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Judgment
Balasubrahmanyan, J.—This petition is for the issue of a Writ of Habeas Corpus for the release of the petitioner from preventive detention
under the COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973) The detention order was made by
the Central Government with a view to preventing the petitioner from dealing in smuggled goods.
Although the detenue figures as the petitioner before us, we do not expect him to prove that his detention is illegal. The law does not place that
kind of burden on him On the contrary, it places the burden squarely on the detaining authority to prove lawful justification for its action. This is
because what is involved is the deprivation of a man''s personal liberty, with the position so clear as to where the burden lies in a Habeas Corpus
proceeding such as this, the learned Public Prosecutor could do no better than refer us to the grounds of detention in this case which the detaining
authority had drawn up and communicated to the petitioner.
We have perused the grounds. Although the plural is used to describe this piece of writing, there is but a single ground on which the order of
detention is based. The grounds refer to the seizure, in transit, of smuggled watches and semi precious stones on a particular day, The goods were
seized near Tindivanam, on their way from Kilakarai to Madras. The owner-driver of the transporting vehicle, one Chellappa by name, and one
Moulana, who was the other occupant, gave statements on oath before the customs Later in the day, a long distance call from a subscriber
telephone number in Kilakarai to the telephone in the petitioner''s house at Madras was recorded by chance. The caller from Kilakarai enquired
whether Moulana had arrived at Madras. Kilakarai is the place where the petitioner his from. But he has been living in Madras for some time,
running a pharmaceutical shop in partnership with another. He was not found to have denture the goods from Kilakarai. He was not found in the
car at Tindiranam. He was not in his house at Madras either, when the phone call came. The detaining authority, however, was satisfied that the
petitioner was the man to whom the smuggled goods were distinctly meant for delivery, to be dealt with by him in due course. The detaining
authority placed reliance on the sworn statements of Mulana and Chellappa. The grounds refer to some other materials too. But Moulana''s
deposition is given quite an importance. So too the sworn statement of Chellappa. These two individuals, according to the detaining authority, fully
corroborated each other, in implicating the petitioner as the intended consignee of smuggled goods. As against their statement on oath the detaining
authority was not prepared to take any disclaimer from the petitioner at its face value.
The learned Public Prosecutor said that given the materials, which are on record, the detaining authority was entitled to take a view of the facts
which appeared to it to be reasonable and draw the inference that the petitioner was the person who would have obtained delivery of the smuggled
goods and dealt with them, if things had gone according to plan.
Mr. G. Ramaswami, Learned Counsel for the detenu, however, submits that the grounds suffer from a serious blemish. He says that the
detaining authority had misread a vital part of the evidence on record. Moulana in his statement had referred to the petitioner by name as the
person to whom the smuggled goods were intended to be delivered at Madras. But Chellappa''s deposition did not go that far. He said his
instructions were to deliver the goods to a ''Kilakarai party'' at Madras. He was not told who that party was. Nor the party''s name or address. He
was to await further instructions only after arrival at Madras. Mr. Ramaswami''s point is that corroboration of Moulana cannot be read into
Chellappa''s deposition. His further point is that the misreading of this part of the evidence in the case vitiates the very foundation of the detention
order.
It is commonplace of preventive detention law that the satisfaction of the detaining authority is a subjective satisfaction. Even so, tile statute
insists that the order of detention must be supported by grounds on which the detaining authority had obtained for itself the requisite satisfaction.
This provision is the clearest indication in the statute to show that subjective satisfaction is not mere self-satisfaction, but something which the
detaining authority arrives at on the materials on record. It follows that if the satisfaction of the detaining authority is based on no material the
resultant order of detention cannot be justified under the statute as being based on any satisfaction, objective or subjective. To the same effect
would be a misreading of the evidence on record. For, to misread the evidence is no different from acting on evidence which is not there. In this
case, the detaining authority put words into the mouth of Chellappa when they said that he had fully corroborated Moulana. It is regrettable that
Chellappa''s evidence must have suffered in the retelling. It is still more regrettable that this slip should have cost a man his liberty. But, the fact is
that the detaining authority had made up their mind against the petitioner relying on a ground which contains a palpable error. What is our duty in
such circumstances? Our duty is to declare that the mind of the detaining authority was not properly made up at all.
The learned Public Prosecutor said that we should not quash the detention order merely because the detaining authority read something more
than was found in the statement of Chellappa. He said that ample support for the finding can be found elsewhere in the grounds. We regard this
plea of the learned Public Prosecutor as an invitation to turn ourselves into an appellate court. We decline to do so. We cannot sit in appeal over a
detention order and confirm, set aside, or modify it according to our own view of the facts. We can only examine the order of detention for the
limited purpose of finding out whether it is based on any subjective satisfaction, which is what the statute requires the detaining authority to obtain.
If there is any element which vitiates the formation of their satisfaction, such for instance, as total absence of evidence, or, as in this case, a
misreading of the evidence, we have got to declare the order bad. It is not for us to speculate how the detaining authority would have judged the
facts if they had not misread the evidence in the way they did. We should not undertake an exploration of the mind of the detaining authority.
Indeed, a review of that nature is unthinkable, once it is granted that the satisfaction is subjective.
S. 5A was referred to in argument. It is a new provision in the COFEPOSA. It says that where two or more grounds exist for a detention, the
order will stand even if the court should think that one of them or some of them are wrong and untenable. The order will stand, that is, so long as
there is at least one ground left. This provision is obviously intended to neutralise the effect of the earlier case-law on the subject. Previous
decisions of courts were to the effect that given the subjective satisfaction of the detaining authority on the grounds stated, the failure of even one
ground will vitiate the detention order irretrievably. For, it was thought that a detention order is one and indivisible, so that if one ground is lost, the
whole thing goes. The grounds, it was said are not severable. S. 5A says that they can be. The grounds are now severable. That is the word the
marginal note to the section employs.
This Section, however, cannot apply to the present case. For two reasons. One is that the section requires at least a minimum of two grounds to
work upon. Here we have one solitary ground and no more. The other distinction is that a ground is different from the evidence with provides the
factual foundation for it. S. 5A speaks of grounds-not of materials. So, the principles enunciated by the courts still hold good. If there are several
pieces of evidence which are referred to in support of a ground of detention, and that happens to be the one and the only ground for detention, and
the court finds that one piece of evidence relied on by the detaining authority is non-existent or irrelevant or misconceived or misunderstood, then,
that would tarnish the subjective satisfaction of the detaining authority as a whole. This is the principle which we have to apply in this case and
which we have, in fact, applied.
The learned Public Prosecutor informed us that Shamsuddin who was the owner of the smuggled goods, and the prime-mover in this smuggling
operation, was another person detained under the COFEPOSA. We were informed that Shamsuddin''s detention was upheld by a Bench of this
Court. A passage from their judgment was used before US. In that passage certain remarks were found concerning the petitioner.
It is not for us to examine whether any observations in the judgment relied on by the learned Public Prosecutor were called for in so far as they
related to the petitioner before us. We are only impressed by one consideration. The petitioner was not a party to the proceeding in that case.
Hence, it would be proper to treat with indifference the observations however, weighty they might be in that case.
For the reasons which we had earlier set out, we allow this writ petition. The rule is made absolute. A writ of Habeas Corpus will issue
directing the Superintendent of the Central Prisons, Madras, to set the petitioner at liberty forthwith.
The learned Public Prosecutor makes an oral application for leave to appeal to the Supreme Court against this judgment. He stated that he was
making the application under Art.134A read with Art. 133(1) (a) of the Constitution.
In our view, there is no substantial question of law of general importance involved in this case. Nor are we satisfied that the decision rendered
by us raises any question which needs to be decide by the Supreme Court. All we did in this case was to go into the grounds of detention and find
that the detention order could not be supported on those grounds. We therefore, declined to issue a certificate of fitness for leave to appeal to the
Supreme Court.