VEDPRAKASH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Special Criminal Application No. 427 of 1986 comes up before the Full Bench on a reference made by a Division Bench of our High Court. The petitioner herein is sought to be detained under the provisions of the Prevention Black-marketing and Maintenance of Supply of Essential Commodities Act, 1980. On 6-12-1985, his premises were searched and kerosene tins were seized. On 20-2-1986, a detention order was made under S.3(1) of the said Act. Since the petitioner was absconding, a notification was issued in the Official Gazette as provided under S.7(1)(b) of the said Act. This was on 29-3-1986. On 3-4-1986 this Special Criminal Application was filed wherein the petitioner prayed for quashing the detention order as ab initio void and illegal. There is a further prayer for grant of stay against the execution of the order of detention passed by the second respondent, who is the Deputy Secretary to Government, Food and Civil Supplies Department, Government of Gujarat. A Division Bench of our High Court presided over by D.C. Gheewala and J. P. Desai, JJ. issued rule nisi on 7-4-1986 and granted stay as prayed for. Since the Division Bench felt difficulty in answering the question of maintainability of the Special Criminal Application under Art. 226 of the Constitution in cases where the detention orders had not been served upon the petitioner, it formulated the following questions and referred the matter to the Full Bench : 1. Whether the petition under Art. 226 of the Constitution either for praying a writ of habeas corpus or a writ of mandamus would be maintainable before the detenu has been served with the order of detention and has been detained in custody? 2. Whether the issuance of Notification under Section 7(1)(b), Prevention of Black-marketing and Maintenance of Supply of Essential Commodities Act, 1980 would make any difference so far as the aspect of maintainability is concerned on the premises that the issuance of such a Notification can be equated with the service of the order on the detenu? 3. If point No. 1 is answered in the affirmative, can the Detaining Authority be required to produce before the Court the grounds of detention, subjecting them for judicial review before they are served on the detenu?

(2.) Special Criminal Application No. 518 of 1986 comes up before the Full Bench on a reference made by a Division Bench of our High Court. The petitioner herein is sought to be detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The brief facts of this case are as follows : On the night of 14-12-1985, truck No. GTK 4459 was intercepted by the local police officers near Jamnagar and in that it was found that 62 packages were concealed under 225 bags of lime. Those packages contained watch parts, watch movements, imitation stones, digital wrist watches and various other things. The intelligence gathered regarding contraband goods revealed that they were illicitly imported by MSV Safina AL Farooki BDI 768 belonging to Smt. Ayshabai wife of Jusab Haji Abdulla Bhaya alias Jusab Patel, which arrived at Salaya on 14-12-1985 round about 5-30 A.M. Accordingly, MSV Safina AL Farooki BDI 768 which was used for carrying and transporting the contraband goods, viz. 62 packages, was seized on 14-12-1985 and it was also placed under seizure on 17-12-1985. It was valued at Rs. 2,00,000/-, since the petitioner was absconding, the 2nd respondent passed an order on 30-4-1986 declaring the petitioner as absconding and as such the detention order dated 19-2-1986 was not executed. According to the petitioner herein, inasmuch as the order dated 30-4-1986 has been affixed along with the detention order dated 19-2-1986 at the residence of the petitioner, it must be deemed that the detention order has been served upon the petitioner. Hence, according to the petitioner, the present Special Criminal Application is maintainable. After referring to various facts, the petitioner herein contended that both the orders of detention and declaring the petitioner as absconding are illegal and they were passed without any authority or materials on record to connect the petitioner with the alleged activities. The petitioner further submitted that there is no material on which a reasonable person can come to the conclusion that the petitioner is connected with the alleged illegal activities. For all these reasons, the petitioner wants the order of detention and the declaration made subsequently to be quashed. In this petition, the petitioner has also made mention of the reference made by a Division Bench of this Court in Special Criminal Application No. 427 of 1986 and finally prayed for quashing the detention order and also the declaration order dated 19-2-1986 and 30-4-1986 respectively.

(3.) S.B. Majumdar and I. C. Bhatt, JJ., by their oral order dated 6-8-1986 framed three questions, which are identical to the questions framed by another Division Bench (D. C. Gheewala and J. P. Desai, JJ.) in Special Criminal Application No. 427 of 1986 and referred the matter to the Full Bench. In view of such references made by two Division Benches, both the matters are placed before this Full Bench. Since the points involved in the references are the same in both the Special Criminal Applications, both the matters have been taken up together for disposal.