you would sell the car in India at a premium and that you used to pay Rs. 60,000/- to Rs. 1,50,000/- to those NRIs in whose names cars were imported." In the grounds of detention, the Detaining Authority has referred to certain transactions which the detenu had undertaken in respect of sale of imported cars like Mercedez Benz , Honda Accord and Honda to Indians. Statements of various persons came to be recorded during investigation. Certain documents which are listed in the grounds of detention as Bench A, B, C, D, and J were also seized during investigation. On the basis of the material placed before the Detaining Authority in para 10 it reached the following conclusion: In view of the forego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of said authority the vital change in the law relating to import of cars. Alternatively, it was urged that it was enjoined upon the Detaining Authority to have on his own borne in mind, the said vital change effected in the new policy and having not considered the new policy at the time of clamping down the detention order upon the detenu, subjective satisfaction of the detaining authority is vitiated. Counsel further urged that it was enjoined upon the Detaining Authority to consider the alleged prejudicial activities of similar nature in the light of amended policy. Since the amended policy was not placed before the Detaining Authority the Detaining Authority has thus misdirected himself in law and on this ground alone, the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order came to be passed after coming into force of amended para 125(1) of Chapter IX. 5. Under the new provisions, therefore, two conditions are vital viz. (i) that the applicant (NRI) has stayed abroad continuously at least for a period of two years and (ii) that the vehicle has been in use of the applicant (NRI) at least for a period of one year prior to return to India. So far as Clause (ii) of para 125(1) is concerned, this is a new condition which has been inserted in the said paragraph. In the light of this new provision, we have to consider the conclusion culled out from the statement of the detenu in para 3.1 of the grounds of detention. It inter alia recites that the detenu has been in the business of import of cars for about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring one way or the other on the subjective satisfaction of the Detaining Authority. The basic material, the form of statements of the detenu and other material ought to have been considered in the light of the amended provisions. Mr. Patwardhan, learned Counsel appearing for the Detaining Authority urged that the amended provisions, in fact, do not introduce any substantial change and, therefore, minor changes in the provisions of law having no bearing on the facts of the present case, would not vitiate the subjective satisfaction. This submission again does not appeal to us for the simple reason that it was obligatory upon the Detaining Authority to apply its mind to the amended provisions and consider basic facts and if so satisfied iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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