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1993 DIGILAW 510 (DEL)

NAMESH KUMAR v. UNION OF INDIA

1993-09-08

A.D.SINGH

body1993
ANIL DEV SINGH ( 1 ) THIS writ petition under Article 226 of the Constitution of India calls in question the order of detention dated December 17,1992 passed against the petitioner by the Joint Secretary to the Government of India, respondent No. 2 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Ada, 1974 ( for short COFEPOSA ) ( 2 ) THE allegations against the petitioner are that he was intercepted at the exit of the IGI Airport Terminal II, New Delhi on the night intervening 19th and 20th November,1992, after his arrival from Hongkong by flight No. BA-036. On search of the person of the petitioner, 35 gold biscuits of foreign marking were recovered from him. The petitioner was not able to produce any document in support of legal possession and import of the aforesaid gold into India. On the same date viz November 20,1992 the petitioner was arrested in connection with the incident and was produced before the court of ACMM, New Delhi who remanded him to judicial custody. Before the ACMM on the said day the petitioner retracted the confession earlier made to the customs authorities. On December 17,1992 the impugned order of detention was passed against the petitioner which was served on him on December 19,1992, while he was in judicial custody. ( 3 ) LEARNED counsel for the petitioner submits thathe detaining authority passed the impugned order without application of mind. This submission he makes on the ground that certain irrelevant documents were considered by the detaining authority. He has taken me through ground I of the petition. It reads as follows: "i. Because the petitioner says and submits that he has received a bunch of documents along with the grounds of detention. The petitioner was served with the various documents which have no relevancy or connection with the petitioner. The same are absolutely irrelevant documents as far as the petitioner is concerned. The petitioner submits that the detaining authority has not been even applied its mind to the relevancy of the said documents. The following documents which have been relied upon by the detaining authority are irrelevant: 1) Application dated 27. 11. 1992 for return of Jamatalashi. ii) Application dated 27. 11. 1992 for necessary directions to the DRI not to disclose the facts to the newspapers. The following documents which have been relied upon by the detaining authority are irrelevant: 1) Application dated 27. 11. 1992 for return of Jamatalashi. ii) Application dated 27. 11. 1992 for necessary directions to the DRI not to disclose the facts to the newspapers. iii) Reply to the application for directions to DRI not to disclose the facts to Newspapers. iv) Search warrant for search of House No. 4585 Gali Dal Wali Mandi, Paharganj, New Delhi. v) Statement of Shri Chuni Lal s/o Shri Karam Chand. vi) Application for B Class in Jail. vii) Application for. inspection of file and for appropriate directions. "the petitioner is annexing hereto copies of these documents which is collectively marked as Annexure "d". The petitioner submits that there is complete non-application of mind in passing the order of detention. The order of detention is illegal, null and void and bad in law. " ( 4 ) THE sum and substance of the aforesaid ground of the petition is that the documents mentioned therein were not relevant for the purpose of the detention of the petitioner under Section 3 (1) of the COFEPOSA. In reply to the ground I of the petitioner, the detaining authority has stated as follows: "i. Regarding allegation made in ground I it is submitted that no irrelevant documents have been supplied to the detenu. The documents mentioned in this para were considered by the detaining authority while passing the detention order. Since this document helps the detaining authority in reaching the subjective satisfaction either directly or indirectly, thus the same cannot be said as irrelevant document. The order of detention has been passed after carefully considering the facts and circumstances of the case. " ( 5 ) A perusal of the aforesaid reply shows that the detaining authority has not denied that" it relied upon the documents referred to in ground (1) of the petition in reaching the subjective satisfaction to detain the petitioner. ( 6 ) I have carefully gone through the documents referred to in the aforesaid para of the petition. The documents, are totally irrelevant and have no proximity with the activities of the petitioner which were required to be prevented. The order of detention suffers from a clear non- application of mind by the detaining authority. ( 7 ) THIS court in Prabhat Kumar Srivastava Vs. Union of India and others (Crl. The documents, are totally irrelevant and have no proximity with the activities of the petitioner which were required to be prevented. The order of detention suffers from a clear non- application of mind by the detaining authority. ( 7 ) THIS court in Prabhat Kumar Srivastava Vs. Union of India and others (Crl. W. No. l63 of 1993 decided on August 12, 1993) while dealing with an almost identical situation, held as under: "from the perusal of the above para, it is evident that all the documents which accompanied the grounds of detention were relied upon by the detaining authority while forming the subjective satisfaction for the purpose of passing the detention order. A perusal of the fist of documents accompanying the grounds of detention would show that some of the documents are absolutely irrelevant and should not have been relied upon for reaching the subjective satisfaction" ( 8 ) IN another decision of this court in Jagpreet Singh Vs. Union of India and others (Cr. W. No. 23 of 1993 decided on September 3, 1993) it was observed as under: the aforesaid documents to say the least were totally irrelevant and did not pertain to or had any bearing on the activities of the petitioner which were required to be prevented. There is a clear non-application of mind by the detaining authority in regard to the passing of the impugned order of detention against the petitioner. " ( 9 ) AT another place in the same judgment it was observed: "it is well settled that the High Court cannot sit in judgment over the subjective satisfaction arrived at by the detaining authority for purposes of passing of a detention order against a person. A probe into the recesses of the mind of the detaining authority, to find out what weighed with it while reaching its subjective satisfaction for passing the detention order, is not possible. In case, even if a probe is possible and is to be made with regard to the matters which are clearly in the domain of the detaining authority; then it will amount to substituting the- opinion of the detaining authority for the opinion of the court. In case, even if a probe is possible and is to be made with regard to the matters which are clearly in the domain of the detaining authority; then it will amount to substituting the- opinion of the detaining authority for the opinion of the court. Since, however ever, the detaining authority has not denied that it relied upon the aforesaid documents mentioned in Ground I of the petition, it is open to the court to see whether these documents are relevant and pertinent for the purpose of passing the detention order or not. On the face of it, the documents are not relevant and no reasonable man could have relied upon them as they have no rationally probative value for the purpose of forming the subjective satisfaction in regard to the matter in question. The court would strike down an order passed by an executive authority, where the authority has relied upon material which is extraneous to the scope and purpose of the statute. In these circumstances the court is entitled to interfere and must interfere in discharge of its constitutional duty to knock down such an order. " ( 10 ) AGAIN in Ved Parkash Sikri @ Vedi Vs. Union of India and others 42 (1990), Delhi Law Times 295 it was held as under: "i am conscious of the fact that the decision has to be arrived at by the. detaining authority by subjective satisfaction and court is not to sit over judgment to find out if the material, was sufficient or insufficient. However, in case the detaining authority relies upon irrelevant document it would clearly indicate that there was. complete non-application of mind. The law is well setled that all the material against a person has to be placed before the detaining authority who has to scrutinise the same and has to rely only on material documents showing the link of the person concerned with his prejudicial acitivites. In case Smt. Shalini Soni and others Vs. Union of India and others, (1980) 4 SCC 544 , Supreme Court has observed as follows:. . . . . . . . . . In case Smt. Shalini Soni and others Vs. Union of India and others, (1980) 4 SCC 544 , Supreme Court has observed as follows:. . . . . . . . . . It is an unwritten rule of the law, constitutional and adminstrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matter only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to comunicate not merely the decision but the grounds on which the decision is founded, it is necessary corollary that the grounds communicated, that is, the grounds so made known,should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. ( 11 ) IN another case Diwan Singh Verma Vs. Union of India and others 1988 (2) Delhi Lawyer 197, it has been held that if the detaining authority relies upon a set of documents which provide no evidence against the detenu, it would follow that the application of mind was totally casual and mechanical and it was not the type of the application of mind which the law Insists upon. The subjective satisfaction of the detaining authority, thus, stands vitiated if some irrelevant documents are taken into consideration while arriving at a- conclusion to pass the order of detention. To the same effect are two cases Jagdish Mitr Vs. Union fo India and others 1990 Crl L. J. 269 and Cri. Writ Nos. 568,686 and 691 of 1989 decided on 9th January, 1990. ( 12 ) CONSIDERING the facts of this case in the light of the aforesaid decisions, it is clear that the detaining authority has placed reliance upon irrelevant documents on account of which the impugned order is liable to be set aside. It is clear that there is non-application of mind by the detaining authority as the aforesaid documents are not in, any manner shown to be connected with the prejudicial activities of the petitioner. ( 13 ) HAVING regard to the facts and circumstances of the case, I am of the opinion that the impugned detention order is liable to be struck down. ( 13 ) HAVING regard to the facts and circumstances of the case, I am of the opinion that the impugned detention order is liable to be struck down. ( 14 ) ACCORDINGLY, this writ petition succeeds. The rule is made absolute and the detention order is hereby quashed. The petitioner is directed to be released forthwith if not wanted in connection with some other matter.