Ashok Patney vs Union Of India And Ors.
1989 Latest Caselaw 93 Del

JUDGMENT

P.K. Bahri, J.

(1) This writ petition has been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for quashing the detention order dated July 7, 1988, passed by respondent No. 2 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 and a declaration dated August 10, 1988, issued by respondent No. I under section 10(1) of the said Ordinance.

(2) Various grounds have been taken for challenging the aforesaid impugned orders but the writ petition is liable to succeed on a very short ground, so it is not necessary to make reference to other grounds.

(3) The facts, in brief, are that the petitioner was working with Aeroflot Airlines as Traffic Officer for the last about six years and he was stated to have entered into a conspiracy with one Sansar Chand in order to help the two suit-cases containing psychotropic drug to be smuggled in the aircraft of the said Aeroflot Airlines proceeding to Russia. The said two suit-cases were brought in a taxi to the residence of the petitioner and were placed in the petitioner's Maruti Car No. Ddc 3707 and later on the taxi having registration No. Dlt 153 was brought there by Sansar Chand's brother and the said two suit-cases were put in the taxi and the petitioner and his co-employee Gagan Kalra proceeded to the Igi Airport in the Maruti Car followed by the said taxi in which Sansar Chand's brother Pappu travelled and on reaching the Airport the petitioner and Gagan Kalra brought a trolly and the said two suit-cases were taken out from the dicky of the said taxi and placed on the trolly and the trolly was brought near the gate of the office of the said Aerofloat. The petitioner and Gagan Kalra were to render assistance in getting those baggages loaded on the aircraft without the same being checked by the Customs Officers at the Airport and Sansar Chand's friend was to travel in the said aircraft and get delivery of the said baggage on reaching the destination. The Customs Officers had prior information about these activities of the petitioner and thus, they had laid a surveillance and they seized the said baggage while it was lying on the trolly and apprehended the petitioner and Gagan Kalra and the petitioner and Gagan Kalra made confessional statements. It is also mentioned in the grounds of detention that the petitioner was wearing his official dress of the Aeroflot Airlines and had entered the Departure Hall without any hindrance and had brought the trolly on which the said two suit-cases were loaded.

(4) It has been pleaded on behalf of the petitioner that the services of the petitioner were terminated by the Aeroflot Airlines on March 23, 1988 and a copy of the letter dated April 28, a 1988, was sent by M/s Aeroflot Airlines to the Customs Department intimating the factum of the termination of the service of the petitioner. It is averred that neither a copy of the said letter nor the factum of termination of service of the petitioner by M/s. Aeroflot Airlines was placed before the detaining authority and the declaring authority. It is argued that the said letter and the fact of termination of service of the petitioner constituted vital and material facts which, if placed before the detaining authority or the declaring authority would have influenced the mind of the said authorities cither way in deciding whether the impugned orders should or should not be made against the petitioner. Hence, it is urged that as the said material facts have been suppressed from the concerned authorities the same had the effect of vitiating the impugned orders. Counsel for the petitioner has strongly placed reliance on Ram Chand Verma v. Union of India & Others 1988(2) Delhi Lawyers 209.(l) In the cited case, an assistant working in the Ministry of Finance, was sustained by passing an order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. It was alleged in the grounds of detention that the detenu had used his official influence in getting the contraband goods cleared through the Customs authorities. The detenu was suspended from service by an order passed by the Ministry of Finance. The copies of the said orders or the information regarding the detenu having been suspended from the service were not placed before the detaining authority. It was held by this Court that the said document and the facts were material which could have influenced the mind of the detaining authority in deciding the issue whether the detention order should be made or not and as the said facts and the document were not placed before the detaining authority, it amounted to vitiating the detention order due to non-application of mind to the most material and relevant facts. Reliance has been placed in that case on a Division Bench Judgment of Bombay High Court in Zhorabi v. The Additional Secretary (Home), Ministry of Home Affairs, Govt. of Maharashtra and Others, 1984 Cri. L.J. 1859.(2) In the said case the detenu was an Air Customs Officer and it was alleged against him that he had tried to influence his subordinates to clear a carton containing smuggled goods. A suspension order was made against him but the same was not placed before the detaining authority. The detention was quashed on the ground that the said material had been suppressed from the detaining authority.

(5) The learned counsel for the respondents has, however, contended that the nefarious activities for which the petitioner had been apprehended and detained had no connection with his being employed with Aeroflot Airlines and thus, the order of suspension of the petitioner is of no relevance and could not have influenced the mind of the detaining authority in deciding whether the petitioner should or should not be detained. I do not agree. After all it is on account of petitioner being employed with the Aeroflot Airlines which enabled him to have free access in the Airport itself that the petitioner's services had been utilised by Sansar Chand in his efforts to smuggle out the said psychotropic drug. So, it cannot be said that the said activity of the petitioner in rendering assistance in exporting the said prohibited psychotropic drug was not being facilitated on account of petitioner's being employed with said Aeroflot Airlines. The learned counsel for the respondents has made reference to Smt. K. Aruna Kumari v. Government of Andhra Pradesh & Others, . (3) I have gone through this judgment carefully and find that in this judgment reference is male to four rases already decided by the Supreme Court wherein a well settled principle of law had been laid down that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. In the cited case, anticipatory bail applications of some co-accused had not been placed before the detaining authority. The contention raised was that in the said anticipatory bail applications of the coaccused the confessional statements made by the co-accused implicating the detenu have been withdrawn. As a matter of fact, it was found that no confessional statements have been made by the said co-accused. In the light of the said fact, it was held that, it cannot be said that any material fact had been suppressed from the detaining authority by not placing the anticipatory bail applications of the said co-accused before the detaining authority and the Supreme Court observed as follows :

"THE learned Advocate General was fair enough to accept before us that applications for grant of anticipatory bail moved before the criminal court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based."

(6) So, it was found that the said anticipatory bail applications were not material documents which were required to be placed before the detaining authority. But where on facts it is found that a particular material and vital fact had not been placed before the detaining authority which could influence the mind of the detaining authority in deciding whether the detention order should or should not be made, the detention order would stand vitiated if such material and vital fact is not placed before the detaining authority. Hence, in the present case, it has to be held that the order of termination of the service of the petitioner passed by M/s Aeroflot Airlines was a material and vital fact which was required to be placed before the detaining authority because the same could have influenced the mind of the detaining authority either way in deciding whether the detention order against the petitioner should or should not be made when petitioner has been deprived of his right to have free access to the Airport on account of he being no longer the employee of the said Airlines. In view of the above discussion, I hold that the impugned orders are liable to be quashed on this ground alone.

(7) I allow the writ petition, make the rule absolute and quash the impugned orders and direct that the petitioner be set at liberty forthwith if not required to be detained in any other case. The parties are left to bear their own costs.