FAROOK AHMED FAZLANI Vs. GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) Mr. D. N. Capoor, Officer on Special Duty and Ex-officio Secretary to the Government of Maharashtra, Home Department, passed order dated February 4, 1987, in exercise of the powers under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act") directing detention of the petitioner with a view to preventing him from abetting the smuggling of goods. It is not necessary to set out in detail the grounds of detention and the various contentions raised in the petition to challenge the legality of the order as the petition is required to be allowed on a short ground raised by Mr. Kotwal, learned counsel for the petitioner.

(2.) Mr. Kotwal contended that the Detaining Authority did not communicate to the detenu that a representation can be made against the impugned order to the Detaining Authority. The Detaining Authority has merely informed that a representation is permissible to the State Government and the Central Government. Mr. Kotwal submitted that the folly in the order is fatal and the order is required to be quashed. In support of the submission, the learned counsel invited our attention to several unreported decisions of the Division Benches of this Court. The submission of the learned counsel is correct and deserves acceptance.

(3.) Mr. Barday, the learned Public Prosecutor, invited our attention to a judgment dated December 16, 1987 delivered by a Division Bench sitting at Nagpur in Criminal Writ Petition No. 63 of 1987 (Moideen Baba Abdul Shefi v. Shri D. N. Capoor & Ors.). This decision has taken a view which is not in consonance with at least six decisions of the Division Benches of this Court Mr. Barday submitted that in view of the decision of the Nagpur Bench, the issue cannot be said to be concluded and it is necessary that the matter should be referred to a larger Bench. We are not inclined to adopt the course suggested by Mr. Barday. Several Division Benches of this court have taken a consistent view and though it is undoubtedly true that the Division Bench at Nagpur has sounded a differing note, in our judgment, it is not desirable to refer the matter to a larger Bench. In detention matters, it is desirable that the view taken by the several Divisions Benches is followed, unless the reasons for differing are so demanding and absolute that the view propounded and accepted by several Division Benches cannot be sustained. We have perused several judgments delivered by this Court and we are unable to hold that the view taken consistently is grossly erroneous that it demands reconsideration. We are not inclined to keep the detenu in jail for longer time by referring the present petition to the larger Bench. We respectfully prefer to follow the view taken by several Division Benches.