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1993 DIGILAW 137 (KER)

K. T. Sainaba v. State Of Kerala

1993-03-04

K.SREEDHARAN, V.JAGANNADHA RAO

body1993
Judgment :- JAGANNADHA RAO, C.J. This is a case of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA Act"). The detenu arrived from Saudi Arabia on 8-12-1991 by air and upon verification the customs officials found 5 gold biscuits. Thereafter the matter was taken up both under the Customs Act as well as under the COFEPOSA Act. The order of detention was passed on 29-5-1992 as per Ext. P1, and the detenu was arrested on 5-6-1992. The grounds of detention was served on the detenu on 6-6-1992. The detenu submitted a representation, Ext. P3, to the Advisory Board with a request to forward the same to the Central Government, and the detaining authority. The said representation was rejected by the detaining authority on 23-7-1992 as per Ext. P-4 and by the Central Government as per Ext. P5 dated 24-7-1992. Thereafter an order of confirmation of the detention was passed on 22-8-1992 as per Ext. P7. 2. Subsequently, the detenu made a fresh representation to the Central Government on 9-11-1992 as per Ext. P6. The same was rejected by the Central Government on 16-11-1992 as per Ext. P8, and by the detaining authority on 25-11-1992 as per Ext. P9. 3. The only point that has been raised by the learned counsel for the detenu is based upon the counter-affidavit filed by the State Government. It is stated in the counter-affidavit that the matter was placed before the Screening Committee of the State Government and subsequently an order of detention was passed. Learned counsel for the petitioner contends that there is no place for the Screening Committee under the Act or the Rules, and that therefore reference to the Screening Committee is bad. Even if the matter could be referred to a Screening Committee, the detention, it is contended, in the present case is made without any independent satisfaction of the detaining authority. According to counsel, the detaining authority has merely followed the recommendation of the Screening Committee, without application of his mind independently. 4. Reference in this connection is made to the decision of a learned single Judge of the Punjab and Haryana High Court in Jaswant Rai v. State of Punjab (1978) 80 Pun LR 629. 5. The learned Addl. According to counsel, the detaining authority has merely followed the recommendation of the Screening Committee, without application of his mind independently. 4. Reference in this connection is made to the decision of a learned single Judge of the Punjab and Haryana High Court in Jaswant Rai v. State of Punjab (1978) 80 Pun LR 629. 5. The learned Addl. Advocate General contends that while it is true that there is nothing in the Act or the Rules permitting creation of Screening Committee, there is nothing illegal in the Screening Committee going into the preliminary facts and recommend, so that the matter could be placed before the detaining authority. As long as the detaining authority has applied its mind independently, there can be no difficulty in upholding the order of detention. 6. The points arising for consideration are : (1) Whether the formation of a Screening Committee as a preliminary to the examination of the matter under S. 3(1) by the detaining authority is valid ? (2) Whether there is, on facts, independent application of mind by the detaining authority in respect of order of detention passed under S. 3(1) ? 7. So far as the first point is concerned, we are clearly of the view that there can be nothing illegal merely because certain high officials process the case at a preliminary stage before the matter goes to the detaining authority. It may be that such a group of officers is described as 'Screening Committee', but that does not mean that it is a committee which has any special functions which have to be statutorily recognised. In our view, there can be no objection to a group of officers going into the matter at a preliminary stage and placing their recommendation before the detaining authority for its final decision. Even in case the said group of officers makes a recommendation in favour of the detention, the detention order cannot be questioned, if on an independent consideration of the matter, the detaining authority has come to a proper conclusion. The fact that a group of officers has gone into the matter and made its recommendation would not in our view vitiate the final order of detention passed by the detaining authority as long as there is evidence that the final order is passed by the detaining authority upon an independent consideration of the matter. The fact that a group of officers has gone into the matter and made its recommendation would not in our view vitiate the final order of detention passed by the detaining authority as long as there is evidence that the final order is passed by the detaining authority upon an independent consideration of the matter. For the aforesaid reasons, we are unable to agree with the view taken by the Punjab and Haryana High Court in Jaswant Rai's case (1978 (80) Pun LR 629) (supra) where it is stated that the Screening Committee has no status in the eye of law, and is not an authority to arrive at any conclusions. Of course, on the basis of the facts of that case, it was held that the decision was taken by the Screening Committee and the Home Secretary abdicated his functions to the said Committee for its decision. The learned Judge said that the Screening Committee had no status in the eye of law. We cannot accept the said decision. No doubt if there is no evidence that the detaining authority applied its mind independently, the order of detention can be held to be vitiated. We accordingly hold on point No. 1. 8. Coming to the Second point, we have examined the files placed before us by the learned Addl. Advocate General. We find from the files that on 12-5-1992 the Screening Committee consisting of Secretary, Law, the Inspector General of Police, and the Deputy Collector, Customs, went into the matter and prepared the facts. They also made a recommendation in favour of detention. It should be noted that, even before that, the sponsoring authority, namely, the customs authority, had also referred the matter to the detaining authority as in the opinion of the customs authority, the detention is considered as necessary. We therefore find nothing illegal in the Deputy Collector, Customs, being a member of the so-called Screening Committee. After all, theirs is only a recommendation. We have already stated that the committee, though not statutory, consists of a group of officers of high ranking who goes into the matter for the purpose of making a preliminary enquiry into facts and to make a recommendation. We do not think the formation of such a Committee and the participation therein by the Deputy Collector, Customs, vitiates the order of detention. 9. We do not think the formation of such a Committee and the participation therein by the Deputy Collector, Customs, vitiates the order of detention. 9. However, we find that subsequently the entire file was placed before the detaining authority, namely, the Home Secretary, and he has passed an order as follows : "I have perused the records. I am satisfied that this is a fit case for detention under section 3(1)(i) of the COFEPOSA Act, 1974. The proposal above is approved." The 'proposal' referred to in the said order is the proposal of the sponsoring authority. We are therefore clearly of the view that whatever be the recommendation of the Screening Committee, there is evidence of detaining authority applying its mind independently to the question of detention. This is based on an independent appraisal of the records by the detaining authority. For the aforesaid reasons, there are no merits in this O.P., and it is accordingly dismissed. Petition dismissed.