1999 Supreme(SC) 1217

SUPREME COURT OF INDIA
AHMAD NASSAR
Versus
State of Tamil Nadu
Decided on : October 14, 1999

Non-placement of relevant material before the detaining authority vitiates the detention.

Headnote:

COFEPOSA - DETENTION - SATISFACTION OF DETAINING AUTHORITY - RELEVANT MATERIAL - NON-PLACEMENT - VITIATES DETENTION - DETENTION ORDER QUASHED.

Fact of the Case:

The petitioner challenged the detention order dated 28/04/1999 passed by the Secretary to the Government of Tamil Nadu Public (SC) Department, Chennai under Section 3 (1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The petitioner was arrested on 13/03/1999 and produced before the Additional Chief Metropolitan Magistrate, E. O.-II, Chennai, who remanded him to judicial custody till 26/03/1999. The aforesaid detention order was served on the detenu while he was in the Central Prison, Chennai on 28/04/1999.

Finding of the Court:

1. Non-placement of two material documents, one letter dated 19/04/1999 by the advocate of the detenu to the sponsoring authority and the other, letter dated 23/04/1999 by the detenu before the detaining authority which were relevant and were likely to affect the satisfaction, vitiates the detention and the detention order is unsustainable in law. 2. The conclusion of the detaining authority on the facts of the present case, "there is likehood of his being released on bail" cannot be said to be based on no relevant material.

Issues: 1. Whether the non-placement of relevant material before the detaining authority vitiates the detention? 2. Whether the subjective satisfaction of the detaining authority that there was a likelihood of the detenu being released on bail was based on any factual basis?

Ratio Decidendi: 1. Every conceivable material which is relevant and vital which may have bearing on the issue should be placed before the detaining authority. Sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. 2. In interpreting any provision of preventive detention law, its preamble and its objectives has to be kept in mind. The preamble of COFEPOSA is "an act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith." 3. The object and reasons of this Act is also incorporated therein: "whereas violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State;and whereas having regard to the persons by whom and the manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude and clandestinely organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith." 4. In order to achieve this objective, in the national interest an obligation is cast on the State even to curtail the most sacred of the human rights, viz., his personal liberty. The source of power to curtail this, flows from Art. 22 of the Constitution of India within the limitation as provided therein. 5. The words "likely to be released" connote chances of being bailed out, in case there be pending bail application or in case if it is moved in future is decided. The word "likely" shows it can be either way. So without taking any such risk if on the facts and circumstances each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositively, all would constitute to be relevant material for arriving at any conclusion.

Final Decision: The impugned detention order dated 28/04/1999 passed by the detaining authority under Section 3 (1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is quashed. The writ petition is accordingly allowed. The petitioner be released from jail forthwith unless required in connection with some other case.