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High Court Of Delhi
ABDUL AZIZ CHABA - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 11/02/1983
CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT, 1974 - SECTION 3(1), 7(1)(A), 7(1)(B) - DETENTION ORDER - NON-APPLICATION OF MIND - DETENTION ORDER QUASHED.
Fact of the Case:
Petitioner, an Indian citizen residing in Dubai for over 15 years, challenged a detention order issued against him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, alleging non-application of mind by the detaining authority.
Finding of the Court:
The court found that the detaining authority was not informed that the petitioner was not residing in India and had not visited the country for the last 15 years. The detention order was issued to the petitioner at an address in Bombay, and the grounds of detention were also addressed to the same address, indicating a presumption that the petitioner was available in India.
Issues: 1. Whether the detaining authority had applied its mind to the relevant facts before passing the detention order? 2. Whether the detention order was vitiated due to non-application of mind?
Ratio Decidendi: The court held that a material fact which could have influenced the mind of the detaining authority either way ought to be placed before it and considered by it. The awareness of the detaining authority of such a fact must appear either in the order, grounds, or affidavit justifying the detention order. In this case, the detaining authority was not aware that the petitioner was not residing in India and had not visited the country for 15 years, which was a material fact that could have influenced the decision.
Final Decision: The court quashed the detention order, holding that it was vitiated due to non-application of mind by the detaining authority.
( 1 ) ABDUL Aziz Mohammad alias Aziz Chuba claiming to be resident of Dubai has filed this petition through his brother, Ahmed Hazi Mohd, a resident of of Bombay, seeking setting aside of the order of detention passed against the former by the Govt of India on 11. 7. 78 u/s 3 (1) of the Conservation of Foreign Exchange and Prevention of Smugling Activities Act, 1974, ( the Act )
( 2 ) THE petitioner s case is that he is a citizen of India and is carrying on business in the name of M/s. Aziz and Co. , at Dubai. He has been residing there for the last over 15 years. It is averred that through a press release which was given publicity on the television in India it came to be known that an order of detention under the Act had been passed against the petitioner. Thereupon he filed a writ petition in this High Court seeking quashing of the same. As he had not been served with the detention order he was unable to annex a copy of the same with the petition. On issuance of a show cause notice of that petition, the respondents herein, the Union of India filed the impugned detention order as also the grounds of detention with their answer. The Govt. also filed copies of orders passed u/s 7 (1) (a) and 7 (1) (b) of the Act. Thereupon, the said writ petition based on the facts disclosed in the affidavit filed in answer to show cause notice, was moved on behalf of the petitioner.
( 3 ) THE gravamen of the petitioner s case is that there has been a complete non-application of mind by the detaining authority while passing the impugned detection order as well as the grounds of detention. It is his case that the detaining authority was not informed that the petitioner was not residing in India and had not even visited the country for the last 15 years. The order of detention showing that he is resident of Bombay which was passed with a view to preventing him from smuggling goods in India, is thus illegal. The detention order has been issued to the peti- tioner at 296/a, Abdul Rehman street, Bombay. The address of the petitioner given in the grounds of detention is also the same. The grounds of detention dt. 11. 7. 78, i. e. , the same date as that of the detention order were to be served through the officer in charge of the Prison, Nasik Road, Bombay. A copy of the grounds was endorsed to the officer in charge of that Prison with a request "to serve the original copy meant for the detenu on him under a proper acknowledgement which should be forwarded to the undersigned. If the detenue so desires, the grounds may also be read over and explained to him in the language known to him. " A copy of the detention order was endorsed to the Comm. of Police, Greater Bombay, who was authorised to arrange for the execution of the order. Vide notification dt. 2. 9. 78, published in Part II of Gazette of India, the Central Govt. in exercise of powers u/s 7 (1) (b) of the Act directed the petitioner to appear before the Commissioner Greater Bombay within 7 days of the publications of the order. The ground for passing this order has been mentioned in para 2 of the notification which reads : (. . . has absconded or concealing himself so that order cannot be executed ).
( 4 ) THEREAFTER, on 29. 2. 80, a report u/s 7 (1) (a) of the Act was made before the Court of Chief Met. Mgte. , Bombay, by Sh. R. K. Thawani, Deputy Secy. to the Govt. of India, praying that the proceedings u/s 82, 83, 84 and 85 of the Cr. P. C. 1973, be initiated against the petitioner as the Central Govt. had reason to beliece that he had absconded or was concealing himself to avoid execution of the detention order.
( 5 ) AT this stage it may be noticed that the averment of the petitioner in para 1 of his petition that he is carrying on business in the name of M/s. Aziz and Co. , at Dubai and has been residing there for the last over 15 years, has not been replied to by the respondents in their reply on merits in the counter-affidavit. This averment, therefore, has to be tak
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