MOHIUDDIN TAYAB SONY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioner Mohinuddin Tayab Sony is an Indian national and citizen of India. According to him in the normal course of his trade he used to go abroad on business trips. On one of such routine trips, he went abroad on 16th Feb. 1975 to attend to his business affairs and since then he has been putting up abroad visiting several countries to attend to his business affairs. According to the petitioner when this petition was filed be was putting up in Dubai and has been carrying on construction business. He is also an authorised representative of several manufacturers of goods of general merchandise for the Middle-East countries. It is the case of the petitioner that he has never been involved in any case involving any offence under the Customs Act and/or Foreign Exchange Regulation Act and at no material time he was ever summoned to appear before any Customs or Enforcement Officer in connection with any enquiry or investigation pertaining to any seizure of goods or otherwise nor a show cause notice etc. was ever issued to him. He also contended that he has never been prosecuted for any offence either under the Customs Act and/or Foreign Exchange Regulation Act in any court of law and his record all throughout is clean.

(2.) IT is then contended in the petition by him that after he left India on 16th Feb. 1975 for the first time he came to know that an order was issued on 13th Oct. 1976 under the signature of Shri R. S. Dikshit, the Section Officer, Home Department, Government of Maharashtra, which was published in the Maharashtra Government Gazette, Extraordinary Part IV-A on 30th Dec. 1976 wherein it was stated that in exercise of powers conferred by Sub-section (1) of Section 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974), Shri P. G. Gavai, the then Secretary to the Government of Maharashtra, Home Department, Sachivalaya, Bombay, who was specially empowered by the Government of Maharashtra for the purpose of Section 3 of the said COFEPOSA Act, had issued a detention order on 8th Sept. 1976 in respect of the petitioner. According to him in the said order his name was wrongly quoted as Moyuddin son of Noormohamed Moosa Sony whereas his correct name is Mohiuddin son of Tayab Sony. According to this order, dated the 13th Oct, 1976 published in the Extraordinary Gazette dated 30th Dec, 1976 and issued under Section 7 (1) (b) of the COFEPOSA Act, the petitioner was directed to appear before the Commissioner of Police, Bombay within 30 days from the date of the publication of the said order in the official gazette. It is the case of the petitioner that by this Notification published in the Extraordinary Gazette dated 30th December 1976 he came to know about the order issued under Section 3 (1) of the COFEPOSA Act, on enquiry he further came to know that this order was accompanied by a declaration made under Section 12-A of the COFEPOSA Act stating inter alia that the detention of the petitioner was necessary for effectively dealing with the emergency. It is this notification issued under Section 7 (1) (b) and the initial order issued under Section 3 (1) of the COFEPOSA Act which are challenged in this petition by the petitioner on various grounds.

(3.) ACCORDING to the petitioner he left India on 16th Feb. 1975 i. e. more then a year and a half prior to the date of the order of the detention as well as the declaration and as such by no stretch of imagination it could be said that he had absconded or concealed himself so as to avoid the execution of the said order of detention. Hence according to him the order issued on 13th Oct. 1976 published in Extraordinary Gazette on 30th Dec. 1976 is wholly illegal, inoperative, null and void. The petitioner has also stated in the petition that on or about 30th December 1978 the petitioner's wife on behalf of the petitioner submitted a representation to the Chief Minister of Maharashtra with copies endorsed to (i) the Secretary to the Government of Maharashtra, Home Department, Mantralaya, Bombay, (ii) the Additional Secretary, Government of India, Ministry of Finance, New Delhi, (iii) the Director of Revenue Intelligences, Indrapratha Bhavan, New Delhi and (iv) the Collector of Customs (Preventive) Bombay requesting the State Government to revoke the impugned order of detention as the same is null and void. However, till the date of filing of petition no reply has been received from any of the authorities.