- 1994 (8) TMI 267 - SUPREME COURT
Whether a detenu or anyone on his behalf is entitled to challenge an order of detention without the detenu submitting or surrendering to it and, if so, what will be the nature, scope and extent of such challenge? Held that:- Appeal dismissed. It is undoubtedly true that an unusual delay in execution of an order of detention if not satisfactorily explained, may persuade the court to draw such an inference. There is, however, no scope for drawing such an inference in this case as the delay here has been occasioned not by any omission or commission on the part of the detaining authority. On the contrary, it is the appellant who has delayed the execution by first moving the Bombay High Court and then this Court. That apart, the respondents have asserted that though this Court had not passed any interim order against execution of the order, it could not be served as the appellant was absconding
- 1994 (5) TMI 235 - SUPREME COURT
Whether Parliament was not competent to enact COFEPOSA and SAFEMA? Whether an order of detention under Section 3 read with Section 12-A of COFEPOSA made during the period of emergency proclaimed under Article 352(1) of the Constitution of India, with the consequent 'suspension' of Article 19 and during which period the right to move the court to enforce the rights conferred by Articles 14, 21 and 22 was suspended can form the foundation for taking action under Section 6 of SAFEMA against the detenu, his relatives and associates? Whether the application of SAFEMA to the relatives and associates of detenus is violative of Articles 14, 19 and 21? Whether the inclusion of the said Act in the Ninth Schedule cures such violation, if any? Whether Section 5-A of COFEPOSA is violative of clause (5) of Article 22? Held that:- Appeal dismissed. Parl....... + More
- 1994 (2) TMI 301 - SUPREME COURT
... ... ..... mendment and that he was competent to pass interlocutory orders in the suit. The Division Bench of the High Court has, however, found that in view of the said order passed by the Court on 19-4-1993, the trial court no longer had any jurisdiction to proceed in respect of the suit in any way whatsoever and could not proceed with the hearing of the amendment application and to allow the amendment of the plaint. The Division Bench has further observed that "no specific order staying the hearing of the amendment application was passed by the Court for the reason that the Court was granting stay of the suit itself and it is not necessary to pass any specific order in respect of any interlocutory proceeding in the suit". We do not find any infirmity in the said approach of the Division Bench of the High Court. SLP (Civil) Nos. 121-22 of 1994 are also liable to be dismissed. 23.In the result all the three special leave petitions filed by the petitioner (RMI) are dismissed.
- 1992 (8) TMI 225 - SUPREME COURT
Whether the Act is incompatible with the repealed Act i.e. Foreign Exchange Regulation Act, 1947? Whether it manifested any contrary intentions to the repealed Act? Held that:- Appeal dismissed. Article 20(1) of the Constitution of India provides that no person shall be convicted of any offence except for violation of the law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. The repealed Act prescribed three times the value as penalty and, under the Act, section 50 provides five times penalty. So what would be imposable as penalty is three times. The penalty imposed as reduced by the Appellate Tribunal is not even three times as contemplated under section 23 of the repealed Act....... + More
- 1991 (10) TMI 303 - SUPREME COURT
Whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody? Held that:- Sections 111 and 113 of the Customs Act provide for confiscation of improperly imported goods and exported goods respectively. The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non-existent. We see no force in this submission. The potentialities of the detenu as gathered from his act of smuggling that form basis for detention. It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities ....... + More
- 1991 (8) TMI 330 - SUPREME COURT
Whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appellants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutional/statutory right to have their representation considered by the Central Government? Whether the detention orders are liable to be quashed on that ground? Held that:- the Detaining Authority as well as the State Government were not justified in taking a hyper-technical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government. We think that this approach on the part of the Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 22(5) ....... + More
- 1990 (12) TMI 216 - SUPREME COURT
Whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it? Held that:- In the present case, admittedly the proposed detenu is absconding and has been evading the service of the detention order. The first respondent who is his wife has sought to challenge the said order because the show-cause notice under sub-section (1) of Section 6 of the SAFEMA is issued to him, a copy of which is also sent to her. Thus, the assistance of the High Court under Article 226 of the Constitution is sought by the first respondent on behalf of the detenu to secure the order of detention with a view to defend the proceedings under the SAFEMA. Thus the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying ....... + More
- 1990 (11) TMI 418 - SUPREME COURT
... ... ..... o the High Court on a question of law, would it be open to the High Court while agreeing with the merit of the matter to reduce the fine. Conceding that this submission is correct we are not prepared to accept the position that a statutory appeal of the type in question would bar the jurisdiction of the High Court while dealing with it to examine the justification for the quantum of penalty. The main matter along with the penalty fused into one and the entire matter became the subject-matter of appeal. Obviously the Appellate Court would be entitled to deal with both these aspects in accordance with law. 3. Section 52(3) confers on the First Appellate Authority which is the Appellate Board jurisdiction to modify orders which are subjected to appeal. The High Court being the Second Appellate Authority Under Section 54 must be assumed to have the same powers as conferred on the First Appellate Authority in the, absence of any specific bar. 4. The appeal is dismissed. No costs.
- 1989 (8) TMI 340 - SUPREME COURT
Whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it? Held that:- The representation of the detenu has not been given prompt and expeditious consideration, and was allowed to lie without being properly attended to. The explanation now offered by the third respondent that the delay has occurred in seeking the comments of the Collector of Customs etc. is not a convincing and acceptable explanation. In our view the delay in 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority. Hence we hold that the unexplained delay in disposal of the representation o....... + More
- 1989 (5) TMI 170 - SUPREME COURT
... ... ..... ief. It seems to us prima facie that one possible view can be that if parole is granted the period of parole should be counted within the total period of detention and not outside it. As regards the problem raised by the release of a detenue pursuant to an erroneous decision of the High Court, and the subsequent reversal of that decision by this Court, the remedy probably lies in the enactment of legislation analogous to Section 5(1) and Section 15(4) of the Administration of Justice Act, 1960 in the United Kingdom. The question is an important one affecting as it does on the one band the need for effective measures of preventive detention and on the other the liberty of the subject and his right to freedom from detention beyond the period intended by the statute. As the matter is of great public importance, and most cases of preventive detention are bound to be affected, we refer these cases to a Bench of five Hon rsquo ble Judges for reconsideration of the law on the point.
- 1988 (12) TMI 180 - SUPREME COURT
Quashing the said detention order - Held that:- In the instant case as we have said hereinbefore that the bank pass books are not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu has not infringed any right of the appellant and the order of detention cannot be questioned as illegal or vitiated on that score. Appeal dismissed.
- 1988 (9) TMI 175 - SUPREME COURT
Whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3(1) of the Act and not in exercise of any right given to him under the Rules of Business of the Government, he was under a constitutional obligation to communicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government and the Central Government? Held that:- The view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer not falling sick or going on leave or retiring from service ....... + More
- 1988 (4) TMI 148 - SUPREME COURT
Order of detention made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 challneged Held that:- The learned Additional Solicitor General placed before us the grounds served on the petitioner, at some length, wherein it is inter alia stated that the petitioner was running a business firm under the name and style of “M/s. B.N. Corporation” in Hong Kong as also offices in other places including Singapore and got certain business firms in India detailed therein registered in Nagaland under ‘farzi’ names and employed a number of persons who were acting at his behest. The role of the petitioner has been detailed in the grounds showing how he got illegally siphoned the foreign exchange to the tune of about 2 crores of rupees out of the country. The grounds also referred to the statements....... + More
- 1987 (5) TMI 337 - SUPREME COURT
Whether the word "whoever" in sub-section (1) of section 23 of the Foreign Exchange Regulation Act, 1947, before its amendment by Act XXXIX of 1957, denoted only a natural person and an association of persons, such as a firm, would not fall within the connotation of the word "whoever"? Held that:- Appeal dismissed. The initiation of adjudication proceedings for failure to repatriate foreign exchange on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible.
- 1987 (4) TMI 398 - SUPREME COURT
Whether the impugned order of detention was based on no material inasmuch as R.C. Singh was not a gazetted officer of enforcement and, therefore, the statements recorded by him had no evidentiary value whether the statements recorded by him could be treated to be statements relatable to section 39(b) of the Foreign Exchange Regulation Act and could still from the basis for such satisfaction? Whether there was non-application of mind on the part of the detaining authority and, therefore, the impugned order of detention was bad as there were factual mis-statements detailed in items A to F of the gorunds of detention? Whether there was infraction of the constitutional safeguards contained in article 22(5) due to the failure on the part of the Central Government to consider the representation filed by the detenu under section 8(b) read with s....... + More
- 1987 (3) TMI 241 - SUPREME COURT
Preventive detention orders - Held that:- Since the order of detention did not mention that the detenue in these cases was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases, this Court had to observe that there was d total absence of application of mind on the part of the detaining authority while passing the detention order and quashed the order of detention. We do not think it necessary to consider the question whether the authorities acted rightly in not considering the representation made by the respondent. It cannot be disputed that provisions of SAFEMA cannot be invoked in cases where there is no valid order of detention. We agree with the High Court that the order of detention is bad on the gr....... + More
- 1987 (1) TMI 396 - SUPREME COURT
Applicability of section 12(2) of the Foreign Exchange Regulation Act of 1947 - Held that:- Allow this appeal and set aside the order of the High Court quashing the show-cause notices impugned in the writ petition by the original writ petitioner dismiss the writ petition instituted by the respondents, with liberty to the parties to raise all contentions on facts and law barring the contention that section 12(2) of the Act is not attracted.
- 1986 (9) TMI 356 - SUPREME COURT
Appeal made under section 23EE of the Foreign Exchange Regulation Act, 1947 dismissed - Held that:- Appeal dismissed. There is no escape from the conclusion that the appellant con travened section 12(2) of the Act. The High Court committed no error in rejecting the appellant's submission.
- 1986 (9) TMI 163 - SUPREME COURT
Whether High Court was correct in dismissing the appeal on the findings that the order of the Appellate Authority did not suffer from any error of law? Held that:- The findings recorded by the Deputy Director Enforcement and the Appellate Authority leave no room for doubt that the appellant took delivery of goods himself when he was in U.S.A. and sold the same by private sale in a surreptitious manner disregarding the directions of the Reserve bank of India and keeping it in dark about it. The appellant has not proved how much value and foreign exchange he realized by such private sale. In the first place he could not have sold the goods privately in a secretive manner contrary to the directions of the Reserve Bank of India. In the next place he should have candidly come forward to state how much he realized and ought to have repatriated ....... + More
- 1986 (2) TMI 334 - SUPREME COURT
Whether it was necessary to detain the appellant under the COFEPOSA? Held that:- No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released. The counters to which we have referred seem to us to make it clear that relevant material was not placed before the detaining authority and therefore, there was no occasion for the detaining authority to apply its mind to the relevant material. In the circumstances, the appellant is entitled to be released. The appeal is allowed and the appellant is directed to be set at liberty forthwith.