HAJI NOORMMOMAD JUSAB MITHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this common judgment we propose to dispose of this batch of 13 petitions.

(2.) THE Government of Gujarat being satisfied with respect to the petitioner in each of these petitions, that with a view to preventing them from smuggling goods, it was necessary so to do made orders for their detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereafter referred to as "the Act") on 1 -6 -1985. The Government was so satisfied because the petitioners who were crew of the vessel MSV Laxmi had, on their return trip from Dubai smuggled into India contraband gold, wrist watches and other articles approximately valued at Rs. 26,00,000/ -. The declarations under Section 9 of the Act were made by the Additional Secretary to the Government of India, specially empowered in that behalf by the Central Government, with respect to the petitioners on 5 -7 -1985. All the petitioners had challenged the orders of their detention, declarations and their continued detention by filing habeas corpus petitions in this Court. The said orders of detention were, however, revoked by the State Government on 3 -9 -1985, a day prior to the date on which those petitions were fixed for final hearing. The petitioners had, therefore, withdrawn their petitions on 4 -9 -1985 as they had then become in -fructuous. Thereafter on 11 -10 -1985, fresh orders of detention were passed against the petitioners by the State Government. Except in two cases, declarations under Section 9 of the Act were made with respect to the concerned petitioners on 11 -11 -1985 by the Additional Secretary to the Government of India specially empowered in that behalf. In case of the petitioners in Special Criminal Applications No. 82 and 86 of 1986, such declarations were made on 29 -11 -1985. These fresh orders of detention, the declarations and the continued detention of the petitioners are challenged in these petitions on various grounds. As we propose to allow all these petitions on the points which make reference to the grounds of detention and the material unnecessary, we are not referring to them in this judgment.

(3.) THE first contention raised on behalf of the petitioners is that all the petitioners were not supplied with or informed about the material on the basis of which the Additional Secretary had made the declarations, with the result that they were deprived of the opportunity of making effective representations against the declarations not only to the Advisory Board but also to the authority making the declarations or the Central Government; and, therefore, their continued detention has become illegal. It is pointed out by the learned Counsel for the petitioners that in the declarations, what the Additional Secretary to the Government of India has stated is that he was making the declarations on the basis of the material having a bearing on the matter and in his possession. In order to appreciate this contention, it will be worthwhile to reproduce the relevant portion of the declaration made by the Additional Secretary with respect to the petitioner in Special Criminal Application No. 75 of 1986. It reads as under :