TaxTMI 
TaxTMI 
1983 (3) TMI 259
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....es the validity of an order of detention dated November 7, 1981 passed against him by the first respondent, the State of Maharashtra, under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, herein referred to as 'the Act'. Earlier, the petitioner's wife had filed a habeas corpus petition in the Bombay High Court for the release of the petitioner, but that petition (Writ Petition No. 579 of 1982) was dismissed by the High Court on October 28, 1982. The High Court held that three out of the four grounds on which the petitioner was detained were bad for one reason or another but that the remaining ground, namely, ground No. 1 did not suffer from any defect and was enough to sustain ....
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....nu requires consideration by us. This petition along with a few other petitions was referred to the Constitution Bench for considering the validity of sections 5-A and 11 of the Act. We have already set out the purport of section 5-A. Section 11, which authorises the revocation of detention orders, provides by sub-section 2 that the revocation of a detention order shall not bar the making of another order under section 3 against the same person. In view of the conclusion which we have reached in this petition, it is unnecessary to consider the validity of these sections. The surviving ground of detention contains the allegation that, working on a secret information received on January 13, 1981, the officers of the Marine and Preventiv....
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....er 19, 1981 that there was in its opinion no sufficient cause for Shamsi's detention. Shamsi was released, as he had to be, in pursuance of the Advisory Board's opinion. It is urged by Shri Jethmalani that one of the grounds on which Shamsi was detained being the same as ground No. 1 in this case, the fact that the Advisory Board had reported that there was no sufficient cause for Shamsi's detention ought to have been placed before the detaining authority which passed the order of detention against the petitioner. According to the learned counsel, the failure of the State Government to place a highly relevant and important piece of material before the detaining authority vitiates the order of detention. If the detaining authorit....
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....ase becomes relevant in the petitioner's case. The failure of the State Government to place before the detaining authority in the instant case, the opinion which the Advisory Board had recorded in favour of a detenu who was detained partly on a ground relating to the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant, if not binding. In other words, the detaining authority did not, because it could not, apply its mind to a circumstance which, reasonably, could have affected its decision whether or not to pass an order of detention against the petitioner. It is contended by Shri Rana, who appears on behalf of the Government of Maharashtra, that there is distinction....
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....no sufficient cause for detaining him. This argument also overlooks that-it is not as if the opinion of the Advisory Board in Shamsi's case was binding on the detaining authority in this case. The substance of the matter is that the detaining authority in this case failed to apply its mind to the highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner now rests, in addition to something more, was not sustained by the Advisory Board in Shamsi's case. We cannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsi's detention on a ground which was common to him and the petitioner, namely, ground No. 1, the detaining authority would have....
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....irst place, the fact that it was on October 8, 1981 that Shri Capoor had directed the detention of the petitioner is a matter of no consequence. 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 Boa....