Supreme Court of India
MOHD. SHAKEEL WAHID AHMEDversusSTATE OF MAHARASHTRA & ORS.
- Citation
- 1983 INSC 27
- Decided
- 31 March 1983
- Disposal
- Case Allowed
- Bench
- Y V CHANDRACHUD
Holding
The order of detention was vitiated because the detaining authority failed to consider the Advisory Board's relevant opinion, and therefore the detention was set aside.
Summary
Mohd. Shakeel Wahid Ahmed was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 7 November 1981. An earlier detainee, Shamsi, had been released after the Advisory Board reported no sufficient cause for his detention. The High Court upheld Ahmed's detention on the basis that one of the four grounds was valid, relying on Section 5‑A of the Act. The Supreme Court examined whether the detaining authority’s failure to place the Advisory Board’s opinion before it vitiated the order of detention, even though the opinion was not binding but highly relevant. Finding that the authority did not consider this material circumstance, the Court set aside the detention order and ordered Ahmed’s release.
Issues considered
- Whether the detaining authority must consider the Advisory Board's opinion on a similar case when passing an order of detention under COFEPOSA.
- Whether an order of detention can be sustained on a single ground when the other grounds are held to be bad, under Section 5‑A of the Act.
- Whether the Advisory Board's opinion is binding or merely relevant for the detaining authority.
Legislation cited
Subjects
COFEPOSAdetentionadvisory boardforeign exchangesmugglinghabeas corpusSection 5-ASection 11Article 32judicial review
Judgment
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614 .
MOHO. SHAKEEL WAHID AHMED
v.·
STATE OF MAHARASHTRA & ORS.
March 31, 1983
[Y.V. CHA~DR·.~CHUD, C.J., V.D. TULZAPURKAR, 0. CH~~A
REDDY', A. VARADARAJ'AN AND RANGANATH M!SRA,JJ.)
Conservation (If Foreign Exchange and Prevelllinn (lr S .
. ' mugg1
Act/vitfe!l •Act 1974-Two persons detalned In nspect of some lrllllsocr 1111
.r . .n: . I r. , . ron-
c Advisory Board was o1 vtew no m",cten cause !~r c.etentrofl ·of one r>ftht,._
Failure to place viell' of the Boar~ ~efore detammg autlwrity while /lOSsing ordtr
of detention of the other-Wl1etlrer vttratecl order of deft'ntiofl.
· · The Customs officials intercepted a ship off Bombay and seized from it
various articles worth severallakhs of rupees. None or the· seven persons '011
boatd the ship possesed any documents authorising them to import the goods.
D On August 19; 1981, S. one of. the se~cn persons on board the ship, was
detained under the provisions of Conservation of Foreign Exchange ami
Prevention of Smuggling Activities Act, 1974 ; but the Advisory Board reported
that there was in its opinion no sufficient cause for his detrntion. He was
therefore released.
E By an orda dated November 7, 1981 the petitioner, who wa1 also one
of the persons on board the !jame ship, was detained under the COFEPOSA
in re-spect of the sante transaction. Whilo.• dismissing the habras corpus
petition filed by the petitioner's wife, th~ High Court was of opinion that time
out of the four grounds on which the petitioner was delained were bad for one
reason or the other but that the first ground was enough to)ustain the o.n!er
of detention in that important material relevant to that ground was ntlther
F placed before nor considered by th" detain.ina authority white passing the
order of det~ntion. , '
In the petition under Article 32 of the Constitution it ~as contended ~·
1
behalf of the petitioner that had the detaining ouihority in the instant ' i
been apprised that the Advisory Board on examining an identical JfO:On
G In the case of S had reported that there ~as no sufficient cause for d : the
of S who was involved in the same transaction It might not have pa and
order of detention against the petitioner which is based on &:similar !at'~rore
that its failure to place such highly relevant and important matena
I
the detaining authority has vitiated the order of detention.
Allowing the petition,
H
!nee. bc•o
'reth'. . ,
. .HELD : l11e failure of the State Government to P ccorded iJl
detalOtng authority the opinion which the AdvisorY Board had ~tatioltu ·•
favour of another dctenu who was detained partly on a ground
/
-- - ~, ; · f,
i !:
si!AICEBL AJ!MllD V. MAHARASHTRA 615=
rived -the- detainins authority of an opportun't 1
'dent deP I• h 1 I Y o
....~inti ieee of evidence w HC was re evant, if not binding 1
..,_...- · d to a P · d 'd t b · • n
,...11 itS nlln bC detaining autho~I!Y I no ' ecause It could not, apply its
.rP,, fords, I - tancc which reasonably could have arrected its decision
·!l(ltO a circums ass an order o.
oth" f d etent1on
· agamst
· th e petitioner. [618 B-H]
~~ or not to P . .
tlll'~er . . . . .
. . n of the. Board . may not hav~ been binding on the
0 1 10
'fhO P " . y but it cannot be gain said that the fact that the Board had
· authOJ1 1 · ' I Cact s .mvoIvmg
.
j~Uinill& pinion on 1dent1ca a common ground· was B.
~~such
30
°circumsmnce which ought to have been· placed before the·
11 1¢1 a rdehva~ty in this case. The ground on which the High Court upheld
· · gauton
1
f h .
..
' ' , .'
' iI
. I
'
jet.~~t1° (detention was.si!Jlilar to one o . t e. grounds,_ on which s. was ,. I
t).l.~rder. o~ transaction being; one and the same as also the incident on which. : '!
j!P10ed• td c of t:etention were based. This is why the opinion of the Board·
...,11'0 or ers . h ': i
""'· · . ase became relevant m t e present case. [618 D-F]
1\ibearher_c . . . · c
·• ~
Jl·lllliY·be tna.t there ~ere other grounds on whidh .~ was. det~ined,_ and
· th Addsory Board m•ght havc.corr.e to tt.e conclusiOn that smce these
tW d~ were not' enough to justify his detention ther'! was no sufficient cause
r~ining,him. But it is not as if the opinion of the Board was binding
·thtdetaining authority. The substance of the I"Jattcr is that the detainina.
:lllority 10 this case failed to apply its mind to a highly relevant circutnstan~ D I
i)lt,JO order of d~tcntioo passed on the ground on which the detention of '
~P.tlitioner rested, in addition to s.omething more, was not sustained by the . .<'
A61i10ry Board in the case of S. The.rcasonable probability that, since the
Mrisory Board had not sustain:d S's detention on a grouud which was
lll!r!IOI! to him and the petitioner, the detaining .authority would have, if at f
.
'
ail,pt!lfd the order of detention agninst the petitioner-on the remaining, th1~ ·,
!
~onlyeaonot be cxcludt:d. Those threo grounds had been held to be E :
bid by the Hich Cour. (619 E·H] ::
The ~Planation of the detaining authority that the Board's op1010n i
:;:.october 19, 1981 came into existence after he had passed the order· of
1
on on October 8, 1981 is not correct. When the ord.:r or detention.
~J:l«<< on Novembell7, 1981 the Board's opinion in Ss' ca~c w;ls availabl~ j
~1J fStitt Government. ne.lr)y three week$ bef01 r. that date and .it was the-
~ theStiltrGovernment t'o plac~ that Clpinion before the detainin&
ty. (620 E-F]
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:
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··1
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;
1932.0!>.tGINAL JURISDICTION : Writ Petition (Crt): No. 1369 of i'·'
., ..' •
G l
I (Under Arr .10
R
0 p D-..
•
. .·
tc 32 of the Constitution.)·
Clilt letfunna/an/ and.Mis.s Raui Jethmalani for the Petitioner.
· •
;
··~
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t-:' "i '•
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i
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I
I
· ••~AU~a a .t 11 · & ., H
t n" "sr. M.N. Shro IT for Respondents- Nos•. l ."'
w. '
?.. \ ' j ··'
I .
~-SIIbt~'llhill[
G. lJhagat Add ·.. r. 1 · Miss
and • . . I. Sol. General,. N.C. Talru\anar•.
;- _,r~· ·
! ·~
i~/ ~
/ . . · Ctrt.rh Chandra.for Respondent N.o. 3.
'1
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·': '"
SUPREME COURT REPORTS .. .
th~ Judgme~t ·of the Court -..vas delivered by
.A ! ~
. . :C~NDRA~HUD, C.J. . . By this Writ Petition under' A f :
of.the Constitution, the petitioner Mohd. Shakeel Wahidr ~~ 32
. challenges the validity of an order of detention dated Nove b rned
. ·. fi mer 7
1981 passed ·agamst ht~ , by the rst respondent, the State of
B Mabarashtra, under .SectiOn fS
3 of the Conservation of · F .
I' A . . . . orergn
Exchange and Prevention o mugg mg ctlVJties Act, 1974 h .
· • h A ' E I' th · · • ' erctn
refer,red to as . t e ct. _<ar ter, e pet1t10ner s wife had filed
habeas· corpus petition _in t~e. Bomba~ Hi~~ Court for the release a~
the petitioner, but that petitiOn (Wnt PetitiOn No. 579 of 1982) w
C dismissed by the High Court on October 28, 1982. The High Cou~
held that three out of the four grounds on which the petitioner was
det!J.ined were bad for one reason or another ·but that the remaining
ground, namely, ground No. 1 did not suffer from any defectand was
enough .' to sustain the order of detention. While upholding the·
detention on one of the four grounds only, the High Court relied
·.·n upon the provisions of section 5·A of the Act by which an order or
detention mad.;; on two or more grounds is to be deemed to -.baie
been made separately on each of such grounds and consequently,
such an order cannot be deemed to be invalid merely because some . .
of the grounds are ; (i) vague, (ii) non-existent, (jji) not relevan~
(iv) not connected or not proximately connected with such person or
E (v) invalid for and other reason whatsoever.
. As stated above,· three . out of the four grounds on which the
petitioner· was detained have been held to be bad by the High
Court. Those ground~ are mentioned in paragraphs 5.2 ,. 5.3 and ·
·. }? 6:1 of the grounds furnished to the petitioner. Grounds 5.2 ~~
5.3 were held to be bad because they were neither relevant nor d
they bear any "nexus, direct or indirect, with the detenu". It woul
· .. was
. appear from the judgment of the High Court that this posttJon th
nqt controverted by the learned Public Prosecutor. I n so far asH'gb'
fourth ground mentioned in paragraph 6.1 is' conceme~, the ite·
I
G . Court held that it was bad because import~nt material w~ch ~a:y the
vant to that ground was neither placed before .nor coll5tder . ., of
. .
detatntng h . . In vJel•
aut onty while passing the order of detcnttoo. ounds
f
the judgment of the High Court. only one out of the four 0rtJte ;
of detention, namely, the ground mentioned in p;lragraph 1•
H grounds furnished to the detenu requires· consideration by·us.
. ~~ ~
This petition along with a few other petitions ~as re·~ns 5·~
the Constitution · Bench for considerin~ the validity ofsectJ . '
' ,. '\ - __ .:: ··-:-·
sH-~EEL AliMED v. MA~ARASHTRA ( Chandrachud, C.J.) 61 ~
and 11 of the Act. We-have already set out the purport of section
5-A. Section 11, _which authorises the revocation of. detention - A
orders,. provides by sub-section 2 that th-e ·_revc;>cation of a detention
order shall not bar the making of another order under section 3
-against the same person. In.
view of the conclusion which ~e _have
in
. reached this p~tition; it is unnecessary to consider 'the validitY of
these sections. ·, - . -, . · - - ,. , :.
, I _.-.
The su~iying ground ~f detention, co~tains the allegation tliat~
working on a secret information· received on ._January 13, 1981, the
officers_ of the- Marine and_ Preventive. Wing of the Collectorate of
Customs (Preventive), Bombay, intercepted : a vessel named .'Maoek
Prasad' in the . sea- off World'. at Bombay on February 2, 1981 at C ·
about 2 p.m. and seized- therefrom: . wrist-watches ~ valued._ at
Rs. 18~ 89,935/-, textiles valued at Rs. i 8, 20 675, miscellaneo\ls goods
vai~ed at Rs. 18, 769'· and Indian currency. of.
Rs. 1,540/- and JSS
U.A:E. Dhirams. It is alleged that none of-the s~ven :persons. who
were on board the ship possessed any documents authorising ~em D
to import the aforesaid goods. The various sub-paras of this ground •
-~
refer to the material whiCh connects the' petitioner with the i11egal
imP,Ort Of the goods seized from the ship., , . . , ·_ .
Shri .ieth~alani who appears on . behalf ~f the petitioner con-
tends that the first ground of detention is bad for several reasons~
most of which are directed to the 'question as. to .whether. the
d,etainingauthoii(y' had. applied its mind to the:releyant 'facts -and
circumstances bearing on the question of the petitioner's detention.
Only ': one ·of these reasons is valid- and has to be accepted- Tha(
reason is as follows: - ·- . ;- '
i •...._ ~ .... ..
F ·
· The petitioner was detained under an order dated November 7;:
198L Prior to "that, one Shams-i was detained under order; an
dated ·August 19, 1981 passed: by· 'the: ·sanie
·Government· of
) Maharashtra.- ·After' con-sidering the reference and the 'materials
placed beforeit)n Shamsi's case,. the ·Advisoiy Board reported to
the State Government on- October 19. 1981- that there w~s it-s' G- - in - .
opinion no sufficient cause for Shamsi;s deteoti~n. 'Shamsi was
released, as he; had to · be, in. pursuance of the Advisory Board•s ;
_opioion. · · · - - · - ··
_ It is urged by Shri Jethmalani ·that one of the grounds on H ·;
which Shamsi was detained being the . sat;1e as gr~und No.· I in this
caser th.e'factthat th~ - :Ad~isorr Bo~~d had· report.ed.that there wa~
- - ' _• - - - • ·J • - . ' ' ' _- -- -
' -
6is • ··• · · SUPREME COUR'f REPORTS ·· . [1983] 2 s:c.R.
. . . .
A.. ~~·sufficient cause for· Shamsi's detention· might to have b~en pl~ed
· .before tlie detaining authority ~hich ·passed ·the order of detention ·
. against· the· petitioner. ··According to the learned. counsel, the
failure of the State Government to· place a ·highly relevant ·and
important piece of material before · the detaining authority vitiates
• B; .case the o.rder or'detention.' If the detaining authority in
the 'instant ·
were apprised . that the . Advisory Board had reported on
examining, inter alia, an identical ground that there was no sufficient
cause for detention . of . another person involved in the .same
transaction, it niay.not have passed· the ·order of detention against
. ~ the petitioner, which is based on sunilar faCts~ This submission is
· well-founded and must' be accepted.' It is clear thai Shamsi was
C' detained for -~gaging in a smuggling activity arising out or the sani·e
incident and transaction which forms the subjeet-matter of ground
No. 1 in the instant case. ·The opinion of the Advisory ·Board' that
there was no
Sufficient cause for Shamsi's detention may not have
been binding on the detaining authority which ·ordered the detention
D of the petitioner but, it cannot be gainsaid that the fact the :Advisory
Board had recorded such an ·. opimon on identical facts involving a .
. ' common ground was at least ~ relevant. circumstance which. ought
to have been placed before the detaining i:mthority in. this case.
Since. three out. of the four.· grounds on which the petitioner was
detaitied have been held to be bad by the ·High Court, we have to
. E · proceed on' the basis that the petitioner was detained and could
validly be detain.ed on the re'maiillng ground only. · That ground is
similar· to one of ,the 'grounds. on which Shamsi.'Yas detained, the
transaction being one and the ·same, as also the incident on which·
• . the two orders of detention are based~. That is why th~ opinion of
the Advisory Board in Shamsi's case becomes· r~levant. in the
.f
F : petitioner's case. . The failure of: the State Government to place
before the detaining authority in the· instant case, the opinion which .
the Advisory Board had · ~ecorded. in fav9ur of a detenu who' was
· detained partly on a ground relating to the same incident deprived
··~ the detaining-authority of an opportunity . to apply its mind to a
G · piece of .evidence ,which was. relevant, if not binding. ·In other
w~rds? the detaining authority did not, because· it could not, apply
its mind to a circumstance which.- reasonably, could have affected
. its. decision whether or not to pass an order of detention against. the
H:
. . petitioner.
·.·
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· ·
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L..:,.
: ~ r '"' -
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.. . It is ron
tended by Shri' Rana, who appe·ars oti behalf of the
Gove~ent of lv{aharashtra, that there is
distinction between the
SHAKEEL AHMED v. MA}fARASHTRA, (Chanarachud C.J.) 619
. . ·. . '
pe~itioner's case and that of Shamsi since, the petitioner is the brother
of the consignor, Ashfaq, while Shamsi is riot. Counsel contends that A
by reason of this distinction in the facts of the two cases, the State.
Governmei1t was justified in not placing before the detaining
authority in this case the f<J.ct that the Advisory Board had reported
that there was no sufficient cause for detaining Shamsi. We may
assume that the petitioner is the brother of the consignor Ashfaq,
since in these proceedings we cannot determine the truth of. tlie B
various facts alleged by the detaining authority. But the question
for consideration is not whether the detaining_ authority would have·
been justified in passing the order of detention against the petitioner.
even after being apprised of the ,opinion of the Advisory Board in'
Shamsi's case: The question is whether the p,rder of detention was
passed in this- case after applying the · mind to the. relevant facts
c
which bear upon the detention of the petitioner. It seems to us plain
that the opinion of the Advisory Board in Shamsi's case was, at any
rate, an important consideration which would and ought· to · have
been taken into account by the detaining authority ~n the instant
case.
. That opportunity was denied. to it. D
Shri Rana contends that there were other grounds on which
Shamsi was detained and the Advisory Board may have come to the
conclusion that since those grounds were not enough to justify
Shamsi's detention, there was no sufficient cause for detaining him. E
This argument also overlooks that it is -not as if the opinion of the
Advisory Board in Shamsi's case was binding on the detaining
authority in this case. The substance of the matter is that the
detaining authority in this case failed to apply its mind to the highly
relevant circumstance that an order of detention passed on the
F
ground on which the detention of the petitioner now rests, in addi-
tion to something more, was not sustained by the Advisory Board in
Shamsi's case. We cannot exclude a reasonable probability that
_) since the Advisory Board had not sustained Shamsi's detention on
a ground which was common to him and the petitioner, namely,
ground No. 1, the detaining authority would have, if at all, -passed G
the order of detention against the petitioner on the remaining three
grounds only. Those three grounds have been held tQ be bad by ~e
High Court and it is only by resorting to the provisions of section
SA of the Act that the High Court upheld the detention of the
.. ;_ petitioner. H
Shri D.N. Capoor, Secretary to the Government of
··tdaharashtra 1 Home Department (l-aw ~nc;l Order), has 1Ued ll
~~ ......... ----·---·
620 SUPREME COUltT REPORTS [1983} 2 S.C.R,
counter-affidavit in this Court in answer to the Writ Petition. In
A paragraph 14 of the said affidavit, Shri Capoor says that he had
"orderedto issue detention order on 8.10.1981'\ after considering
$.~·entire material very carefully. Shri Capoor says that lle formu·
lat¢d tlle grounds of detention "contemporaneously'' on 8.10.1981,
th!it thereafter the ord~r of detention and the grounds of <.tetention·
w~e'got typed and the Customs authorities were directed to supply
B t<)lhe detehu the copies of the statements which were placed before
him. ·Acc;:ording to Shri Capoor, it was after the receipt of copies
of all the docUJl1ents that the order of detention was issued on
~ovember 7; 1981 The expla.,:ation offered by Shri · Capoor as to
why the 6pinioti 6f the Advisory Board in, Sham&i's case was not
c placed befO're .him is' that the report of the Advhory Bo~rd in
S}lamsi's case which, is dated October 19, 1981, was not in existence
v\iheri he ·'forniulated and ordered to issue the detention order
against the petitioner'' in this case. We see quite some difficulty in
aeceptfng this explanation. In the ·first place, the fact that it was· Of\
October 8, 1981 that Shri Capoor had directed the detention of the
petitioner is a matter of no,consequence. The order of detention was
issued, that is to say passed,. on November 7, 1981 and we must have
regai:d to the .state 9f circumstances. which were in existence on that
date. Shri Capoor seems to suggest that the Advisory Board's
opinion dated October 19, 1981 · came into existence after he had
E made up his mind to pass an order of. detention against the petitioner
on October 8, 1981 and therefore he could not take, or need not have
taken, that opinion into account, The infirmity of this explanation
is that the order of detention was passed against the petitioner on
November 7, 1981 and the Advisory Board's opinion in Shamsi's
cUe was available to the State Government nearly. three weeks
F before that date. Ifthat opinion were available before· the order .of
detention was passed in this case, it was the duty of the. State
Goverrunent to place that opinion before the detaining authority in
order to .enable it to consider whether, an order of detention could be \_
passed against the'petitioner despite that opinion especially when,
dne of the grounds on which the two orders of detention are .based
G is identical and relat~s to tlle same incident. We would like .to add
that haVing s~n the original order of detention which was· made
~vailable for out inspection by the officers of th~ State Government.
we were bafiled tt> find that tpough Shri · Capoor's signature bears
the date October 8, 1981, the column for date, in the left han() corner
at the bottom of the order of detention, has remained or become
blank.
..
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SHAKBBL AHMED v. MAHARASHTRA (ChandrachJ!d, C.J.) 62.1
.For the teasons mentioned above, we set aside tlie order of
detention dated November 7, 1981 passed against the petitioner by 4
the Government of Maharashtra and direct that to the extent that
his detention is attributable to the said order of detention, he shall
be released forthwith.
P.B.R. Petition allowed. 1l
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