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1987 DIGILAW 460 (MAD)

M. Mohammed Kutty v. Tarun Rey

1987-12-21

BELLIE, S.A.KADER

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Judgment S.A.Kader, J.: This writ petition has been filed under Article 226 of the Constitution of India, for the issue of a writ of habeas corpus quashing the order of detention passed against the detenu on 20.3.1987 under section 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, with a view to preventing the detenu from engaging in transporting smuggled goods and for setting the detenu at liberty. 2. The learned counsel for the petitioner canvassed before us the following two questions: 1. Immediate delay in passing the order of detention. 2. Non-application of the mind of the detaining authority. 3. Point 1. The incident which has given rise to the passing of the order of detention has occurred on 25.8.1986 while the order of detention has been passed on 20.3.1987, after a delay of 7 months and 23 days. In para 18 of the counter affidavit filed by the respondent the delay is explained as follows: The case was detected on 25.8.1986 and the investigation was completed in the first week of September, 1986. The records of the case were received by the sponsoring authority from the detective officers on 14.11.1986. The proposal was handed over to the State Government on 19.2.1987 and as orders were not passed by the State Government, the proposals were sent to the Government of India and orders were passed by the respondent on 20.3.1987. The investigation having been completed in the first week of September, 1986, there is absolutely no explanation for the delay of more than two months on the part of the detective officers in sending the papers to the sponsoring authority on 14.11.1986. The sponsoring authority has taken more than three months for sending the proposal to the State Government on 19.3.1987 and there is no explanation for this delay. It is not known when the proposals were sent to the Central Government and what was the time taken by the Central Government for passing the impugned order. At every stage there has been delay and no satisfactory explanation is forthcoming. In the circumstances, we find that the delay is unexplained and the order of detention cannot stand. 4. It is not known when the proposals were sent to the Central Government and what was the time taken by the Central Government for passing the impugned order. At every stage there has been delay and no satisfactory explanation is forthcoming. In the circumstances, we find that the delay is unexplained and the order of detention cannot stand. 4. Point 2: It is pointed out that in the order of detention the allegation against the detenu is that he was transporting smuggled goods whereas in the grounds of detention it is alleged that he was engaged in transporting smuggled goods. The order of detention is not, therefore, in accordance with S.3(1) (iii) of the COFEPOSA Act which only means that there was no proper application of the mind of the detaining authority. It is further pointed out that in the order of detention the words ‘engaged in transporting’ have been corrected in manuscript. It is explained in para. 7 of the counter that the original which has been sent by the detaining authority also contains the corrections and the said corrections were made even earlier by the sponsoring authority, that is, even before the issuance of the order of detention. This averment reveals and it is also admitted at the Bar by the learned Central Government Standing Counsel that along with the proposal, the sponsoring authority used to send the grounds of detention with sufficient copies of the approval and signature of the detaining authority and the detaining authority used to approve of the same with or without modification. In the instant case, the detaining authority has approved the grounds of detention sent by the sponsoring authority without any modification, and the correction itself has been made by the sponsoring authority before sending it to the detaining authority. This betrays a sorry state of affairs. As pointed out by the Supreme Court in the State of Punjab v. Jagdey Singh, A.I.R. 1984 S.C.484 while passing the orders of detention, great care must be brought to bear their task by the detaining authority. The detaining authority has not only to go through the proposal sent by the sponsoring authority but also all the documents relied on and form its own subjective satisfaction on the need for detention and then itself prepare the grounds incorporating all the facte taken into consideration and the conclusion arrived at. The detaining authority has not only to go through the proposal sent by the sponsoring authority but also all the documents relied on and form its own subjective satisfaction on the need for detention and then itself prepare the grounds incorporating all the facte taken into consideration and the conclusion arrived at. If the grounds of detention are prepared by the sponsoring authority and are made readily for the detaining authority, its approval is reduced to a mere mechanical process bereft of any application of its mind. This is not the care which is expected of the detaining authority in dealing with such an important question as the detaining of a person without trial. The whole process has become an exercise in futility. The order of detention has to be quashed on this simple ground. 5. In the result, the write petition is allowed, the order of detention is quashed and the detenu is directed to be set at liberty forthwith.