RASHID Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY means of this writ petition, the petitioner challenges the order of detention dated 11th September, 1996 passed by the Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) against his brother-in-law P. K. Ahmed (hereinafter referred to as "the detenu") in exercise of the powers conferred upon him under Sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ("act" for short ), with a view to preventing him in future from smuggling goods. The order of detention was served on the detenu on 30th November, 1996. The grounds of detention were served on the detenu on the same day along with the order of detention.

(2.) WE have heard Mrs. Ansari, the learned Counsel appearing for the petitioner as well as Mrs. Tahilramani, the learned Public Prosecutor. Several points were urged before us, but in our view for the reasons that will follow this petition can be disposed of on a narrow point namely that all the relevant material that was available on the date when the detaining authority passed the detention order was not placed before the detaining authority and consequently the detention order is vitiated on that ground.

(3.) WE find it difficult to persuade ourselves to agree with this submission raised by Mrs. Tahilramani in view of the well settled position in law in this regard. Thus, in the case of Sk. Nizamuddin V/s State of WEst Bengal (supra), the Supreme court had observed :- " WE should have thought that the fact a criminal case is pending against the person by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. "