Shahnaz Javed Abdul Aziz Shaikh vs State Of Maharashtra And Ors.
2002 Latest Caselaw 100 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes herself as the wife of the detenu - Javed Abdul Aziz Shaikh alias Javed Munnlruddin Shaikh has impugned the order dated 31-10-2001 passed by the second respondent Ms. Ranjana Sinha, Secretary to the Government of Maharashtra, Home Department (Preventive Detention) Mantralaya, Mumbai-32, detaining the detenu under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) (here-inafter referred to as the COFEPOSA Act).

The detention order, along with the grounds of detention, which are also dated 31-10-2001 was served on the detenu on 2-11-2001 and their true copies are being annexed as Annexures-A and B respectively to the petition.

2. A perusal of the grounds of detention (Annexure-B) would show that on the basis of prior intelligence, officers of the Directorate of Revenue Intelligence (D.R.I) inter-cepted the detenu at the reception - counter of Hotel Highway Inn, Vishal Hall, Vlshal Shopping Centre, Andheri. Kurla Road, Aridheri (E) Mumbal-400069, at around 16.50 p.m. on 17-6 2001. The detenu was found in possession of one green Coloured Air bag, one corrugated carion of pampers and one carton of LG Multi video system. On interrogation, he stated that he had received three packages from one Mohammed Ghouse staying at 103, in the said hotel. The officers proceeded to room No. 103 of the said hotel along with the detenu and the three packages carried by him. Mohammed Ghouse was there and he confirmed that he had given three packages to the detenu. On further enquiry, Mohammed Ghouse stated that he was given these three packages by one person Babubhai and was told to check in at the said hotel, where a person would come and collect these three packages from him. Apart from these three packages, the officers also found one more green coloured Air bag in the room which Mohammed Ghouse claimed contained his personal belongings. The officers prepared a detailed inventory of all the three packages in front of the panchas. The three packages namely corrugated cartons of pampers, green coloured Air bag and the grey coloured Air bag were all affixed with Gulf Air baggage bags for Flight GF-058. Examination of the corrugated box of pampers revealed that it contained 48 baby diapers and in each of these diapers, a bundle of 100 notes of Indian currency of Rs. 100 denomination was found, cleverly concealed 4800 notes of Indian currency of Rs. 100/- denomination with a total face value of Rs. 4,80,000/- were recovered from the carton of pampers, On examination of the green Air bag, the officers recovered 1 1 pieces of Textile fabrics measuring 35 metres and one tin container of milk powder. On breaking open the tin container, if was found to contain inter alia 24 bundles of Indian currency notes of Rs. 500/- denomination having total face value of Rs. 12,00,000/-. The LG Video Multi system was examined and nothing was found concealed in it. The grey coloured Air bag was examined and it was found to contain the personal effects of Mohammed Ghouse. Thus, In all, Indian currency notes of face value of Rs. 16,80,000/- were recov-ered from the three packages. On prelimlnary examinat ion, they appeared to be counterfeit. The said notes having printed value of Rs. 16,80,000/- were seized under the Customs Act, 1962 under a reasonable belief that they were smuggled and liable to confiscation under the provisions Of the Customs Act, 1962

The Deputy Treasurer, Reserve Bank of India examined some notes from Rs. 4,800 seized on 17-6-2001 and opined that all the aforesaid notes could not be accepted as genuine notes. The statements of Mohammed Ghouse and the detenu were recorded under Section 108 of the Customs Act, 1962 and therein they gave the details pertaining to the manner of smuggling.

On the basis of the aforesaid seizure, a case under Section 112 of the Customs Act was registered against the detenu.

A perusal of para 13 of the grounds of detention would show that the detaining authority was subjectively satisfied that in order to prevent, the detenu from committing similar prejudicial acts, it was imperative to detain him under the COFEPOSA Act.

A perusal of the grounds of detention would also show that the detenu has been apprised of his right of making a representation to the various authorities.

3. We have heard learned counsel for the parties. Although in this writ petition, Ms. A.M.Z. Ansari, learned counsel for the petitioner has pleaded a large number of grounds numbered as ground Nos. 5(1) to 5(xi) but, since in our view, this petition deserves to succeed on ground No. 5(vii) alone, we are not adverting to the other grounds of challenge raised in the petition.

We now propose considering ground No. 5(vii)

Ground No. 5(vii) in short is as under :-

After the alleged Indian currency was recovered from the detenu, the D.R.I. Officers arrested him on 18-6-2001. On 11-7-2001, the detenu and co-accused were granted bail in the sum of Rs. 1,00,000/- but, since the detenu could not furnish bail of the said amount, an application was preferred for reduction of the bail amount which was reduced to Rs. 75,000/-. On 5-10-2001. The D.R.I, made a written complaint to the Commissioner of Police, at Andheri and thereafter, same day i.e. 5-10-2001, a case under Section 489(B) and (C) read with Section 120-B, IPC was registered against the detenu. Copies of the aforesaid complaint and the FIR filed on 5-10-2001 are annexed as Annexures-D and E respectively to the petition. The petitioner says and submits that Annexures-D and E namely the complaint and the FIR referred to above, were documents of a vital nature which were likely to influence the mind of the detaining authority and failure to place the same before the detaining authority and non-consideration of the same by the detaining authority would vitiate the detention order and non-supply of their copies to the detenu would impair his, fundamental right of making a representation at the earliest opportunity against the detention order; which right has been guaranteed to him by Art, 22(5) of the Constitution of India.

The conclusion set forth in ground No. 5(vii) is that the impugned detention order is violative of Article 22(5) of the Constitution of India and is mala fide, null and void.

4. Ground No. 5(vii) has been replied to in para 10 of the returns of Ms Hanjana Sinha, the detaining authority and Mr. Sanjay Gahiot, Deputy Director, D.R.I. Mumbai. Since the reply contained in both the returns is identical, we only propose setting out the reply contained in para 10 of the return of the detaining authority which in substance is as under :-

The present order of detention is preventive and not punitive. C.R. No. 448 registered by Andheri police station (referred to in Annexure-E of the petition) is punitive action taken against the detenu. She was subjectively satisfied that the activities of the detenu were prejudicial and it was imperative to detain him and hence, the detention order was justified. It is denied that the FIR dated 5-10-2001 is a document of a vital nature which could have influenced my mind (detaining authority) while issuing the impugned detention order. It is further denied that non-consideration of the said FIR would have impaired my subjective satisfaction. It is also denied that the detenu's right to make an effective representation, guaranteed to him by Article 22(5) of the Constitution of India, is violated.

The burden of song of the detaining authority in para 10 of her return is that there is no substance in ground No. 5(vii).

5. We have perused the averments contained in ground No. 5{vii), those contained in paras 10 of the returns of Ms. Ranjana Sinha, (detaining authority) and Mr. Sanjay Gahiot (Deputy Director, D.R.I.) Mumbai wherein the said ground has been replied to and heard learned counsel for the parties. We make no bones in observing that since in our Judgment, there is merit in ground No. 5(vii), this petition must succeed.

6. A perusal of Annexures-B, D and E respectively annexed to the petition, namely the grounds of detention, complaint dated 5-10-2001 and the FIR registered on the basis of complaint dated 5-10-2001 would show that the gravemen of the allegations contained in all three of them are same. Earlier, we have referred to in some detail the averments contained in the grounds of detention. We have seen that from the possession of the detenu, currency to the tune of Rs. 16,80,000/- was recovered. We do not want to burden our Judgment by reiterating the details. A perusal of Annexures D and E would show that exactly the same details pertaining to the recovery of currency which are contained in the grounds of detention are contained in them.

The difference is on the basis of the averments contained in the grounds of detention, a case under Section 112 of the Customs Act, 162 was registered against the detenu but, on the basis of the averments contained in the FIR (Annexure E) a case under Section 489(B) and (C) IPC was registered against the detenu.

7. The Supreme Court in a catena of decisions has held that if a vital piece of evidence which is likely to influence the subjective satisfaction of the detaining authority is not placed before the detaining authority, then the detention order would be vitiated on the vice of non-application of mind. To eschew prolixity, we only intend referring to four of them, namely :-

(i) AIR 1979 SC 447 : (1979 Cri LJ 203) (Asha Devi v. K. Shivraj).

(ii) (State of U.P. v. Kamal Klshore Saini)

(iii) (Ayya alias Ayub, State of U.P.)

(iv) (Ahmed Nisar v. State of Tamil Nadu),

7A. A perusal of para 7 of Ashadevi's ease supra would show that although the confessional statement of the detenu was placed before the detaining authority, the detenu's subsequent retraction was not placed before the said authority and the Supreme Court took the view that the failure to place the latter, vitiated the detention order on the vice of non-application of mind and rendered the detention of the detenu unsustainable.

In Kamal Kishore Saini's case, a perusal of para 7 would show that copies of the state ment of witnesses recorded under Section 161 of the Cr.P.C. were not supplied to the detenu and there was non-placement of the application made by the co-accused before the Judicial Magistrate wherein it was stated that the detenu was falsely implicated.

The averments made by the detaining authority before the High Court was that even if the said material had been placed before it, the subjective satisfaction would have remained the same. The said stand was rejected by the High Court and the Supreme Court upheld the view of the High Court and observed thus :-

It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the impugned detention order as mandatorily required under the Act.

In Aiya alias Ayub's case supra, as is manifest from para 13, the vital document which was not placed was a telegram. A perusal of the said para would show that before the Apex Court, it was contended from the side of respondent that the telegram was sent to create a false defence. Venkatachaliah, J. speaking for the Supreme Court did not rule out this possibility but, observed thus :-

What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence which was relevant though not binding had not been considered at all if a piece of evidence which might reasonably have the decision whether or not, to pass an order of detention is excluded from con-sideration.ihBe would cation.of_which in turn vitiates the detention, The detaining authority might very well ahve come to the same conclusion after considering this material but. in the facts of the case the omission to consider the material assumes materiality.

(Emphasis supplied)

In Ahmed Nisar's case supra, as would be manifest from para 29 the two letters which were relevant were not placed.

8. In each of the aforesaid four cases, the Supreme Court took the view that on account of non-placement of the aforesaid material, the detention order could not be sustained.

A perusal of Kamal Kishore Saini's case supra would also show that the averment made by the detaining authority in para 10 of the return that even if the FIR dated 5-10-2001 has been placed before her, her subjective satisfaction would have remained the same, cannot be accepted.

9. Mr. B. R. Patil, Acting Public Prosecutor strenuously urged for the respondents that since the impugned detention order was not founded on complaint dated 5-10-2001. Annexure-D) and FIR dated 5-10-2001 (Annexure-E) failure of the sponsoring authority to place the said documents before the detaining authority would not vitiate the detention order. Mr. Patil urged that a perusal of the grounds of detention would show that there was sufficient material for the detaining authority to detain the detenu under Section 3(1) of the COFEPOSA Act. He consequently contended that non placement of Annexures-D and E would be inconsequential.

10. We have reflected over Mr. Patil's submission and are constrained to observe that we do not find merit in it. Mr. Patil is talking about chalk and we of cheese. The question is not whether the impugned detention order could have been passed against the detenu on the basis of the material contained in the grounds of detention but, whether the subjective satisfaction of the detaining authority could have been influenced one way or the other had Annexures-D and E to the petition been placed before the detaining authority.

Our answer is that they could have influenced the subjective satisfaction of the detaining authority either way. We say this because, the averments contained in Annexures D and E, relating to the recovery of currency as observed by us earlier are exactly the same as those contained in the grounds of detention (Annexure-B). In these circumstances, Annexure-D and E were vital documents. It may be that had they been placed before the detaining authority the detaining authority may have taken the view that since on the basis of the complaint (Annexure D) FIR under Section 489(B) and (C) IPC (Annexure E) was registered against the detenu, it was not necessary to pass the impugned order against him. It may equally be that despite their placement, the detaining authority way still have found it necessary to detain the detenu vide the impugned order. Which way the mind of the detaining authority would have worked is something which is beyond our conjecture, it is a matter which is in the realm of the subjective satisfaction of the detaining authority.

But, at the cost of repetition, we would like to point out that Annexures D and E were vital documents which were likely to influence the subjective satisfaction of the detaining authority either way and that being so, in view of the four decisions of the Supreme Court, referred to above, their non-placement before the detaining authority has vitiated the detention order on the vice of non-application of mind. And since they were vital documents and their copies were not furnished to the detenu, the detenu's fundamental right to make an effective representation at the earliest opportunity, guaranteed to him under Article 22(5) of the Constitution of India was also impaired.

11. For the aforesaid reasons, we allow this writ petition; quash and set aside the impugned detention order; direct that the detenu - Javed Abdul Aziz Shaikh alias Javed Shaikh be released forthwith unless wanted in some other case; and make the rule absolute.