Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1880 (BOM)

Ram Avatar Meena v. State of Maharashtra

2014-08-26

ABHAY S.OKA, G.S.KULKARNI

body2014
JUDGMENT : Abhay Shreeniwas Oka, J. 1. Heard the learned counsel appearing for the Petitioner, the learned APP for first, second and fourth Respondents and the learned counsel appearing for the third Respondent. By this Petition under Article 226 of the Constitution of India, the Petitioner has taken an exception to the order dated 22nd August, 2013 passed by the second Respondent in exercise of powers under subsection (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA"). By the said order, the second Respondent directed that one Shri Muralilal Meena be preventively detained under the COFEPOSA. The order was passed with a view to prevent the Petitioner in future from abetting in smuggling of goods. The Petitioner is the father-in-law of the detenu. 2. The learned counsel appearing for the Petitioner has pressed into service various grounds of challenge pleaded in the Petition. The first ground pressed into service is that the Petitioner who was in the employment of the Central Industrial Security Force (for short CISF) was dismissed from service by an order dated 18th December, 2012 and the order of dismissal which was a vital document was not placed before the Detaining Authority. The second submission is that the Detaining Authority has not recorded subjective satisfaction that notwithstanding the removal of the detenu from the employment of CISF, it was possible for him to continue the prejudicial activities and, therefore, an order of detention was required to be passed. Another submission is that the order of dismissal being a vital document was not supplied to the Petitioner, thereby preventing him from making an effective representation against the order of detention. Another ground pressed into service by the learned counsel appearing for the Petitioner is that in the grounds of detention served upon the Petitioner, the subjective satisfaction recorded is that it was necessary to pass an order of detention for preventing the Petitioner from indulging in smuggling activities in future. But the order of detention has been passed with a view to prevent him in future from abetting smuggling of goods. The submission is that apart from the fact that order of detention shows non-application of mind, the detenu would get confused by this inconsistency which infringes his right of making an effective representation against the order of detention. But the order of detention has been passed with a view to prevent him in future from abetting smuggling of goods. The submission is that apart from the fact that order of detention shows non-application of mind, the detenu would get confused by this inconsistency which infringes his right of making an effective representation against the order of detention. Another submission is based on the delay in disposal of the representation by the Detaining Authority. The learned counsel urged that the gross delay in effecting service of order of detention is also a ground of challenge. As far as the first ground is concerned, the learned counsel appearing for the Petitioner has relied upon a decision of the Division Bench of this Court dated 8th January, 1986 in Criminal Writ Petition No. 747 of 1985 (Arvind Sudkoji Mohite Vs. State Government and Ors.) as well as the decision of the Apex Court dated 25th August, 1994 in Criminal Appeal No. 305 of 1994 (Smt. Jyoti Nandlal Manglani Vs. State of Maharashtra and Ors.). 3. As far as the first submission is concerned, the learned APP representing the Detaining Authority invited attention of the Court to the additional affidavit filed by the Detaining Authority. His submission is that the order of dismissal of the detenu from employment was not placed before the Detaining Authority along with the proposal by the Sponsoring Authority. It is pointed out that a letter dated 28th February, 2013 addressed by the Deputy Inspector General, CISF Unit-4 which refers to the dismissal order was placed before the Detaining Authority which has been considered by the Detaining Authority while formulating the grounds. The learned APP pointed out that a copy of the said letter has been supplied to the detenu. His submission is that the order of detention is based on several prejudicial activities of the detenu and, therefore, the subjective satisfaction of the Detaining Authority is not at all vitiated on account of failure to express satisfaction on the basis of the order of dismissal from the employment. Relying upon the decision of the Apex Court in the case of Vinod K. Chawla Vs. Union of India and Others (2006) 7 SCC 337 , he urged that the order of dismissal of the detenu from the employment cannot be a vital document. Relying upon the decision of the Apex Court in the case of Vinod K. Chawla Vs. Union of India and Others (2006) 7 SCC 337 , he urged that the order of dismissal of the detenu from the employment cannot be a vital document. Relying upon the decision of the Apex Court in the case of J. Abdul Hakeem Vs. State of T.N. and others (2005) 7 SCC 70 , the learned APP submitted that as a copy of letter dated 28th February, 2013 was served upon the detenu, it was not necessary to serve a copy of the order of dismissal from the employment to him. 4. Before we deal with the other submissions, it will be necessary to consider the first ground of attack pressed into service by the learned counsel appearing for the Petitioner. We have perused the grounds of detention served upon the detenu. The grounds of detention record that the Petitioner was an officer of CISF on duty at the relevant time at Chhatrapati Shivaji International Airport. Paragraph 34 of the grounds which sums up the material against the detenu records that the detenu was a Sub Inspector with CISF and was posted at Chhatrapati Shivaji International Airport, Mumbai and was a member of the syndicate indulging in the smuggling activities. The detenu was arrested on 11th August, 2012 in connection with the prejudicial activities incorporated in the grounds of detention and was enlarged on bail on 12th August, 2012. The order of detention was preceded by a show cause notice which is dated 8th February, 2013. As stated earlier, the impugned order was passed on 22nd August, 2013. 5. It will be necessary to make a reference to the reply of the Detaining Authority. In paragraph 3 of the additional affidavit dated 22nd August, 2014, the Detaining Authority has stated thus: "I say that, a letter No.IC170/15/CISF/CSIA/meena/13741 dated 28th February, 2013 from Deputy Inspector General/CASO, Unit, CSI Airport intimating that both, Muralilal Meena and Uday Singh Meena have been awarded punishment of dismissal from service vide office final order No. 11622 dated 18.12.12 and 11623 dated 18.12.12 respectively was placed before me being the then Detaining Authority by the Sponsoring Authority. This document was considered by me being the then Detaining Authority, while formulating the Detention Order and accordingly was supplied to the detenu as relied upon documents at page number 795 which is also mentioned in the list of relied upon documents annexed with the Detention Order dated 22.08.2013 executed on the detenu. Hence, I being the then Detaining Authority deny that the subjective satisfaction recorded by me while issuing the Detention Order is sham and unreal or there is non application of mind on my part being the then Detaining Authority. I further deny that non supply of the copy of the said dismissal order dated 18.12.12 along with the grounds of detention, has infringed the detenu's right guaranteed under Article 22(5) of the Constitution of India. I deny that the impugned order of detention is malafide, null and void." 6. In first part of paragraph 3, the Detaining Authority has stated that the order of dismissal of the detenu from the employment dated 18th December, 2012 was not placed before him by the Sponsoring Authority. However, the subsequent part of the affidavit which we have quoted above shows that the letter addressed by the Deputy Inspector General of CISF recording the fact that the detenu has been dismissed from service by order dated 18th December, 2012 was placed before the Detaining Authority and that the Detaining Authority has considered the same and the said letter is in the list of the relied upon documents. Thus, the order of dismissal dated 18th December, 2012 has been passed against the detenu after prejudicial activities referred to in the grounds of detention were committed. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Smt. Jyoti Nandlal Manglani. This was a case where the Apex Court was dealing with the challenge to the order of preventive detention under the COFEPOSA. A specific submission before the Apex Court was that before the order of detention was passed, the detenu was placed under suspension and as a result of the order of suspension, the detenu's wings had been effectively clipped. This was a case where the Apex Court was dealing with the challenge to the order of preventive detention under the COFEPOSA. A specific submission before the Apex Court was that before the order of detention was passed, the detenu was placed under suspension and as a result of the order of suspension, the detenu's wings had been effectively clipped. The submission before the Apex Court was that before passing the order of detention, it was incumbent on the Detaining Authority to have considered in detail the impact of suspension order and then come to the conclusion whether despite the said suspension order, the detenu could still have been in a position to indulge in the prejudicial activities. In the case before the Apex Court, it was an admitted position that there was a non-placing of order of suspension before the Detaining Authority. What is held by the Apex Court reads thus: "It is not disputed that the order of suspension had not been placed before the detaining authority. The order of suspension, in our opinion, was a document which had vital bearing on the question whether it was necessary to detain the detenu under the provisions of the COFEPOSA to prevent him from indulging in prejudicial activities in future. In the grounds of detention of the order of detention and even in the counter filed to the writ petition in the High Court thereof is no averment to the effect that in spite of the order of suspension which had placed the detenu at the headquarters in the Bombay Customs House, he could still misuse his official position over the staff working at Nava Sheva Port with a view to abet the smuggling activities. An order of detention is not ordinarily to be made for a prejudicial act already committed by the detenu. The object of preventive detention is to prevent a detenu from continuing with his prejudicial activities and with a view to prevent him from so continuing the detaining authority records its satisfaction that it was necessary to detain the detenu under the provisions of an act for preventive detention. The object of preventive detention is to prevent a detenu from continuing with his prejudicial activities and with a view to prevent him from so continuing the detaining authority records its satisfaction that it was necessary to detain the detenu under the provisions of an act for preventive detention. In the absence of any categorical opinion expressed by the detaining authority that he was satisfied that the detenu would have continued with his prejudicial activities in spite of the order of suspension, it appears to us that the order of detention would be vulnerable." (Emphasis added) 7. What is held by the Apex Court is that the order of Detention is not ordinarily to be made for the prejudicial activities already committed by the detenu. The object of passing the order of preventive detention is to prevent the detenu from continuing with the prejudicial activities. Therefore, the Apex Court held that it was incumbent upon the Detaining Authority to express a categorical opinion that he was satisfied that the detenu would have continued with his prejudicial activities in spite of the order of suspension. The Apex Court held that in the absence of recording such subjective satisfaction, the order of detention becomes vulnerable. 8. It will be also necessary to make a reference to the decision of the Division Bench of this Court in the case of Arvind Sudkoji Mohite. This was a case where the order of detention was passed with a view to prevent the Petitioner from abetting activities of smuggling. The Petitioner was in the employment of Air India International. The argument before this Court was that the detenu was suspended before the order of detention and the said vital document was not placed before the Detaining Authority. While dealing with the said submission, the Division Bench held thus: "If this is so, then naturally a person like the present petitioner would not be having any access to the area of operations where he is alleged to have indulged in the incident in question. From what has been stated in the affidavit in reply, it is clear that the Detaining Authority was aware of the fact that the petitioner would not be having access to the sensitive area like the International Airport. But no explanation has been given by the Detaining Authority as to why in such a circumstance, an order of detention was passed. But no explanation has been given by the Detaining Authority as to why in such a circumstance, an order of detention was passed. On this ground we are satisfied that the order of detention is vitiated by non-application of mind and therefore it will have to be set aside." (Emphasis added) 9. Now, coming back to the facts and circumstances of the case in hand, the Detaining Authority was aware of the order of dismissal of the detenu from service passed on 18th December, 2012. Even in the affidavit in reply, the Detaining Authority has not stated that she was of the view that notwithstanding the order of dismissal of the detenu from the employment, there was every possibility that the detenu may continue with the prejudicial activities and there was necessity of passing preventive order. Apart from the fact that such subjective satisfaction is not recorded in the grounds of detention, such opinion is not even expressed by the Detaining Authority in the affidavit in reply filed before this Court. The Detaining Authority has merely stated that the order of dismissal was not a vital document. The Detaining Authority has merely denied that subjective satisfaction is vitiated. Neither in the order nor in the grounds of detention, the Detaining Authority has recorded a satisfaction or opinion that the detenu would have continued with the prejudicial activities in spite of the order of dismissal from the employment. 10. In absence of any opinion or subjective satisfaction recorded by the Detaining Authority as aforesaid, as held by the Apex Court, the order of detention becomes vulnerable. In absence of such subjective satisfaction being recorded, the order is rendered illegal. Moreover, there is non-application of mind by the Detaining Authority on the effect of order of dismissal. A submission was sought to be made by the Respondents that there are number of prejudicial activities alleged against the Petitioner. We find that the said prejudicial activities alleged are of the date much before the order of dismissal from the employment. Therefore, the said submission has no merit. As the impugned order stands vitiated on this count, it is not necessary to advert to the merits of the other grounds agitated by the learned counsel appearing for the Petitioner. We find that the said prejudicial activities alleged are of the date much before the order of dismissal from the employment. Therefore, the said submission has no merit. As the impugned order stands vitiated on this count, it is not necessary to advert to the merits of the other grounds agitated by the learned counsel appearing for the Petitioner. Hence, we pass the following order: ORDER (i) Rule is made absolute in terms of prayer clause (a), which reads thus : "(a) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the said order of detention bearing No.PSA1212/CR91(2)/SPL3(A) dated 22.08.2013 and be pleased to direct that the detenu Muralilal Meena be set at liberty." 11. All concerned to act upon an authenticated copy of the operative part of this Judgment and Order.