Shri Sanjay Soni vs The Principal Secretary
2013 Latest Caselaw 243 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                        CRIMINALAPPELLATE JURISDICTION
                         WRIT PETITION NO.3806 OF 2013




                                                    
     Shri Sanjay Soni.                                  ..     Petitioner
            Vs




                                                   
     The Principal Secretary
     (Appeals & Security) to the 
     Government of Maharashtra & Others.                ..     Respondents
            -

Shri U.N. Tripathi i/by Ms. Jayshree U. Tripathi for the Petitioner. Shri J.P. Yagnik, AGP for the State.

Mrs. A.S. Pai, APP for Respondent No.6 (DRI).

-

CORAM : A.S. OKA & S.C. GUPTE, JJ DATE : 29TH NOVEMBER 2013

ORAL JUDGMENT ( PER A.S. OKA, J )

. By this Petition Under Article 226 of the Constitution of

India, the Petitioner has taken an exception to the order of Prevention

of Detention dated 25th January, 2012 (Exhibit "A" to the petition).

The order has been passed in exercise of powers under Section 3(1) of

the Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (for short "COFEPOSA"). The order impugned has

been passed with a view to prevent the Petitioner from smuggling goods

in future.

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2. The Learned Counsel appearing for the Petitioner has

pressed into service the grounds (g) and (j) of Paragraph 7 of the

Petition. The said grounds read thus:

" (g) The Petitioner says and submits that with

reference to the averment made by the detaining authority in paragraph 51 of the grounds of detention, list of documents which are not legible

is also enclosed, which clearly shows non-

application of mind of the detaining authority. If the documents are illegible, the question arises

that how the detaining authority has understood the contents of illegible documents relied on documents to pass an order of detention being

subjectively satisfied. The satisfaction of the detaining authority vitiates. The Petitioner

further submits that supplying illegible documents amounts to non-communication of grounds of

detention. As a result of furnishing illegible documents to the Petitioner, he is deprived of making effective representation. Thus violating both the facets of Article 22(5) of the Constitution

of India. The Order of detention is illegal and bad in law, liable to be quashed and set aside.

(j) The Petitioner says and submits that he has been furnished with various documents in a compilation running into 15,080 pages along with grounds of detention. The Petitioner submits that

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it is categorically stated in paragraph 51 of the grounds of detention that while passing the order

of detention under COFEPOSA Act, 1974, the detaining authority has referred to and relied upon

the documents mentioned in the enclosed list which are also served on the Petitioner. The

Petitioner says and submits that on his own saying the detaining authority admittedly says that a list of 208 documents but also at various Serial

Number of the list of relied upon document is found at Annexure II of the grounds of detention.

The Petitioner says and submits that it is not only 208 documents but total 333 pages documents are

also found to be absolutely and totally illegible. The illegible documents cannot be read by any person with normal vision. It is not understood as

to how the detaining authority read such totally

illegible documents to arrive at his subjective satisfaction and ultimately passed the order of

detention. These above said material documents are relevant and relied on by the detaining authority which constitute the "grounds" as held by a larger bench of Hon'ble Supreme Court of

India in Khudiram Das's Case. The satisfaction of the detaining authority vitiates. This also amounts to non-communication of the grounds of detention. Thus violating the first facet of Article 22(5) of the Constitution of India. The Petitioner further submits that as a result of furnishing complete illegible documents, he could not read,

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understood and make any effective representation, thereby he is deprived of making any effective

representation at the earliest point of time, thus both the facets of Article 22(5) of the Constitution

of India. The order of detention is illegal and bad in law, liable to be quashed."

3. The Learned Counsel appearing for the Petitioner invited

our attention to the affidavits in reply filed by the Sponsoring Authority

and the Detaining Authority. He submitted that admittedly 303 pages

of the document produced by the Sponsoring Authority before the

Detaining Authority were totally illegible. Inviting our attention to the

grounds of detention served to the Petitioner, he pointed out that the

said illegible documents have been relied upon by the Detaining

Authority. He urged that the Detaining Authority has obviously not

read the large number of illegible documents and it is not the case of

Detaining Authority that she called for legible copies of the said

documents before recording her subjective satisfaction. He relied upon

the decision of the Apex Court in the case of Manjit Singh Grewal Alias

Gogi V/s Union of India and Others.1 He also relied upon an unreported

judgment of a Division bench of this Court in the case of Smt Nilofar

Siraj Darbar vs State of Maharashtra and Others 2 The Learned Counsel

relied upon another unreported decision of this Court in the case of

1 1990 (Supp) Supreme Court Cases 59 2 Cr.W.P.No.587 of 2009 decided on 17th August, 2009

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Makrand Ashok Gharge vs State of Maharashtra and others 1. Lastly, he

relied upon another unreported decision of this Court in the case of

Shri Pramod Laxman Talbhandare vs The Commissioner of Police and

others, Solapur2.

4. The Learned Assistant Public Prosecutor appearing for the

State of Maharashtra and the Detaining Authority urged that the

illegible documents are neither vital nor material documents. He

submitted that documents having about 15080 pages were forming a

part of the proposal submitted by the Sponsoring Authority and after

having perused substantial number of documents, the Detaining

Authority has recorded subjective satisfaction that the Petitioner needs

to be preventively detained. He submitted that non-consideration of

few documents will not vitiate the subjective satisfaction of the

Detaining Authority. In support of this submission, he relied upon the

decision of the Apex Court in Usha Agarwal vs Union of India and

Others3

5. The Learned Counsel appearing for the Sponsoring

Authority submitted that the illegible documents are not material in as

much as most of the said documents are the annexures to statements

of the Petitioner recorded under section 108 of Customs Act, 1962.

1 Cr.W.P.No.1844 of 2013 and other connected Petitions decided on 24th July, 2013 2 Cr.W.P.No.3258 of 2010 decided on 21st December, 2010 3 (2007)I SCC 295

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6. The Learned Counsel appearing for the Petitioner

submitted that as large number of documents supplied to the Petitioner

along with grounds of Detention were illegible, the Petitioner was

prevented from making an effective representation against the order of

detention in accordance with Clause 5 of article 22 of the Constitution

of India.

7.

We have given careful consideration to the submissions.

We have perused the order of Preventive Detention under Clause (i)

sub-section(1) of Section 3 of COFEPOSA and the grounds of detention.

Before passing an order of detention under clause(i) against a person,

the Detaining Authority must be subjectively satisfied that with a view

to prevent him from smuggling of goods in future, it is necessary to

pass an order of Prevention of detention against him.

8. The two grounds of challenge in clauses (g) and (j) have

already been set out above. On the factual aspects, it will be necessary

to consider the statements in the reply filed by the Detaining

Authority. Firstly, it will be necessary to make reference to Paragraph

(5) of the reply filed by the Detaining Authority which reads thus:

" I say that there are around 15080 documents in this

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case. Considering the magnitude of this case and the voluminous documents. I had to consider all the

documents submitted along with the proposal by the sponsoring authority. Hence whatever time was

required for scanning the proposal containing about 15080 pages and formulating the grounds for issuing

the detention order, after receipt of the proposal, was for the purposes of better verification of the material placed before me. After considering the proposal and

after subjective satisfaction, I had issued the order on 25.01.2012. "

ig ( Underline supplied)

Thus, the Detaining Authority has claimed that she had

considered all the documents submitted along with proposal by the

Sponsoring Authority which contained about 15080 pages. In response

to ground (g), the Detaining authority in paragraph 10 of the reply has

stated thus :

"With reference to Para 7(g) of the petition I say that I have considered all the material documents before issue of the detention order. The documents which were not

legible have also been furnished to the detenu which shows that no relevant documents have been kept away from me and the detenu. Though the documents were illegible, it was known what the documents represent. I have had sufficient material in the form of legible documents for considering the issue of detention order against the detenu."

( Underline added )

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The specific stand of the Detaining authority is that though

the documents were illegible, it was known what the document

represent. In response to ground (j), in paragraph 13, the Detaining

Authority has stated thus:

"With reference to Para 7(j) of the petition I say that apart from the list enclosed which states that the

documents are illegible, all other documents placed

before me being a detaining authority and supplied to the detenu are legible"

9. In the Affidavit filed by the Assistant Director, DRI Mumbai

while dealing with ground (g), a similar stand which is taken by the

Detaining Authority has been taken. Even while dealing with Ground

(j), similar stand has been taken.

10. Coming back to ground (j) in the petition, the specific

stand which we have noted is that 208 documents running into 333

pages were "absolutely and totally illegible" which cannot be read by

any person with normal vision. It is not the case of either the

Detaining Authority or the Sponsoring Authority that the legible copies

of 333 pages were supplied to the Detaining Authority before the

passing of the impugned order. There is no denial in the Affidavits of

the averment that total 333 pages (208 documents) were totally

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illegible which could not be read by a person with normal vision.

Surprisingly, in paragraph (5) of the reply, while dealing with the

challenge on the ground of undue delay in passing the impugned order

of Detention, the Detaining Authority claims that she had to consider

"all documents submitted alongwith proposal by the Sponsoring

Authority" As admittedly 333 pages of 208 documents were totally

illegible, we fail to understand as to how Detaining Authority has

stated in paragraph (10) of the reply that "it was known what the

documents represent". It is not explained how the Detaining Authority

knew the contents of the illegible documents. Though the Learned

Counsel appearing for the Sponsoring Authority tried to submit that

illegible documents were Annexures to the statements of the Petitioner

under Section 108 of the Customs Act, that is not the case made out in

the reply filed by the Detaining Authority. The Detaining Authority has

not even stated as to what was the nature of 208 illegible documents.

11. At this stage, a reference will have to made the grounds of

Detention furnished to the Petitioner in accordance with Sub-section (2)

of Section 3 of COFEPOSA, paragraph 51 of the grounds reads thus:

"51 While passing the detention order under COFEPOSA Act, 1974, I have referred to and relied upon the documents mentioned in the enclosed list which are also being served on you. List of the

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documents which are not legible is also enclosed herewith."

Annexure I of the said grounds is a list of 83 legible documents. The

description of the said documents in detail has been incorporated in

Annexure I. Annexure II contains a list of illegible documents. No

description of any of the illegible document has been incorporated in

Annexure II. If the nature of the illegible documents and contents

thereof were known to the Detaining Authority as claimed in the reply,

the description of the said documents would have been incorporated in

the list Annexure II. We must note here that Annexure I which is the

list of legible documents contains 82 documents and the Annexure II

contains a list of as many as 208 illegible documents. Thus, going by

the lists Annexure I and II, it must be stated that out of total 290

documents incorporated in the said lists, 208 documents were totally

illegible. Thus, the majority of documents placed before the Detaining

Authority were illegible. In absence of any other material placed on

record, it is not possible for us to accept the contention raised in the

reply of the Detaining Authority that the "it was known what the

documents represent".

12. At this stage, we must make a reference to the grounds of

Detention. From the ground No 29 onwards, there is an extensive

reference to the number of statements of the Petitioner recorded under

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Section 108 of the Customs Act. The statements have been recorded on

21st October, 2010, 25th October, 2010, 26th October, 2010, 24th

November, 2010, 6th December, 2010, 10th December, 2010 and 1st

February, 2011. The relevant grounds make extensive reference to

various documents, which are referred to in the aforesaid statements

under section 108 of the Customs Act. Hence, the documents referred

to in the statements under Section 108 are the documents relied upon

by the Detaining Authority as is apparent from the grounds of Petition.

13. If the submission made by the Learned Counsel appearing

for the Sponsoring Authority that the said 208 illegible documents were

annexed to the statements of the Petitioner under section 108 is

correct, then the only conclusion which can be drawn is that while

recording subjective satisfaction, the Detaining Authority has not at all

considered 208 relevant and material documents which were referred

to in the seven statements under section 108 of the Petitioner. The said

statements were retracted by the Petitioner on 2nd May, 2011.

14. An attempt is made to submit that documents which were

illegible were neither material nor vital documents. The Detaining

Authority can come to conclusion that a particular document

forwarded by the Sponsoring Authority is neither material nor vital,

provided the Detaining Authority had an occasion to read the said

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document. We have already held that there is no material on record to

show that the Detaining Authority was aware of even the nature of the

said documents. In the present case, the Detaining Authority has not

even read 208 documents forming part of the proposal. The Detaining

Authority can record subjective satisfaction in terms of Section (1) of

Section (3) provided the Detaining Authority considers his entire

material placed before it by the Sponsoring Authority. In the facts of

the case, considering the admitted position that 208 documents

forming part of the proposal were completely illegible, the subjective

satisfaction of the Detaining Authority stands vitiated due to non

consideration of the said documents. Moreover, there is non-

application of mind of the Detaining Authority.

15. At this stage we must make reference to the decision of the

Apex Court in the case of Usha Agarwal relied upon by learned APP.

In paragraph 19, the Apex Court found that the documents about which

a grievance was made by the detenu were partially legible which were

furnished by the Detenu himself. Moreover, the issue of furnishing of

illegible document was considered by the Apex Court only in the

context of the submission made that right of making effective

representation was defeated by supply of such illegible documents.

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16. In the present case, the issue is whether the subjective

satisfaction of the Detaining Authority is vitiated as the Detaining

Authority has not considered the large number of documents which

were completely illegible. In a given case, material may be available

before the Detaining Authority as regards the contents or the nature of

the illegible documents. In a given case, the contents of illegible

documents may have been reproduced in some other documents. But

in the facts of the present case, even the description of 208 documents

is not available. There is nothing on record to show that the Detaining

Authority was made aware of the contents of any of these 208

documents. We fail to understand as to how without even knowing the

nature and the contents of such large number of documents, the

Detaining Authority can state that the documents were neither relevant

nor material. If the Detaining Authority has taken into consideration as

many as seven statements of the Petitioner recorded under Section 108

of the customs Act, 1962 and if what the Learned Counsel appearing

for the Sponsoring Authority has stated across the bar is correct, we

fail to understand as to how the subjective satisfaction can be recorded

on the basis of Statements under section 108 of the Customs Act

without even having a look at the documents which were annexed to

the statements. Moreover, all the statements were retracted by the

Petitioner. We are not examining the merits of the decision of the

Detaining Authority, but the decision making process. The subjective

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satisfaction on the basis of which the decision is arrived at is certainly

vitiated in the facts of the case on account of failure to consider 208

documents forming part of the proposal. In this Petition, we are

dealing with an order of Prevention Detention by which liberty of an

individual is taken away. In the peculiar facts of the case, we have no

hesitation in coming to the conclusion that the subjective satisfaction of

the Detaining Authority is vitiated.

17.

That takes us to the second argument based on violation of

Constitutional safeguard under Clause (5) of Article 22 of the

Constitution of India. We have already held earlier that as many as 208

documents supplied to the Petitioner along with grounds of detention

were completely illegible. As there is no dispute on this fact, it is not

necessary to record detailed reasons to hold that the right of the

Petitioner of making affective representation against order of Detention

has been impaired. The argument of the Learned Assistant Public

Prosecutor based on the decision in the case of Usha Agarwal will not

help the State as in the facts of the case before the Apex Court, it was

found that certain documents were partially legible which were

supplied by the detenu himself. Considering the factual aspect which is

found in paragraph 19 of the said decision, the Apex Court observed

that illegibility of portion of documents which are copies of the

documents submitted by the detenu himself cannot be a ground of

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grievance by the detenu. Hence, we are of the view that the impugned

order will have to be set aside also on the ground of violation of

safeguard provided under clause (5) of the Article 22 of the

Constitution of India.

18. Hence we pass the following order:-

(a) The Rule is made absolute in terms of prayer clause ig(b) which reads thus:

"(b) That the order of detention passed

against the detenu issued on 25.01.2012 under Section 3(1) of COFEPOSA Act, 1974 by the Principal Secretary (Appeals and Security) Government of Maharashtra, Home

Department and Detaining Authority be quashed and set aside."

(b) All concerned to act upon an authenticated copy of

this order.

      (S.C. GUPTE, J)                                               ( A.S. OKA, J )