SIRAJ KHAN Vs. L HIMINGLIANA

JUDGEMENT

(1.) THE petitioner has challenged the impugned order dated 9th Oct. 1987 passed under Sub-Sec. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. Several challenges have been raised try the petitioner, but in our view it is not necessary to enter into all those challenges since the petition can be disposed of in view of the challenge raised in ground (f), wherein the petitioner has alleged that he was released on bail on 1st July, 1987 by the Metropolitan Magistrate on certain conditions. He contended that he complied with the said conditions and was on bail. His grievance is that the fact that he complied with the conditions and that he was on bail was a vital fact, which would have affected the subjective satisfaction of the detaining authority in one way or the other and, therefore, it was obligatory on the part of the sponsoring authority to place before the detaining authority the said fact. He has further contended that it was equally obligatory on the part of the detaining authority to consider the said material fact in depth before invoking the drastic powers of preventive detention without trial. According to him, since the above facts were not taken into consideration by the detaining authority, the impugned order is vitiated. Though the return has been filed on behalf of the respondent and two affidavits have been placed on record, the one sworn in by Mr. S. S. Kelkar, Desk Officer, Home Department (Special), and the other sworn in by Mr. L. Himingliana, Secretary (II) to the Government of Maharashtra, Home Department, Bombay, but there is nothing in these two affidavits to show that the sponsoring authority had informed the detaining authority that the petitioner fulfilled the conditions of bail and was actually on bail. There is also nothing in the two affidavits to show that the detaining authority took into consideration the conditions on which bail was granted and the fact that the petitioner actually complied with those conditions.

(2.) IN this connection, Mr. Kotwal has relied an the decision of this Court in Criminal Writ Petn. No. 288 of 1987 decided on 9th July, 1987 (Smt. Bharati Manoharlal Ahuja v. State of Maharashtra ). The relevant portion of the said decision reads thus -

(3.) MR. Kotwal also invited our attention to the challenge raised in ground (j) of the petition, wherein it is contended that the remand application was placed before the detaining authority wherein some hand written endorsements also appeared which were incomplete, and illegible and unreadable, and did not make out any sense. On the basis of this, the petitioner contended that supply of illegible and unreadable documents amounted to non-supply of the said documents, which violated Art. 22 (S) of the Constitution of India, and it was because of this that he was not able to make any effective representation to the detaining authority as well as to the State of Maharashtra. We have gone through this document. On the left side of this document there appears to be the order passed by the Magistrate, releasing the detenu on certain conditions. It is almost impossible to read the entire order. Some important words are completely missing. We are fully satisfied that the order of the Magistrate is unreadable and illegible. Mr. S. S. Ahmed submitted that a part of the order which is not readable dealth with the conditions on which bail was granted and since the detenu availed of the bail by complying with the conditions, there was no question of any prejudice to the detenu. This, in our view, is no answer to the argument of Mr. Kotwal that the document which was supplied to the petitioner was illegible andunreadable and hence it would amount to non-supply of document. In this connection Mr. Kotwal invited our attention to the observations of the Supreme Court reported in AIR 1981 SC 1861 1), Mehrunissa v. State of Maharashtra, the relevant portion of which reads thus :-