Surjit Singh vs Union Of India And Ors.
1989 Latest Caselaw 404 Del

JUDGMENT

Santosh Duggal, J.

(1) One of the challenges, to the detention order passed in respect to the petitioner on 13th October, 1988 invoking the provisions of section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Cofeposa Act), damped on him with a view to preventing him from smuggling goods, is that the order of detention suffers from non-application of mind and was unwarranted for the reason that the passport of the petitioner had been seized on the date of incident itself, namely, on 25th June, 1988 and continued to be in the custody of authorities, and as such he was effectively prevented from indulging in smuggling and .further that the trial court while ordering release of the petitioner on bail by order dated 11th July, 1988 had imposed condition to the effect that the petitioner shall not leave the country without permission of the Court. The contention has been elaborately set out in ground 'H' of the writ petition.

(2) Mr. Bagai has pressed only this ground at the time of hearing placing reliance on a Full Bench judgment of this Court, on a reference having been made in the case of Mohd. Saleem v. Union of India and others, reported as 1989 (3) Delhi Lawyer 77 (FB)(1). He submitted that the law now stands well settled so far as this Court is concerned to the effect that the subjective satisfaction of the detaining authority is not wholly immune from judicial reviewablity, and apart from examining whether or not the requisite satisfaction was arrived at by the detaining authority, if at all, the court has a duty while scrutinising the validity of the subjective satisfaction to examine the basic facts and material which influenced it in arriving at its satisfaction.

(3) Mr. Bagai further argued that the Full Bench has categorically and in unequivocal terms, enunciated the proposition that the ground of detention must reflect the material which weighed with the detaining authority, in arriving at the conclusion, that the detention of the particular person was imperative, to prevent him from an activity, which is contemplated by one or other of the provisions of the laws relating to preventive detention. He submitted that the learned Full Bench has proceeded on the principle that apart from the fact that the question of subjective satisfaction is open to judicial scrutiny; further the court has also to ensure while examining the validity of the subjective satisfaction, that the basic facts and material which influenced the detaining authority in arriving at that satisfaction, were communicated to the detenu because these were the requirements of Article 22(5) of the Constitution of India.

(4) These principles were retierated, on the basis of Judgment of the Supreme Court in the case of Khudiram Dass v. State of West Bengal and others, , containing the following observations :

"THECourts have by judicial decisions carved out an area, limited through it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for exercise of the power conferred on the exe cutive, the court can always examine whether the requisite satisfaction is arrived at by the authority, if it is not, the condition precedent to the exercise of the power would not be fulfillled, and the exercise of the power would be bad." ................... ".........that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, not only the right of the court, but also its duty as well, to examine, what are the basic facts and material which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction."

(5) On the facts of the case before the Full Bench, namely, Mohd. Saleem (supra), it was held that in the absence of any indication in the grounds of detention that inspite of the fact that passport of the petitioner had been seized, and continued to be in custody of the concerned authorities, there was a likelihood of his going abroad to indulge in smuggling activity, clandestinely or on forged passport or sneaking into places where no passport was required, such as Nepal, and in the absence of any such assertion even in the counter, it was no longer open to the respondent to contend before the Court that the detention order was justified on such like possibilities. Apart from the fact that the full Bench held that this detracted from the subjective satisfaction of the detaining authority; otherwise also, the detention order suffers from the vice of the detaining authority relying upon or taking into consideration such material, as not disclosed in the grounds of detention, with the result that the detenu was prevented from making an effective representation inasmuch as in the absence of communication of relevant material to him, on which the detaining authority placed reliance, he cannot be expected to make a representation which was his constitutional right under Article 22(5) of the Constitution.

(6) Mr. Bagai argued that in the present case also all that is stated in the counter in reply to this ground 'H' as mentioned at the outset was that: "The fact that the detenu's passport was seized is of no consequence especially since the detaining authority was also aware of this fact. The detaining authority was also aware of the order granting bail to the detenu."

(7) The learned counsel pointed out that the position taken up in this reply affidavit filed through an Under Secretary in the Government of India, Ministry of Finance, Department of revenue, was not correct even on facts inasmuch as the grounds of detention do not reveal any awareness on the part of the detaining authority that the passport of the petitioner had been seized, inasmuch as there is no such recital in the grounds of detention. He, therefore, summed up his arguments by pleading that the present case was squarely covered by the principles enunciated by the Full Bench in the case of Mohd. Saleem (supra), and the subjective satisfaction stands vitiated, in the absence of any material before the detaining authority to the effect that inspite of the seizure of the passport the petitioner could still indulge in smuggling and that in any event, in case there was any such material that was not disclosed in the grounds of detention, with the result that detenu's right of making effective representation was adversely affected, and thus the order of detention was liable to be revoked.

(8) Mr. Madan Lokur, appearing for the respondent, however. contended that the grounds of detention when read cumulatively satisfy the test as contemplated by the Full Bench in the case of Mohd. Saleem (supra) inasmuch as these grounds clearly indicate from paragraph 4 onwards that the petitioner had in his own statement recorded under section 108 of the Customs Act admitted of having smuggled gold into India with the currency Which he had smuggled out while leaving the country, and that his visits to abroad, were very frequent which could lead to a reasonable inference that he had been indulging in smuggling in the past also, and that the detaining authority was justified on the basis of this material to come to the conclusion that the petitioner had been indulging himself in smuggling goods into India and unless prevented, he will continue to do so in future, and that the subjective satisfaction in this respect was not open to question.

(9) As regards the contention that the material which weighed with the detaining authority in this respect, had to be disclosed to the detenu, Mr. Lokur placed reliance on paragraph 8 of the grounds of detention which reads as under : "From the foregoing facts and circumstances, it is evident that you have engaged yourself in smuggling goods, into India and unless prevented, you will continue to do so in future in the same manner or otherwise. Although departmental proceedings as well as prosecution proceedings under the Customs Act, 1962 have been initiated against you and although you are released on bail, I am satisfied that it is necessary to detain you under the provisions of Cofeposa Act, 1974 with a view to preventing you from smuggling goods."

(10) The contention is that by saying : "unless prevented you will continue to do so in future in the same manner or otherwise", the detaining authority had conveyed in so many words that it was satisfied that the petitioner had the proclivity and propensity to indulge in smuggling and there was every reason to believe that he will continue to do so unless prevented. Mr. Lokur contended that the expression "or otherwise" sufficiently conveys to the detenu that the detaining authority was of the view that he could employ other means of going out of India.

(11) I am afraid this is too far fetched an interpretation to be put on the language employed in paragraph 8 of the grounds of detention. Mr. Baggi rightly pointed out that in the absence of any recital in the grounds of detention itself that the detaining authority was aware even of the fact that the passport had been seized, or into the absence of recording any reason that inspite of the seizure it had sufficient information or apprehension that the petitioner could reply other means or was capable of clandestinely leaving the country or sneaking in or out of India to include in smuggling or had other means at his disposal, it cannot be said that the consideration or the material which prevailed with the detaining authority stands disclosed in the grounds of detention.

(12) Mr. Bagai also rightly pointed out that in any case, the expression used; namely, "same manner or otherwise" is too vague, and does not convey any tangible information to the detenu, which he could meet in his representation. He pleaded that the detention order is liable to be revoked on this ground alone, as held in a very recent judgment by the Supreme Court in the case of Abdul Razak Nannekhan Pathan v. The Police Commissioner, Ahmedabad & another, , that in order to ensure the right of effective representation .to a detenu as mandated constitutionally in Article 22(5) of the Constitution, it was necessary that the grounds must not be vague, but must be specific and relevant in order to enable the detent to make an appropriate representation against the same before the Advisory Board as well as other authorities, including detaining authority. The same principle was reiterated in judgment ^delivered in the case of Jahangirkhan Fazalkhan pathan v. The Police Commissioner, Ahmedabad & another, .

(13) The learned counsel summed up his arguments by submitting that apart from the fact that the plea that relevant material stands disclosed in the grounds of detention, cannot be sustained, on a reading of the grounds of detention; otherwise also, whatever is communicated in paragraph 8 as per Mr. Lokur's plea, suffered from the vice of vagueness, rendering the detention illegal.

(14) As regards Mr. Lokur's supplementary plea, that the order of bail passed by Additional Chief Metropolitan Magistrate imposing a condition that the petitioner shall not leave the country except with the written permission of the Court, indicates that the said Court also felt that the petitioner could leave the country and on that ground felt the necessity of imposing the condition, referred to above. This argument is being noticed only in fairness to Mr. Lokur, but otherwise does not impress, for the reason that there is nothing on record to show that the Additional Chief Metropolitan Magistrate was made aware at the time this order of bail was passed that the passport of the petitioner stood seized, as the order of bail, annexed with the petition as Annexure P-4, does not contain any such indication. Otherwise also, it is axiomatic that the detaining authority has to arrive at its own conclusion, on the basis of the material placed before him, and is riot be guided by the process of inferential reasoning, derived from orders passed by other authorities.

(15) I, therefore, find it to be a case where the order of detention cannot be sustained for the reason that there is no material disclosed in the grounds of detention on the basis of which the detaining authority may have formulated his subjective satisfaction t hat inspite of the seizure of the passport, which continued to be in the custody of the customs authorities, he was capable of indulging in smuggling activities, which has the necessary connotation of a person taking out of the country or bringing into the country prohibited goods which he apparently cannot do if rendered incapable of going abroad by seizure of the passport, and there was no suggestion that he had other means at Ms disposal or there was information that he was capable of making clandestine trips abroad to carry on smuggling activities, with the sole object of preventing which the detention order was passed.

(16) As a result, the order of detention dated 13th October, 1988 is hereby quashed. The writ petition is accordingly allowed. The rule is made absolute and it is directed that the petitioner be released forthwith if not required to be detained in any other case or proceedings.