Delhi High Court
Dimple Prakash Shah vs Union Of India & Others on 20 January, 2010
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
WP (Crl.) No. 447 of 2010
Reserved On: 07th April, 2010
% Date of Decision: 20th April, 2010
DIMPLE PRAKASH SHAH . . . Petitioner
through : Mr. Soli J. Sorabji, Sr. Advocate with
Mr. Saurabh Kirpal, Mr. Sanjay
Aggarwal and Mr. Satish Pandey,
Advocates for the petitioner.
VERSUS
UNION OF INDIA & OTHERS . . .Respondents
through: Mr. Atul Nanda, Advocate.
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported in the Digest? Yes
A.K. SIKRI, J.
1. Vide orders dated 26.02.2010 passed under Section 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred as „the COFEPOSA), the Joint
Secretary to the Government of India has directed that Shri Prakash R.
Shah @ Podiyan @ Mamaji (hereinafter referred to as „the detenu‟) be
detained and kept in custody in the Central Prison, Puzhal, Chennai. In
execution of this order, the detenu was taken into custody on 01.03.2010.
He was, at the same time, served with the Grounds of Detention as well
as the documents on which the detaining authority relied upon while
passing the detention order. The present writ petition of habeas corpus is
filed and prayer therein is also made to set aside the impugned order of
detention dated 26.02.2010 seeking a direction to the respondents to
release the detenu from the detention.
2. The facts and the circumstances which led to the passing of the
detention order may now be taken note of.
3. On 06.10.2009, the officers of the Enforcement Directorate searched the
residential/business premises of the detenu and recovered a sum of
Rs.1.31 Crores. The explanation of the detenu was that this money
actually belongs to his partnership firm M/s. Venkatesh Properties and
was meant for making investment in the real estate. It is alleged in the
petition that the various summons were served and coercive tactics
were used for obtaining false confessions. The detenu had retracted
those confessions on the very next date, pleading that they were taken
under coercive circumstances.
4. Within few days thereafter, he also filed the Writ Petition No. 23558 of
2009 on 16.11.2009 in the Madras High Court in which the detenu had
given the details of atrocities/illegalities allegedly committed by the
officers of the Enforcement Directorate. He had also prayed for
permitting presence of a lawyer at a visible distance during the course of
interrogation. This petition was filed at the stage when summons had
been issued to him directing him to appear in the office of the
respondents on 17.11.2009. In the writ petition, the detenu had
submitted that the prejudice would be caused to him if the assistance of
counsel was not allowed at the time of recording of statement which
was, in any case, his right as well under the law and as a part of fair
procedure enshrined in Article 21 of the Constitution of India. Interim
prayer was also made for stay of further proceedings pursuant to the
summons dated 04.11.2009. Interim stay order dated 18.11.2009 to this
effect was passed.
5. The detenu, thereafter, addressed communication dated 29.11.2009 to
the Joint Secretary, Ministry of Finance, Depart of Revenue alleging that
he had given proper explanation in respect of cash recovered from him;
he had no connection with any person in Singapore nor was he
distributing any money on behalf of any foreigner. According to him,
his rival in business had engineered all this. He also stated that since
the Madras High Court had granted the stay after hearing the
Department, prima facie his plea was accepted and therefore, no
detention order under COFEPOSA be passed. However, the detaining
authority proceeded to pass the detention order dated 26.02.2010, which
was executed on 01.03.2010 and the detenu was taken in custody.
6. Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the petitioner,
paraphrased his submissions under the following heads:
(i) The detention order is vitiated on the vice of non-application of
mind in formulation of grounds:
(a) The grounds were formulated by the sponsoring authority,
and the same were merely adapted by the detaining
authority.
(b) In the alternative to point (i) above, the grounds of
detention were required, in law, to be drafted by the
detaining authority. The subordinates could, at best,
provide assistance in drafting the same.
(ii) The detaining authority‟s consideration of any of the relevant
material relating to the proceedings before the Madras High
Court, having potential to effect the subjective satisfaction of the
detaining authority is not reflected from the grounds of detention.
In any event, non-supply of the same pari passu the grounds of
detention has prejudiced the detenu‟s right to make effective
representation at the earliest opportunity.
(a) The detaining authority did not take into consideration
relevant material, i.e., the counter affidavit filed by the
sponsoring authority admitting that investigation was at
initial stage.
(b) In the alternative to point (i) above, as like the counter
affidavit, the grounds of detention does not reflect the
consideration of the writ petition with affidavit of the
detenu, the counter affidavit of the sponsoring authority
and the interim stay order in favour of the detenu.
(c) In the event, the detaining authority did apply her mind to
the said documents, it was incumbent upon her to provide
a copy of the same to the detenu pari passu the grounds of
detention. Failure to supply such relevant documents is a
violation of constitutional imperatives mandated by both
the facets of Article 22(5) of the Constitution of India.
(iii) The detaining authority has neither considered nor supplied
certain relevant documents, i.e., the transcript/data contained in
the laptop, the pen drive and the hard disc, though claimed as
incriminating by the sponsoring authority.
(iv) Section 3(d) appears to have been invoked by merely copying the
proposal or draft grounds of detention.
(v) If there is any doubt whether the rules have been strictly
observed, that doubt must be resolved in favour of the detenu.
Mr. Atul Nanda, learned counsel appearing for the respondents
countered those submissions. We will take note of the arguments
of the counsel for both the sides while dealing with each of these
submissions.
Submissions at (iii) to (v) above are the shades/species of the first
two submissions.
Re: Whether the detention order is vitiated on the vice of non-
application of mind in formulation of grounds:
(i) Submissions: The petitioner has alleged that the sponsoring
authority forwarded draft grounds of detention to the
detaining authority. The preparation of the draft grounds of
detention by the officer of sponsoring authority implies that they
presumed that the detaining authority is going to pass the
detention order in all eventualities/probabilities. The
Respondents did not deny that draft grounds of detention were
prepared by the sponsoring authority. However, it was
contended that the drafting of the grounds by the officer of
Sponsoring Authority as perhaps in over enthusiasm, but it was
an exercise in futility as the Draft grounds were not sent to the
Detaining Authority. According to the petitioner, it is clearly
unbelievable averment. This is so because the draft grounds of
detention, sent in 3 sets by the Deputy Director, Directorate of
Enforcement to the Director, Directorate of Enforcement under
the covering letter dated 23.11.2009, and the actual grounds of
detention are remarkably similar. It is too much of a co-incidence
to expect that the similarity is purely accidental.
The Petitioner has also annexed a Chart showing the stark
similarities between the actual grounds and the said draft gounds
prepared by the officers of the Sponsoring Authority.
Another telling example of the similarity between the draft
grounds and the actual grounds pointed out by the petitioner is
the invocation of Section 3 (d) of Foreign Exchange Management
Act (hereinafter referred to as „the FEMA‟) in both the
documents. Learned Senior counsel has submitted that Section 3
(d) of FEMA relates to the acquisition or creation or transfer of a
right to acquire, any assets outside India. The particulars
communicated to the detenu in the impugned grounds of
detention do not contain any material justifying invocation of
Section 3(d) of FEMA. However, since the draft grounds alleged
violation of this provision, possibly by error, the curious part is
that the same error has been reproduced by the actual grounds of
detention. It is argued that this reproduction of an erroneous
consideration clearly shows that the person drafting the grounds
relied heavily on the draft grounds formulated by the sponsoring
authority.
A perusal of the chart showing existence of identical errors,
identical averments, identical chronology of alleged facts,
identical subjective satisfaction, identical spelling mistakes, and
identical/verbatim language of the final conclusions and
information meant for detenu regarding his right to make
representation etc. proves the contention of the petitioner that the
draft grounds prepared by the officer of the Sponsoring authority
were bodily adapted.
Predicated on the aforesaid peculiarities in the chart, the stand of
the respondent as shown from file notings that the Draft Grounds
of detention though prepared by the officer of the Sponsoring
Authority, but were not forwarded to the Detaining Authority, is
unacceptable. What is shown in the records is not the real state of
affairs. Inference is sought to be drawn that the the person
drafting the grounds of detention had at least a soft copy of the
said draft grounds, may be unofficially, and has taken them as a
base and made whatever changes or additions as deemed fit in
the narration of alleged facts. This matter of formulation of the
impugned grounds of detention was impermissible in law and
renders the impugned order void ab-initio.
(ii) In the alternative to point (i) above, it is argued that the grounds
of Detention were required, in law, to be drafted by the Detaining
Authority. The subordinates could, at best, provide assistance in
drafting the same. On the contrary, argued the learned counsel,
the file notings clearly reveal that the detaining authority had
only directed her subordinates to process the proposal for
preventive detention. However, the formulation of the draft
grounds was done by the subordinate of the detaining authority,
which was finally approved by the detaining authority herself on
26-2-2010 i.e. the date of the impugned order of detention. It was
clearly impermissible.
7. Discussion:
The submission of the learned Senior counsel has two limbs. In first
place, it is contended that the grounds were formulated by the
sponsoring authority and the same were merely adopted by the
detaining authority and from this it could be concluded that the
detaining authority did not apply its own independent mind. It was
argued that the preparation of draft grounds by the officers of
sponsoring authority implies that they presumed that the detaining
authority is going to pass the detention order in all
eventualities/probabilities. This submission was refuted by the learned
counsel for the respondent by pointing out that the draft grounds,
though prepared by the sponsoring authority were not sent to the
detaining authority. Learned counsel had produced the original records
in support of this submission.
8. A perusal of the records shows that the Directorate of Enforcement had
sent proposal for detention of the detenu in five sets along with one set
of relied upon documents. This proposal was forwarded vide covering
letter dated 02.12.2009. On receipt of the proposal, meeting of the
Central Screening Committee was held on 10.12.2009 under the
Chairmanship of the Member (Customs). The minutes of the said
meeting indicate that after deliberation upon the matter, the Central
Screening Committee approved the proposal. Thereafter, note dated
17.12.2009 was prepared by the Under Secretary (COFEPOSA)
requesting the Joint Secretary (C), i.e., the detaining authority to "kindly
see for further directions". Along with this note, certain documents are
also enclosed. However these documents do not include drafts grounds
of detention prepared by the Enforcement Directorate. It is on this basis
that the learned counsel for the respondent contended that though draft
grounds were prepared by the sponsoring authority, perhaps in over-
enthusiasm, but those approved grounds were not sent to the detaining
authority.
9. One would tend to get such an impression in the first blush. However,
a little deeper and further scrutiny of the matter would manifest that
those draft grounds were very much available with the detaining
authority. We will advert to this aspect a little later. Before that,
another important aspect needs to be pointed out at this stage to
complete the narration of events.
10. When the matter was put up before the JS(C), i.e., the detaining
authority for further directions, she wrote following remarks on the note
sheet on 21.12.2009 "please process the proposal". The file shows that
with this mandate, the Under Secretary (COFEPOSA) spoke to AD, ED
(Enforcement Directorate), Chennai and required him to send some
officers‟ conversion of the case "along with material for preparation of
GOD (i.e. grounds of detention) and relied upon documents". This is
the noting dated 24.12.2009. There are further discussions with the same
officer in Chennai by the under Secretary. One officer from
Enforcement Directorate, Chennai was deputed as well, who held
detailed discussions on various dates for the purpose of preparing the
grounds of detention and ultimately grounds of detention were
prepared by the Under Secretary. The mater was discussed with the
detaining authority on 25.02.2010, who approved the final draft
detention order/grounds of detention/relied upon documents. It is on
this basis, that the detention order was prepared and signed on
26.02.2010.
11. The aforesaid sequence makes it clear that even if the draft grounds of
detention prepared by the Enforcement Directorate were not sent to the
detaining authority, the Under Secretary in the office of the detaining
authority while preparing the ground of detention had consulted and
even summoned an officer from the office of Enforcement of Directorate,
Chennai. The possibility of bringing draft grounds of detention order
prepared by the sponsoring authority cannot be ruled out. In fact, when
we would compare the actual grounds of detention with the draft
grounds of detention prepared by the sponsoring authority, this
"possibility" does not remain a hypothesis, but is established as
"reality".
12. Our attention was drawn to the following stark similarity between the
actual grounds and the draft grounds prepared by the officer of the
sponsoring authority:
"1. The satisfaction recorded by the detaining authority
in the Grounds of detention is to be found in paragraphs
22-25. These paragraphs are the heart of the detention
order, where the subjective satisfaction of the detaining
authority are recorded. The wording of the grounds are
identical to the draft detention order at paragraphs 15-18.
The Respondent, during the course of arguments, had
submitted that the last few paragraphs of the detention order,
which are a verbatim copy of the draft grounds of detention,
were standard paragraphs. This is clearly an incorrect
statement. Attached hereto is another detention order passed by
the same detaining authority, Ms. Rashida Hussein, where the
last few paragraphs are completely different.
This shows that the detention order has been
substantially copied from the draft grounds of detention.
2. The fact that the draft grounds of detention were
available to the person drafting the detention order is apparent
from the similarities between the two documents. The
differences are not pertinent since it is the similarities which
clearly establish that the draft grounds were placed before the
detaining authority (or her subordinates_ who drafted the
detention order. Some of the telling similarities which
establishes that y the detention order was a cut and paste job is
apparent from the following examples.
The address on the top of 1st page ends the word "Janpath"
in both the documents. Whereas on the 1st page in the
address, "Janpath Bhavan" is typed in both the documents, in
para 26 of the grounds and para 19 of the Draft grounds it is
spelt as "Janpath Bhawan," with „w‟ instead of „v‟.
There are six nos of (*) marks i.e. (******) below the address
in both the documents.
The peculiar manner of writing place and date "New Delhi,
the _____________2009" in the Draft grounds, and "New
Delhi, the 26th February, 2010" in the Grounds served, is the
same.
The heading "Grounds on which............... Act, 1974" is
verbatim same in the two documents.
There exists five nos of (*) marks i.e. (*****) after the above
heading in both the documents.
The file no is kept as blank ( 673/____2009-CUS VIII) in the
Draft grounds sent under cover of letter dated 23.11.2009, as
against file no. 673/02/2010-CUS VIII in the actual Grounds
of detention. "
13. A better yardstick to prove the availability of the draft grounds while
preparing the grounds of appeal is the repetition of errors committed in
the draft grounds, which has crept in the grounds of detention prepared
in the office of the detaining authority as well. In this behalf, following
errors common to both the documents are pointed out:
The errors committed in the draft grounds are repeated verbatim,
at the same place in the grounds for detention. Certain words
which are spelt in two separate ways in the draft grounds are also
spelt in the same way in the actual grounds. The term hard drive
has been used at certain places and hard disk and other places. The
name Rajeev has also been spelt as Rajiv in different places.
Similarly, the word Venkateshwara has been used elsewhere
without the letter „h‟ - i.e. as Venkateswara. Instances of such
errors are given below.
4 Para 3.1: regarding search Para 4 (d)
and recovery including of regarding search
one hard disk and recovery
including of one
hard disk
5 Para 3.2: 3.2.1 to 3.2.3: Para 4.1 to 4.3:
Explanation regarding seized Explanation
currency and Laptop, Hard regardiong seized
Drive and pen drive, ending currency and
with "...accounts or sheets Laptop, Hard
for the aforesaid Drive and pen
transactions." drive, ending with
"...accounts or
sheets for the
aforesaid
transactions."
(It is relevant to
note that
mistakenly Draft
Grounds refer the
hard disk as Hard
Drive, and the
same mistake is
adapted in the
actual Grounds as
well)
6 Para 3.2.4 starting with "You Para 4.4 starting
further stated that, on with "you further
1.10.2009...." and ending stated that, on
with "........S/Shri Hifzur 1.10.2009,...." And
Rehman and Salim Abdul ending with
Charoliya;" "........S/Shri
Hifuzur Rehman
Pg 7-spelling - "Rajeev" and Salim Abdul
Charoliya."
Pg 8- Spelling -
"Rajeev"
12. Para 5.1 to 7 "That the mobile Para 7 to 9 "You
no.9841573000............hande further explained
d over the said Ten rupee to that the mobile no.
the offices." 9841573000.....han
ded over the said
"Para 6 -Spelling-Rajiv" Ten rupee note to
them."
"corresponding
para 8-Spelling-
Rajiv"
14 Para 9: Statement of Uttam Para 11: Statement
Chand of Uttam Chand
"Spelling-M/S "Spelling -M/s
Venkateshwara Homes 9P) Venkateshwara
Ltd." Homes (p) Ltd."
15 Para 10: Mohammed Para 12:
Sulaiman, ending with Mohammed
mobile no. 9952985800 Sulaiman, ending
connection (sim card). with mobile no.
99529858000
"Spelling-M/s connection (sim
Venkateswara Homes (p) card).
Ltd.
"Spelling -M/S
Venkateswara
Homes (p) Ltd."
Address: "Janpath Bhavan" Address: "Janpath
on 1st page and "Janpath Bhavan": on 1st
Bhawan" in para 19 page and "Janpath
Bhawan" in para
19"
14. Mr. Soli J. Sorabji drew our attention to certain portions contained in
draft grounds prepared by the sponsoring authority, which were
substantial and bodily lifted in the grounds of detention served upon
the detenu inasmuch as 23 search instances were shown on the
comparison of draft grounds and the final grounds served upon the
petitioner. Mr. Sorabjee also pointed out the erroneous invocation of
Section 3(d) of FEMA in draft grounds which is repeated in the grounds
of detention. Section 3(d) relates to the execution or creation of transfer
of a right to acquire any assets outside India and reads as under:
"enter into any financial transaction in India as consideration for or
in association with acquisition or creation or transfer of a right to
acquire, any asset outside India by any person.
Explanation - For the purpose of this clause, "financial transaction"
means making any payment to, or for the credit of any person, or
receiving any payment for, by order or on behalf of any person, or
drawing, issuing or negotiating any bill of exchange or promissory
note, or transferring any security or acknowledging any debt."
It was a submission of the petitioner that the particulars communicated
to the detenu do not contain any material justifying invocation of
Section 3(d) of FEMA. Learned Counsel for the respondents could not
refute this submission but only tried to argue that if the detention order
can be justified on other grounds, invocation of one wrong provision
would not invalidate through. However, the aspect which we are
examining is altogether different. One of the grounds of detention
stated in the draft grounds prepared by the sponsoring authority is
Section 3(d) of FEMA and it finds mention in the final detention order as
well. This would clearly indicate that the aforesaid provision was
bodily lifted and relied upon by the detaining authority without
applying its own independent mind and thus proves the fact that draft
grounds of detention forwarded by the sponsoring authority were
before the detaining authority.
15. Even the second limb of the submission needs to be accepted. As
pointed out above when the Under Secretary placed the matter before
the detaining authority "for further directions" vide his note dated
17.12.2009, the detaining authority simply asked him to process the
proposal. At that stage, obviously, the matter is not considered by the
detaining authority by applying her own independent mind to the
material produced before her and to arrive at a conclusion whether
detention order would be justified or not. However, overenthusiastic
Under Secretary there after started doing the exercise of preparing
grounds of detention in consultation with officers of Enforcement
Directorate, Chennai. The matter was placed before the detaining
authority only after grounds of detention were prepared and detaining
authority approved the final detention order. This would show that
even before there was any application of mind by the detaining
authority and even before she looked into material and decided as to
whether detention order was required or not subordinate officer drafted
the grounds of detention. Things would have be different if direction
was given by the detaining authority to the Under Secretary to prepare
the detention order after she had decided, on going through the relevant
material, that it was a fit case for passing the detention order.
16. Thus, from whatever angle the matter is looked into, it is clear that
authorities proceeded with pre-determined mind, that too at a lower
level, that detention order had to be passed. Matter was placed before
the detaining authority only thereafter. Therefore, it can clearly be
inferred that it is a case of non-application of mind in formulation of
grounds of detention while passing the detention order.
17. The conclusion, which we have arrived at is duly supported by the
judgment of this Court in the case of Praduman Singh Vs. Union of
India [(2005) Cri. L. J. 20]. This judgment inter alia lays down that the
detention order has to be drafted by the detaining authority. The
detaining authority at the most could take some assistance from his
subordinate, but could not delegate this essential task. We may usefully
extract the following discussion contained in the said judgment herein:
"14.Mr.Bagai then urged that the reply filed by the detaining
authority would itself show that the detaining authority did not
apply his own mind while passing the detention order and he has
simply approved the draft detention order put to him by the lower
functionaries in his departments...
We must remember that Section 3 of the Act provides for power to
make detention order. Sub-section (1) of Section 3 of the Act speaks
of the authorities who are competent to make detention orders. In
the case of Central Government, an officer not below the rank of a
Joint Secretary and in the case of State Government, not below the
rank of a Secretary to that Government, who have been specially
empowered for the purposes of Section 3, can only make detention
orders. This clearly depicts the legislative intent that the task of
passing a detention order can only be entrusted to high/senior
functionaries of the State. Only such functionaries who are specially
empowered in this behalf are entitled to pass the detention order if
they are satisfied that the detention of any person is required with a
view to preventing him from acting in any manner prejudicial to
the conservation or augmentation of foreign exchange or with a
view to preventing him from smuggling of goods etc. therefore, the
satisfaction envisaged in Section 3 has necessarily to be of the
officer specially empowered in that behalf and of nobody else. We
do not mean to stretch this proposition to the extent that only the
specially empowered officer himself has to do each and every thing
in connection with the passing of the detention order. He is
certainly entitled to take the assistance, from his lower
functionaries for accomplishing this task but their input will be
limited only to place the entire material before the detaining
authority and they should not involve themselves in decision
making process about the recording of satisfaction. That is entirely
within the domain of the detaining authority. What has been done
in the case in hand is somewhat disturbing because even before the
detaining authority considered the matter and applied its mind to
the material placed before him and recorded his satisfaction about
making the detention order, the lower functionaries had actually
put up a draft of detention order for the approval/vetting by the
detaining authority which implies that the lower functionaries
presumed that the detaining authority is going to pass the
detention order in all eventualities/probabilities. Such a procedure
or practice of putting up draft orders for approval/vetting by the
competent authorities/senior functionaries can perhaps be justified
in the routine discharge of administrative functions and duties in
various Ministries and Departments of the Governments while
dealing with purely administrative matters. The Rules of business
allocation of the Government permits such a procedure but when it
comes to the passing of quasi-judicial orders or a detention order
under various preventive detention laws, it has to be different.
Adoption of such a practice or procedure would vitiate the order as
the detaining authority is likely to be influenced by such an
assistance rendered by the lower functionaries, with whatever bona
fide or sincerity it may be. It would have been a different thing if
the entire material had been placed before the detaining authority
and he had applied his mind and reached a satisfaction about the
need to detain the petitioner on certain grounds and then the lower
functionaries had assisted him in formalising the task of
preparation and issuance of the detention order. We have,
therefore, no hesitation in holding that the impugned detention
order can again be termed as without application of mind by the
detaining authority himself and the satisfaction recorded in the
case in hand was not solely of the detaining authority. The
impugned order is vitiated on this count as well."
18. Re: Non-consideration of relevant material:
It was submitted that the following material was not taken into
consideration:
a) In the counter affidavit filed by the sponsoring authority in the
Madras High Court, it was stated that investigation was at
initial state, in the following words:
"13. Therefore, the respondent most humbly submits that the
Petitioner in his voluntary statements given earlier has
given intricate details and the investigation is still at the
initial stage. The Petitioner has been summoned for
further enquiry in this regard and for completion of the
investigation."
On this basis, it is argued that not only the detention order is
passed in haste even when the investigation was at the initial
stage, which had not progressed further because of such order
granted by the Madras High Court, this relevant material was
not even disclosed to the detaining authority.
b) The writ petition, counter affidavit and interim stay passed by
the Madras High Court were not considered by the detaining
authority.
19. Insofar as submission (a) above is concerned, it is not convincing. No
doubt, in the counter affidavit, it was mentioned that the investigation is
still at initial stage. However, that would not mean that no order of
detention could be passed even if there was proper justification for
passing such an order on the basis of investigation already carried out.
This Court is not going into the merits of the detention order, as that is
the subjective satisfaction of the detaining authority. Moreover, the
averments in the counter affidavit are in the context that writ petition be
not entertained at that stage and stay order be vacated so that the
respondents could investigate the matters further.
20. Insofar as contention (b) is concerned, noting in the file indicates that on
09.02.2010 factum of filing the writ petition by the detenu in the Madras
High Court was recorded and the matter was placed before the
detaining authority. The detaining authority looked into this issue. It is
thus clear that the pendency of petition in the High Court of Madras and
the stay order granted in the petition was not only brought to the notice
of the detaining authority. In the writ petition, the petitioner had
alleged the so-called illegalities and atrocities meted out to him. This
factum was brought to the notice of the detaining authority even in the
form of retracting statement of the detenu and in the noting dated
10.02.2010, the detaining authority had specifically adverted to it.
Therefore, it cannot be said that this material was not considered by the
detaining authority.
21. Next submission in this behalf is that even if the detaining authority had
applied her mind to the said documents, it was incumbent upon her to
supply copy of the same to the detenu pari passu the grounds of
detention. In support of this submission, reliance is placed upon the
judgment of Allahabad High Court in the case of Anil Kumar Vs. UP
[1991 Cri.LJ 2248] and particularly Para 14 thereof, which is in the
following terms:
"However, once the respondent-State takes it as a defence as
awareness was there by the detaining authority regarding the
petitioner being enlarged on bail, the condition of awareness is a
part of the basic fact constituting for passing detention order even if
it does not record in the detention order itself. Once it is held, it
cannot be said that non-supply of this fact would not be fatal in
rejecting the detenu‟s representation. It amounts to not giving
adequate opportunity to the detenu for making effective
representation."
22. It is argued that it is also immaterial whether the detenu was aware
about the contents of these relevant documents. The Supreme Court has
held that in case the detenu is in prison, he may not have access to his
own documents. It is imperative for the detaining authority to supply
him with all documents regardless of whether he had knowledge of the
same. This is the consistent view of the Supreme Court, and a recent
judgment to this effect is Union of India Vs. Ranu Bhandari [(2008)
Cri.LJ 4567 (para 25).
23. This argument has sufficient legal force. In the grounds of detention,
there is no mention about consideration of the writ petition in Madras
High Court and stay order passed therein and consideration thereof.
The view taken by the detaining authority on this aspect in its
note/order dated 10.02.2010. Therefore, it should have been supplied to
the detenu along with grounds of detention and non-supply has vitiated
the detention order.
24. It is a trite law that this Court would not sit as appellate authority over
the subjective satisfaction arrived at by the detaining authority while
passing the detention order. However, at the same time, one has not to
be unmindful of the consequences of the detention order which deprives
a person of his liberty. It affects the fundamental rights of a citizen,
freedom of movement and pursuit of normal life and liberty. Because of
this reason, the Apex Court has emphasized time and again that no
absolute immunity can be claimed by the respondents as to the decision
arrived and it is open to the Courts to see whether there has been due
and proper application of mind and that all the relevant and vital
materials for the purpose have been noticed, adverted to and
considered. (See Chowdarapu Raghunandan Vs. State of Tamil Nadu
and Ors.,2002 (3) SCC 754). For the same reason, the Courts have taken
the view that while passing such orders, there had to be strict
compliance of procedure, as detention orders deprives a person of his
liberty without trial. It would be apt to extract the observation of the
Supreme Court has taken the following view in the case of Deepak
Bajaj Vs. State of Maharashtra & Anr. [AIR 2009 SCC 628]:
"18. It must be remembered that every person has a fundamental right of
liberty vide Article 21 of the Constitution. Article 21, which gives the
right of life and liberty, is the most fundamental of all the Fundamental
Rights in the Constitution. Though, no doubt, restrictions can be placed
on these rights in the interest of public order, security of the State, etc. but
they are not to be lightly transgressed.
XXX XXX XXX
25. In Francis Coralie Mullin v. Union Territory of Delhi: 1981CriLJ306 :
...the power of preventive detention is a frightful and awesome power
with drastic consequences affecting personal liberty, which is the most
cherished and prized possession of man in a civilized society. It is a
power to be exercised with the greatest care and caution and the courts
have to be ever vigilant to see that this power is not abused or misused.
XXX XXX XXX
29. The celebrated writ of habeas corpus has been described as `a great
constitutional privilege of the citizen' or `the first security of civil liberty'.
The writ provides a prompt and effective remedy against illegal detention
and its purpose is to safeguard the liberty of the citizen which is a
precious right not to be lightly transgressed by anyone. The imperative
necessity to protect those precious rights is a lesson taught by all history
and all human experience. Our founding fathers have lived through bitter
years of the freedom struggle and seen an alien government trample
upon the human rights of our citizens. It is for this reason that they
introduced Article 21 in the Constitution and provided for the writs of
habeas corpus, etc."
25. As we find legal infirmities in the impugned order of detention, we have
no option but to set aside the same. Rule is made absolute and order
dated 26.02.2010 is set aside. As a consequence, the respondents are
directed to release the petitioner forthwith setting him at large. The
petitioner shall also be entitled to the cost quantified @ Rs.15,000/-.
(A.K. SIKRI)
JUDGE
(AJIT BHARIHOKE)
JUDGE
April 20, 2010.
pmc
