1981 (5) TMI 115 - SC - FEMA

Detention order upheld under Foreign Exchange Law. No rights violation. Writ petition dismissed.

LMS. UMMU SALEEMA(MST.) Versus BB. GUJARAL

The Court upheld the detention order of Jahaubar Moulana under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The ... 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. Issues Involved:1. Legality of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.2. Non-supply of material documents to the detenu.3. Consideration of the detenu's retraction of his statement.4. Alleged delay in the disposal of the detenu's representation.5. Application of mind by the detaining authority.6. Consideration of prosecution under ordinary criminal law versus preventive detention.Detailed Analysis:1. Legality of Detention:The detenu, Jahaubar Moulana, was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The car he was traveling in was intercepted, and foreign-origin wristwatches and semi-precious stones were found concealed within the vehicle. The goods were seized, and a statement was recorded from the detenu, which he later claimed was obtained under duress. An order of preventive detention was issued on 31.10.80 and served on 2.2.81.2. Non-supply of Material Documents:The detenu argued that he was not provided with certain documents, specifically the record of trunk telephone calls and the record of petrol put into a jeep, which were referenced in the grounds of detention. The Court held that these documents were not relied upon by the detaining authority in making the detention order. Therefore, non-supply of these documents did not violate the Fundamental Right under Art. 22 (5) of the Constitution. The Court emphasized that only documents relied upon by the detaining authority need to be provided.3. Consideration of Retraction:The detenu claimed to have retracted his initial statement via a letter sent to the Assistant Collector of Customs. However, the Court found no evidence of such a letter being received. The detenu's failure to provide a copy of the retraction letter along with his representation raised suspicion. The Court concluded that the alleged retraction letter was a myth and not sent as claimed.4. Alleged Delay in Disposal of Representation:The detenu's representation was dispatched on 5.2.81 and received on 13.2.81. The detaining authority was abroad from 13th to 16th February and considered the representation on 19.2.81. The Court found no unreasonable delay in the disposal of the representation, stating that the time taken was justified due to the detaining authority's absence and the subsequent prompt action upon return.5. Application of Mind by Detaining Authority:The detenu argued that the detaining authority did not apply its mind to his representation, particularly regarding his alleged retraction. The Court found that the detaining authority had considered the question of the retraction and concluded that no such letter was posted. Therefore, there was no non-application of mind.6. Consideration of Prosecution vs. Preventive Detention:The detenu contended that the detaining authority failed to consider whether prosecution under ordinary criminal law would suffice. The Court referred to the counter affidavit by the detaining authority, which indicated that all facts and circumstances were carefully considered, and it was determined that detention was necessary to prevent the detenu from engaging in smuggling activities. The Court inferred that the detaining authority had implicitly considered and rejected the adequacy of prosecution as an alternative.Conclusion:The Court dismissed the writ petition, finding no violation of the detenu's rights under Art. 22 (5) of the Constitution. The detention order was upheld as valid, with the Court concluding that the detaining authority had acted within its jurisdiction and with due consideration of all relevant factors.