Lynn A. Curtis vs Union Of India And Ors.
1989 Latest Caselaw 509 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition has been brought under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure seeking quotient of the detention order dated 11th of April 1989 passed by respondent No. 2 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short Cofeposa Act) with a view to preventing the petitioner from smuggling goods.

(2) It is not necessary to refer to the facts of the case because this petition succeeds on a very short point. In para 8 of the petition it has been pleaded that in a complaint filed on the same facts as are enunciated in the grounds of detention under sections 133 and 135 of the Customs Act pre-charge evidence of three prosecution witnesses has been recorded on various dates prior to the passing of the detention order and the said pre-charge evidence was very material and relevant matters which should have been placed before the detaining authority as that could have influenced the mind of the detaining authority either way in considering whether the detenion order should be made or not and, it is urged, as such material evidence was not placed before the detaining authority the order of detention stands vitiated due to non-application of mind to the material evidence.

(3) In the counter affidavit filed by the detaining officer Mr. A. K. Batabyal, Joint Secretary, it is not disputed that this pre-charge evidence was not placed before the defaming authority. The plea taken is that the fact of the pendency of the complaint before the Additions Chief Metropolitan Magistrate was duly considered by the detaining authority and stands reflected in the grounds of detention and the material already available with the detaining authority was sufficient for arriving at the subjective satisfaction. It was further pleaded that pre-charge evidence has no bearing in the presence of other sufficient material on record.

(4) The first question to be considered is whether the pre-charge evidence can be considered to be relevant and material evidence which should have been taken into consideration by the defaming authority while reaching the subjective satisfaction in order to determine whether the detention order should be made or not. A similar question came up for decision in Shri Ram Goyal vs. Union of India and others, 1984 Crl. L.J. 1048(1) and it was observed by a Division Bench of this court that the pre-charge evidence should also have been placed before the Administrator and on going through the pre-charge evidence he could possibly have come to the conclusion that the evidence was not of such a nature which could possibly justify any preventive action being taken against the petitioners. It was laid down by the Division Bench as follows: "THERE can be no quarrel with the. preposition that the detention order, which is passed, requires the subjective satisfaction of the detaining authority which cannot be questioned by the Court, but if the detaining authority does not consider relevant circum- stances, or considers wholly irrelevent circumstances, then such a subjective satisfaction, would be vitiated. In quashing such an order the Court does not sit in judgment over the correctness of the subjective satisfaction. If relevant material was taken into consideration then, of course, the Court would have no jurisdiction to come to the conclusion that on the material as placed before the detaining authority an order of detention under the Cofeposa Act ought not to be passed."

The Division Bench, therefore, proceeded to quash the detention order on the ground that the relevant material was not considered by the detaining authority which, of course, included the pre charge evidence.

(5) The learned counsel for the respondents has, however, contended that the pre-charge evidence could not have been legally placed before the detaining authority and the detaining authority could not in law lake into consideration the aforesaid evidence inasmuch as the same was part of pending judicial proceeding and any comment being made on the pre-charge evidence would have amounted to committing contempt of court. It is not possible to agree with this contention because, admittedly, the complaint which has been filed before the Aim has been considered by the detaining authority and has been relied upon as one of the documents for passing of the detention order. If that is so, it is not understandable how the factum of the placing the pre-charge evidence before the detaining authority would in any manner lead to any inference that a contempt of court is being committed by the detaining authority in taking into consideration the said pre-charge evidence for reaching the subjective satisfaction. After all, the liberty of a citizen stands curtailed by passing of the detention order and there is only very limited scope in which the detenu can work out his defense for getting the detention order revoked or quashed and it has been new settled law that one of the pre-requisites for passing the detention order is that all relevant material and facts must be placed before the detaining authority which may sway the mind of the detaining authority in coming to the conclusion whether he should pass the detention order or not and if any relevant material particularly which is exculpatory in nature is not placed before the detaining authority the detention order becomes bad in law inasmuch as the detaining authority in that respect has failed to apply his mind to the relevant material. In the present case, admittedly, the pre-charge evidence has not been placed before the detaining authority which, as held by the Division Bench of this Court, was a relevant material document and thus the subjective satisfaction reached by the detaining authority in passing the detention order is vitiated.

(6) In view of the above discussion. I allow the petition and make the rule absolute and quash the detention order and direct that the petitioner be released from jail if not required to be detained in any other case.