Detaining Authority has not applied his mind while passing order of detention.

Per P. K. MISRA, J.

1. The orders of detention in respect of three detenues passed under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as ‘the Act” are in question.

2. Briefly stated the facts as apparent from the grounds of detention indicate that on 27.10.2006 Rafeeq Mohammed, detenu in HCP No. 126 of 2007 came from Colombo. On examination the officers found fake Indian currencies from his baggages. On enquiry, he stated that one Abdul Nassar, detenu in HCP No. 123 of 2007, was waiting at the exit gate of the Airport. The officers also found Dhanushu @ Vijay, the detenu in CHP No. 117 of 2007, had come along with Abdul Nassar to the Airport. In his voluntary statement, Rafeeq Mohammed stated that he had contacted one Bazeer and had requested him for getting a job and Bazeer had told that he would take Rafeeq Mohammed to Colombo and would give him some crockery items and some fake Indian currencies would be concealed in the packages and he would have to bring them to India and for the aforesaid job Bazeer had offered Rs. 15,000/- which was accepted by Rafeeq Mohammed. Accordingly, Rafeeq Mohammed accompanied Bazeer from Kasargod to Chennai. Abdul Nassar who was known to Bazeer gave the air tickets for Abdul Nassar and Bazeer and accordingly Rafeeq Mohammed and Bazeer boarded the flight to Colombo. After they landed in Colombo Airport, one Sri Lankan national came and handed over two corrugated boxes to Bazeer and thereafter Rafeeq Mohammed came back to Chennai along with corrugated boxes and Bazeer stayed back stating that he would return after few days. Bazeer also told that Abdul Nasar would be waiting for Rafeeq Mohammed at Chennai. Thereafter, Rafeeq Mohammed was intercepted and on verification fake Indian currencies were found. After subsequent enquiries and investigation, the orders of detention were passed against three detenues as well as against Bazeer.

3. Learned Senior Counsel appearing for the petitioners has contended that in paragraph 5 of the grounds of detention it is indicated :-

“5. The State Government are aware of the fact that you are in the Central Prison, Chennai as a remand prisoner and that your remand is for the period specified in law and you would be released on statutory bail thereafter.”

In the above context, learned Senior Counsel has contended that materials on record contained in the booklet indicate that remand order in respect of three detenues had been extended till 5.1.2007, but there was no further order of remand. On the other hand, certified copy of the order dated 5.1.2007 indicates that the Court had simply adjourned the matter as the three prisoners had not been produced. Learned Senior Counsel has submitted that describing three detenues as remand prisoners without ascertaining the real position is indicative of non-application of mind on the part of the detaining authority to a vital aspect, which has the effect of vitiating the order of detention. In support of such conclusion, learned Senior Counsel for the petitioner has relied upon several decisions of this Court including a Full Bench decision in HCP Nos. 1633 & 1152 of 2001 disposed of on 11.4.2002.

4. In HCP No. 1633 of 2001, the concerned detenu was arrested and produced before the Magistrate and was remanded upto 4.10.2001. On 4.10.2001 however, he was admitted in the Government General Hospital and was not produced before the Magistrate, though the co-accused had been produced. The Magistrate, while extending the remand of the co-accused upto 4.10.2001, noted that the concerned detenu was not produced. He therefore directed that the case should be called on 18.10.2001. On 17.10.2001, the order of detention was passed under COFEPOSA, wherein it was recited as if the detenu was a remand prisoner. Since there were divergent decisions, the matter was referred to Full Bench. Even though no specific ques