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1 - 10 of 68 (0.73 seconds)Section 3 in The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [Entire Act]
Article 22 in Constitution of India [Constitution]
Section 7 in The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [Entire Act]
Saeed Zakir Hussain Malik vs State Of Maharashtra & Ors on 9 August, 2012
43. The next ground raised is that there is a substantial delay in the
execution of the detention order which shows that the live link between the
W.P.(Crl)Nos.255, 279 & 280/2020 50
prejudicial activities and the purpose of detention has clearly snapped. The
learned counsel places reliance on S.K.Serajul v. State of West Bengal51;
Manju Ramesh Nahar v. Union of India and Others 52; Kadhar Naina
Ushman v. Union of India and Others53; Saeed Zakir Hussain
Malik v. State of Maharashtra and Others54 and T.A. Abdul Rahman
v. State of Kerala and others55 where it has been held that the delay in
execution of the detention order was found to vitiate the order of detention. The
learned counsel for the petitioners would also submit that there was no mention
about the order of detention in the counter affidavit filed in the applications for
modification of bail conditions, even though the said counter affidavit was filed
after the date on which the detention orders were issued. The learned counsel
for the petitioners would further submit that the fact that the summons issued
by the customs authorities had been duly served on the detenues shows that
they were very much available at their house and were not absconding. He says
that the lackadaisical attitude in the execution of the detention order clearly
points to the lack of bonafides in the detaining authority while recording his
subjective satisfaction as regards the need to detain the detenues so as to
prevent them for engaging in prejudicial activities in future.
51(1975) 2 SCC 78
52(1999) 4 SCC 116
53(2008) 17 SCC 725
54(2012) 8 SCC 233
55(1989) 4 SCC 741
Ichhu Devi Choraria vs Union Of India & Ors on 9 September, 1980
It was
held that even if one of the two rights, i.e. first the right to be served with the
grounds of detention and then the right to receive copies of documents
requested for, was violated, the detention order would be vitiated; (ii)
Harikisan v. State of Maharashtra and others32, where the Supreme
Court held that in order to make an effective representation, it is not only
31AIR 1951 SC 157
32AIR 1962 SC 911
W.P.(Crl)Nos.255, 279 & 280/2020 43
sufficient that the detenu has been physically delivered the means of knowledge
with which to make his representation, but he is also entitled to know with
sufficient certainty all the grounds on the basis of which the order of detention
is made; (iii) Moti Lal Jain v. State of Bihar and Others33, in which the
Supreme Court held that the communication of grounds and materials cannot
be done in a casual manner; (iv) Ramchandra A. Kamat v. Union of
India and others34, where the Supreme Court held that in order to make
additional representation, the detenu is entitled to obtain information relating
to the grounds of detention, and that, if there is undue delay in furnishing
statements and documents referred to in the grounds of detention, the right to
make an effective representation is denied; (v) Smt. Icchu Devi Choraria
v. Union of India and Others35, where it was established that the detenu is
entitled not merely to a bare recital of the grounds of detention, but copies of
the documents, statements and other materials relied upon in the grounds of
detention, in order to constitute a proper compliance with clause (5) of Art.22
and sub-section (3) of Section 3 of the COFEPOSA Act and that, if such
materials were not supplied, the order of detention would be vitiated; (vi)
Mangalbhai Motiram Patel v. State of Maharashtra and others36,
where it was held, following Ramchandra A. Kamat (supra), that all the
33AIR 1968 SC 1509
34(1980) 2 SCC 270
35(1980) 4 SCC 531
36(1980) 4 SCC 470
W.P.(Crl)Nos.255, 279 & 280/2020 44
documents relied upon, on the grounds of detention must be supplied to the
detenu; (vii) Kirti Kumar Chamanlal Kundaliya v. Union of India 37,
where it was held, referring to Ramchandra A. Kamat (supra) and
Thushar Thakker v. Union of India38, that the detenu is entitled to be
furnished with copies of all materials relied upon or referred to in the grounds
of detention with reasonable expedition; (viii) Kamala Kanyalal
Khushalani v. State of Maharashtra and Another 39, where again it was
held that all documents relied upon in the grounds of detention should be
supplied to the detenu; (ix) Thahira Haris and others v. Government of
Karnataka and others40, where it was held that the detenu is entitled to be
supplied with all particulars sufficient to enable him to make a representation;
Ramchandra A. Kamat vs Union Of India And Ors on 20 February, 1980
He therefore submits that, following the development of the law on
the subject, decisions such as Atma Ram (supra) & Ramchandra A.
Kamat (supra) must not be read in the manner that the learned counsel for the
petitioner wants us to read it. The learned counsel has placed reliance on
L.M.S Ummu Saleema v. B.B. Gujaral and Others45, Radhakrishnan
Prabhakaran v. The State of TamilNadu and Others 46, State of
TamilNadu and Others v. Adbullah Kadher Batcha and others47,
Syed Farooq Mohammed v. Union of India (UOI) and Others 48 and on
State of Punjab & Ors v. Jagdev Singh Talwandi49, to contend that a
failure to consider the request for documents, other than relied upon
documents, is not fatal to the detention order. He submits that there is no
obligation on the part of the detaining authority or the sponsoring authority to
supply materials other than the relied upon documents. The learned central
government counsel would submit that the non-supply of the USB containing
the images and other data extracted by the C-DAC does not amount to non-
supply of relied upon documents. He submits that a reading of paragraph xxix
45(1981) 3 SCC 317
46(2000) 9 SCC 170
47(2009) 1 SCC 333
48(1990) 3 SCC 537
49AIR 1984 SC 444
W.P.(Crl)Nos.255, 279 & 280/2020 47
of the detention order clearly shows that the detaining authority had not relied
on any material other than those already supplied to the detenues.
T.A. Abdul Rahman vs State Of Kerala And Ors on 23 August, 1989
43. The next ground raised is that there is a substantial delay in the
execution of the detention order which shows that the live link between the
W.P.(Crl)Nos.255, 279 & 280/2020 50
prejudicial activities and the purpose of detention has clearly snapped. The
learned counsel places reliance on S.K.Serajul v. State of West Bengal51;
Manju Ramesh Nahar v. Union of India and Others 52; Kadhar Naina
Ushman v. Union of India and Others53; Saeed Zakir Hussain
Malik v. State of Maharashtra and Others54 and T.A. Abdul Rahman
v. State of Kerala and others55 where it has been held that the delay in
execution of the detention order was found to vitiate the order of detention. The
learned counsel for the petitioners would also submit that there was no mention
about the order of detention in the counter affidavit filed in the applications for
modification of bail conditions, even though the said counter affidavit was filed
after the date on which the detention orders were issued. The learned counsel
for the petitioners would further submit that the fact that the summons issued
by the customs authorities had been duly served on the detenues shows that
they were very much available at their house and were not absconding. He says
that the lackadaisical attitude in the execution of the detention order clearly
points to the lack of bonafides in the detaining authority while recording his
subjective satisfaction as regards the need to detain the detenues so as to
prevent them for engaging in prejudicial activities in future.
51(1975) 2 SCC 78
52(1999) 4 SCC 116
53(2008) 17 SCC 725
54(2012) 8 SCC 233
55(1989) 4 SCC 741
The State Of Bombay vs Atma Ram Sridhar Vaidya on 25 January, 1951
He therefore submits that, following the development of the law on
the subject, decisions such as Atma Ram (supra) & Ramchandra A.
Kamat (supra) must not be read in the manner that the learned counsel for the
petitioner wants us to read it. The learned counsel has placed reliance on
L.M.S Ummu Saleema v. B.B. Gujaral and Others45, Radhakrishnan
Prabhakaran v. The State of TamilNadu and Others 46, State of
TamilNadu and Others v. Adbullah Kadher Batcha and others47,
Syed Farooq Mohammed v. Union of India (UOI) and Others 48 and on
State of Punjab & Ors v. Jagdev Singh Talwandi49, to contend that a
failure to consider the request for documents, other than relied upon
documents, is not fatal to the detention order. He submits that there is no
obligation on the part of the detaining authority or the sponsoring authority to
supply materials other than the relied upon documents. The learned central
government counsel would submit that the non-supply of the USB containing
the images and other data extracted by the C-DAC does not amount to non-
supply of relied upon documents. He submits that a reading of paragraph xxix
45(1981) 3 SCC 317
46(2000) 9 SCC 170
47(2009) 1 SCC 333
48(1990) 3 SCC 537
49AIR 1984 SC 444
W.P.(Crl)Nos.255, 279 & 280/2020 47
of the detention order clearly shows that the detaining authority had not relied
on any material other than those already supplied to the detenues.