Ved Parkash Sikri @ Vedi vs Union Of India And Ors.
1990 Latest Caselaw 323 Del

JUDGMENT

V.B. Bansal, J.

(1) In this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner has prayed for his immediate release and quashing the order of detention dated 15th February, 1990.

(2) Shri Mahendra Prasad, Joint Secretary to the Government of India 243 passed an order dated 15th February 1990 as an empowered Officer under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (for short COFEPOSA), for the detention of the petitioner with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange.

(3) Briefly stated the facts leading to the passing of the impugned order are that on 15th January, 1990 an information was received by Delhi Zonal Office of the Enforcement Directorate from its Jalandhar Zonal Office that during the investigation of a case against one Satish Kumar Malhotra it was revealed that he used to purchase foreign exchange locally from many persons at Delhi including two brothers Kaka and Bedi running their shop in Gaffar Market, Delhi and had a telephone No. 5435561 at their residence. During enquiry it was found that the petitioner along with his brother Satinder Kumar Sikri @ Kaka was running Stall No. 24 at Gaffar Market, Karol Bagh and was residing at House No. 2/328, Subhash Nagar, New Delhi. From the aforesaid stall 9500 U.S-Dollars, 11700 Indian currency, and some documents were recovered in the presence of the petitioner while from his residence in the presence of his brother Indian currency of Rs. 180t0.00 and documents were received. Statement of the petitioner was recorded under Sec. 40 of the Foreign Exchange Regulations Act, 1973, and thereafter the impugned order was passed.

(4) I have heard the learned counsel for the parties and have also gone through the records.

(5) In the writ petition numerous grounds have been taken by the petitioner to challenge his detention. However, the petitioner is entitled to succeed oc a short point and so it is unnecessary to deal with other points raised therein.

(6) It has been submitted by learned counsel for the petitioner that the detaining authority has placed reliance upon irrelevant documents on account of which there is no application of mind and so the detention order is liable to be set aside. This is contained in ground No. 28 of the writ petition which reads as under :- "THAT irrelevant documents have been taken into consideration by the detaining authority in arriving at the satisfaction. Document at p. 44 dated 17 1.90 is an application for B Class, document at page 45 is only Vakalatnama, document at page 49 is only a list of document; document at pages 50, 51 and 52 are the medical certificate and bills which have nothing to do with the augmentation of foreign exchange ; document at page 53 is only a list of document, and col document at pages 54 and 55 have also nothing to do with the said satisfaction Similarly, document at pages 60, 61, 62 and 63 have nothing to do with the augmentation of foreign exchange. Copies of these documents are enclosed and collectively marked as Annexure 'G'. These documents are irrelevant and, therefore, there is complete non-application of mind in passing the detention order which makes the detention illegal......"

(7) Counsel for the petitioner has, thus, submitted that there could possibly be no question of these documents being material or relevant to enable the detaining authority to come to a subjective satisfaction for passing of the impugned order. It would be relevant to quote the reply of the respondents. All that has been stated by respondent no. 3 in the affidavit is that "no irrelevant document was considered by the detaining authority". The documents referred to by the learned counsel for the petitioner are application of the accused for the grant of B-Class facilities in the jail, power of attorney, list of documents, medical record and application by the petitioner addressed to the Enforcement Officer and also that he was suffering from fever and that he would appear the next day. I have carefully gone through the order of detention as also the aforesaid documents Submission of the learned counsel for the respondent has been that there was sufficient material on record with the specially empowered officer for his subjective satisfaction to pass the impugned order. He has also submitted that the detaining authority in fact had not placed reliance upon the aforesaid documents which are only referred to. I have given my thoughtful consideration to this submission out have no hesitation in coming to the conclusion that this argument has no base. In paragraph 8 of the grounds of detention it has clearly been mentioned that while passing the detention order the detaining authority has relied upon the document mentioned in the enclosed list. The documents, in question are contained in pages 41 to 60. In these circumstances, it is too much on the part of learned counsel for the respondent to say that these documents are not relied upon. Counsel for the respondent was asked to disclose the manner in which the aforesaid documents could be said to contain material showing prejudicial activities of the petitioner. I am conscious of the fact that the decision has to be arrived at by the detaining authority by subjective satisfaction and court is not to sit over judgment to find cut if the material was sufficient or insufficient. However, in case the detaining authority relies upon irrelevant document it would clearly indicate that there was complete no application of mind. The law is well settled that all the material against a person has to be placed before the detaining authority who has to scrutinised the same and has to rely only on material documents showing the link of the person concerned with his prejudicial activities. In case Smt.Shalini Soni and others v. Union of India and Ors., , Supreme Court has observed as follows :- ".......It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matter only, eschewing the irrelevant and the remote' Where there is farther an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. . . . . ."

(8) In another case Diwan Singh Verma v. Union of India and Others, 1988 (2) Delhi Lawyer 1978, it has been held that if the detaining authority relies upon a set of documents which provide no evidence against the detenu, it would follow that the application of mind was totally casual and mechanical and it was not the type of the application of mind which the law insists upon. The subjective satisfaction of the detaining authority, thus, stands vitiated if some irrelevant documents are taken into consideration while arriving at a conclusion to pass the order of detention. To the same effect are two cases Jagdish Mitr v. Union of India and Others, 1990 Cr.L.J. 269 and Criminal Writ Nos. 568, 686 and 691 of 1989 decided on 9th January, 1990.

(9) Considering the facts of this case in the light of the aforesaid decisions it is clear that the detaining authority has placed reliance upon irrelevant documents on account of which the impugned order is liable to be set aside. It is clear that there is non-application of mind by the detaining authority as the aforesaid documents are not in any manner shown to be connected with the prejudicial activities of the petitioner.

(10) As a result of my aforesaid discussion, the writ petition is allowed. Rule is made absolute. The detention order is quashed. I direct that the petitioner be set at liberty forthwith, if not required in any other case.