Prabhat Kumar Srivastava vs Union Of India And Ors.
1993 Latest Caselaw 455 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is a writ petition under Article 226 of the Constitution of India challenging the order of detention dated February 26,1993 passed by the Joint Secretary to the Government of .India, respondent No.2, against the petitioner under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

(2) The allegations as revealed from the grounds of detention are as under:-

(3) On search of the flat No.BE7C,DDAMunirka, from where the petitioner was operating, the Officers of the Central Economic Intelligence Bureau recovered the following foreign currencies: 1.US dollars 64015 2. Canadian Dollars 4789 3. Saudi Rials 600 4. Italian Lira 5,00,000

(4) Apart from the above recovery, large amount of foreign currency was also recovered from the scooter driven by Lal Singh, an associate of the petitioner.

(5) Pursuant to notice under Section 108 of the Customs Act, 1962, the petitioner is alleged to have made a voluntary statement in which he admitted that the foreign exchange recovered from the aforesaid flat was given to him by one Dr.Anand residing in Doha. The petitioner was arrested on February 14,1993 in regard to the above incident. He was remanded to the judicial custody till March 1, 1993. Ultimately the impugned order of detenion was passed against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities,Act,1974.

(6) Learned counsel for the petitioner has taken a short ground in support of his submission that the detention order suffers from patent illegality and cannot stand. He has invited my attention to para 11 of the grounds of detention which reads as under: "While passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list. A copy of these grounds of detention and copies of relied upon documents translated into Hindi, the language known to you are also enclosed."

(7) From the perusal of the above para, it is evident that all the documents which accompanied the grounds of detention were relied upon by the detaining authority while forming the subjective satisfaction for the purpose of passing the detention order. A perusal of the list of documents accompanying the grounds of detention would show that some of the documents are absolutely irrelevant and should not have been relied upon for reaching the subjective satisfaction.

(8) ' Document at Sr.No.101 accompanying the grounds of detention, which is an 371 application dated February 22, 1993 of Shri Satish Aggarwal, Senior Ssp for inspection of court papers, by no stretch of imagination can be said to be relevant for forming the subjective satisfaction in regard to the detention of the petitioner.

(9) Similarly the application dated February 15, 1993 (S.No.114) of one Chander Anand, for grant of 'B' Class facility in Jail has no relevance whatsoever with the detention of the petitioner.

(10) The detaining authority also relied upon Panchnamas of searches conducted at various places which did not even lead to any recovery or seizure of incriminating material.

(11) Again documents at S.Nos. 116, 118, 120, 122, 124 and 130 etc. are also not pertinent to the matter of detention of the petitioner. It is well established that the material relied upon by the detaining authority for purpose of forming subjective satisfaction to detain the person under the preventive detention laws must be pertinent to the activities of such person, which are required to be prevented. Statement of the detaining authority in para 11 of the grounds of detention shows that it acted mechanically and in a casual manner. It betrays non-application of mind by the detaining authority to the material placed before it.

(12) It may be noted that in para 12 of the counter-affidavit filed by the detaining authority an attempt has been made to salvage the situation by denying that any irrelevant material was relied upon in arriving at the subjective satisfaction. Para 12 of the counter affidavit reads as under- " It is wrong to say that reliance has been placed on numerous irrelevant documents which are not pertinent and related to arrive at the subjective satisfaction to detain the detenu.All documents which are placed before the detaining authority are considered by him but mere consideration of any document does not mean that reliance has been placed on the said document in arriving at subjective satisfaction. Since no specific documents have been pinpointed in the detention order, which only has been relied in formation of subjective satisfaction, the statement that reliance has been placed on numerous irrelevant documents is baseless."

(13) In other words the return suggests that detaining authority did not rely upon all the documents accompanying the grounds of detention for reaching the subjective satisfaction though it considered all of them and that mere consideration of the same does not mean that reliance was placed upon them. This self serving assertion of the detaining authority is contrary to the categorical statement made in the grounds of detention and does not advance its case. The counter-affidavit also does not disclose which of the documents were merely considered and which were relied upon for arriving at the subjective satisfaction.

(14) In view of the above discussion, the impugned detention order is quashed. The petitioner is directed to be released forthwith if not wanted in connection with any other case.