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FEMA - Supreme Court - Case Laws
Showing 101 to 120 of 125 Records
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Party Name, Court Name, Date of Decision, Full Text of Headnote and Decision etc.
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1981 (8) TMI 216
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 before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd February, 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu . Petition dismissed.
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1981 (5) TMI 115
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.
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1981 (3) TMI 255
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... ... ..... 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.
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1981 (1) TMI 273
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.
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1981 (1) TMI 251
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
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1980 (12) TMI 182
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 the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government.
It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. The whole purpose of communicating the ’ground’ to the detenu is to enable him to make a purposeful and effective representation. If the ’grounds’ are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed - The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal. Appeal allowed.
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1980 (11) TMI 152
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... ... ..... 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.
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1980 (10) TMI 199
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 procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu. The representation dated July 27, 1980 was admittedly not considered and on that ground alone, the detenu was entitled to be set at liberty.
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1980 (9) TMI 279
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 was such unreasonable delay in disposal of the detenu's application for revocation made under sub-s. (1) of s. 11 of the Act as to render his continued detention invalid is, in any event, basically irrelevant. For these reasons, the order of detention passed by the State Government of Maharashtra dated February 12, 1980 detaining Bhalabhai Motiram Patel under sub-s. (1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is set aside. Appeal allowed.
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1980 (9) TMI 271
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.
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1980 (9) TMI 270
Whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub-section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue?
Held that:- The time of 12 days taken up by the Assistant Collector of Customs was therefore unreasonably long for which no explanation at all was forthcoming from the detaining authority. We must in the circumstances hold that there was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements and other materials relied upon in the grounds of detention and the continued detention of the detenu was accordingly illegal and void and the detenu was entitled to be released forthwith from detention.
It is also necessary to point out that there was unreasonable delay in considering the representations of the detenu dated 9th June 1980 and 26th June 1980. It was not necessary for the detaining authority to wait until after the copies of the tapes were supplied to the detenu, it is difficult to resist the conclusion that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu, and particularly the representation dated 9th June 1980. This ground is also in our opinion sufficient to invalidate the continued detention of the detenu. These were the reasons for which we allowed the writ petition and directed immediate release of the detenu from detention.
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1980 (6) TMI 115
Whether the grounds of detention were couched in English, a language which the detenu did not understand at all and these grounds were not explained to him?
Held that:- The service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex-facie.
Section ll of the Act confers a constitutional right on the detenu to have his representation considered by the Central Government. It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is. The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation of the detenu to the Central Government - appeal allowed - the continued detention of the detenu in this case is legally invalid
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1980 (2) TMI 257
Whether the representation requesting the Central Government to order the revocation under S. 11 of the Act was not forwarded by the detaining authority to the Central Government and as such the detention is illegal?
Held that:- It is clear that a representation properly addressed by the detenu to the Central Government was not forwarded to the Central Government and as such no action had been taken up to date.
As to what will be the consequence if a properly addressed petition is not forwarded to the Central Government and as such left unattended for a period of nearly four months. We feel that in such circumstances the detention cannot be justified as being according to the procedure. In the circumstances we do not feel that we will be justified in sending the representation to the Central Government for disposal at this stage & feel that the continued detention of the detenu cannot be held to be according to procedure. Petition allowed.
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1980 (2) TMI 256
Writ of Habeas Corpus for release of detentu
Held that:- Taking into account the facts and circumstances of the case and explanation furnished by the detaining authority, we are of the view that the detaining authority failed to act with reasonable expedition in furnishing the statements and documents referred to in the grounds of detention. On the facts of the case, therefore, we are satisfied that the detention is not in accordance with the procedure contemplated under law. The continued detention is not warranted. The order of his release has already been issued by this Court.
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1979 (5) TMI 146
Validity of an order of detention challenged - Held that:- It is amply clear from the record that the representation of the petitioner was not considered by the 1st respondent before he confirmed the order of detention. The 1st respondent thus failed to comply with the constitutional obligation imposed upon him under clause (5) of E: Art. 22. The subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. The detention of the petitioner must, therefore, be held to be illegal and void. These were the reasons for which we made our order dated 11th April, 1979 quashing and setting aside the detention of the petitioner and directing that the petitioner be set at liberty forthwith. Appeal allowed.
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1978 (12) TMI 182
Detention orders - Held that:- Appeal dismissed. If the detenu wanted any more particulars such as the name of the intelligence officer or other information, he could have well asked for the particulars before making his representation. That he never did. It was not as if any privilege had been claimed by the Government in respect of the intelligence reports. In fact, we find that the intelligence reports were produced before the learned Judges of the High Court at the hearing of the Writ Petition there. There was no complaint before us that the detenu or his Counsel wanted to peruse the reports and were denied the opportunity of doing so. We do not think that the detenu could be said to have been denied a reasonable opportunity of making a representation merely because particulars which he neyer desired in respect of a ground which was not vague were not furnished to him. We are unable to see any force in any of the submissions advanced on behalf of the detenu.
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1978 (11) TMI 153
Smuggling of Cargo of contraband goods - detention orders - Held that:- It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind.
It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properly invoked. W.P.dismissed.
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1978 (11) TMI 150
Detenu release orders - Held that:- Appeal allowed. Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal. For these reasons we set aside the impugned detention order.
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1976 (4) TMI 211
Article 21 furnishes the guarantee of "Lex", which is equated with statute law only, and not of "jus"
spheres of executive and legislative and judicial powers with regard to personal liberty and preventive detention.
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1975 (3) TMI 59
Whether section 23(1A) of the Foreign Exchange Regulation Act, 1947 violates article 14 of the Constitution?
Held that:- We do not think that there is any merit in the contention that the classification made in section 23(1A) is discriminatory. Even according to the respondents, it is the classification made in section 23(1)(a) which is under-inclusive and is, therefore, unreasonable. If this court were to declare that the classification made in section 23(1)(a) is under-inclusive and, therefore, unreasonable, the result would be that contraventions of the provisions specified in section 23(1)(a) would also fall within section 23(1A) and would have to be dealt with by the criminal court—a consummation which the respondents devotedly want to avoid.
We do not think that the High Court was right in holding that section 23(1A) was bad. Appeal allowed.
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