Mukesh Arora vs Union Of India And Ors.
1994 Latest Caselaw 598 Del

JUDGMENT

Dalveer Bhandari, J.

(1) The petitioner has filed this petition under Article 226 of the Constitution of India against the order dated 4th March, 1994 passed by Mr. Mahender Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. By the said order, the petitioner has been detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This order was served on the detenu on 8th March, 1994 while he was in judicial custody in Central Jail Tihar, New Delhi.

(2) Brief facts necessary to dispose of this petition are recapitulated as under:- "THE officers of the Headquarter, Customs (Preventive Branch) Delhi, Customs Collectorate, on receiving specific information intercepted the petitioner and Surender Pal on 23rd January, 1994 when they were about to leave the parking lot of domestic airport. New Delhi in a red coloured Maruti Car DL-5C-3509. The said car along with the petitioner and Surender Pal was brought to the Customs House and searched and rummaging was done in the presence of two independent witnesses. As a result of personal search of Surender Pal, four slabs of some heavy metal wrapped in

(3) Statement of the petitioner was recorded u/s 108 of the Customs Act 1962 wherein he deposed that about 7-8 months back, he got an opportunity to go to Dubai where he met one person by the name of Shri Gango Sindhi, who offered him to take gold to India. He further asked them to sell the gold in India and send the money back to him, and after returning to India, he thought on this offer and decided to employ Surender Pal for this work. After giving him the ticket, he asked Surender Pal to go to Dubai and meet Gango Sindhi in Dubai and contact him-on telephone no.531597. In pursuance of that arrangement, the petitioner had visited Dubai 4-5 times.

(4) The petitioner along with Surender Pal were produced before the Court of A.C.M.M. Delhi on 25th September, 1993, who remanded both of them to judicial custody till 8th February, 1994. Judicial custody was further extended from time to time till 11th March, 1994. Copy of that order has been annexed with the petition. The petitioner's three bail applications were rejected and the third application which was filed on behalf of the petitioner and Surender Pal was dismissed on 1st March, 1994. The detaining authority was under the impression that the third bail application of the petitioner was pending and he is likely to be released on bail any time and consequently passed the detention order under Cofeposa Act, with a view to prevent the petitioner from smuggling goods in future.

(5) This court issued rule in the petitioner's writ petition. The petitioner challenged the detention order on various grounds. The principal ground on which detention order was challenged was regarding the non-application of mind on the part of the detaining authority inasmuch as he has misdirected himself in relying on the following ground as in para 12 of the grounds of detention "YOUR third bail application is still pending and your release on bail in the near future is imminent..... I am satisfied that after release from custody, unless prevented you (detenu) will continue to indulge yourself in the prejudicial activities".

(6) According to the petitioner, this is factually incorrect. The petitioner has filed copy of the order passed by the Court by which his third bail application was rejected.

(7) In reply to para 6 which deals with the ground of dismissal of the third bail application, it is submitted on behalf of the respondent that Annexure C-1, (order of dismissal of the third bail application) is not a relied upon document, and does not change the material position about the detenu being in judicial custody. It is further mentioned that even after the third bail application was dismissed, the detenu was not estopped from moving any other bail application and possibility of his release on bail in future could not be ruled out.

(8) The learned counsel for the petitioner has placed reliance on the judgments of the Supreme Court and of this court to show that the order passed by the detain ing authority is based on erroneous material and any conclusion derived from that material would lead to miscarriage of justice. In other words, the order of detention which is not based on cogent, reliable and credible information is liable to be quashed only on this ground alone.

(9) The learned counsel for the petitioner Mr. Trilok Kumar placed reliance on Dwarika Prasad Sahu Vs. The State of Bihar and others, 1975 Supreme Court Cases (Cri)177. In this case. the Court has laid down that, "IF one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicted' to what extent the bad grounds or reasons operated on the mind of the detaning authority or whether the detention order would have been made at all if the bad grounds or reasons were excluded and the good grounds or reasons alone were before the detaining authority."

(10) Reliance has also been placed on Abdul Razak Abdal Wahab Sheikh Vs. S.N. Sinha, Commissioner of Police, Ahmedabad and another, . In this case, the Supreme Court has observed that the detaining authority must be aware regarding cogent and relevant material at the time of making the detention order. The facts of the aforesaid case are quite akin to the facts of the instant case and the court's observation has great relevance. The relevant observations are reproduced; "On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant material and fresh facts have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988. It is also not disputed that thereafter no application for bail was made for release of the detenu before the order of detention was served on him on May 23, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may bere leased on bail in this offence also. This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail was non-existent. This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials.

(11) This court has also taken the similar view. In Martin Hans Peter vs. Union of India and others., . In this case also, the detention order was quashed on the ground that,    "THE order was formulated on non-existent and factually erroneous assertions and reasons which are based on misconceived facts and' misreading of the statements relied upon.'  

(12) Learned counsel appearing for the respondent Ms. Barkha Babbar placed reliance on Shri Abdul Sathar lbrahim Manik Vs. Union of India and ors., Judgment Today 1991 (4) S.C.103. Sanjeev Kumar Aggarwal Vs. Union of India and others, , And Kamanmnissn vs. Union of India and another, .  

(13) When the aforesaid cases are carefully examined then it would not take us to any other conclusion. Any detention order passed on factually erroneous information material cannot be sustained.  

(14) In the instant case, the (act that the third bail application of the petitioner had already been dismissed was not within the knowledge of the detaining authority. It is difficult to visualise what would have been the satisfaction of the detaining authority in case the detaining authority had relevant, cogent and reliable material.  

(15) In my considered opinion, it is not even proper to venture to discern the mental process of the detaining authority in case cogent and reliable material and information would have been available with the detaining authority at the time of passing of the order.  

(16) In this view of the matter, the detention order dated 4th March, 1994 passed by Mr. Mahender Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, is hereby quashed. The detenu shall be released forthwith, if not required to be detained in any other case.