JAINUDIN KABIR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has been detained by virtue of an order dt. 16th August, 1984, passed under S. 3(1) of the Conservation of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974, with a view to preventing him from abetting the smuggling of goods. In execution of this order of detention he was arrested on 18th August, 1984. Grounds of detention dt. 16th August, 1984, were duly communicated to the petitioner. On 13th September, 1984, a declaration appears to have been made under S. 9(1) of the Act as amended by Act No. 58 of 1984. The information regarding this declaration having been made in regard to the detention of the petitioner was given to the petitioner by a communication dt. 27th November, 1984, purporting to be an addenda to the grounds of detention. This addenda was drawn up on 18th October, 1984. The petitioner, as advised by the grounds of detention earlier served on him, made a representation to the state Government on 20th September,1984. A reference to the advisory board was made by the State Government on 24th September 1984. The representation which appears to have been by the petition to the Central Government was rejected by it on 26th September,1984. The representation made to the State Government was rejected by it on 9th October, 1984. The petitioner had earlier filed a petition under Art. 226 of the constitution of India in this court which was registered as criminal writ petition No.145 of 1984. The contentions then raised did not find favour with the bench of this court and the petition was dismissed in limine. Only three contentions were raised before this court but none of them impressed the bench which dismissed the earlier writ petition in limine on 31st October,1984.

(2.) The petitioner has now filed a second petition under Art.226 of the constitution of India for issue of a writ of habeas corpus contending that the detention order dt.16th August, 1984, is liable to quashed for various reasons some of which are fresh reasons given in the present petition and had not been raised in the earlier writ petition. Among the fresh reasons given by the petitioner in support of his challenge to the detention are that the declaration under S.9(1) of the Act was not served on the petitioner soon after it was made and there by the petetioner's statutory and constitutional rights envisaged by S.8 of the Act and Art.22(5) of the constitution have been violated for the petitioner had right to make a representation with regard to the declaration purporting to have been made under S.9 of the Act and to contend that the declaration was not validly made or that circumstances did not exist warranting the making of such a declaration. Another ground of challenge raised by the petitioner which is a fresh ground of challenge is that the satisfaction postulated by S.3(1) of the Act stands vitiated on account of non -application of mind which is apparent on a reading of some of the grounds of detention served on the petitioner. Indeed it is urged that the detaining authority has come to conclusions for which there was no material before it and he had based his satisfaction on non- existent facts.

(3.) Rule nisi was obtained by the petitioner on 30th January 1985. By way of return, praying for the discharge of the rule, the respondents have filled two affidavits, namely, of Shri B.K. Chougule, Special Secretary to the Government of Maharashtra, Home Department (Law and Order) and Shri J. A. Mokal, Desk Officer, Home Department, Government of Maharashtra. The Union of India has filed the affidavit of Shri A.K. Agnihotri, Under Secretary to the Government of India, Ministry of Finance (Department of Revenue) by way of return to the rule nisi.