LexSTATE OF GUJARAT versus SUNIL FULCHAND SHAH & ANOTHER
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STATE OF GUJARAT A v. SUNIL FULCHAND SHAH & ANOTHER FEBRUARY 8, 1988 [A.P. SEN AND LAUT MOHAN SHARMA, JJ.] B . '- f Conservation of Foreign Exchange and Prevention of Smuggling _, _, -; Activities Act 1974: Section 3-Detention order-Mere error in des- cription of a document in grounds of detention-Whether vitiates deten- tion order-Filing of affidavit by detaining authority-Not an inflexible rule-Not necessary to mention in grounds of detention the reaction of C f1he detaining authority to every piece of evidence. · r The second respondent in the appeal was detained under sub- !!l!j. section (l) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The grounds of detention-Annexure 'B' served on the detenu stated that information was received by the custom staff that a notori- ous smuggler and his gang was likely to land packages of contraband goods on the Saurashtra Coast and that the modus operandi of the smugglers' gang would be to remove the goods to trucks, cover them with cargo of vegetables and grain, and then to drive away. Vigilance was stepped up by the authorities. A Truck, an Ambassador Car in the service of the respondent-detenu, and a jeep were stopped by the Offi- cers and several persons travelling therein were detained and inter- D E 11 rogated. Incriminating documents were recovered indicating involv- ment of other vehicles. Goods of foreign origin valued at over Rs.68 lakhs were also recovered. The arrested persons gave vital clues about F ".;. the clandestine business of smuggling that wa" being carried on and --""'-.named the 2nd respondent-detenu as being directly involved in the business. The c<>-conspirators made an application for bail on 2.10.1984 and on the following day i.e. 3.10.1984 they filed an application before G the Chief Judicial Magistrate retracting some of their earlier statements. Though the detention order was passed on October 20, 1984, it could not be served on the detenu earlier than July 4, 1986 as he was absconding. On his arrest the first respondent-his nephew, challenged the detention order in the High Court on several grounds, but the High H 903 904 SUPREME COURT REPORTS [1988] 2 S.C.R. A Court allowed the writ petition and quashed the order of detention only ~ on one ground viz. non-application of mind by the detaining authority to a vital document i.e. the second application dated 3. l0.1984 whereby • '-"'. B the other accused persons retracted their earlier statements, and held that this had vitiated the subjective satisfaction of the detaining authority. • In the appeal to this Court it was contended on behalf of the State-appellant that the second application dated 3.10.1984 was also placed before the detaining authority and that he had applied his mind thereto. The document was mentioned in the grounds-Annexure 'B', served on the detenu although it was not actually described as a petition ...... - C containing the retraction. The original file dealing with the detenu's r case was also produced for the Court's perusal. f The appeal was contested on behalf of the respondents by stating that the plea of the State that the second application dated 3.10.1984 had been considered by the detaining authority should be rejected in the D absence of an affidavit by the detaining authority, and that it was necessary to have mentioned in the grounds-Annexure 'B', served on the detenu that the detaining authority was of the view "that not much credence could be given to the statements made in the petition dated 3. lO. 1984". E Allowing the Appeal, F HELD: 1. It is true that in a given case the detaining authority should personally affirm on oath the stand taken on its behalf, but this cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances. [908D-E] In the instant case, a further affidavit by the Deputy Secretary, \ / Home Department of the State of Gujarat was filed stating that the_.,)'- Home Minister who was authorised under the Rules of Business to pass orders on behalf of the Government in detention matters, had ceased to be a Minister before the filing of the affidavit in the High Court, and G he was, therefore not available. The then Deputy Secretary, Home ' Department who was fully conversant with the case had to file the affidavit. [908E-F] ~ 2. The original file dealing with the de
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