UNION OF INDIA Vs. VASANBHARTHI
SUPREME COURT OF INDIA (FROM: GUJARAT)
UNION OF INDIA AND ANOTHER
Vasanbharthi And Others
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(1.)This criminal appeal preferred by the appellants, namely, Union of India and the Additional Secretary to the Government of India is against the judgment of the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 733 of 1987 dated April 11, 1988 quashing the order of detention dated June 19, 1987 passed by appellant No. 2 in exercise of the powers under sub-sec. (1) of Sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing respondent No. 1, Vasanbharthi from engaging in transporting smuggled goods. It seems that respondent No. 1 (detenu) has challenged the detention on numerous grounds, one of which being that none of the members of his household had been informed of the passing of the impugned order of detention and of the fact that the detenu had been taken into custody and also of the place where the detenu was detained. This ground was only subsequently added by an amendment with the permission of the Court. The High Court holding that the detenu's relatives were not informed about the detention order or about the place where the detenu was detained in compliance with the observation by this Court in A. K. Roy v. Union of India, 1982 (1) SCC 271 concluded that the order has been vitiated by such non-compliance. Further, the High Court has rejected the plea of the appellants that the relatives of the detenu knew about the detention order as well the place of detention and stated as follows : "Hence if the relatives of the detenu have not been informed and even if from the record, it is found that the relatives had come to know about it from some source, the order of detention would most certainly be invalidated."
(2.)In the result, the order of detention was quashed and the detenu was directed to be set at liberty.
(3.)Mr. Kapil Sibbal, the learned Additional Solicitor General has assailed the finding of the High Court stating that respondent No. 1 (detenu) was already an undertrial prisoner and his relatives inclusive of his maternal uncle had visited him at the Jail within two days, and therefore, that the non-communication of a written intimation about the fact of passing of the order of detention and of the place of detention in pursuance of the detention order have no significance, and as such the observation made in A. K. Roy case (1982) (1) SCC 271) can hardly be availed of by the detenu and the order cannot be said to be invalidated on that ground. This plea is taken specifically in paragraph 21 and in grounds I and II in paragraph 23 of the special leave petition. Besides the above stand taken in the S.L.P., the appellants have reiterated the same in paragraph 9 of the application for ex-parte stay of the order of the High Court, the relevant portion of which reads thus :
"The affidavit in opposition was filed on behalf of the Union of India that detenu was already undertrial prisoner and his relatives in fact knew that and also that the maternal uncle had immediately, within two days, visited him at the jail. Therefore, it was not necessary to inform the relatives of his detention and place of detention, as contemplated in the decision of the Supreme Court reported in A. K. Roy case (1982 (1) SCC 271)."
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