Hazi Menu v. State of Rajasthan — 1989 DIGILAW 239 (RAJ)

K.S. LODHA, J.—By this writ petition in the nature of habeas corpus, Haji Menu has challenged his detention order by the Commissioner and Secretary to the Govt. in the Home Department, Rajasthan, by his order dated 23.4.88. In pursuance of the said order, which is Annex. 1 on the record, the petitioner was arrested on 14.7.88 and the grounds of detention were served upon him vide Annex. 2. The petitioner made a representation Annex. 4. The representation was, however, rejected by communication dated 16.8.88, which is Annex. 5 by the State of Rajasthan and vide Annex. 6 dated 30.8.88 by the Central Govt. The detention of the petitioner was confirmed vide order dated 16.9.88 Annex. 7 for a period of one year from 14.7.88. 2. In this petition, the detention has been challenged on various grounds with which we shall presently deal. However, it may be mentioned that the detention has been ordered on the following five grounds:-. (i) That on 28.6.86, 544.200 kg. of charas was recovered by the police, Jaisalmer and in connection with that recovery, one Kambhira was examined by the police u/s. 161 Cr.P.C. and in that statement Kambhira had stated that the detenu had met him in Pakistan at the house of Kamal Badera in June, 1986 and had requested Kambhira to persuade Sada to deliver 114 kg. of heroin to the detenu. (ii) That on 4.8.86, the police, Jaisalmer, had recovered 20.485 kg. of heroin and in that connection, one Baram Khan S/o Lashkar Khan was examined u/s. 108 of the Central Customs Act and in that statement, he had stated that according to his information, the detenu and one other person was found moving about on camel back near the place from which the recovery had been made. (iii) That again on 2/3.10.87, Border Security Force (B.S.F.) had recovered 1158 kg. of charas said to have been smuggled from Pakistan, u/s HO of the Central Customs Act and during the course of enquiry in that matter, one Ahmed s/o Shahmurad Khan had been examined and the said Ahmed had stated that the charas belonged to the present detenu. (iv) On 15.10.87, the B.S.F., Jaisalmer, had again recovered 1985.240 kg. of charas said to have been smuggled from Pakistan, u/s HO of the Central Customs Act and during the course of enquiry in that matter, one Ahmed s/o Shahmurad Khan had been examined and the said Ahmed had stated that the charas belonged to the present detenu. (iv) On 15.10.87, the B.S.F., Jaisalmer, had again recovered 1985.240 kg. of charas near Bhuri Bhiti and during the course of enquiry in that matter, Kanda s/o Murid Khan was examined u/s 108 of the Central Customs Act and he stated that the detenu was one of the main partners in the smuggled charas. Similarly, one Miyan s/o Jinda supported the statement of Kanda and stated that the detenu had got the charas smuggled from Pakistan. So also one Rahim Khan in his statement u/s 107 of the Central Customs Act stated that the detenu had got this charas brought from Pakistan through Sadia s/o Jamal; and (v) That apart from these matters, there were two intelligence reports dated 5.1.88 and 16.2.88 to show that the detenu was engaged in the smuggling, transporting, concealing and keeping smuggled and contraband articles. Of course, the contents or even gist of the said intelligence reports had not been specified in the grounds of detention and it was mentioned that the disclosure of those facts was not thought to be in the public interest. 3. The first ground raised by the learned counsel for the petitioner challenging the said detention is that although an order of detention was passed on 23.4.88, it was served on the petitioner as late as on 14.7.88 and thus, there was inordinate delay in the service of the order, which renders the detention of the petitioner invalid and in this connection, reliance was placed upon Sk. Nizamuddin v. State of West Bengal (1). 4. In reply to this, an additional affidavit has been filed by Shri Kishan Singh, Addl. Collector, Customs and Central Excise, Jaipur, in which he has mentioned all the details as to what steps were taken from time to time in order to serve the detention order on the petitioner and having regard to this affidavit, which has not been controverted, we are satisfied that there was no unnecessary delay in the service of the detention order. In these circumstances, the authority reported in Sk. In these circumstances, the authority reported in Sk. Nizamuddins case (supra) is of no avail to the petitioner and this contention must fail. 5. The second ground of attack made by the learned counsel for the petitioner is that although the Customs Department had been represented by its senior officials before the Advisory Board, the petitioner was not permitted to appear through a counsel despite his request. It may be stated in this respect that we have seen the proceedings of the Advisory Board and we find that none of the officials of the Customs Department represented the case before the Advisory Board and in that event, the detenu was not entitled to be represented through a counsel and, therefore, this contention must also fail. 6. The third contention, which although had not been raised in the original writ petition, was added, inter alia, by submitting additional grounds during the course of the hearing of the writ petition on 9.2.89. On" 10.2.89, Mr. Joshi, learned Addl. Advocate General wanted some time to study those grounds. However, no reply to these additional grounds, has been filed till now. In these additional grounds, the main grievance was that certain relevant documents, which would have affected the subjective satisfaction of the detaining authority had not been placed before the detaining authority or even if that material had been placed the detaining authority, the copies of those documents had not been supplied to the petitioner. Thus, in the first instance, there was no proper application of mind of the detaining authority and in the second the petitioner had no proper opportunity to make an effective representation against his detention. It has been stated by Mr. Joshi at the Bar after going through the record that the documents referred to in these additional grounds, were not before the detaining authority and that the detaining authority did not base its order on any of there documents. It had come to its own conclusion on the other material before it and that material was sufficient for its satisfaction. Now it will be necessary for us to consider as to what that material was, which if, according to the learned counsel for the petitioner had been placed before the detaining authority, it would have affected his subjective satisfaction. In that respect, we will consider each of the documents in relation to the relevant grounds of detention. 7. Now it will be necessary for us to consider as to what that material was, which if, according to the learned counsel for the petitioner had been placed before the detaining authority, it would have affected his subjective satisfaction. In that respect, we will consider each of the documents in relation to the relevant grounds of detention. 7. Regarding the first ground of detention, it has been urged by the learned counsel for the petitioner that the petitioner had filed a reply to the show cause notice issued by the Customs Department in respect of this incident but that reply was not placed before the detaining authority. So also the confession and self incriminating statements said to have been made by the detenu before the Customs Department had been retracted and protest had been communicated to the Collector but those retractions and protest were also not place before the detaining authority. Similarly the reply filed by Kambhira to the show cause notice issued to him and on the basis of which, he was exonerated, was also not placed before the detaining authority. Now so far as the first document, namely, the reply filed by the petitioner on 23.8.87 to the show cause notice issued by the Customs Department is concerned, it certainly appears to be a relevant document because in that reply, the petitioner must have given facts denying his complicity in the alleged incident and explained the incriminating material against him; therefore, it was certainly a matter to be taken into account by the detaining authority. It may still be that even after considering that document, the detaining authority may have come to the same conclusion to which it had now come; all the same, it cannot be said that this document was not a material and relevant document, which may have affected the subjective satisfaction of the detaining authority and suppression of this material from the detaining authority amounts to vitiating the subjective satisfaction of the detaining authority because it will amount to non~appli-cation of mind to a relevant circumstance or material. In this connection, reference may be made to Ayya vs. State of U.P. (2). It had been held by their Lordships of the Supreme Court as follows :- "What weight the contents and assertions in the telegram should carry is an altogether a different matter. In this connection, reference may be made to Ayya vs. State of U.P. (2). It had been held by their Lordships of the Supreme Court as follows :- "What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention." 8. Similarly, in Sita Ram vs. State of Rajasthan (3) a bail application said to have been filed by the detenu in which he had retracted confessional statement and had denied any recovery of gold, foreign currency etc. from his premises and an application made by the petitioner retracting the statement made by him before the Collector of Customs, were not placed before the detaining authority and in these circumstances, it was observed by the Court as under. "From what has been stated in the counter filed by Union of India and the two counters filed by the State of Rajasthan, it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the Screening Committee in the first instance, but that is immaterial. It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA Act- That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material." 9. It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA Act- That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material." 9. Again in Ashadevi v. K.Shivraj (4) it was observed as under:- "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material, or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before the issuing the detention order." 10. In that case, the order of detention was passed on confessional statements of the detenu, which had later been, however, retracted and the fact of the retraction had not been brought to the notice of the detaining authority. In the present case also, the reply of the petitioner to the show cause notice was certainly a relevant and vital document and would have influenced the subjective satisfaction of the detaining authority one way or the other and when this has not been considered, the order of detention on this ground is vitiated. 11. So also is the case with the confessional statement and the retractions and the reply of Kambhira to the show cause notice because Kambhiras statement was also the backrock of the allegation against the present detenu. 12. Regarding ground no. 2, the contention of the petitioner is that the statement of Baram Khan u/s 161 and that of Kulia as also the replies to the show cause notices filed by Haji Menu, Baram Khan and Kulia were not placed before the detaining, authority. In our opinion, these documents also are such as would have influenced the subjective satisfaction of the detaining authority. In any case, the reply to the show cause notice filed by Haji Menu was certainly one of the most important document amongst them. 13. So also is the case with grounds no. 3 and 4 of the detention. In this respect, it is urged that regarding ground no. In any case, the reply to the show cause notice filed by Haji Menu was certainly one of the most important document amongst them. 13. So also is the case with grounds no. 3 and 4 of the detention. In this respect, it is urged that regarding ground no. 3, the statement of Sattar dated 18.3.88 and the reply to the show cause notice by Haji Menu and regarding ground no. 4, statement of Ahmed Khan dated 26.2.88 and the representation of Haji Menu, Ahmed Khan and Ahmad were not placed before the detaining authority. Therefore, it is apparent that the order of detention is vitiated on account of non-application of mind to the relevant documents and circumstances and on this ground, the order deserves to be set aside. 14. This brings us to the fifth ground based on the intelligence reports dated 5.1.88 and 16.2.88 and in respect of which, it has been mentioned in the order of detention that it was not in the public interest to disclose those reports or the facts mentioned therein. Under Art. 22(5) of the Constitution, the detenu is entitled to be communicated the grounds of his detention i.e. the factual mate rial and the source from which it came. He has a right of representation against those grounds, which cannot be effectively made unless he knows the whole material on which the ground is based. At the same time, Art. 22(6) puts a limitation on this right of the detenu and authorises the detaining authority to withhold such material disclos are of which, in the opinion of such authority is not in public interest. The same is the position u/s 8(1) & (2) of the National Security Act. At the same time, Art. 22(6) puts a limitation on this right of the detenu and authorises the detaining authority to withhold such material disclos are of which, in the opinion of such authority is not in public interest. The same is the position u/s 8(1) & (2) of the National Security Act. In this connection, it may be stated that on the one hand, there is the fear that the disclosure of certain facts may not be in the public interest on the other hand there is another fear that if the relevant facts and the material particulars are not brought to the notice of the detenu, it may not afford him an adequate, opportunity of representation and, therefore, a delicate balance between the two has to be maintained and it is for the detaining authority to apply its mind to this aspect and from the order of detention or the return made to the petitioner, it must appear that the detaining authority had considered all the aspects and had come to a conclusion that the disclosure of the facts would injure the public interest out weighing the fear of refusal of a proper opportunity to the detenu to make an effective representation. In the present case, neither from the grounds of detention nor from the return filed by the Department, it appears that the detaining authority had applied its mind to this aspect of the matter. The mere mention of the fact that it will not be in the public interest to disclose the reports or the contents thereof in these circumstances, is not enough. It does appear that the detenu did not have a proper and effective opportunity of making a representation against his detention when the contents of the intelligence reports or at least the substance thereof had not been brought to his notice. It has been observed by their Lordships of the Gujarat High Court in Bai Amina vs. State of Gujarat (5) that the privilege under clause (6) of Art. 22 and under sub-section (2) of s. 8 must, therefore, be sparingly exercised in those cases only where there is full satisfaction of the detaining authority, arrived at on consideration of all the relevant aspects, that the public interest requires that the privilege should be exercised. We are in respectful agreement with this view. We are in respectful agreement with this view. In the present case in our opinion, the privilege has been exercised without proper application of mind. Neither from the order nor from the return to the petition, it appears that the detaining authority had applied its mind to all the relevant considerations for claiming the privilege. In this view of the matter, the detention on this ground also appears to be improper. 15. The result, therefore, is that this petition is allowed and the order of detention passed against the petitioner on 23.4.88 Annex. 1 is quashed as also the confirmation order Annex. 7 dated 16.9.88. The petitioner may be set free immediately if he is not required in any other case.