R. J. SHAH, S. B. MAJMUDAR, J.

( 1 ) BY our earlier order dated 8/11/1985 we had allowed the petition and had quashed the impugned order preventively detaining the petitioner under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 We had deferred recording of reasons for the said order. The reasons for our aforesaid decision are as under :

( 2 ) THE petitioner was preventively detained by an order dated 22 issued by the officer on special duty and Ex-officio Joint Secretary to Government Home Department (Special) by order and in the name of the Governor of Gujarat under the provisions of sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSA Act for short ). The said order was passed with a view to preventing him from abetting the smuggling of goods. The petitioner was also supplied with grounds of detention on the very same day i. e. 22-2-1985. It is not necessary to refer to the grounds of detention as this petition is required to be allowed on the solitary ground that the sponsoring authority had not put before the detaining authority all relevant facts and material which were favourable to the detenu. The petitioner has challenged the aforesaid order of detention by filing the present petition. It was admitted to final hearing by this court. The respondents have filed the affidavit-in-reply opposing the petition. The first affidavit-in-reply was filed by Mr. A. K. Agnihotri Under Secretary to the Government of India Ministry of Finance. The second affidavit was filed by Mr. T. S. Randhawa Deputy Secretary to the Government of Gujarat Home Department (Special ). The third affidavit has been filed by Mr. M. T. Parmar Under Secretary Home Department (Special) Government of Gujarat and the fourth affidavit has been filed by Mr. T. S. Randhawa Deputy Secretary Home Department (Special) Government of Gujarat.

( 3 ) NOW is the time for us to refer to the main contentions canvassed on behalf of the petitioner that has found favour with us. Mr. J. R. Nanavati for the petitioner amongst others contended that the detention order is liable to be quashed and the petitioner is required to be set at liberty mainly on the ground that the detaining authority has not acted fairly to the petitioner and that the sponsoring authority has withheld from the consideration of the detaining authority relevant material which was favourable to the petitioner. Thus the subjective satisfaction arrived at by the detaining authority against the petitioner is a truncated lopsided incomplete and non-genuine satisfaction. In para 20 of the petition the petitioner has contended that the sponsoring authority issued show cause notice No. F-VIII/10/20-3-Collector/84 and the Collector of Customs passed the order of confiscation of goods On 19-10-1984 and the petitioner submitted his reply to the show cause notice on 12-10-1984. That material document is not supplied by the sponsoring authority to the detaining authority. That would have influenced the detaining authority not to pass such type of order. It is submitted that the material document is not supplied and therefore the impugned order of detention is vitiated and requires to be quashed and set aside. In the affidavit-in-reply filed by Mr. T. S. Randhawa the aforesaid contention is tried to be met in para 14 of the replyaffidavit as under:"merely because show cause notice was issued and the order of confiscation was passed and the petitioner submitted his reply to the show cause notice the said documents do not become material and relevant. It cannot be said as a general rule that in all cases whenever it is shown that a show cause notice or its reply is not placed before the detaining authority or is not considered by the detaining authority ipso facto the detention order will become invalid". In the light of the aforesaid rival contentions touching upon the question the grievance ventilated by the le

Click Here to Read the rest of this document