AI Structured Summary
Not yet generated for this judgment
Judgment
This petition has been filed by the detenu under Article 226 of the Constitution of India, for the issuance of a writ of habeas corpus quashing the declaration made against him by the Respondent on 25-11-1986 under S. 9(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the Act, and for setting him at liberty.
The brief facts of the case are these On 18th February, 1986 the Petitioner was intercepted at the Airport at Madras on his arrival from Singapore and was found to be in possession of five gold biscuits without any valid permit and they were seized from him. He was produced before the Additional Chief Metropolitan Magistrate, Madras, on 19th February, 1986 and was remanded till 5th March, 1988. He was subsequently released on bail. On 27th October, 1986, the Deputy Secretary, Public Department, Government of India, passed an order of detention against him u/s 3(l)(i) of the Act, with a view to preventing him from smuggling goods. In W.P. 13744 of 1986 the order of detention was challenged by his father. But, the writ was dismissed. Meanwhile, the Respondent herein, the Additional Secretary to the Government of India, made a declaration u/s 9(l) of the Act and it is this declaration that is challenged in this petition.
The main ground advanced by Mr. B. Kumar, learned Counsel for the Petitioner is that the remand report sent to the Additional Chief Metropolitan Magistrate for remanding the Petitioner, the application for bail filed by the Petitioner and the order passed thereon by the learned Magistrate have not been placed the Respondent Declaring Authority and there has, therefore, been no proper application of the mind in issuing the aforesaid declaration, in para 5 of the affidavit filed in support of this petition it is specifically averred that the above documents were not placed before the Respondent at the time of his making the declaration u/s 9(l) of the Act, and there is no specific denial of the same in the counter affidavit filed on behalf of the Respondent by the Under-Secretary in the Ministry of Finance, Government of India. All that is stated in the counter-affidavit is that the Declaring authority, after going through the grounds of detention and the materials served on the detenu, satisfied himself that this was a fit case for making the declaration. According to the Petitioner, these documents, viz., the remand report, the bail application and the order thereon were not even furnished to the detenu along with the grounds of detention and this allegation made in para 5 of the affidavit has not also been challenged in the counter affidavit. It is, therefore, clear and it is not seriously challenged before us that the aforesaid documents have not been placed before the Declaring authority and the Declaring authority has not considered those documents before making the declaration u/s 9(1) of the Act.
It was first contended by Mr. S. Veeraraghavan, learned Additional Central Government Standing Counsel, appearing for the Respondent, that before making the declaration u/s 9(l) of the Act, the Declaring authority need only consider the question whether the smuggling activities of the detenu are carried on in any area highly vulnerable to smuggling within the meaning of Explanation I to Section 9(l) of the Act, and there is no need for considering the other materials or circumstances. This contention, if accepted, would result in making the declaration in the case of all detenus whose smuggling activities are within any area highly vulnerable to smuggling. But, this is not the case and the Petitioner has cited in his affidavit, two specific instances where the detenus were found smuggling at the Madras Airport as in the case of the Petitioner and in respect of whom no declaration has been made u/s 9(l) of the Act, this is not disputed. The declaration u/s 9(l) made only in respect of some of such detenus is per se discriminatory, and violative of Article 14 of the Constitution. When confronted with this situation, Mr. S. Veeraraghavan learned Counsel for the Respondent conceded that the Declaring authority has to take into consideration other materials also. But, according to him, it is enough if the Declaring authority goes through the order of detention passed u/s 3(1) of the Act, before issuing the declaration u/s 9(l) of the Act and there is no necessity for perusing other materials. This would amount to the substitution of the judgment of the detaining authority to the judgment of the declaring authority and there would be no proper application of the mind of the declaring authority in arriving at the subjective satisfaction for the need to issue the declaration u/s 9(l) of the Act. The order u/s 3(l) of the Act and the declaration u/s 9(l) of the Act lie in two different and distinct fields and the powers thereunder must be exercised independently. As pointed out by the Full Bench of the Gujarat High Court in Bhavna Chandrakant Acharya Vs. Union of India and Others, .
The detention contemplated u/s 3(l) and that contemplated u/s 9(l) are different and distinct entities and the procedures for reference and the report to be given are distinct from each other and they cannot be considered as one unintegrated, but on the other hand, they are two separate procedures . . . They contemplate separate and distinct circumstances that work independently in different fields.
In the case of an order u/s 3(l) of the Act, the subjective satisfaction of the detaining authority is with reference to the necessity for the detention of the detenu for the normal period of one year while in the case of a declaration u/s 9(l) of the Act, the subjective satisfaction is with reference to the ''continued detention'' of the detenu. In Satar Habib Hamdani Vs. K.S. Dilipsinhji and Others, , the learned Judges of the Supreme Court observed as follows:
As we see, the scheme of Ss. 3, 8, 9 and 10 appears to be that while generally the period for which a person may be preventively detained under the COFEPOSA in connection with smuggling activities, may not exceed a period of one year, in case of certain kinds of activities of smuggling into, out of or through any area highly vulnerable to smuggling, the period may extend upto two years. In the latter event, a declaration is required to be made within five weeks of the detention of such person in the manner provided by Section 9(l) of the Act, That is not enough. In a case to which Section 9 applies, Section 8 stands suitably, amended, a reference is required to be made with in four months and two weeks by the Government to the Advisory Board and the Advisory Board is required to state its opinion within five months and three weeks from the order of detention whether there is sufficient cause for the ''continued detention'' of the person concerned. In other words, the Advisory Board is to state its opinion not merely whether the detention is necessary but whether ''continued detention'' is necessary. The Advisory Board will necessarily have to go behind the declaration u/s 9(l) to consider the question whether there is ''sufficient cause for continued detention''. The two safeguards provided to the detenu against ''continued detention'' at that stage are the application of the mind by the specified authority before making a declaration u/s 9(l) and the consideration of the question by the Advisory Board.
It is therefore clear that the subjective satisfaction of the need for ''continued detention'' in the sine qua non for the making of the declaration u/s 9(l). This subjective satisfaction has to be arrived at after taking into consideration all the relevant materials in respect of the detenu.
In Smt. Madhu Khanna Vs. Administrator, Union Territory of Delhi and Others, the Appellant contended that the Declaring authority did not consider the representation made by the detenu before making the declaration under S 9(1) of the Act, and the fact that the declaration did not contain any reference to the representation made by the detenu was relied on to show that the representation of the detenu was not considered by the Declaring Authority. But, the Declaring Authority who was Respondent No. 2, before the Supreme Court, had filed an affidavit in which he had stated that after consideration of the representation the declaration was made by him keeping in mind the allegation made in the representation as well as the materials on record. The High Court accepted the statement of the Respondent No. 2, and the Supreme Court did not find any reason to disbelieve the same. The learned Judges observed:
In the circumstances even though the representation has not been referred to in the declaration, there is ample evidence to show that the Respondent No. 2 had considered the representation before he made the declaration. The non-mention of the representation in the declaration seems to be mere omission.
This decision clearly points out that all relevant materials have to be taken into consideration by Declaring Authority before making the declaration u/s 9(l) of the Act.
The remand report, the bail application and the order thereon are vital documents which are bound to sway the judgment of the Declaring authority one way or the other. The failure of the sponsoring authority to place these documents before the Declaring Authority and the consequent failure of the Declaring authority to consider these documents, vitiate the declaration made u/s 9(l) of the Act.
In view of the above conclusion we have arrived at, it is needless to consider the other grounds raised by the Petitioner.
In the result, the writ petition is allowed, and the declaration made u/s 9(l) of the Act is struck down. The detention of the Petitioner is for a period exceeding one year is without legal sanction. It is already much more than one year since the Petitioner has been detained. He is directed to be set at liberty forthwith.