JUAN HANIFFDEEN JUHAR KIRIRDEEN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was detained under section 3(1)(1) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) by a detention order dated 15th June, 1985 the order was passed by the Commissioner and Secretary (Home), Government of Kerala. Subsequent to the order of detention a declaration under section 9(1) of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed on 15th July, 1985 by Shri M.L Wadhawan, Additional Secretary to the Government of India.

(2.) The principal contention raised by Mr. Harjinder Singh is that even though there was a declaration under section 9 of the said Act passed by the Union of India the Advisory Board made no recommendation in respect of the continued detention of the petitioner. Mr. Harjinder Singh states that it was a bounden duty of the Advisory Board to opine if there was sufficed around for continued detention of the petitioner. The point has specifically been raised by the detenu in Para 5 of the petition wherein the petitioner stated when be was produced before the Advisory Board, the Advisory Board by its report dated 5th December, 1985 opined that there was sufficient cause for the detention of the petitioner. The Advisory Board did not give any opinion to the effect that there was sufficient ground for continued detention of the petitioner. In Ground No. 3 the petitioner bas contended that this non-compliance with the statutory requirement on the part of the Advisory Board is violative of Article 22(4) of the Constitution of India and his continued detention on this ground alone is vitiated.

(3.) Unfortunately there is no counter filed on behalf of the respondents. Mr. Misra, representing respondents 1 and 3 however states that there was group of petitions in respect of the same event some of which in respect of co-detenus was decided by this court on this ground and in all probability it is because of that no counter bas been filed. In any case be that what it is there is no denial of the fact that the Advisory Board bas not opined for the continued detention of the petitioner. This case is therefore covered by Satar Habib Hamdani v. K.S. Dilip Sinhji and others. Since the Advisory Board has not opined that there was sufficient grounds for the continued detention of the detenu the order on that account stands vitiated and there is no justification for the continued detention of the petitioner. In that view of the matter the continued detention of the petitioner is without authority of law. The petition is allowed. The detention order is quashed. The detenu shall be released from detention forth with unless wanted in some other case.