MOHD MEERA SAHIB Vs. M L WADHAWAN

JUDGEMENT

(1.) In this writ petition the order of detention issued by the Government of India dated 23rd of December 1985 detaining one Mohammed Meera. Sahib under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is challenged on various grounds.

(2.) Shri Kotwal, learned counsel appearing for the Petitioner contended before us that the continued detention of the detenu is illegal since the representation made by him is not considered by the detailing authority i.e. The Additional Secretary to the Government of India. The order was passed by the said detaining authority in exercise of the power conferred upon him under section 3(1) of the Act and, therefore, he was the authority in his own right Hence under section 21 of the General Clauses Act, he could have passed the order of revocation and, therefore, it was incumbent upon him to consider the representation himself. The consideration of the representation by the Government of India cannot be equated with the consideration of the representation by the detaining authority. He then contended that the order of detention is vitiated by total Don- application of mind, which is apparent from several mistakes and mis-statements. He also contended that in the affidavit filed in reply, an altogether new case is made out about which the detenu had no knowledge and, therefore, had no opportunity of making any effective representation. He then contended that in the last Para of the grounds, privilege is claimed qua only the source of information and not of the information itself and, therefore, it was obligatory on the part of the detaining authority to have supplied the contents of the said information deleting the portion about which privilege was claimed. In our view it is not necessary to consider and decide all these contentions since the detenu is entitled to be released on the short ground that the order is vitiated by the total non-application of mind.

(3.) With the assistance of the learned counsel appearing for both sides, we have gone through the relevant material. In Para 3 of the grounds of detention it is alleged that You were not present during the course of the search and one Mohd. Sheikh Shamsuddin Shaffi with whom you are residing was present. From the material placed on record it is quite obvious that this statement is factually incorrect. The said Mohd. Sheikh Shamsuddin Shaffi was also not present when the search was taken. Then in ground No. 4 it is alleged that In your statement while explaining page I of the seized documents you have stated that one S.P. Durai who is employed in Shipping Company in Dubai for the last 3 years and that you requested to Durai to arrange for a job for you in Dubai and that Durai in turn and you be will find out a suitable job for youTT. It is practically an admitted position that the alleged page 1 is merely an envelope and, therefore, obviously this is a misstatement offact, Shri Kotwal had also drawn our attention to several other mistakes referred to in the grounds K, M and 0 of the petition. However, it is not necessary to deal with these mistakes in detail.