RAM AVATAR MEENA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned counsel appearing for the Petitioner, the learned APP for first, second and fourth Respondents and the learned counsel appearing for the third Respondent. By this Petition under Article 226 of the Constitution of India, the Petitioner has taken an exception to the order dated 22nd August, 2013 passed by the second Respondent in exercise of powers under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA"). By the said order, the second Respondent directed that one Shri Muralilal Meena be preventively detained under the COFEPOSA. The order was passed with a view to prevent the Petitioner in future from abetting in smuggling of goods. The Petitioner is the father-in-law of the detenu.

(2.) The learned counsel appearing for the Petitioner has pressed into service various grounds of challenge pleaded in the Petition. The first ground pressed into service is that the Petitioner who was in the employment of the Central Industrial Security Force (for short CISF) was dismissed from service by an order dated 18th December, 2012 and the order of dismissal which was a vital document was not placed before the Detaining Authority. The second submission is that the Detaining Authority has not recorded subjective satisfaction that notwithstanding the removal of the detenu from the employment of CISF, it was possible for him to continue the prejudicial activities and, therefore, an order of detention was required to be passed. Another submission is that the order of dismissal being a vital document was not supplied to the Petitioner, thereby preventing him from making an effective representation against the order of detention. Another ground pressed into service by the learned counsel appearing for the Petitioner is that in the grounds of detention served upon the Petitioner, the subjective satisfaction recorded is that it was necessary to pass an order of detention for preventing the Petitioner from indulging in smuggling activities in future. But the order of detention has been passed with a view to prevent him in future from abetting smuggling of goods. The submission is that apart from the fact that order of detention shows non-application of mind, the detenu would get confused by this inconsistency which infringes his right of making an effective representation against the order of detention. Another submission is based on the delay in disposal of the representation by the Detaining Authority. The learned counsel urged that the gross delay in effecting service of order of detention is also a ground of challenge. As far as the first ground is concerned, the learned counsel appearing for the Petitioner has relied upon a decision of the Division Bench of this Court dated 8th January, 1986 in Criminal Writ Petition No. 747 of 1985 (Arvind Sudkoji Mohite v. State Government and Ors.) as well as the decision of the Apex Court dated 25th August, 1994 in Criminal Appeal No. 305 of 1994 (Smt. Jyoti Nandlal Manglani v. State of Maharashtra and Ors.).

(3.) As far as the first submission is concerned, the learned APP representing the Detaining Authority invited attention of the Court to the additional affidavit filed by the Detaining Authority. His submission is that the order of dismissal of the detenu from employment was not placed before the Detaining Authority along with the proposal by the Sponsoring Authority. It is pointed out that a letter dated 28th February, 2013 addressed by the Deputy Inspector General, CISF Unit-4 which refers to the dismissal order was placed before the Detaining Authority which has been considered by the Detaining Authority while formulating the grounds. The learned APP pointed out that a copy of the said letter has been supplied to the detenu. His submission is that the order of detention is based on several prejudicial activities of the detenu and, therefore, the subjective satisfaction of the Detaining Authority is not at all vitiated on account of failure to express satisfaction on the basis of the order of dismissal from the employment. Relying upon the decision of the Apex Court in the case of Vinod K. Chawla v. Union of India and Others, (2006) 7 SCC 337, he urged that the order of dismissal of the detenu from the employment cannot be a vital document. Relying upon the decision of the Apex Court in the case of J. Abdul Hakeem v. State of T.N. and others, (2005) 7 SCC 70, the learned APP submitted that as a copy of letter dated 28th February, 2013 was served upon the detenu, it was not necessary to serve a copy of the order of dismissal from the employment to him.