Ulka Shah An Indian Inhabitant, ... vs The Union Of India (Uoi) Through ...
2002 Latest Caselaw 362 Bom

JUDGMENT

1.Heard Mr. Maqsood Khan in all these petitions and Mr. R. M. Agarwal, PP for Union of India and learned Acting P.P and APP 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 Sevantilal Mafatlal Shah under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ( for short "COFEPOSA 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 COFEPOSA 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 COFEPOSA 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 detenu 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 APP.

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 COFEPOSA 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 of 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 were with a view to preventing them from smuggling goods in future. Whereas the detention order against the present detenus were issued with a view to preventing them from indulging in any activity prejudicial of augmentation of foreign exchange. Therefore, the very basis of the two orders in the case of Iqbal Mehra and Kiran Vora were completely different from the detention order against the present detenus. Apart from this, the detention orders were issued in case of Iqbal Mehra and Kiran Vora on 7.3.2001 and 9.3.2001 respectively and the Government has revoked them on 23.5.2001 and the present detention orders were issued on 26.7.2001 by the same authority and therefore it cannot be said that detaining authority was totally ignorant of the fact about the revocation of the orders in favour of Iqbal Mehra and Kiran Vora. The detaining authority has in the said affidavit relied upon a judgment of the Supreme Court reported in (2000)7 Supreme Court Cases 144 Rajappa Neelakantan vs. State of T.N. and others. According to the detaining authority there was no need legal or otherwise for the detaining authority to furnish to the detenu copies of the revocation orders in respect of Iqbal Mehra and Kiran Vora.

8. Mr. Maqsood Khan relied upon the judgment of Constitution Bench of the Supreme Court Mohd. Shakeel Wahid Ahmed vs. State of Maharashtra and others. In that case the detention order was challenged on the same ground. The petitioner in that case was detained by an order dated 7.11.1981 and prior to it one Shamsi was detained by an order dated 19.8.1981. After considering the reference and the materials placed before it the Advisory Board gave an opinion that there was no sufficient cause for Shamsis detention, therefore Shamsi was released in pursuance of the said opinion of the Advisory Board. In this background it was argued that the fact of release of Shamsi on the advise of the Advisory Board when the transaction was one and the same and also the incident was same in respect of the two detention orders i.e. in respect of the petitioners before the Supreme Court and the said Shamsi, it was necessary for the State Government to place before the detaining authority the opinion of the Advisory Board in favour of Shamsi. In that background of the matter the Supreme Court upheld the detention of the petitioner by observing as under :

"Shamsis case was binding on the detaining authority in this case. The substance of the matter is that the detaining authority in this case failed to apply its mind to the highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner now rests, in addition to something more, was not sustained by the Advisory Board in Shamsis case. We cannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsis detention on a ground which was common to him and the petitioner, namely, ground No.1, the detaining authority would have, if at all, passed the order of detention against the petitioner on the remaining three grounds only. Those three grounds have been held to be bad by the High Court and it is only by resorting to the provisions of Section 5-A of the Act that the High Court upheld the detention of the petitioner."

Mr. Maqsood Khan also relied upon the judgment of this Court in Criminal Writ Petition No. 299 of 1983 Mehboob P. Kunju dated 14.12.1983 delivered by Justice Kurdukar and Justice Khatri, which has followed the aforesaid judgment of the Supreme Court. Another Judgment of Supreme Court reported in 2000 Supreme Court Cases (Cri) 1304 A. Sowkath Ali vs. Union of India and others was also relied upon by Mr. Maqsood Khan where in para 21 of the judgment, the Supreme Court observed as under :

"So far the submission that the detaining authority in both being the same, presumption should be drawn that it was aware of the retraction and its non-placement would not affect its subjective satisfaction cannot be accepted, specially, firstly, where the difference between the two orders being more than five months and secondly such a conjectural possibility should not be drawn in a preventive detention case. It is difficult for any authority to remember each and every document which were on the file of the other co-detenu before passing the detention order. It would be too dangerous a proposition to accept to infer that he would have known it, specially when there is a gap of more than five months and where no such affidavit is filed by the detaining authority. How can another person speak about the mind of another person ? So we have no hesitation to reject the same. In this context, alternative submission for the petitioner is, in case he remembered the retraction and this being relevant document in arriving at the subjective satisfaction, then it was the duty of the respondent authority to have supplied its copy to the detenu which has not been done in the present case. For all the aforesaid reasons we have no hesitation to hold that the impugned detention order suffers from patent illegality."

9.As against this, Mr. Agarwal relied upon the judgment of the Supreme Court reported in (2000) 7 Supreme Court Cases 144 Rajappa Neelakantan vs. State of T. N. & others. One of the questions involved in this matter was that the sponsoring authority did not place relevant and vital documents for consideration before the detaining authority. In this connection ground raised was that records connected with the detention of the co-traveller Radhakrishnan Prabhakaran were not placed before the detaining authority. Had those records been placed, perhaps, the detaining authority would have come to a different conclusion. This contention was not accepted by the Supreme Court. It was held by the Supreme Court in para 6 as under : "We cannot appreciate the said contention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centered on what he had done in collaboration with his co-traveller. In other words, if the detention order and the connected records relating to the co-traveller were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said ground raised now."

However, Mr. Agarwal fairly conceded the Judgment of the Full Bench i.e. Constitution Bench of the Supreme Court reported in AIR 1983 541 was not placed before the Supreme Court in Rajappa Neelakantans case i.e. judgment reported in (2000) 7 Supreme Court Cases 144.

10. Mr. Maqsood Khan tried to distinguish the aforesaid judgment of the Supreme Court i.e. in Rajappa Neelakantans case contending that placing the opinion of the Advisory Board regarding the detention of Iqbal Mehra and Kiran Vora was absolutely necessary in view of the Constitution Bench Judgment because incidents and transactions were same and that would have affected the satisfaction of the detaining authority in favour of the detenus in these three petitions.

11.Mr. Agarwal tried to justify the detention order further on the ground that time gap in the instant case i.e. the revocation of the order of detention of the petitioner in respect of those two detenus Iqbal Mehra and Kiran Vora had taken place only two months before, whereas in the case of Mohd. Shakeel Wahid Ahmed decided by the Supreme Court a period of five month has elapsed. In our opinion, apart from the time gap factor that weighed with the detaining authority is the opinion of the Advisory Board because the transaction and the incident in those petitions and the present petitions are almost same though different nomenclatures have been used by the detaining authority. Secondly, if at all the detaining authority contends that it was aware of the revocation of order in respect of those two detenus Iqbal Mehra and Kiran Vora. The said awareness is not reflected anywhere in the order of detention.

12.In our opinion Constitution Bench Judgment of Mohd. Shakeel Wahid Ahmed is explicit and clear. The facts in that case and the present case are identical. The said judgment is followed by this court in other judgments referred to above, and therefore this petition is required to be allowed on this ground alone. Needless to clarify in view of this, we are not considering the other grounds raised in the petitions by the detenus. For all these reasons, the petitions are required to be allowed. We, therefore, pass the following order :

ORDER

All the three Criminal Writ Petitions are allowed. Detention Orders of all the three Detenu are quashed and set aside. Rules are made absolute in all the three petitions. Detenu in all the three petitions be released forthwith if not required in any other matter.

Certified copy expedited.