TMI Blog1980 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. - Writ Petition (Crl.) No. 724 of 1980 - - - Dated:- 26-9-1980 - SEN, A.P., BHAGWATI, P.N. AND VENKATARAMIAH, E.S., JJ. Ram Jethmalani and Miss Rani Jethmalani for the petitioner M. N. Phadke and M. N. Shroff for the Respondent JUDGMENT SEN J.- This petition for the grant of writ of Habeas Corpus is for the release of one Bhalabhai Motiram Patel, who has been detained by an order of the State Government of Maharashtra dated February 12, 1980 under sub-s. (1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act') on being satisfied that it was necessary to detain him 'with a view to preventing him from abetting the smuggling of goods and engaging in transport of smuggled goods'. At the conclusion of the hearing on July 30, 1980 we made an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs (Preventive), Bombay 'for his comments'. On the basis of the request of the Home Department the Assistant Collector of Customs addressed a letter to the Deputy Director of Directorate of Revenue Intelligence, Bombay on March 15, 1980 for his comments. On March 18, 1980 the Assistant Director, Revenue Intelligence wrote a letter to the Assistant Collector of Customs conveying the decision of the Directorate of Revenue Intelligence to supply the detenu with copies of the documents on which the order of detention was based, and the documents were forwarded for onward transmission to the Home Department 'for doing the needful'. The letter was received by the Assistant Collector of Customs on March 19, 1980. On the same day i.e. March 19, 1980, the Assistant Collector of Customs sent a letter to the Joint Secretary, Home Department (Special) conveying the decision of the Directorate of Revenue Intelligence to supply copies and also forwarded a set of documents for being supplied to the detenu. The case was put up before the Secretary to the Government, Home Department (Transport) on March 25, 1980. On March 26, 1980 the Secretary directed that the detenu be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s authority. The Court, not the Executive, has the 'ultimate authority' to interpret the law. Although the Executive has large potential powers, limitations and restraints on that power are built into the Constitution. In a series of decisions, this Court has, on a construction of Art. 22(5) of the Constitution, read with sub-s.(3) of s.3 of the Act, held that 'the right of making an effective representation' carries with it the right to have the documents relied upon in the grounds of detention: Ramchandra A. Kamat v. Union of India, Frances Coralie Mullin v. W. C. Khambra, Smt. Icchu Devi Choraria v. Union of India and Pritam Nath Hoon v. Union of India. In Kamat's case it is laid down that if there is undue delay in furnishing the statements and documents relied upon in the grounds of detention, the right to make an effective representation is denied, and the detention becomes illegal. It was observed: The right to make a representation is a fundamental right. The representation thus made should be considered expeditiously by the government. In order to make an effective representation, the detenu is entitled to obtain information relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f s. 3 of the Act has been reiterated in Smt. Icchu Devi Choraria's case and Pritam Nath Hoon's case. In Smt. Choraria's case one of us, Bhagwati J., has dealt with the question at some length, and he observes: It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of section 3 of the COFEPOSA Act, the words as soon as may be have been translated to mean ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention. The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. Having pointed out the two outside time-limits provided by sub-s. (3) of s. 3 of the Act, he furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a detenu is entitled under Art. 22(5) of the Constitution read with sub-s. (3) of s. 3 of the Act, to be served with copies of all the relevant documents relied upon in the grounds of detention, it is somewhat strange that the State Government acted in a cavalier fashion in dealing with the detenu's application to be supplied with copies of such documents. What makes it worse is that in utter defiance of this Court's decision in Kamat's case. P. V. Nayak, Secretary to the Government of Maharashtra, Home Department (Transport) to whom the powers of making an order of detention under sub-s. (3) of s. 3 have been delegated under the Rules of Business and is, therefore, the detaining authority, should have come forward with a counter-affidavit dated June 13, 1980 stating: I deny that I was under constitutional obligation to supply the documents and statements relied upon in the grounds of detention. I say that the grounds of detention were elaborate, precise and clear and the copies of the documents and statements were not necessary for making an effective representation. This shows lack of awareness of his constitutional obligation. What followed is not difficult to un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en March 19, 1980 when the documents were received in the Home Department and March 25,1980 when the application of the detenu was put up before the Secretary to the Government, Home Department for orders. When the matter came up for hearing before one of us, Venkatramiah J., as the Vacation Judge, on June 17, 1980, the State Government was directed to file an affidavit explaining the time spent between March 10, 1980 and March 27, 1980 since there was no explanation forthcoming in the affidavit dated June 13, 1980 sworn by C. L. Mulherkar, Deputy Secretary to the Government of Maharashtra, Home Department (Special). In furtherance of that direction, B. S. Shetye, Desk Officer, Home Department (Special) has sworn an affidavit dated June 18, 1980 to the effect: On 18th March 1980 a letter was addressed by the Assistant Director, D.R.I. to the Assistant Collector of Customs informing him about the decision to give copies and the copies of the statements, etc. were forwarded to the Customs for onward transmission to the Home Department of Maharashtra Govt. for doing the needful. The said letter dated 18th March, 1980 was received by the Assistant Collector of Customs on 19th March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons engaged in smuggling, foreign exchange racketeering and related activities by preventive detention of such persons. Violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State. Such economic offences disrupt the economic life of the community as a whole. It is necessary to protect the basic economic order of the nation. Nevertheless, the Act is a law relating to preventive detention. That being so, the power of detention exercisable under sub-s. (1) of s. 3 of the Act is subject to the limitations imposed by the Constitution. As observed by this Court in Narendra Purshotam Umrao v. B. B. Gujral Ors. when the liberty of the subject is involved, 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: It is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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