The Detaining Authority must consider all relevant circumstances and documents, and failure to do so may result in the detention orders being based on bad grounds.

Headnote:
Detention Orders - Conservation of Foreign Exchange Prevention of Smuggling Activities Act - 1974 - Section 3(1)
Fact of the Case:

The court heard petitions challenging detention orders issued under the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 against three detenus. The detenus argued that the non-placement of the opinions expressed by the Advisory Board in the cases of two co-detenus before the Detaining Authority resulted in the vitiating of the detention orders.
Finding of the Court:

The court found that the Detaining Authority failed to apply its mind to the relevant circumstances and that the detention orders were based on bad grounds. The court relied on previous judgments to support its decision.
Issues: The main issue was whether the non-placement of the opinions expressed by the Advisory Board in the cases of co-detenus before the Detaining Authority affected the validity of the detention orders.
Ratio Decidendi: The court held that the Detaining Authority's failure to consider the opinions expressed by the Advisory Board in the cases of co-detenus and the non-placement of relevant documents resulted in the detention orders being based on bad grounds, thus vitiating the orders.
Final Decision: The court quashed and set aside the detention orders of all three detenus and ordered their immediate release.

ORAL JUDGMENT.:---Heard Mr. Maqsood Khan in all these petitions and Mr. R.M. Agarwal, P.P. for Union of India and learned Acting P.P. and A.P.P., for the State. All the aforesaid Advocates admitted that these three petitions involve a common question. The detenus are co-detenus and that the petitions can be decided by a common order. Hence, this common judgment.

2. In Criminal Writ Petition No. 1362 of 2001, the order of detention is bearing F. No. 673/30/2001-CUS-VIII, dated 25-7-2001 issued by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi against detenu Seventilal Mafatlal Shah under section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 (for short "C.O.F.E.P.O.S.A. Act"). The order of detention was served upon the detenu on 8-9-2001.

3. In Criminal Writ Petition No. 1363 of 2001, the order of detention is bearing F. No. 673/31-2001-CUS-VIII, dated 25-7-2001 issued by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi against detenu Rajesh Manmohandas Shah under the similar provisions of C.O.F.E.P.O.S.A. Act. The order of detention was served upon the detenu on 8-9-2001.

4. In Criminal Writ Petition No. 1364 of 2001, the order of detention is bearing F. No. 673/33/2001-CUS-VIII, dated 26-7-2001, issued by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi against detenu Ramesh Haridas Ashar under the similar provisions of the C.O.F.E.P.O.S.A. Act. The order of detention was served upon the detenu on 8-9-2001.

5. All the detenus on the date of service of the detention order were confined to judicial custody.

6. The said detention has been challenged by the detenus under different grounds but only two grounds were urged before us. However, we are deciding and disposing of these petitions only on one ground which is common to all petitions and about which no dispute was raised by Mr. Agarwal or the learned A.P.P.

7. The said ground is raised by the petitioner in Criminal Writ Petition No. 1362 of 2001 in paragraph (iv). The exact ground is as under:

"Against said Iqbal Mehra and Kiran Vora Order of detention under C.O.F.E.P.O.S.A. were issued on 7-3-2001 and 9-3-2001 respectively. They were revoked by the Central Government vide revocation order dated 23-5-2001, pursuant to the opinions expressed by the Advisory Board in their cases to the effect that there was no sufficient cause for their detention. According to the petitioner it was incumbent upon the concerned authorities to have placed before the Detaining Authority the opinions expressed by the Advisory Board in the case of the aforesaid Iqbal Mehra and Kiran Vora in order to enable the Detaining Authority to consider as to whether the impugned order of detention was warranted to be issued despite the said opinions expressed by the Advisory Board in the case of Iqbal Mehra and Kiran Vora because the cases of the said two detenus and that for the petitioner were same, involving same incidents and same transactions. According to the petitioner non-placement of the said vital material before the Detaining Authority and the consequent non-consideration of the same by the Detaining Authority has severely impaired the satisfaction arrived at by the Detaining Authority resulting in vitiating the impugned order of detention. The petitioners submit that if the opinions expressed by the Advisory Board in the cases of the said two co-detenus were considered by the Detaining Authority then non-furnishing copies thereof has resulted in denial of earliest opportunity of making an effective representation. The detention order is therefore violative of Article 32(5) of the Constitution of India."

Reply to this ground is given in the affidavit (page 77 internal page 13) which is the affidavit of Detaining Authority. According to him the detention orders issued against Iqbal Mehra and Kiran Vora w

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2002 Supreme(Bom) 329

The Detaining Authority must consider all relevant circumstances and documents, and failure to do so may result in the detention orders being based on bad grounds.

Cases Referred (2)