N K ABDU SALAM Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has been detained by virtue of an order dated Decemher 9 1988 passed under Section 3(l)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act with a view to prevent- ing him from engaging in transporting smuggled gold. Various grounds have been taken in the petition in challenging the impugned order but it is not necessary to refer to them because this petition is liable to succeed on a necessary very short point.

(2.) It has been pleaded in Ground No. (II) in the Writ Petition that Material relevant documents i.e. Bail Application dated April 8, 1988, bail order dated 13, 1988 and a petition sent to Collector of Customs by the petitioner after his release on bail, retracting his statement before the customs officials a show cause notice sent by the Collector of Customs and reply to the show cause notice given by the petitioner on October 5, 1988 have not been all placed before the detaming authority and thus the subjective readied by the detaming authority, ignoring the said vital docu- ments which could have influenced the mind of the detaining authority in considering whether the detention order should or should not be made stands vitiated.

(3.) In the counter-affidavit filed by Shri Rajasekharan Nair. Additional Secretary to the Government of Kerala it has not disputed that these particular documents were never placed before the detaining authority. It has been pleaded that the bail application and the bail order were not readily available and thus could not be cosidered by the detaining authority and whereas reply to the show cause notice and the show cause notice issued under the provisions of the Customs Act pertain, to independent proceedings and were not relied upon while passing the detention order.