M. K. CHAWLA ( 1 ) WITH a view to prevent Shri Kirpalmohan Virmani, the present petitioner, from smuggling goods and abetting the smuggling of goods Shri Tarun Roy, Joint Secretary to the Government of India passed an order of his detention under the COFEPOSA Act (hereinafter referred to as theact) on 5/11/1986. The subjective satisfaction isbased on the following circumstances : ( 2 ) ON a specific information that truck No. DEL 3124 iscarrying Hashish concealed inside the machinery items, theofficers of the Customs Preventive Collectorate, West Bengalsucceeded in iniercepting the truck at Mogra on 12/07/1986and apprehended its three occupants, S/shri Joginder Singh,and Shiv Raj Singh. drivers and Ranjit Singh, cleaner. Ondetailed examination, it was found to be carrying two consignments comprising of 30 cases, containing 660 pieces of frontand rear engine mounting. M/s. Northern Exports, 116 Harinagar, New Delhi, was the consigner. This machinery wasmeant for export to M/s. Nazi Handi Altharthi Est. Jedda (Saudi Arabia ). Another consignment comprising of four packages containing one power press and two pieces of hand-operatedpress consigned by M/s. Modern Machinery and Instruments,parmanand Colony, Delhi was meant for export to Internationaltraders Ltd. , London. On close examination of the said machinery items, the Customs Officers recovered 743 kg. of Hashishconcealed inside the machinery. The said consignment forexport, were meant to be cleared through M]s. Lee and Muir-head (P) Ltd. India and M/s. Sheikh and Pandit, Calcutta. Themachinery alongwith Hashish and the truck were seized underthe provisions of the Customs Act, 1968 and Narcotic Drugsand Psychotropic Act. Later on, the business and residentialpremises of the clearing agents were searched but nothing incriminating was recovered. ( 3 ) SHRI Joginder Singh, driver of the truck in his statementdisclosed that the seized truck belonged to Shri Gopal Singh,who was running the same with a Transport Company, in thename and style of Nice Goods Carriers, Azad Market, Delhi. He also disclosed that the owner of the said transport companyis Harnam Singh, at whose instance he had gone to Mehraulion 6/07/1986 to pick up the machinery items. The loadingoperation was supervised by one Gurdeep Singh along with another person named Nirmal. Shri Shiv Raj Singh and Shri Ranjit Singh in their statements corroborated Joginder Singh in allits material particulars. He also disclosed that the owner of the said transport companyis Harnam Singh, at whose instance he had gone to Mehraulion 6/07/1986 to pick up the machinery items. The loadingoperation was supervised by one Gurdeep Singh along with another person named Nirmal. Shri Shiv Raj Singh and Shri Ranjit Singh in their statements corroborated Joginder Singh in allits material particulars. ( 4 ) ON the next day, the officers of the Directorate of Revenue Intelligence, New Delhi located the farm house in Mehraulifrom where the machinery items had been loaded into the truck. The search of the farm house resulted in the recovery of 976kgs. of Hashish concealed under-ground in one of the out-housesof the farm and another quantity of 348 kg. of Hashish fromwithin the five power presses found lying in the compound. Besides, the Hashish and the machinery, a number of documents558including a blank letter-head of M/s. Virmani and Company, book-makers, Delhi Race Club, New Delhi was also recovered andseized. At the given address a firm by the name Radhey andcompany was found operating by one Mahesh Mehra, brotherin-law of the petitioner. ( 5 ) ON interrogation, Mahesh Mehra, disclosed that he wasmarried to the sister of the petitioner. He had purchased aplot of land at D-1/56, Vasant Vihar in 1980 and had constructed a house thereon in the year 1981. In June, 1982, thepetitioner shifted into the said house, while Mahesh Mehracame to occupy a part of the same house in 1985. However,in February, 1986, the whole of the house was let out to oneshri S. P. Rao, who in turn rented out the said house to therussian Embassy on a monthly rent of Rs. 25,000. He alsostated that the petitioner shifted to 101, Udai Park, New Delhi. Mahesh Mehra also identified the discarded household effectsand furniture of the petitioner lying dump in the farm house. From there, quite a number of documents were also taken intopossession. ( 6 ) ON the same day, the residential and office premises ofharnam Singh were searched but no incriminating materialcame to their hand. In due course of time, the statements ofgopal Singh Bisht and Darshan Singh, employees of M/s. Nicegoods Carriers and Kamal Kishore, Manager of M/s. Nice Goodscarriers were also recorded. ( 7 ) ON 16/07/1986 the residential premises at 101,udai Park, New Delhi were searched. In due course of time, the statements ofgopal Singh Bisht and Darshan Singh, employees of M/s. Nicegoods Carriers and Kamal Kishore, Manager of M/s. Nice Goodscarriers were also recorded. ( 7 ) ON 16/07/1986 the residential premises at 101,udai Park, New Delhi were searched. The statements, of Smt. Sheel, wife of the petitioner, Miss Sapna Virmani and Missaparna Virmani, the daughters were recorded, who disclosedthat the petitioner was engaged in the running of two firms bythe name of M/s. Kumi Exports and Virmani Chit Fund andtrading Company. These witnesses also identified their itemsof household goods lying at Gadaipur Farm House. ( 8 ) ENQUIRIES with the Revenue authorities revealed that thefarm house in Gadaipur from where the Hashish wasrecoveredstand registered in the name of Shri S. P. Rao, resident of D-13/a-19, Model Town, Delhi, which is also the residentialaddress of Harnam Singh. A number of summons were issuedto Harnam Singh, S. P. Rao @ Nirmal and the petitioner toappear before the D. R. I. Officers but the same were nothonoured. ( 9 ) THE petitioner was apprehended on 28/09/1986. During interrogation, he admitted his involvement insmuggling Hashish out of India in association with Harnamsingh, S. P. Rao and one Surinder Malhotra. He disclosedthat Harnam Singh used to purchase Hashish from Pakistan andafter concealing the same inside the engine mountings and othermachinery items, it used to be exported to different countriesunder fictitious names. During the investigation, Shri Subhashchander Narang was also interrogated who admitted havingstarted the firms M/s. Northern Exports and M/s. Modernmachinery and Instruments under the instructions of Harnamsingh, S. P. Rao and the petitioner under the assumed name ofnarinder Kumar. According to him the seized consignmentswere meant to be delivered to M/s. Lee and Muirhead India (P)Ltd. and M/s. Sheikh and Pandit Calcutta for exports. ( 10 ) THE samples of Hashish seized at Calcutta and Delhiwere sent to the Chemical laboratory for examination and analysis. The report of the chemical examiner is that the substance is the extract of plant cannibis sativa (charas ). Fromthese facts, the detaining authority came to the conclusion thatthe petitioner has been smuggling and abetting the smugglingof goods and even though adjudication and prosecution proceedings under the Customs Act and N. D. P. S. Act, 1985 are likelyto be initiated against him, he is satisfied that it is a fit casewhere the petitioner be detained under the COFEPOSA Act. Fromthese facts, the detaining authority came to the conclusion thatthe petitioner has been smuggling and abetting the smugglingof goods and even though adjudication and prosecution proceedings under the Customs Act and N. D. P. S. Act, 1985 are likelyto be initiated against him, he is satisfied that it is a fit casewhere the petitioner be detained under the COFEPOSA Act. The order of detention is dated 5/11/1986. It wasduly served on the petitioner on 5/12/1986, throughthe Superintendent, Central Jail, Tihar while he was an undertrial prisoner. This very order of detention is under challengein this petition. ( 11 ) THE first submission of the learned counsel for the petitioner is that it is a case of double detention. In this case thedetaining authority has acted machanically without due application of mind and in complete disregard of the provisions ofarticle 22 of the Constitution of India and Section 3 (1) ofthe Act in making the impugned order, inasmuch as, the petitioner was already confined in jail as an under-trial prisonerin the criminal case, on the same facts and grounds set out inthe impugned order of detention. According to the learnercounsel the petitioner s application for his release on bail hadalready been rejected by the Court of Additional Chief Metropolitanmagistrate and Additional Sessions Judge. New Delhi. There wasno immediate I impending prospects of the petitioner coming outof jail custody and having any freedom for indulging in smug-gling activities. The service of the impugned order on thepetitioner under these circumstances is not warranted by law. This is a mala fide exercise of power inasmuch as the petitionerwas already sufficiently prevented for the purpose for which thedetention order was made. The impugned order does, not reflect the compelling necessity to detain the petitioner. ( 12 ) THE case of the respondent is that the detaining authority was fully aware of the fact of the petitioner in jail He,however, on the peculiar circumstances of this case, formed anopinion to detain the petitioner. The proceedings under thecustoms Act are quite separate and independent from theaction under N. D. P. S. Act. There is no bar to the passing ofthe detention order. ( 13 ) THIS defence reveals the carelessness on the part of thedetaining authority to handle the delicate and sensitive matterof detention where the liberty of an individual is involved. The proceedings under thecustoms Act are quite separate and independent from theaction under N. D. P. S. Act. There is no bar to the passing ofthe detention order. ( 13 ) THIS defence reveals the carelessness on the part of thedetaining authority to handle the delicate and sensitive matterof detention where the liberty of an individual is involved. Theorder shows complete disregard to the well-settled propositionslaid down in the various judgments of the Supreme Court. Itis not disputed that immediately after his arrest on 29/09/1986, the petitioner filed an application for his releaseon bail before the Additional Chief Metropolitan Magistrate, Newdelhi. After contest, this application was rejected on 2 9/10/1986. The order of detention dated 5/11/1986 was served while he was in judicial custody. Normally,when a preventive order is passed against a person alreadyconfined to jail, the detaining authority must show awarenessthat the person sought to be detained is already in jail and yeta preventive detention order is a compelling necessity. Has thisprecaution been taken in this case or not is the propositionwhich requires a definite answer. ( 14 ) THE preventive action postulates that if preventive stepis not taken, the person sought to be prevented may indulgeinto an activity prejudicial to the economy of the country. Inother words, unless the activity is interdicted, by a preventivedetention order, the activity which is being indulged into islikely to be repeated. Now, if it is shown that the personsought to be prevented by preventive order is already effectivelyprevented, the power under sub-section (2) of Section 3, ifexercised, would imply that one who has already been preventedis sought to be further prevented which is not the mandate ofthe Section. ( 15 ) FURTHERMORE, such an awareness must be revealed inthe detention order itself. The Supreme Court in a caseed as Biru Mahato vs. District Magistrate, Dhanbad, 1983 SCC (Cri.) 31 (1) has gone to the extent of holding :- "where a preventive order is to be made against aperson already confined to jail or detained, thesubjective satisfaction of the detaining authoritymust comprehend his awareness of the very factthat the person sought to be detained is alreadyunder confinement in respect of the same offenceand yet a preventive detention is a compellingnecessity. If the subjective satisfaction is reached,without the awareness of this very relevant fact,the detention order is likely to be vitiated. If the subjective satisfaction is reached,without the awareness of this very relevant fact,the detention order is likely to be vitiated. Moreover, the detention order must show on the face ofit that the detaining authority was aware of thesituation. Otherwise, the detention order wouldsuffer from vice of non-application of mind. " ( 16 ) IN this case the petitioner was apprehended on the basisof his involvement in a large scale smuggling of Hashish. Itwas a serious offence involving the maximum sentence of 10years and a fine of rupees one lakh. Before his arrest, thepolice had announced an award of Rs. 20,000 to the persongiving an information of his whereabouts. The petitioner wasapprehended under mysterious circumstances. These factsprevailed with the Additional Chief Metropolitan Magistrate in rejecting his bail application. The petitioner did not to datemove the higher courts and remained contented to face thetrial. There was absolutely no possibility of his coming out ofthe jail during the pendency of the trial which was likely totake sufficiently long time. The circumstances do indicate thatthere was no compelling necessity on the part of the detainingauthority to pass the order of detention which has proved to bea case of double detention. ( 17 ) IN similar circumstances, the Supreme Court in casereported as Binod Singh vs. District Magistrate, Dhanbad, Biharand others, AIR 1986 S. C. 2090 (2) held as under :- "where the order of detention under S. 3 (2) of thenational Security Act was served upon the detenu,when he was already in jail in respect of a murdercase and there was no indication that this factor orthe question that the said detenu might be releasedor that there was such a possibility of his release,was taken into consideration by the detainingauthority properly and serjously before the serviceof the order of detention, the continued detentionof the detenu under the Act would not be justified. The power of directing preventive detention givento the appropriate authorities must be exercised inexceptional cases as contemplated by the variousprovisions of the different statutes dealing withpreventive detention and should be used with greatdeal of circumspection. There must be awarenessof the facts necessitating preventive custody of aperson for social defence. If a man is in custodyand there is no imminent possibility of his beingreleased, the power of preventive detention shouldnot be exercised. There must be awarenessof the facts necessitating preventive custody of aperson for social defence. If a man is in custodyand there is no imminent possibility of his beingreleased, the power of preventive detention shouldnot be exercised. And if that is the position, then,however, disreputable the antecedents of a personmight have been without consideration of all theaforesaid relevant factors, the detenu could not havebeen put into preventive custody. " THIS very judgment was followed by this Court in case reported as Robert Lendi vs. K. K. Dwivedi and ors. 29 (1986)Delhi Law Times, 383 (3) - "a detention order can be passed against a person whois in detention or in jail but the detention orderor the grounds of detention served on the detenumust show that the detaining authority is aware ofthe fact that the person against whom the detentionorder is being passed is already in jail, and if stillthe detaining authority finds it necessary to passthe order of detention there has to be material beforethe detaining authority to reach the satisfaction. Inarriving at the satisfaction an important fact wouldbe antecedent history and the past conduct of thedetenu. It would, naturally depend on the factsand circumstances of each case whether a detentionorder should or should not be made in the case ofa person who is already in jail. " ( 18 ) THE above said judgments are on all foures to the factsof the case in hand and on that score it can safely be said to bea case of double detention and non-application of mind to the relevant facts thereby making the order of detention bad inthe eye of law. ( 19 ) THE next contention of the learned counsel is not lessweighty. The submission is that the petitioner sent his repre-sentation to respondent No. 2 on 23/12/1986 throughproper channel. This representation so far has neither beenconsidered nor any decision has been taken or communicatedto the petitioner. The respondents have denied having receivedany suchrepresentation. In the alternative, their stand is thata copy of the representation which was annexed to the presentpetition was put up before the detaining authority and also theminister concerned. On careful consideration of the same, itwas rejected and communicated to the petitioner on 6/03/1987. ( 20 ) THIS aspect needs deeper probe and thought. Thepresent petition came up for hearing before the Division Benchof this Court on 21/01/1987. On careful consideration of the same, itwas rejected and communicated to the petitioner on 6/03/1987. ( 20 ) THIS aspect needs deeper probe and thought. Thepresent petition came up for hearing before the Division Benchof this Court on 21/01/1987. The respondents wereserved with the copy of the petition and the annexures on 5/02/1987. Even if, we take the stand of the respondenton its face value, the fact remains that for more than a monthor so, the result of the representation was not communicated tothe detenu. On these admitted facts, the law laid down by thesupreme Court that the representation must be considered anddisposed of within a reasonable time, must prevail. In the caseof Smt. lechu Devi Choraria vs. Union of India and others, AIR1980 SC 1983 (4), there was a delay of 15 days in disposingof the representation of the detenu. Even this short delay washeld unreasonable and fatal. The relevant portion of thejudgment reads thus :- "on a proper interpretation of clause (5) of Article 22. the detaining authority is under a constitutionalobligation to consider the representation ofthe detenu as early as possible, and if there is unreasonable delay in considering such representation,it would have the effect of invalidating the detention of the detenu. The representation of thedetenu dated 9/06/1980 was received by thedeputy Secretary on 14/06/1980 while therepresentation dated 26/06/1980 was receivedon 30/06/1980 and yet no decision was takenon these representations of the detenu until 1 4/07/1980. Held that the detaining authority was guiltyof unreasonable delay in considering the two representations of the detenu. This was sufficientto invalidate the continued detention of thedetenu. " ( 21 ) IT has repeatedly been observed by the Supreme Courtand the various High Courts throughout India that the representation made by the detenu has to be considered without anydelay. The Supreme Court does not look with equanimityupon delays where the liberty of a person is concerned. Callingcomments from other Departments, seeking the opinion ofsecretary after Secretary, and allowing the representation to liewithout being attended to is not the type of action which thestate is expected to take in a matter of such vital import. The Supreme Court does not look with equanimityupon delays where the liberty of a person is concerned. Callingcomments from other Departments, seeking the opinion ofsecretary after Secretary, and allowing the representation to liewithout being attended to is not the type of action which thestate is expected to take in a matter of such vital import. It isthe duty of the State to proceed to determine representationswith the utmost expedition, which means that the matter mustbe taken up for consideration as soon as such a representationis received and dealt with continuously (unless it is absolutelynecessary to wait for some assistance in connection with it)until a final decision is taken and communicated to the detenu. Where this is not done, the detention has to be declared unconstitutional. It was so observed in a judgment reported asharish Pahwa v. State of U. P. and others, A. I. R. 1981 S. C. 1126 (5 ). ( 22 ) IN the abovesaid two judgments, the respondent triedto explain the delay by giving sequence of dates and the personswho handled the file. In spite of that, the delay of less thanone month has been held to vitiate the order of detention. Inthis case, the respondents have not cared to indicate the variousauthorities who handled the file and the circumstances whichresulted in the delay. ( 23 ) IN the latest judgment of the Supreme Court reportedas Mohinuddin @ Moin Master v. The District Magistrate,beed and Ors. 4 JT 1987 (3) S. C. 173 (6), the unsatisfactoryexplanation of delay of 25 days in disposing of and communicating the result of the representation of the detenu has beenadversely commented upon in these words :- "6. It is somewhat strange that the State Governmentshould have acted in such a cavalier fashion indealing with the appellants representation addressed to the Chief Minister. We are satisfied thatthere was failure on the part of the Government todischarge its obligation under Article 22 (5 ). Theaffidavit reveals that there were two representationsmade by the appellant one to the Chief Ministerdated 22/09/1986 and the other to theadvisory Board dated 6th October, 1. 986. Whilethe Advisory Board dated October commendabledespatch in considering the same at its meeting heldon 8/10/1986 and forwarded its report together with the materials on 13/10/1986, therewas utter callousness on the part of the Stategovernment to deal with the other representationaddressed to the Chief Minister. 986. Whilethe Advisory Board dated October commendabledespatch in considering the same at its meeting heldon 8/10/1986 and forwarded its report together with the materials on 13/10/1986, therewas utter callousness on the part of the Stategovernment to deal with the other representationaddressed to the Chief Minister. It was not till 17/11/1986 that the Chief Minister condescended to have a look at the representation. Whenthe life and liberty of a citizen is involved, it isexpected that the Government will ensure that theconstitutional safeguards embodied in Art. 22 (5)are strictly observed. We say and we think itnecessary to repeat that the gravity of the evil tothe community resulting from anti-social activitiescan never furnish an adequate reason for invadingthe personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal libertyis largely the history of insistence on observance ofthe procedural safeguards. "applying the said ration to the facts of the case in hand, Ihave no hesitation to hold that the detaming authority has not,acted as swiftly as it should have in disposing of the representation. There is no worthwhile explanation for this delayedaction. On this ground alone, the petition must succeed. ( 24 ) THE last and the most forceful submission of the learned counsel for the petitioner is that some of the most materialdocuments concerning this case were either not placed beforethe detaining authority and if placed, were not given dueimportance and were intentionally ignored from consideration. It isa case of suppression material facts by the sponsoring authorityhad the following documents, which have material bearing, beenforwarded and placed before the detaining authority, there wasevery possibility that it would have influenced its mind theother way. (I) Copy of the petition dated 18/07/1986 filedby Shri S. P. Rao in the Court of Shri V. B. Bansal, Additional Sessions Judge, Delhi for seeking hisanticipatory bail, admitting therein that the farmfrom where the contrabana Hashish was recoveredbelonged to him. (II) The application dated 30/09/1986 of thepetitioner before the learned Additional Chief Metro-politan Magistrate by which he retracted his allegedconfessional statements recorded by the D. R. I. Offices shows between 28th to 30/09/1986under torture, duress and illegal confinement. (III) Copies of the orders on various bail applicationsmoved by the petitioner and other accomplices inthe Court of Additional Sessions Judge, New Delhi. (III) Copies of the orders on various bail applicationsmoved by the petitioner and other accomplices inthe Court of Additional Sessions Judge, New Delhi. (IV) Copies of the application moved- in the Court ofshri Bharat Bhushan, Additional Chief Metropolitanmagistrate, New Delhi dated 30/09/1986praying for his medical examination and the orderspassed thereon. (V) Medico-legal report of Dr. Tripathi, Central Jail,tihar, New Delhi dated 30/09/1986,showing homicidal injuries on the person of thepetitioner during his illegal confinement. ( 25 ) THE stand of the respondents, as disclosed in the counter, is that the copies of all these documents were placed beforethe detaining authority and were also considered. However,the same were not relied upon by the detaining authority and assuch these copies were not supplied to the petitioner. ( 26 ) IN the additional affidavit of the detaining authority, itis alleged "that in regard to the complaint made in ground (X)that there has been suppression of material facts by the sponsoring authority from the detaining authority, I beg to state thatthe documents mentioned in the grounds No. (X), namely, documents except documents at serial No. 1,2,4,6,7, and 10 ofground X were placed before me and those documents thoughreported to be in favour of the accused were considered by mealongwith documents which were incriminating to the detenuand on overall consideration of both the sets of documents andthe pros and cons, I came to the subjective satisfaction that thedocuments complained of in ground X were not enough to displace the effect of the other two incriminating documents onwhich I have relied upon and, therefore, the documents men-tioned in ground X were not relied upon by me in favour of thedetenu". In support of this stand, the submission of the learned Additional Solicitor General appearing on behalf of the Stateis that the detaining authority is required to furnish only thecopies of those documents which formed part of the groundsof detention on the basis of which the subjective satisfaction hasbeen arrived at and no other document. According to himthe grounds under Article 22 (5) means all the basic facts andmaterials which have been taken into account by the detainingauthority in making the order of detention and on which,therefore, the order of detention is based. Nothing less thanall the basic facts and materials which influenced the mind ofthe detaining authority in making the order of detention need becommunicated to the detenu. Nothing less thanall the basic facts and materials which influenced the mind ofthe detaining authority in making the order of detention need becommunicated to the detenu. This is the plain requirement ofthe first safeguard in this article. Reliance is placed on thejudgment reported as Vakil Singh vs. State of Jaminu and Kashmirand another, A. I. R. 1974 S. C. 2237 (7), wherein the term grounds has been explained in these words :- grounds within the contemplation of Section 8 (1)means materials on which the order of detention isprimarily based. Apart from the conclusions offacts grounds have a factual constituent also. They must contain the pith and substance of primary facts but not subsidiary facts or evidentialdetails. "on the basis of the abovesaid judgment, the submission isthat none of the documents which have been mentioned in thepetition have been ignored. Rather they have been examined,but not relied upon while drafting the grounds of detention. According to the learned counsel, the detaining authority hasonly to communicate the grounds of detention and the documents which have been made the basis and the authority is notbound to supply all thedocuments even if they go in favour ofthe detenu. ( 27 ) FROM the rival contentions of the parties, the positionboils down to this. Admittedly, some of the very importantdocuments and circumstances which have a material bearing orcould have influenced the subjective satisfaction of the detainingauthority either way, were not considered and if examined werenot thought relevant by the detaining authority and for thatpurpose, its copies were supplied to the detenu. What is itseffect ? ( 28 ) ON giving my careful consideration to this aspect. Iam not inclined to agree with the submission and to travel sofar as learned Additional Solicitor General wants this Court to go. It is true that at the time when the order is to be passed, it isfor the detaining authority to consider as to what are the relevant circumstances and then to form his opinion thereon. Butonce an order of detention is challenged in a Court of law thenthe Court certainly has the jurisdiction to go into the questionand to decide as to whether all the relevant documents/circumstances have been considered by the detaining authority or not. Butonce an order of detention is challenged in a Court of law thenthe Court certainly has the jurisdiction to go into the questionand to decide as to whether all the relevant documents/circumstances have been considered by the detaining authority or not. If the argument is taken to its logical conclusion, then the detaming authority can play havoc with the liberties of the individualsand bypass the safeguards provided by Article 22 (4) and (5)of the Constitution of India. It will confer a very wide discretion on the detaining authority to ignore the material documents/evidence and rely upon and inconsequential and worthless evidence to base his subjective satisfaction and pass the order ofdetention. Take the case where the sponsoring authority hascome into possession of numerous important and valuable documents on the basis of which a prudent person would definitelyconclude that it is not a case for passing a detention order. Ifthese documents are not placed before the detaining authority,it will be a case of withholding of material documents vitiatingthe order of detention and if these documents are forwardedto the detaining authority then in such a situation the detaining authority would either ignore those documents or look intothose documents and consider them irrelevant or unreliable. He would then base his subjective satisfaction to detain theperson without the help of these material documents eventhough to some extent or to a large extent go in favour of theaccused. Such a situation cannot be allowed to exist nor theliberty of an individual can be put to peril at the whims of thedetaining authority. ( 29 ) IT is a fundamental duty of a responsible Officer of thecentral Government, like the present one, to weight the documents and if he does not consider them to be relevant, then atleast refer the same in the grounds of detention so that if hisorder is ultimately challenged in a Court of law, the Court canlook into those documents and express its opinion eitherway. ( 30 ) TAKE the case in hand. For 112 days after his arrest,the petitioner remained in the custody of the officers of thed. R. I. On 30/09/1986, when he was producedbefore thretracted his alleged confessional statements but also moved anapplication for his medical examination as according to him,while in custody, he had been given beating and tortured. Therequest was acceded to. For 112 days after his arrest,the petitioner remained in the custody of the officers of thed. R. I. On 30/09/1986, when he was producedbefore thretracted his alleged confessional statements but also moved anapplication for his medical examination as according to him,while in custody, he had been given beating and tortured. Therequest was acceded to. The report of the Medical Suprinten-dent, Tihar Jail indicates that there were about four injurieson this person which appeared to be homicidal. From theperusal of these documents, prima fade, one could concludethat the so called statements of the petitioner were obtainedunder duress. So the refracted confession assumes importanceand become relevant piece of evidence worth consideration. The other application of Shri S. P. R. ao, prima facie, wouldindicate that the petitioner has nothing to do with the Gadaipurfarm from where the contraband Hashish was recovered. In fact noother document connects him with any of the persons allegedlyconnected with the farm or the smuggling of Hashish. Similarly,the bail applications and the orders passed thereon cannotblightly be snored or considered irrelevant by the detainingauthority. ( 31 ) ALL the documents, list of which is referred to above,arc very important and relevant to the subjective satisfaction ofthe detaining authority, and the non-consideration of which hasbeen held to be fatal by the Supreme Court and other Highcourts of India. In a case reported as Asha Devi vs. Shiv Rajand another, A. I. R. 1979, SC 447 (8) the question whether theconfessional statement recorded earlier was voluntarily statementor was the statement which was obtained from the detenu underduress or whether the subsequent retraction of the said statement by the detenu was in the nature of an after thought wereheld primarily for the detaining authority to consider beforedeciding the issue of detention order but since, admittedly, theaforesaid vital facts which would have influenced the mind ofthe detaining authority one way or the other were neitherplaced before the considered by the detaining authority. It washeld that there was non-application of mind to the most. materialand vital facts vitiating the requisite satisfaction of the detainingauthority and thereby rendering the detention order invalid andillegal. This very ratio was followed and affirmed in a case ofthis Court reported as Pudukkudi Abdu vs. Union of India andothers. 1982 D. L. T. 44 (9) and Cr. W. No. 114/87, Ashokkumar v. Administrator. Union Territory of Delhi decided bythis Court on 27/04/1987 (10 ). This very ratio was followed and affirmed in a case ofthis Court reported as Pudukkudi Abdu vs. Union of India andothers. 1982 D. L. T. 44 (9) and Cr. W. No. 114/87, Ashokkumar v. Administrator. Union Territory of Delhi decided bythis Court on 27/04/1987 (10 ). ( 32 ) SIMILARLY the non-consideration of the petitioner s bailapplications and orders passed thereon were held to be indicative of the fact of total absence of application of mind on thepart of the detaining authority. In the case reported as Anandsakharam Roat vs. State of Maharashtra and others A. I. R. 1987 S. C. 137 (11) and followed by this Court in a case Cr. W. 133 of 1987. Shri Dina Bandhu Mandal v. Union of Indiaand others decided on 29/07/1987 (12 ). ( 33 ) ON the similar analogy the report of the doctor of thecentral Jail, Tihar certifying the injuries on the person of thepetitioner received during his interrogation by the officers ofthe D. R. I, as well as the application of Shri S. P. Roy whereinhe admitted the ownership of the farm from where the contrabandhashish was recovered could not have been overlooked by thedetaining authority. In face of this authoritative pronouncements of the Supreme Court, there was no occasion for the detaining authority to say on affidavit that the effect of some ofthe documents though purported to be in favour of the accused,was not enough against the other incriminating circumstancesand for that reason they were not relied upon. This reasoningis quite contrary to the well-settled proposition. Absence ofconsideration of these material documents or brushing themaside as irrelevant, to my mind amounts to non-application ofmind on the part of the detaining authority rendering the detention order invalid. ( 34 ) THE sum and substance of the discussion leaves no doubtin my mind that it is a case of non-application of mind by thedetaining authority to the most relevant and important docu-ments/facts and circumstances having a direct bearing on thesubjective satisfaction of the detaining authority. On that scorealso, the petition is liable to succeed. All the three groundscollectively and severally are weighty enough to set aside theimpugned order of detention. AS a result of the above discussion, the petition succeedsand the impugned order of detention is set aside. The petitionerbe set at liberty forthwith if not required to be detained underthe orders of a competent court or authority.