Varinder Singh Batra vs Union Of India And Ors.
1993 Latest Caselaw 456 Del

JUDGMENT

S.C. Jain, J.

(1) The Petitioner has challenged the detention order passed on 4.12.92 under Section 3(l) of the Cofeposa (as amended) with a view to preventing him from smuggling goods in future by filing this writ petition.

(2) The facts of the case in brief are that on 16.10.92 this petitioner was arrested from the aircraft and a search of his hand baggage resulted in the recovery of foreign exchange in the form of travellers' cheques and currency notes equivalent to Indian Rs. 18,01,236.35. On the same day he allegedly made a statement under section 108 of the Customs Act, which he allegedly retracted on 18.10.92. On his request he was medically examined by the Medical Officer, Central Jail, Tihar, New Delhi and as per the medical report dated 13.1 1.92 the following injuries were found on him:-

[1]Bruises with swelling on both buttocks and on infra scapula region.

[2]Bruises on left shoulder.

[3]Swelling on right calf.

Jail Doctor has stated in the aforesaid report that all the injuries were already healed.

(3) In the grounds taken by the petitioner in this writ petition one of the grounds is that the petitioner was coerced and beaten to make an involuntary statement by the Customs officials on 16.10.92, which he retracted at the earliest. The petitioner was medically examined by the Doctor in jail on 18.10.92 which showed several injuries and swelling on various parts of the body of the petitioner, but this material document i.e. the medical report was not placed before the detaining authority while passing the detention order. In ground (C) it has been specifically mentioned that this is a suppression of relevant material from the detaining authority. As the relevant material has been suppressed, and not considered by the detaining authority at the time of passing of the detention order, this is a material suppression of the facts, which has vitiated the detention order. Besides this ground, several other points have also been taken challenging the detention order, which have not been pressed before me at the time of arguments.

(4) Learned counsel for the petitioner, Mr. Bagai relied on various decisions of this Court as well as of the Supreme Court. He cited the decision of the Supreme Court in the case of Ayya alias Ayub vs. The State of Uttar Pradesh and Another [Crimes 1989 Vol. 1 S.C 8] wherein a telegram allegedly sent by the detenu was not put up before the detaining authority on that ground also it was held to be a material suppression of fact and the detention order was quashed for non-application of mind at the time of passing of the detention order. According to the Hon'ble Judges of the Supreme Court there would be vitiation of the detention order on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality.

(5) Relying upon another decision of the Supreme Court in the case of Asha devi vs. K. Shivraj and Another [AIR 1979 S.C. 447], the learned counsel for the petitioner submits that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.

(6) According to the learned counsel for the petitioner, in the instant case, medical report of the detenu which was just after the making of the statement under Section 108 of the Customs Act and which was retracted thereafter has been suppressed from the detaining authority at the time of passing of the detention order and it is a most material document to show that the statement under Section 108 of the said Act and on which reliance was placed by the detaining authority was not voluntary and was in fact made under force, coercion and as a result of the beating given by the Customs officials. On this ground, the learned counsel for the petitioner submits, this detention order is liable to be quashed.

(7) Mr. B.P. Aggarwal, learned counsel for the Union of India admits that, as mentioned in the counter affidavit of Mr. Mahendra prasad. Joint Secretary to the Govt of India, Ministry of Finance, Department of Revenue, this medical report was not placed before the detaining authority at the time of passing of the detention order, but according to the learned counsel the medical certificate issued by Medical Officer, Central Jail, has no relevance to the case and as such, the same was not placed before the detaining authority. According to him, since the medical report was not considered by the detaining authority, as such the same was not included in the list of documents relied upon. It is well settled, as has been laid down by the Supreme Court in the case of Asha devi vs. K. Shivraj and Another [supra], that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.

(8) In this case there is no dispute that this petitioner was apprehended on 16.10.92. He allegedly made a statement under Section 108 of the Customs Act on that very day. He retracted his statement on 18.10.92 and made a request for his medical examination while in jail. As a result of which he was medically examined by the Jail Doctor, who found three injuries on his person, though those injuries had healed by that time. This medical report was most relevant document to arrive at a finding whether the statement allegedly made under Section 108 of the Customs Act was voluntarily made or was made under force, coercion and as a result of the beating. The suppression of this medical report and not producing the same before the detaining authority has" vitiated the decision of the detaining authority, and it amounts to non-application of mind while passing the detention order. I am not in agreement with the submission of the learned counsel for the Union of India that this medical report was not relevant and as such was not placed before the detaining authority, as it has nothing to do with the facts of the case. The case of the petitioner throughout was that his statement under Section 108 of the Customs Act was made under force, coercion and as a result of the beating and if this medical report been before the detaining authority his decision might have been different. As has been laid down by the Supreme Court in the case of Ayya alias Ayub vs. The State of Uttar Pradesh and Another [Supra], there would be vitiation of the detention order on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. In this case the detaining authority might very well have come to same conclusion after considering this material; but in the facts of the case the omission to place this medical report before the detaining authority at the time of passing of the detention order is fatal to the prosecution case.

(9) On this ground alone, though the detenu has taken several other grounds, this detention order is liable to be quashed. As a result of the forgoing this writ petition is allowed and the order of detention dated 4.12.92 is hereby quashed and the Rule is made absolute. Ordered accordingly.