Daya Shankar Kapoor vs Union Of India (Uoi) And Ors.
1975 Latest Caselaw 99 Del

JUDGMENT

M.R.A. Ansari, J.

1. Daya Shankar Kapoor, who will hereinafter be referred to as the detenu, was detained in the first instance under an order of detention dated September 24, 1974 passed by the District Magistrate, Delhi under Section 3 (1) (c) read with Sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971 as amended by Ordinance No. 11 of 1974 (hereinafter referred to as the MISA). This order was in the following terms :

"OFFICE OF THE DISTRICT

MAGISTRATE: DELHI

ORDER WHEREAS, I. V. K. Kapoor,

District Magistrate,

Delhi am satisfied that with a view to preventing the person known as Shri Daya Shankar Kapoor son of late Shyam Lai, who is ordinarily a resident of 14/36, Shakti Nagar, Delhi, from smuggling goods, or dealing in smuggled goods, it is necessary to make an order directing that the said Shri Daya Shankar Kapoor be detained;

Now, therefore, in exercise of the powers conferred by Clause (c) of Sub-section (1) of Section 3, read with Sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971, I hereby direct that the said Shri Daya Shankar Kapoor be detained.

Sd/- V. K. Kapoor

District Magistrate, Delhi.

Dated the 24th

September, 1974.

2. Subsequently, an order under Section 8 of the MISA containing the grounds of detention was passed by the District Magistrate, Delhi, on September 28, 1974. This order contained the following three main grounds, namely,

(i) You are a bullion dealer and have been persistently active in smuggling gold and dealing in smuggled gold for over a decade.

(ii) You have been involved in the following specific cases relating to smuggling, abetting of smuggling and dealing in smuggled goods

(iii) There is reliable evidence of your having links with other smugglers. The following specific instances are mentioned.

Under main ground No. (ii), reference was made to specific cases (a) to (f) and under main ground No. (iii), specific instances (a) to (e) were stated. It would be sufficient for the purpose of the present petition to reproduce specific case (a) under main ground No. (ii):

(a) In September, 1961, during the course of scrutiny of the records of the refinery of M/s. R. K. Chander Bhan and R. B. Chander Bhan Multani, it was observed that large quantities of gold had been tendered by Ishwar Chand and Hari Chand on your behalf and on behalf of one Salig Ram, both of M/s. Kapoor Brothers, Bullion Merchants, Chandni Chowk, Delhi. In a statement recorded during the course of investigation it was admitted that the gold had been supplied to you by some persons of Amritsar on the 26th September, 1961 and that you had melted the gold and had mixed some alloy in it so that it could be tendered in the refinery for changing its shape. On that day, 1,979.750 gms. of gold was seized in this case.

3. The detenu filed a petition in this Court, namely, Cr. W. Petition No. 37 of 1974, under Article 226 of the Constitution challenging the validity of the detention order passed against him. By its judgment in the said criminal writ petition dated November 22, 1974, this Court held that the order of detention was illegal and^ quashed the same and directed that the detenu should be released forthwith. The order of detention was quashed on the following grounds, namely,

(i) By the use of the disjunctive in the order of detention, the District Magistrate was not certain whether he was detaining the petitioner in order to prevent him from smuggling goods or from abetting other persons to smuggle goods or from dealing in smuggled goods, and that without applying his mind, he had merely mechanically reproduced the language of Section 3 (1) (c) of the Act. This uncertainty and lack of application of mind cannot amount to the subjective satisfaction of the District Magistrate as is required under Section 3 (1) (c) of the Act. The order of detention, therefore, has been passed by the District Magistrate without his subjective satisfaction and as such, it is not an order in accordance with Section 3 (1) (c) of the Act (MISA).

(ii) Ground No. (i) mentioned in the grounds of detention was vague and that either there were no other facts or particulars apart from those stated in the ground which had been considered by the District Magistrate or that if he had taken some other facts and particulars into consideration, which have not been stated in the ground, the claim of privilege in respect of such facts was mala fide.

(iii) With regard to ground No. (ii) (a), the District Magistrate had not taken into consideration certain relevant facts, namely, that the gold which had been seized had been returned to the petitioner under the orders of the Government, and that, therefore, this ground was irrelevant for the purpose of passing the detention order.

4. In pursuance of the judgment of this Court, referred to above, the detenu was released from detention on the tame date. Subsequently on 13-12-1974, Parliament passed the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act No. 52 of 1974 (hereinafter referred to as the Act) and the Act came into force on 19-12-1974. By Section 14 of the Act, the Ordinance No. 11 of 1974 which amended the MISA was repealed. On 4-2-1975, an order of detention under Section 3 (1) of the Act was passed against the detenu and it was served upon him on 5-2-1975 and he was arrested and detained in custody. This order of detention is in the following terms:

DELHI ADMINISTRATION: DELHI No. F.2(8)/75-Homc (II) (3) dated the 4th

February, 1975.

ORDER

WHEREAS the Administrator of tho Union Territory of Delhi is satisfied with respect to the person known as Shri Daya Shankar Kapoor s/o Shri Shyam Lai residing at 14/36, Shakti Nagar, Delhi, that with a view to preventing him from engaging in keeping smuggled goods viz., foreign marked smuggled gold and dealing in smuggled goods viz. foreign marked smuggled gold, otherwise than by engaging in transporting or concealing or keeping smuggled goods, it is necessary to make the following order:

NOW, therefore, in exercise of the powers conferred by Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (52 of 1974), the Administrator of the Union Territory of Delhi directs that the said Shri Daya Shankar Kapoor be detained and kept in custody in Central Jail, Tehar, New Delhi. By order and in the name of the Administrator.

Sd/-

(MRS. SHAILAJA CHANDRA) SPECIAL SECRETARY (HOME),

DELHI ADMINISTRATION: DELHI. Shri Daya Shankar Kapoor, S/o Shri Shyam Lai, House No. 14/36, Shakti Nagar, Delhi.

5. An order containing the grounds of detention was served upon the detenu on 7-2-1975. This order contained three grounds on the basis of which the order of detention had been passed against the detenu by the Administrator of the Delhi Administration. These grounds will be referred to at a later stage. But, for the present, it is sufficient to state that in substance they were the same grounds as were contained in the grounds of detention dated September 28, 1974 except grounds Nos. (i) and (ii) (a) of the earlier grounds of detention which had been held to be bad by this Court in its judgment dated November 22, 1974. The petitioner herein Shri Kamal Narain Kapoor, who is the son of the detenu, has filed the present petition under Article 226 of the Constitution challenging the validity of the order of detention datc4 4-2-1975 passed against the detenu.

6. The petitioner has challenged the detention order passed against the detenu on the following main grounds, namely,

(i) that in view of the judgment of this Court in Cr. W. No. 37/74 quashing the order of detention dated 24th September, 1974 passed against the detenu under the MISA, it is not open to the Administrator, Delhi Administration, to pass an order of detention against the detenu under the Act on the same grounds on which the earlier order of detention under the MISA had been passed and that the present order of detention being based upon some of the grounds on which the earlier order of detention had been passed, is illegal.

(ii) that the grounds mentioned in the grounds of detention on the basis of which the impugned order of detention has been passed, have no relevance to the purposes for which the order of detention has been passed, and

(iii) that the grounds of detention are either vague, irrelevant or non-existent or that they showed that the detaining authority acted mala fide or did not apply his mind to all the relevant facts before passing the order of detention.

7. In the reply affidavit filed on behalf of the respondents, reference is made to the Presidential Order dated 25-12-1974 passed under Article 351 of the Constitution and it is contended that in view of this Presidential Order it is not open to the petitioner to challenge the order of detention on any of the grounds urged by the petitioner in the writ petition. While admitting that the present order of detention was based upon some of the grounds which were mentioned in the earlier order of detention passed against the detenu under the MISA, it is contended that these grounds were not held to be illegal by this Court in its judgment in Cr. W. No. 37/74 and that, therefore, the said judgment of this Court did not preclude the Administrator to pass an order of detention under the Act on such grounds. It is denied that the grounds on which the order of detention has been passed have no relevance to the purpose for which the order of detention was passed against the detenu. The allegation that the grounds of detention were vague, irrelevant or non-existent or mala fide or that the Administrator did not apply his mind to all the relevant facts before passing the order of detention is also denied and it is stated that the order of detention was passed after the Administrator had fully considered all the relevant facts.

8. The first challenge against the validity of the detention order is made on the basis of the judgment of this Court in Cr. W. No. 37/74. Mr. Ashok Sen, learned Counsel for the petitioner, has sought to invoke the principles of res judicata, estoppel and autrefois acquit in support of his contention that the judgment of this Court in Cr. W. No. 37/74 would operate as a bar against the passing of the present detention order against the detenu. He has also referred to Section 13 (2) of the Preventive Detention Act. 1950, Section 14 (2) of the MISA and Section 11 (2) of the Act and has argued that the principles underlying such provisions also support his contention. The learned Counsel has also referred to certain decisions of the English and the Indian courts in support of his contention. The learned Counsel, however, has been fair enough to state that there arc no direct decisions on the point at issue and the question has to be decided on first principles. Mrs. Shyamla Pappu, learned Counsel for the respondents, on the other hand, contended that the principles of res judicata, estoppel or autrefois acquit did not apply to cases of preventive detention and that the various provisions of the Preventive Detention Act, 1950, the MISA and the Act, referred to by the learned Counsel for the petitioner, did not preclude the passing of a fresh detention order on the same facts on the basis of which the earlier order of detention had been passed. She also cited a number of authorities in support of her contention. The point which we are called upon to decide is no doubt an interesting one and in a proper case we may have to decide this point. But we feel that in the present case it is not necessary to decide it because even assuming that the earlier judgment of this Court in Criminal Writ No. 37/74 does not bar the detention of the detenu under the Act on the grounds which were not held to be bad in the said judgment, as we are of the view for the reasons to be stated presently that the impugned order of detention cannot be sustained on the grounds mentioned in the grounds of detention.

9. With regard to the grounds, it is first contended that the grounds of detention have no relevance to the purposes mentioned in the order of detention. It is pointed out that according to the detention order, the purpose for which the detenu is detained was "with a view to preventing him from engaging in keeping smuggled goods viz., foreign marked smuggled gold, and dealing in smuggled goods, viz., foreign marked smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled goods". It is argued that the grounds of detention, even if accepted as true, only show that the detenu was concealing or otherwise dealing in smuggled goods and that none of these grounds shows that the detenu was engaged in keeping smuggled goods or that he was dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. We do not see much merit in this contention. Apart from the fact that the grounds do indicate that the detenu was indulging in all the activities mentioned in the order of detention, it is not necessary that the grounds of detention which referred to the past activities of the detenu should necessarily show that he was engaged in all the activities in the order of detention. It is sufficient if on the basis of these past activities the detaining authority was satisfied that the detenu would engage in the future in such activities as are mentioned in the detention order and that in order to prevent the detenu from engaging himself in such activities, it was necessary to detain him.

10. The next ground on which the validity of the detention order is challenged is that the grounds of detention were vague, irrelevant or non-existent or that they showed mala fides on the part of the detaining authority and they also showed that the detaining authority did not apply his mind to all the relevant facts before passing the detention order. The order of detention is based upon three grounds. It is not necessary for the purpose of this petition to refer to grounds Nos. 1 and 2 in detail. But it is sufficient to state that the facts mentioned in the first ground relate to the year 1963 and the facts mentioned in the second ground relate to the year 1964. Grounds Nos. 1 and 2 by themselves would not be valid grounds for the detention of the detenu, as these grounds are remote and stale. It is only if these grounds are considered along with ground No. 3 which is in the nature of a live link that grounds Nos. 1 and 2 would also be valid grounds for the detention of the detenu. We shall, therefore, proceed to consider the attack on ground No. 3, which is in the following terms :

3. In the beginning of the month of April, 1973, the officers of the Directorate of Revenue Intelligence, New Delhi, received intelligence to the effect that Mohd. Masoom s/o Shri Mohd. Hanif r/o 670, Sheesh Mahal, Chowk Kishanganj, Delhi was taking delivery of luggage containing smuggled foreign murk-ed gold, which was being booked by passenger trains from Bombay to New Delhi.

Pursuant to the said intelligence the officers of the Directorate of Revenue Intelligence apprehended Mohd. Masoom s/o Shri Mohd. Hanif, Habib s/o Shri Jabbar r/o 670, Sheesh Mahal Chowk Kishanganj, Delhi and Abdul Naeem r/o Q. No. 36-37, Teen Murti House, New Delhi, on 10-4-1973 following the seizure of 155 bars of smuggled gold each bearing foreign markings and weighing 10 tolas concealed in plastic beads packed in a gunny bag in car No. DHB 1056 belonging to Shri Mohd. Masoom aforesaid. A sum of Rs. 2,432/- in Indian currency notes and travellers cheques of 54 and some documents along with another amount of Rs. 74/- which were found to be useful and relevant to the enquiry being made were also recovered and seized. In connection with the seizure of above mentioned gold, the residential premises of Mohd. Masoom aforesaid situated at house No. 670. Chowk KLshanganj, Delhi were searched on 10-4-1972 and Indian currency amounting to Rs. 19,300/- reasonably believe to be the sale proceeds of the smuggled gold being liable to confiscation under the Customs Act, 1962 were seized. Incriminating documents, one cloth vasli of grey colour and & empty gunny bags of the same description and bearing railway markings as containing gold recovered from car No. DHB-1056 mentioned above were also seized from the evidence of Mohd. Masoom.

In his statement dated 11-4-73 made before the Customs authorities Mohd. Massom, inter alia, stated that you had known Mohd. Masoom (sic) about 2\ years preceding the date of the seizure of the smuggled gold on 10-4-1973 and that during the said period you had entered into an agreement with him for getting your supply of smuggled gold from Bombay to Delhi by concealment in the plastic goods ordered by him 'JJRAT' at the rate of Rs. 250/- per packet for the said service rendered by him to you. Shri Mohd. Masoom further stated that pursuant to the said agreement with you, he had been receiving smuggled gold from Abdul Latif residing at Wazir Mansion, Bhindi Bazar, Bombay and delivering the same to you for sale. The aforesaid seized gold would have been delivered to you if it would not have been seized. Shri Mohd. Masoom further stated that you had been sending him and his father to Bombay for delivering the sale proceeds of the smuggled gold dealt with by you. Mohd. Masoom described the modus operandi adopted by him at your instance, to avoid detention, as the aforesaid Abdul Latif in Bombay procured smuggled gold in Bombay and concealed the same in articles of haberdashery like plastic beads in which he was dealing in at his shop under the name and style of M/s. Bombay General Stores, Sadar Bazar, Delhi. The articles of haberdashery with smuggled gold concealed therein were packed in gunny bags and booked as luggage by passenger train from Bombay to Delhi on the strength of railway tickets ostensibly for passengers who never travelled and the tickets after booking the luggage were destroved. The copies of the luggage tickets meant for the passengers to take delivery of the luggage on arrival at Delhi were fastened with the bags themselves to be detached by him (Mohd. Masoom) for presentation to the railway authorities, at Delhi for taking delivery of the luggage at Delhi. As and when the above type of luggage was sent from Bombay you were informed about it and you, in turn, informed him (Mohd. Masoom) about the same so that he was able to take delivery of the luggage promptly. In the same manner on 10-4-1973 he (Mohd. Masoom) had taken delivery of the two gunny bags from which 155 bars of foreign marked gold were recovered as stated above. You in collaboration with Mohd. Masoom had been adopting the aforesaid modus operandi for obtaining smuggled gold from Bombay to New Delhi Mohd. Masoom having telephones Nos. 515168 and 515174 had been contacting you on telephone Nos. 222785 & 277246 and Abdul Latif of Bombay through your associates named Kishore and Nirmal available at Bombay on telephone Nos. 378361 and 318074 respectively for the purpose of dealing with the smuggled gold sent to Mohd. Masoom for ultimate delivery to you. the above modus operand! would disclose that you had taken all precautions to leave no clue, documentary or otherwise, in respect of your dealings in smuggled gold, so that in the event of detection, there should be no evidence against you and your above-named associates.

Pursuant to the clues obtained as a result of disclosures made by Shri Mohd. Masoom, the officers of the Directorate of Revenue Intelligence seized further quantity of 500 tolas of foreign marked smuggled gold from a gunny bag on 11-4-1973 at New Delhi Railway Station for the carriage of which modus operandi similar to the one explained by Shri Mohd. Masoom above was adopted. In his statement dated 12-4-1973 before the Customs authorities, Shri Mohd. Masoom inter alia stated that the aforesaid smuggled gold would have been delivered to you, if it had not been seized. Show cause Memo, bearing No. VIII (HQRS)/10/51/73 dated 8tb October, 1973 asking you, Mohd. Masoom, Abdul Latif, Mohd. Habib, Farooq Ahmed, Najmaul Qamar, Nirmal, Kishore and G. N. Mehra as to why the seized two lots of smuggled gold viz., 1550 tolas and 500 tolas mentioned in grounds above and why car No. DHB 1056 and Indian currency of Rs. 19,300/-and Rs. 2,432/- should not be confiscated and why penalty should not be imposed on you, and others named above under Sections 111 (d), 121, 115 and 112 of the Customs Act, 1962 has been issued. The case is pending adjudication.

11. From a perusal of ground No. 3, it is apparent that the detenu is sought to be connected with the incidents mentioned in this ground only on the basis of the statements dated 11-4-1973 and 12-4-1973 of Mohd. Masoom. The contention of the learned Counsel for the petitioner is that what Mohd. Masoom had stated in his statements was not true, that he was forced by the Customs authorities to make these statements while he was in their custody, that as soon as Mohd. Masoom was produced before a Magistrate and remanded to judicial custody, he had retracted the said statements and sent a telegram and a letter to the Director of Revenue Intelligence in which he stated that he was tortured and forced to make false statements and that this telegram and the letter written by Mohd. Masoom were withheld from the detaining authority and were not considered, by him before passing the detention order. This is what is stated by the petitioner in the writ petition with reference to Ground No. 3 :

The detenu has been reliably informed and he believes in the truth of it that Mohd. Masoom from whose possession the gold is Urged to have been recovered was forced to name the detenu. The detenu further learns and believes that Mohd. Masoom while in judicial custody, during the period of remand, made telegraphic and other representations to the Director of Revenue Intelligence alleging maltreatment and false involvement and extraction of the statements by the officers, a copy of which is annexure as T. The Hon'ble Court may be pleased to call for the letters sent by said Mohd. Masoom and others.

Again with reference to the statements of Mohd. Masoom, it is stated as follows in the writ petition:

The Customs authorities have obviously withheld relevant material from the detaining authority inasmuch as they have not placed the fact that Mohd. Masoom had denied the allegations of having made any such statement.

12. The reply affidavit filed on behalf of the respondents is an affidavit by Mrs. Shailja Chandra, Special Secretary (Home), Delhi Administration, Delhi. Denying the allegation that all the relevant facts were not placed before the Administrator, this is what she has stated in her affidavit:

I say that I have personally dealt with the file relating to the detenu and hive been connected with the case of the detenu at all relevant times. I say I was personally present when the order of detention was passed by the detaining authority and therefore I am competent to depose the fact contained in this affidavit.

I further say that the detaining authority in my presence went through the entire file placed before him in respect of case and after going through the same meticulously was fully satisfied that it was necessary to detain the detenu to prevent him from continuing his prejudicial activity mentioned in the order of detention." In another portion of her affidavit, referring specifically to ground No. 3, this is what she has stated:

It is admitted that Mohd. Masoom while in judicial custody submitted a representation making allegations therein that he was mal-treated, and falsely involved and that the statement was extracted from him. This is an afterthought for Mohd. Masoom to send such representation especially when the facts of the recovery of smuggled gold is duly attested by independent witnesses and the documents and other independent evidence substantially corroborate the statement of Mohd. Masoom.

In another portion of her affidavit, She has stated thus

It is denied that any material in respect of the incidents mentioned in ground No. 3 has been withheld from the detailing authority who was satisfied that it was necessary to detain the detenu under that COFEPOSA Act to prevent him from carrying on his smuggling activities. ;

On the other hand, the Administrator has perused a copy of the show cause notice issued to the detenu and his associates and the said show cause notice prima facie gives the reasons for holding that the detenu is involved in the smuggling activities of Mohd. Masoom. There is, therefore, no truth in the allegation that any material was withheld (from the Administrator.)

In the rejoinder filed by the petitioner, the correctness of the averments made in the reply affidavit referred to above was challenged and a request was made that the Court should send for the relevant records to satisfy itself about the correctness of the averments made in the reply affidavit. The learned Counsel for the respondents did not raise any objection to produce all the relevant records for the perusal of the Court. The relevant records have therefore, been placed before us and we have perused them. These records consist of three files, one maintained by the Customs authorities, the second maintained by the Delhi Administration but relating to the order of detention passed against the detenu under the MISA and the third relating to the order of detention passed against the detenu under the Act. The first file did contain not only the statements of Mohd. Masoom dated 11-4-1973 and 12-4-1973 and it also contained the telegram sent on behalf of Mohd. Masoom himself dated 1-5-1973 to the Director of Revenue Intelligence. The first file also contained a reply sent on behalf of the Director of Revenue Intelligence to the representations made by Mohd. Masoom and the telegram dated 13-4-1973 and his letter dated 1-5-1973 and in this reply the allegations made by Mohd. Masoom that he was tortured and forced to make the statements dated 11-4-1973 and 12-4-1973 were denied. The second file contained the representations made by the detenu to the Government against his detention order under the MISA and it also contained a note which was put up before the Administrator in respect of the representation made by the detenu and also the order of the Administrator rejecting the representation made by the detenu. This note which was shown to us contained parawise comments on the representation of the detenu. In the left-hand part of the page, the contention of the detenu made in the representation was reproduced. Opposite to that on the right-hand side of the page, the Department gave its comments on the contention raised. The averment of the detenu regarding Mohd. Masoom having been coerced into making the statements was reproduced at a proper place in the note. However, the comments of the Department were silent about this contention. The departmental comments also did not disclose that in fact a telegram had been sent on behalf of Mohd. Masoom and that he had also written letter personally later on contending that he was coerced into making the statements. Thus, this aspect was nowhere specifically brought to the notice of the Administrator. In the third file, there was nothing to indicate that the objection of the detenu with regard to the statements of Mohd. Masoom or the telegram and the letter sent by Mohd. Masoom himself was brought to the notice of the Administrator. It is not possible to accept the contention of the learned Counsel for the respondents that in view of the fact that the Administrator had already considered the representation of the detenu against his detention under the MISA and rejected it, it must be presumed that he had also taken these facts into consideration at the time of passing the detention order under the Act. There is nothing to indicate that the telegram and the letter sent by Mohd. Masoom which were placed in the first file maintained by the Customs authorities were specifically brought to the notice of the Administrator either at the time of his rejecting the detenu's representation against his detention under the MISA or at the time of passing the detention order under the Act. As already stated, the note put up before the Administrator in respect of the representation made by the detenu against his detention under the MISA made no specific reference to the telegram and the letter sent by Mohd. Masoom and offered no remarks in respect of the objection raised by the detenu in the representation with regard to the statements of Mohd. Masoom dated 11-4-1973 and 12-4-1973.

13. We are, therefore, not prepared to accept the averments made in the reply affidavit filed on behalf of the respondents that the telegram and the letter sent by Mohd. Masoom retracting his statements dated 11-4-1973 and 12-4-1973 were brought to the notice of the Administrator and were considered by him at the time of passing the detention order. It is no doubt not within our province in the present proceedings to consider whether in fact the statements of Mohd. Masoom dated 11-4-73 and 12-4-73 were voluntary statements or were statements which were obtained from him by force and coercion or whether the telegram and the letter sent by Mohd. Masoom were in the nature of an afterthought. But there is no doubt that the telegram and the letter sent by Mohd. Masoom were relevant facts which the detaining authority was bound to consider before passing the detention order on the basil of the statements of Mohd. Masoom dated 11-4-1973 and 12-4-1973. It is certainly within the province of this Court in the present proceedings that we satisfy ourselves whether these relevant facts were considered by the detaining authority at the time of passing the detention order; and we are satisfied on a perusal of the records produced before us that these relevant facts were not taken into consideration by the detaining authority at the time of passing the detention order. Ground No. 3 is, therefore, formulated without taking relevant material into consideration.

14. As already stated, ground No. 3 forms the live link with grounds Nos. 1 and 2 and if ground No. 3 is not a valid ground, then grounds Nos. 1 and 2, being remote and stale, would not be valid grounds for the detention of the detenu. The validity of ground No. 3 depends upon the detenu's connection with the incidents mentioned in ground No. 3 and the sole basis of his connection is Mohd. Masoom's statements. It is admitted that Mohd. Masoom had retracted these statements by his telegram dated 13-4-1973 and his letter dated 1-5-1973. The failure on the part of the Administrator to take into consideration these relevant facts show casualness on his part and lack of application of his mind to all the relevant facts. For these reasons, ground No. 3 vitiates the order of detention.

15. While perusing the records placed before us by the learned Counsel for the respondents, we found that in the note that was put up before the Administrator by the District Magistrate relating to the order of detention dated 4-2-1975, it is stated that the earlier order of detention under the MISA had been quashed by this Court "on technical grounds." This is a wholly unwarranted remark by the District Magistrate. The grounds on which the earlier order of detention under the MISA had been quashed by this Court have been already stated in the earlier portion of this judgment and these grounds cannot be called "technical grounds." The use of the disjunctive in the order of detention under the MISA indicated uncertainty and lack of application of mind on the part of the detaining authority which vitiated his subjective satisfaction. Ground No. (i) was not based upon any facts or particulars and could not form the basis of a valid detention order. With regard to ground No. (ii) (a), the detaining authority had not taken into consideration relevant facts and the ground was held to be irrelevant for the purpose of passing the detention order. It is unfortunate that the District Magistrate, who wrote the note put up before the Administrator, has chosen to characterise the grounds on which this Court had quashed the earlier order of detention as technical grounds. The Administrator has obviously been influenced by these remarks made by the District Magistrate in the said note while arriving at his subjective satisfaction. His subjective satisfaction is, therefore, based upon a misreading of the judgment of this Court in Cr. W. No. 37/74. For this reason also, the order of detention passed against the detenu under the Act cannot be sustained. In this connection, reference may be made to the following observations of Sarkar, J. in Ram Manohar Lohia v. The State of Bihar :

It was said that this was too technical a view of the matter; there was no charm in words used. I am not persuaded by this argument. The question is of substance. If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people, we are dealing with an order behind the face of which a Court is prevented from going, x x x x x x x x. But it would be legitimate to require in such cases strict observance of the rules. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favor of the detenu.

16. It has been urged that Courts should keep in view the evil sought to be checked by the Act before striking down an order of detention on the basis of the invalidity of a particular ground of detention. In this behalf, we can only recall what the Supreme Court has said in Dwarika Prasad Sahu v. The State of Bihar which observations apply with great force to the present case. Bhagwati, J., in the very opening paragraph of his judgment in the above case says It is with reluctance, we might almost say regretfully, that we allow this petition directed against the validity of an order of detention made by the District Magistrate. Ranchi (in this case, the detaining authority' under Section 3(2)(iii) of the Maintenance of Internal Security Act, 1971. If only the District Magistrate (in this case the detaining authority) had applied his mind properly and carefully and acted with a greater sense of responsibility, the infirmity vitiating the order of detention could have been easily avoided. We are painfully conscious of the fact that economic offenders are a menace to the community and it is necessary in the interest of the economic well-being of the society to mercilessly stamp out such pernicious, anti-social and highly reprehensible activities as hoarding black-marketing and profiteering which are causing havoc to the economy of the country and inflicting untold hardships on the common man and to carry on a relentless was against such economic offenders with a view to putting them out of action. But in the present case, the attempt to curb this social menace has been frustrated and set at naught by want of due care and application on the part of the District Magistrate (in this case, the detaining authority). We hope and trust that, in future, in view of the social objectives intended to be achieved by the use of the Act against economic offenders, the District Magistrates (in this case, the detaining authority) will show greater care and attention in exercising the vast powers conferred upon them under the Act, both in the interest of personal liberty which is one of our chershed freedoms as also in the interest of firm and effective action against those who are undermining the foundations of our social and economic structure.

17. The order of detention is, therefore, quashed and the respondents are directed to release the detenu from detention forthwith. This petition is accepted.