POPATLAL AMICHAND SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this petition the petitioner is challenging the detention order dated 3-4-1975 Ex. A to the petition. This order was issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA Act"). Along with the detention order the grounds of detention were also formulated and this can be seen from Ex. C to the petition. In pursuance of this detention order the petitioner was detained and in due course of time he was released in the month of March 1977 on revocation of emergency. It appears that on the basis of this detention order certain proceedings under the Smugglers and Foreign Exchange Manipulates (Forfeiture of Property) Act, 1976 (hereinafter referred to as the "SAFEMA Act") have been initiated. There are certain penal consequences arising out of these SAFEMA proceedings. The petitioner, therefore, filed the present writ petition challenging the detention order as mentioned above.

(2.) In the petition, a number of grounds have been taken by the petitioner. However, it is not necessary to give the details of all these grounds as the petition can be conveniently decided on one of the grounds. We have already observed that there were a number of grounds of detention. As far as the ground No. 2 is concerned it is an admitted fact that the material on which that ground was formulated was not supplied to the petitioner. Shri Karmali contended, that the detention order is bad and void on account of this omission and that a necessary declaration may be issued. As against this Shri Kotwal, for the Respondents, submitted that non-supply of material on which grounds of detention are formulated would not render the 'detention order bad or void. According to him the only effect of such omission would be to make the continuance of the detention bad. In substance, he submitted that the detention order would be valid but the detention as such would be bad as the material has not been supplied. He based this submission on the ground that the omission of supply of material to the detenu would prejudicially affect the right of the detenu to make representation as contemplated by Art. 22(5) of the Constitution. It is in this way he urged that though the detention order is good, the detention and its continuance under that order would be bad. Shri Karmali urged that on account of omission to supply material, not only the detention but the detention order itself would be bad.

(3.) We have heard the learned advocates on behalf of both the parties about the abovementioned submissions. Shri Karmali as well as Shri Kotwal relied upon a number of Supreme Court decisions in support of their respective contentions. We would briefly refer to those various decisions.