1994 Supreme(Del) 794

High Court Of Delhi
PRITAM SINGH THROUGH PREM KUMAR (BROTHER) - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 140 of 1994
Decided On : 12/01/1994

Headnote:(i) Constitution of India, 1950 . Article 22(5) - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act - Section 3(1) – Detention under- Challenged - Irrelevant material considered while passing detention order. Non-application of mind on part of detaining authority - Impugned order held liable to be quashed.

       Held: When we consider the process whicl1 leads to the passing of a detention order under section 3(1) of the Act, we find that first the detaining authority should reach a belief on the basis of material which it takes into consideration that the person sought to be detained is indulging in unlawful activity. Then on the basis of such a belief the detaining authority has to form an opinion that the person should be prevented from indulging in such unlawful activity. Therefore, the material which is considered and relied upon should lead to the belief that such a person is indulging in unlawful activity. Naturally the materia1 should be such as connects the person with some unlawful activity. If the material relied upon is such as does not have any bearing on any unlawful activity on the part of the Person concerned, it cannot lead to formation of the opinion that such activities have to be curtailed through preventive detention. Even if such irrelevant material is part of other material which may be relevant, it will still disclose that the detaining authority did not properly apply its mind to the real issue. Consideration of even a few irrelevant documents betrays lack of application of mind. Non-application of mind suggests that mind was not really applied and proper consideration to the Appeal Allowed issue was not given by the detaining authority. It refers to a state of mind and discloses that the mind was not properly applied or not applied at all. When you consider material which is totally extraneous to the inquiry, it shows a mechanical manner of functioning and non-application of mind. Otherwise like a normal reasonable person the authority concerned ought to have excluded such material from the record. Why should such material form part of the record if it is not relevant or material? The fact that it forms part of relied upon documents shows nobody really considered the material. At least this shakes the belief that mind was applied before the detention order was passed. When you are curtailing somebody's liberty by passing such a drastic order, the least that is expected is that before the order is passed the material which leads to passing of the order properly scrutinized and considered. If even this safe-guard cannot be ensured a state of anarchy will prevail and rule of law will lose its meaning and content. (Para 13)

       Further Held: Subjective satisfaction has to be of the authority concerned and there is no scope for objective assessment in such matters. But as already noticed subjective satisfaction pre-supposes application of mind. No one can reach subjective satisfaction without application of mind. The Courts cannot go into the subjective satisfaction but can go into the question of application of mind or non-application of mind on the part of the detaining authority in passing a detention order Where it is shown that there is no application of mind, the detention order must go. Consideration of irrelevant material and non-consideration of relevant material are both essential aspects in testing the validity of a detention order. Both are indicative of the state of mind of the detaining authority at the time of passing the detention order. They reveal the state of mind of the detaining authority and the care and caution and sense of responsibility displayed by the detaining authority while arriving at the decision to pass the detention order. Having regard to the documents referred to above which have admittedly been relied upon by the detaining authority, the conclusion is inescapable that it is a case of total non -application of mind on the part of the detaining authority while passing the impugned detention order and the detention order is, therefore, vitiated. If mind was applied, such irrelevant material would have certainly been excluded. This shows a casual and cavalier approach on the part of the detaining authority in a matter of such seriousness and far reaching effect on the detenu. By passing detention orders in such manner, the persons doing it are playing with life and liberty of individuals with no sense of responsibility. They are discharging their functions in an arbitrary and mechanical manner. (para 14)

       (ii) Constitution of India, 1995 - Art. 22(5) - COFEPOSA Act - Section 3(1) - Detention under - Challenged - Retraction statement not placed before detaining authority- Non - app1ication of mind - Impugned order held liable to be quashed. (Prakash Chandra Mehta's case, AIR 1986 SC -87: Distinguished).

       Held: The respondents have not disputed the existence of the documents in question. The only plea raised is about non-availability of the material on the judicial file. In this behalf it is also to be noted that there is no dispute that the material referred to by the petitioner was relevant material. The only defence is its non-availabi1ity on the judicial file. To my mind this is no answer in matters of this nature. The person concerned is in detention. He cannot be blamed for non-availability of the documents before the detaining authority. If the documents are not available on the judicial file, they would be available with the jail authorities. The document referred to in sub-para (ii) of para 12 of the writ petition is an order dated 24th December 1993 of the Court which must find place on the Court fi1e. Similarly the documents at sub-para (iii) bears the jail diary number. Jail is a State functionary. It is the duty of the sponsoring authority to arrange to place all relevant documents before the detaining authority. The facts of the case is specially the averments in the counter affidavit show that no effort was made to ensure that these documents were made available to the detaining authority before the detention order was passed. This again shows a casual approach in which the whole matter has been dealt with on the part of the detaining authority. (Para 18)

       Further Held: The confessional statement finds mention in the grounds of detention leading to the impugned detention order and, therefore, a document having an important bearing on the entire detention. What weight would the retraction statement carry in this context is a different matter but the detaining authority should at least be alive to the retraction statement. The detaining authority may reject the retraction but then it will not be a case of non-pp1ication of mind. While not having retraction statement before the detaining authority will be a case of non-application of mind and would vitiate the detention order. (para 19)

       Consequently Held: If the statement of petitioner under section l08 Customs Act is excluded from consideration we are left with only recovery of the foreign currency from the cavity of briefcase about which the petitioner denied knowledge. Left with only the recovery of foreign currency when even the knowledge of the briefcase containing foreign currency is denied by the petitioner, without anything more, there will be nothing to base the detention order on; Secondly, the statement of the Petitioner under section 108 Customs Act in the present case is not wholly incriminating and the retraction of the said is not one of total denial of the earlier statement under section 108. Therefore, in the peculiar facts of this case Prakash Chander Mehta's case in any case is not attracted. (Para 20)

       (iii) Constitution of India, 1950 - Article 22(5) - COFEPOSA Act - Section 3(3) - Detention order - Validity - Detention order served on detenu on 3-2-1994 - Grounds of detention served on 8-2-1994 - Whether this complies with statutory provision of section 3(3) which prescribes a period of five days for service of grounds of detention? - (No, this is violative of section 3(3) as service of grounds was effected on 6th day) (C. Krishna Reddy's case, 1982 Crl. LJ 592(AP): Relied on)

       Held: Articles 22(5) of Constitution of India enshrines certain safeguards for a detenu. It uses the words 'as soon as may be' for purposes of service of grounds of detention. Section 3(3) COFEPOSA Act puts as soon as may be in a time frame. Further the words 'not later than' used in this sub-section have also to be given their meaning and content. The combined effect is that any interpretation of sub-section 3(3) should lean in favour of the detenu, i.e. it should curtail the period as far as possible. (Para 26)

       Further Held: That the grounds of detention alongwith the relied upon material should be served on a detenu not later than five days from the date of detention in' ordinary circumstances and in exceptional circumstances not later than 15 days from the date of detention and that too for reasons to be recorded in writing. In the present case exceptional circumstances are not pleaded. The service of grounds of detention was effected on the 6th day. This is violative of sub-section 3(3) COFEPOSA Act and, therefore, vitiates the detention. (Para 27)

       (iv) Constitution of India, 1950 - Art. 22(5) - COFEPOSA Act - Section 3(1) - Detention under - Delay in disposal of representation - Period of 26 days spent in obtaining comments of sponsoring authority - No explanation justifying delay - detention vitiated.

       Held: It is settled law that the representation of a detenu against the detention order should be disposed of by the competent authority expeditiously and without unreasonable delay. Whether delay in disposal of the representation is reasonable or unreasonable is a question of fact and has to be considered in each case on the basis of time spent and the explanation of the state for the same. A comparatively longer period if properly and reasonably explained, will not vitiate detention while even a comparatively shorter period of delay, if it remains unexplained will vitiate the detention. (Para 29)

       Result: Writ protection allowed. Detention Order quashed.