NAFISA SYED ALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) We have heard the submissions of the learned Counsel appearing for the parties on 11th October, 2012. By this Writ Petition under Article 226 of the Constitution of India seeking Writ of Habeas Corpus, the petitioner has prayed quashing and setting aside the order or detention dated 30th March, 2012 passed by the Detaining Authority in exercise of powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFEPOSA Act").

(2.) The learned Counsel appearing for the petitioner has made detailed submissions on various grounds urged in the Petition. The learned Counsel has pressed into service grounds Nos. 2, 3, 4 and 5 set out in the petition. The learned Counsel has also pressed into service the grounds Nos. 6 and 7 of the Petition. The learned Counsel appearing for the petitioner pointed out that the order of detention has been passed in exercise of powers under Sub-section (1) of Section 3 of the COFEPOSA Act. The learned Counsel for the petitioner has drawn our attention to the specific ground taken in the Petition to the effect that the petitioner voluntarily surrendered his Passport to the Sponsoring Authority on the same day which is an admitted position and this fact is not considered by the detaining Authority. Her submission is that the material produced by the Sponsoring Authority before the detaining authority shows that action was initiated against the petitioner under the Penal Law of the land and this vital aspect has not been considered by the detaining authority. The learned Counsel submitted that it is mandatory for the detaining authority to consider that the petitioner had voluntarily surrendered his passport. She pointed out that the order of detention was passed with a view to prevent the petitioner in future from smuggling goods and, therefore, the detaining authority ought to have considered the fact that the petitioner could not have indulged in prejudicial activities for want of passport.

(3.) The learned Counsel appearing for the petitioner placed reliance on a decision of the Apex Court in the case of GIMIK PIOTR vs. State of Tamil Nadu & Ors., 2010 1 SCC 609 in support of this ground. The learned Counsel also placed reliance on a decision of the Division Bench of this Court dated 26th June 2012 in Criminal Writ Petition No. 389 of 2012 (Mohammed Ashfaq Hallare vs. The State of Maharashtra & Ors, 2012 AllMR(Cri) 2880). In support of her submissions, she also invited our attention to the averments made in the reply filed by various authorities.