Farook Ali @ Amjath and V. Rajendran (In the matter of the detenu Farook Ali @ Amjath - Petitioner herein) vs The State of Tamil Nadu

A.S. Anand, C.J.—This judgment will dispose of W.P. Nos. 11102 and 12028 of 1989 since the detenu in respect of whom the two

petitions have been filed, have been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(hereinafter referred to as the (COFEPOSA ACT) in respect of one transaction.

Farook Ali alias Amjath, Son of Mohideen (detenu W.P. No. 11102 of 1989) V. Rajendran (detenu in W.P. No. 12028 of 1989) were

detained by the order of detention passed in respect of each by the first Respondent on 25-7-1989 u/s 3(1)(i) of the COFEPOSA Act. The

allegation against the detenus, who were arrested by the Customs Officer at the Madras Air Port, was that they attempted to smuggle gold into

India. Since the grounds on which the impugned order of detention was passed in each of the two cases have been set out in detail in the grounds

of detention, it is not necessary to recapitulate the same.

The first submission advanced by learned Counsel for the Petitioners is that the detaining authority did not formulate the grounds of detention

upon consideration of all documents. It is alleged that the sponsoring authority (Sic) only placed documents Nos. 1 to 94, as supplied to the

detenus along with the grounds of detention, before the detaining authority, who on consideration of the same approved the grounds of detention

and directed the detention of the detenus. Subsequently documents Nos. 95 to 102 were sent by the sponsoring authority and the authenticating

authority, without placing those documents before the detaining authority, itself proceeded to modify and improve upon the grounds of detention

which had been already formulated and approved. Learned Counsel argued that since the detaining authority did not have any occasion to consider

the additional documents and the grounds were modified by the authenticating authority after the approval had been accorded by the detaining

authority, the order of detention had been rendered invalid. The argument raised by learned Counsel is based on Ground 3(x) in the affidavit filed in

support of the petition. The said ground is identically worded in both the affidavits filed in support of the two petitions and for facility of reference is

extracted hereunder:

The detaining authority has not formulated the grounds upon consideration of all the documents together at a single point of time. The sponsoring

authority placed documents Nos. 1 to 94 before the detaining authority who considered the same arrived at the subjective satisfaction and

formulated the grounds of detention. Subsequently Documents Nos. 95 to 102 were sent by the sponsoring authority and on the basis of the

additional documents the grounds of detention already formulated were modified and improved upon. The detaining authority had no occasion to

consider the additional documents and the grounds were modified by the authenticating authority. In view of the above facts, the detention is

vitiated.

In the counter filed on behalf of the first Respondent in W.P. No. 12028 of 1989, the said paragraph 3(x) has been replied in the following

manner:

Regarding the averments made in paragraph 3(x) of the affidavit, it is submitted that the documents Nos. 1-94 were placed before this

Respondent before passing the order of detention. The document Nos. 95-102 were received by this Respondent only on 12-7-1989 and they

were not placed before this Respondent as the documents relied upon earlier are sufficient to detain the Petitioner under the Act and the

subsequent documents referred to by the detenu relate only to the relaxation of bail conditions, which do not minimise the gravity of the offence

committed by him.

With a view to satisfy ourselves about the factual aspect of the matter as emerging from paragraph 3(x) of the Petitioner''s affidavit and

paragraph 13 of the counter affidavit of the first Respondent, we asked for the records pertaining to detention to be produced before us. We have

perused the records. We find that the detaining authority approved the grounds of detention after examining documents existing 7 to 332 of the

Confidential File. The Law Department had after scrutinising the documents which are available at pages 7 to 332 of the Confidential File, opined

that there was ""Sufficient material"" to detain the detenus under the COFEPOSA Act, and the draft grounds of detention were put up before the

detaining authority. The Minister for Law, after perusing the documents and the grounds of detention, recorded his ""Satisfaction"" about the

sufficiency of grounds for detention and consequently both the detenus were detained. These documents which are available in the File between

pages 7 to 332 are the same as documents 1 to 94 or the documents furnished to the detenus along with the grounds of detention. The documents

mentioned as Nos. 95 to 102 are available in the file from pages 339 to 363. These documents obviously were not available before the detaining

authority at the time of approving the grounds of detention and recording its ''satisfaction'' about the necessity to detain the detenus under the

COFEPOSA Act. Reference, however, has been made to the documents Nos. 95 to 102 in the grounds of detention, particularly in Grounds

(xxv) and (xxviii). Since the documents on the basis of which the last sentences were incorporated in Grounds (xxv) and (xxviii) were not made

available to the detaining authority, it is obvious that these sentences were incorporated subsequently in the grounds of detention. While the learned

Additional Public Prosecutor did not dispute this factual aspect of the matter, as indeed, he could not in view of the record which has been

produced by him, he submitted that the incorporations made in Ground (xxv) and (xxviii) were irrelevant because these sentences were not vital or

material so far as the detention of the detenus is concerned. The learned Additional Public Prosecutor, however, did not dispute that both these

sentences in the paragraphs noticed above have a bearing on the question of detention of the detenus in the sense that they dealt with the relaxation

of certain conditions imposed on the detenus by the Criminal Court where prosecution against the detenus is pending. It is immaterial whether the

incorporations in the two grounds were vital or not; the fact remains that both those sentences were added on the basis of the documents which

had been kept from the detaining authority and which the detaining authority had no occasion to consider. The learned Additional Public

Prosecutor, however, tried to wriggle out of the situation by arguing that since detention could be ordered on any of the grounds and the grounds

being severable after the amendment of the Act, the Court could ignore Grounds (xxv) and (xxviii) and still maintain the detention of the detenus. In

support of his submission that the grounds was severable, he drew the attention of the Court to the provisions of Section 5-A of the COFEPOSA

Act.

That the detention can be upheld on any one of the grounds, Where there are several grounds of detention, does not admit of any doubt. It also

is no longer a moot question whether some of the grounds of detention, if severable, can be ignored while upholding order of detention on the other

grounds. The question in the instant case, however, is entirely different.

The detention of a citizen by taking recourse to preventive provisions of the COFEPOSA Act can be recorded only if the detaining authority

arrives at a ''subjective satisfaction'' about the necessity to detain the citizen. The liberty of a citizen cannot be taken away except by following

strictly prescribed procedure. Since in the instant case it is an admitted case of the first Respondent that documents 95 to 102 had not been placed

before the detaining authority, it is obvious that ''subjective satisfaction'' was arrived at by the detaining authority without perusing the entire record.

That would, indeed, vitiate the order of detention. That, however, is not all. The sanctity which is attached to an order of detention based on the

grounds of detention as approved by the detaining authority has been taken away in the instant case by the additions which have been made by the

authenticating authority in the grounds of detention after the same had been approved by the detaining authority. The effect of such an action came

up for consideration before a Division Bench of this Court in Sadiq Batcha v. The Dy. Secretary to Govt. of Tamil Nadu, Public (S) Dept.,

Madras 1989 L.W. (Crl.) 329. The Bench after considering a number of decisions set aside the detention of the detenu and opined:

It is seen from the above that ground No. xvii and the corresponding documents have been added in the grounds of detention after the detention

order was passed by the competent authority. This addition appears to have been made by the authenticating authority. Therefore, the grounds of

detention as served upon the detenus is something different from the order of detention passed by the detaining authority. The authenticating

authority''s duty is to serve upon the concerned person only the order as passed by the detaining authority. By adding something to the order

passed, the authenticating authority has modified the order and has served upon the detenu an order which is different and in respect of which the

detaining authority has no knowledge whatsoever. The order as served upon the detenu is one which is repugnant to law and established

procedure and has no value whatsoever.

We respectfully agree.

The authenticating authority, in the instant case, altered the grounds of detention which had been earlier approved by the detaining authority

before serving the same upon the detenus. The authenticating authority, therefore, not only acted beyond its functions but also made additions

rendering the entire order of detention of the detenus susceptible to challenge. It has materially detracted from the validity of the order of detention.

In somewhat similar circumstances, a Division Bench of thus Court, in R.V. Thangam v. The State of Tamil Nadu represented by Deputy

Secretary to Govt. Public (SC) Department, Madras W.P. No. 5028 of 1989, to which one of us (Arunachalaam, J). was a party, on 4th July,

1989, set aside the order of detention on the precise ground that the authenticating authority ad made additions in the grounds of detention after the

grounds had been approved by the detaining authority. The Bench held the order of detention, in view of this infirmity, ""to be repugnant to law and

established procedure"". The Bench set aside the detention of the detenu holding the order of detention to be void.

Learned Counsel for the detenus drew our attention to a number of other judgments also of this Court in which the orders of detentions have

been quashed on account of similar infirmities. We need not make a reference to those as we find it not necessary to multiply the authorities.

Since the very sanctity of the order of detention, as approved by the detaining authority has been successfully challenged and as a matter of

fact the counter-affidavit filed by the authenticating authority itself supports the factum that not only documents 95 to 102 were not brought to the

notice of the detaining authority but also that additions were made to the grounds, as noticed above, after the grounds of detention had been

approved, we cannot but hold that the order of detention passed by the detaining authority has been vitiated and the same is liable to be set aside.

We accordingly allow the writ petitions and quash the orders of detention passed against the detenus and direct their release forthwith. Since

the writ petitions succeed on the first submission as raised before us, we refrain from dealing with the other grounds of challenge to the order of

detention.

Before parting with the judgment, however, we would like to voice our concern about the manner in which the detentions under the

COFEPOSA Act are being dealt with at the state of authentication of the orders of detention and the grounds of detention. In a number of

judgments, infirmities have been, as found by us, noticed and the detention of the detenus in those cases quashed. But the authenticating authority,

for reasons best known to it, continues with the repetition of the same infirmity in case after case. Whether the same infirmity is allowed to creep in,

in case after case, deliberately or negligently would hardly make a difference, because, in either case, it is the society which is the sufferer because

of the setting aside of the detention of such persons. The authenticating authority, it appears, does not realise that by such action on its part the

resolve of the Government to curb the smuggling activities gets frustrated and the smugglers get encouraged. The authenticating authority has a

limited role to play and there is no reason or justification for it to travel beyond the statutory limitations on its powers. The Courts are reluctant to

set aside light-heartedly orders of detention passed against antisocial or anti national elements. But the Courts cannot overlook glaring infirmities.

The sufficiency or adequacy of the material on which detention is passed is not a matter which may require consideration of the Court, but what is

necessary and absolutely essential is that the order of detention should be a valid one in the eye of law and in conformity with the provisions of the

Act. Where the Courts find that the order of detention has been tampered with and the grounds of detention served on the detenu are different

from the ones approved by the detaining authority, it results in the vitiation of the order of detention and the Courts will be failing in their duty if they

do not set aside such detentions. When such glaring infirmities occur in case after case, particularly in detentions under the COFEPOSA ACT is a

matter which should be looked into by the concerned legal authorities. We direct that copies of this judgment shall be sent to the Honourable the

Law Minister, Government of Tamil Nadu, the Chief Secretary, Government of Tamil Nadu and the Home Secretary, Government of Tamil Nadu

for their information.