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FEMA - Supreme Court - Case Laws
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- 1985 (4) TMI 323 - SUPREME COURT
officer must have 'reason to believe' that the incomes, profits or gains chargeable to income-tax have been under-assessed, then alone he can take action. whether these grounds are adequate or not is not a matter for the court to investigate.
- 1984 (5) TMI 264 - SUPREME COURT
... ... ..... ry on the part of the Central Government to consider a second representation for revocation under s. 14. We may profitably refer to Phillippa Anne Duke’s case, supra, where in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention under s. 11(1)(b) of the COFEPOSA Act handed over to t he Prime Minister during her visit to England did not render the continued detention invalid. It was observed "Representations from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the Government under s. 11(8)(b) of the COFEPOSA Act." The result therefore is that the appeal succeeds and is allowed. The judgment and order of the High Court is set aside and the order of detention passed by the District Magistrate under sub-s. (3) of s. 3 of the National Security Act, 1980 is maintained. Appeal allowed.
- 1984 (2) TMI 316 - SUPREME COURT
Whether order of detention is illegal, null and void ab initio and inoperative and be quashed? Held that:- Non- application of mind of the Detaining Authority to the material placed before him before he passed the impugned order of detention dated 19.12.1974 and the failure of the appellant to supply copies of the documents clearly and unmistakably relied upon for arriving at the subjective satisfaction that the respondent's detention under COFEPOSA is necessary and referred to in the grounds of detention served upon him for holding that the order of detention passed under s. 3(1) and declaration made under s. 5(1) of COFEPOSA is void ab initio and that the action taken under s, 6(1) and s. 7 of SAFEMA pursuant to that order of detention is liable to be struck down while holding that the petition under Art. 226 of the Constitution and s. ....... + More
- 1983 (3) TMI 259 - SUPREME COURT
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 be....... + More
- 1982 (10) TMI 206 - SUPREME COURT
Whether such delay was justified by existence of any exceptional circumstances as required by s. 3 (3) of the COFEPOSA for in the absence of exceptional circumstances delay beyond normal period of five days would be a breach of the constitutional as well as the legislative mandate? Held that:- In the instant case, for instance, if the alleged exceptional circumstances were communicated to the detenu at the time of the delayed supply of the concerned documents and statements in Urdu language he could have satisfied the superior authority or the Advisory Board that the exceptional circumstances did not really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court now, he could have done before the superior authorities or the Advisory Board. In our view, therefore, the impugned failure ....... + More
- 1982 (5) TMI 179 - SUPREME COURT
Whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention? Held that:- The order of detention was made on 7.1.82 and the consideration by the Advisory Board was on 8.2.82. The passage of time was not so long nor had any circumstances intervened to justify any compartment-wise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case, I think that the report of the Advisory Board that there was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was found by the Board to be justified on the date of its report as also on the date of the making of the order of detention. Petitions dismissed
- 1981 (11) TMI 175 - SUPREME COURT
Whether the failure of the State Government of Punjab to forward the representation made by the detenu to the Central Government for revocation of his order of detention under Section 11 of the Act with reasonable despatch renders his continued detention invalid? Held that:- In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority as well as of the right of making a representation to the Central Government for revocation of the order of ....... + More
- 1981 (10) TMI 174 - SUPREME COURT
Validity of an order dated March 27, 1981 passed by respondent 1, the State of Punjab, under section 3(1) of the Conservation of Foreign enchange and Prevention of Smuggling Activities Act, 1974 challenged Held that:- The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The coutinued detention of the detenu must therefore be held illegal and the detenu set free. Petitions allowed.
- 1981 (10) TMI 173 - SUPREME COURT
Whether the order of detention has been passed on the materials before it? Held that:- It has been stated in the affidavit that the entire record was placed before the Home Minister who "after careful consideration of the entire record has passed the impugned order of detention" and that he (Mr. Shah) "only authenticated the impugned order of detention in accordance with sub-clause (2) of Article 166 of the Constitution of India." As the order has been A taken in the name of the Governor of Gujarat and validly authenticated by the Deputy Secretary concerned, the order tentamounts to an order by the State Government of Gujarat. It therefore cannot be said that the order of detention was not passed by the competent authority. Appeal allowed.
- 1981 (9) TMI 295 - SUPREME COURT
... ... ..... plication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court. The judgment of the High Court, therefore, is liable to be set aside. We set aside the order of the High Court and allow the appeal. G S.R. Appeal allowed.
- 1981 (8) TMI 216 - SUPREME COURT
Whether the detention is to be continued beyond a period of three months or not? Whether there was unreasonable delay on the part of the State Government in considering the representation of the detenu? Held that:- The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that three is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up befor....... + More
- 1981 (5) TMI 115 - SUPREME COURT
Legality of the detention of Jahaubar Moulana under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Held that:- Reading of the entire counter affidavit makes it clear that in the opinion of the detaining authority, prosecution or no prosecution, the only effective way of preventing Jahaubar Moulana from engaging himself in objectionable activities was to detain him. Appeal dismissed.
- 1981 (3) TMI 255 - SUPREME COURT
... ... ..... ith equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith. Appeal allowed.
- 1981 (1) TMI 273 - SUPREME COURT
Right of a detenu under COFEPOSA Act - interview with a lawyer and the members of his family - ’preventive detention’ and punitive detention’ = right to life in detention.
- 1981 (1) TMI 251 - SUPREME COURT
Whether or not the documents demanded by the detenu were relevant was decided not by the Minister who was the detaining authority but by the Secretary? Held that:- it is absolutely clear to us that whether the documents concerned are referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. This not having been done in the present case the continued detention of the petitioner must be held to be void. The representation made by the detenu on 3-10-1980 has been rejected on 14-10-1980 not by the Home Minister but by the Secretary, thus, the representation has been rejected by an authority which had no jurisdiction at all to consider or pass any orders on the representation of the detenu. Allow this petition and direct the detenu to be released
- 1980 (12) TMI 182 - SUPREME COURT
Whether detention of the detenu was illegal? Held that:- The materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. They were a part of the basic facts and materials, and therefore, should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of ....... + More
- 1980 (11) TMI 152 - SUPREME COURT
... ... ..... ion, the service of the grounds of detention on the detenu can be complete only if they are accompained by the documents or materials on which the order of detention is based for then alone will the detenu be able to make an effective representation. In other words, the documents which form the basis of the order of detention are not served on the detenu along with the grounds of detention, in the eye of law there will be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio. 3. In the instant case, it is not disputed that when the grounds of detention were served on the petitioner, on 13-5-1980, they were not accompanied by the documents forming the basis thereof. His case, therefore, falls within the four corners of the ratio laid down by the cases referred to above and his detention must be held to be without jurisdiction. The petition is therefore allowed and the petitioner is directed to be released forthwith.
- 1980 (10) TMI 199 - SUPREME COURT
Release of the three detenus whose detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 challenged Held that:- We have no doubt that the communication dated July 27, 1980 was a representation which was in law required to be considered by the detaining authority. Quite obviously, the obligation imposed on the detaining authority, by Art. 22(5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Art. 22(5) read with Art. 19, the Courts have a duty to rigidly insist that preventive detention procedu....... + More
- 1980 (9) TMI 279 - SUPREME COURT
whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention? Held that:- The community has a vital interest in the proper enforcement of its laws, particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The Government must, therefore, ensure that the constitutional safeguards of Art. 22(5) read with sub-s. (3) of s. 3 of the Act are fully complied with Whether there w....... + More
- 1980 (9) TMI 271 - SUPREME COURT
Whether the petitioner who has been detained in pursuance of an order dated the 29th May 1980 issued by the Government of Maharashtra in exercise of the powers conferred on it by clause (a) of section 5 of the Conversion of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 shall be immediately released from custody which, according to him, is illegal? Held that:- It is now settled law that the detaining authority is bound to give opportunity to the detenu to make a representation against his detention and also to consider the same as early as possible and that any unreasonable delay in furnishing to the detenu copies of documents which form the basis of the grounds of detention amounts to denial to him of such opportunity. And it goes without saying that such denial of opportunity makes the detention itself illegal. That precisely is the situation which obtains in the present case and the petitioner is, therefore, entitled to be released forthwith. Appeal allowed.