KUNDANDAS KALYANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this petition the detenu has challenged the order of detention issued by the Government of Maharashtra dated 25th of July 1986 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, with a view to preventing him from smuggling goods.

(2.) Shri Kotwal, learned counsel appearing for the petitioner contended before us that the reports submitted by the State Government to the Central Government under section 3(2) of the Act was not considered by the said Government i.e. Central Government expeditiously. The report was received by the Central Government on 1st August 1986. It came to be considered by it on 18th August 1986 and this delay of 18 days is not explained anywhere. He then contended that the representation, which was meant for the Central Government was never forwarded by the Mate Government to the Central Government and, therefore, on that count also the continued detention of the detenu is illegal. According to the learned counsel the whole detention order is based on a single solitary incident and from this no reason noble man would have drawn an inference that the detenu is a habitual smuggler or is likely to indulge in similar activities in future. In the grounds of detention a reference is made to a document regarding earlier 10 trips to Singapore which is contrary to the material placed before the detaining authority and shows that the detaining authority bas passed the order in a casual and cavalier manner without any application of mind to the material placed before it. There is also delay in passing the order of detention. By the time the order of detention came to be passed the live link was already snapped. Further from the grounds of detention it is not clear that the detaining authority was aware of the fact that the detenu was released on bail on certain conditions. It was also contended by him that the representation made to the State Government on 21st August 1986 was not forwarded to the Advisory Board at all and on this ground also the continued detention of the detenu is vitiated. In support of this contention he has placed strong reliance upon the decisions of the Supreme Court in Smt. Razia Umar Bakshi v. Union of India1, Ratansingh and another v. State of Punjab and others2, and Sk. Sekawat v. State of West Bengal3.

(3.) Shri Hombalkar supported the order of detention. However, ultimately it was found that the representation made by the detenu to the State Government dated 21st August 1986, though was considered by the State Government itself, was never forwarded to the Advisory Board. In all fairness Shri Hombalkar had produced before us the relevant file and we have perused the same. From the perusal of the file it is clear that though the meeting of the Advisory Board in which the detenu was interviewed took place on 3rd September 1986 the representation dated 21st August 1986 was never forwarded to the Advisory Board. This representation was made within the statutory period of 5 weeks, within which a reference could have been made by the State Government. It is no doubt true that the representation was also handed over by the detenu to the Advisory Board during the hearing on 3rd September 1986 but the said representation was altogether different and distinct. We have gone through both the representations and from the bare reading of these two representations it is clear that substantial point which was raised in the earlier representation dated 21st August 1986, was not raised in the subsequent representation dated 3rd September 1986 even indirectly. Admittedly the representation was made within the statutory period of 5 weeks. Therefore to this case the law laid down by the Supreme Court in Sk. Sekawats case must aptly apply, and in particular the observations made in Para 3 there of. On this short ground alone therefore, the continued detention of the detenu is liable to be declared as illegal. In the view which we have taken it is not necessary to deal with any other contentions raised and argued before us.In the result therefore Rule is made absolute and the detenu is directed to be released forthwith if not required in any other case. Appeal allowed.