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R.M. Lodha, J.—The petitioner who is wife of detentee-Vinod Babubhai Patni in this writ petition is seeking to challenge the detention order bearing No. SSA 0900/I-SPI-3(A) issued by Shri S.H. Shool, Secretary to the Government of Maharashtra. By detention order dated 13-4-2000, the Detaining Authority specially empowered u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA") issued an order for detention of Vinod Babubhai Patni after being satisfied that his detention was necessary to prevent him in future from smuggling the goods. The detention order is placed on the file of the writ petition as Annexure A and grounds in support thereof are at Exhibit B. The detention order came to be passed in the back drop of facts that on 3-7-1999, the officer attached to the Commission rate of Customs (General) seized 150 gold bars from Sayed Karim Gaffoor. The statements u/s 108 of the Customs Act were recorded including that of the detente. During the course of enquiry, on the basis of the material collected by the concerned authorities and in the search of residential as well as office premises of the detente, the authorities found involvement of the detente in the crime. The detente was also arrested on 11-10-1999 and thereafter released on bail on 4-11-1999. The detente was issued show cause notice u/s 124 of the Customs Act for the action u/s 112(a)(b) and 114(1) of Customs Act dated 30th December, 1999 which was received by the detente on 5-1-2000. In response thereto the detente replied to the Commissioner of Customs on 30-3-2000 denying each and every allegation made against him in the show cause notice.
Though in the writ petition various contentions have been raised, the learned Senior Counsel appearing for the petitioner heavily relied upon ground No. 5(v) which reads thus :---
"5(v). The petitioner says and submits that the Detaining Authority has considered the show cause notice issued to the detente (document at Sr. No. 43 pgs. 224-260) while issuing the impugned order of detention against the detente. The petitioner says and submits that it was incumbent upon the sponsoring authorities to have placed a copy of the reply to the said show cause notice of the detente dtd. 30-3-2000. Hereto annexed and marked Annexure ''D'' is a copy of the said reply to the show cause notice. It is pertinent to note that a copy of the said reply to show cause notice was also sent to the detaining authority himself. The petitioner, therefore, says and submits that in the circumstances it was also incumbent upon the detaining authority to have considered the same alongwith the said show cause notice, while issuing the impugned detention order against the detente as it is a document of vital nature before arriving at his subjective satisfaction. The petitioner says and submits that non-consideration of the said vital document by the detaining authority has impaired the subjective satisfaction arrived at by the detaining authority. The impugned detention order on the basis of such subjective satisfaction is sham and unreal. The petitioner says and submits that it was not only incumbent upon the detaining authority to have considered the same, but it was incumbent upon the detaining authority to have supply the copy of the said reply to the show cause notice to the detente alongwith the grounds of detention. The petitioner says and submits that in the eye of law impugned detention order and the grounds of detention have not been communicated to the detente in the result the detente is deprived of his right to make effective and purposeful representation at the earliest, which right guaranteed under Article 22(5) of the Constitution. The impugned order of detention as a result is malafide, null and void."
The nub of the aforesaid ground is that though the sponsoring authority placed before the detaining authority the show cause notice dated 30-12-1999 issued to the detente for action u/s 112(a)(b) and 114(1) of the Customs Act, 1962, the sponsoring authority did not place the reply dated 30-3-2000 submitted by the detente and that has vitiated the subjective satisfaction of the detaining authority in issuing the detention order.
We are persuaded by the aforesaid contention since, in our view, it was incumbent upon the sponsoring authority to place before the detaining authority the reply dated 30-3-2000 submitted by the detente in response to the show cause notice dated 30-12-1999 issued to the detente for contemplated action under sections 112(1)(b) and 114(1) of the Customs Act, 1962. The perusal of the show cause notice dated 30-12-1999 shows that the involvement of the detente has been inferred on the basis of circumstances enumerated in paragraph 2(a)(b) of the said notice. The said circumstances have been emphatically denied by the detente in his reply to the show cause notice. Ought we know if the reply submitted by the detente to the Commissioner of Customs was placed by the sponsoring authority before the Detaining Authority what would have been the satisfaction of the Detaining Authority. The Detaining Authority could have reached satisfaction either way. From any reckoning, reply submitted by the detente in response to the show cause notice was materially relevant and vital which was necessarily required to be placed before the Detaining Authority. We are fortified in our view from the observations made by the Apex Court in Kurjibhai Dhanjibhai Patel v. State of Gujarat & others 1985(1) Scale 136 wherein the Apex Court held that reply to the show cause notice in adjudication proceedings by detente certainly had a bearing and would have influenced the subjective satisfaction of the Detaining Authority one way or the other before issuing the detention order and since such relevant material was not placed by the sponsoring authority before the Detaining Authority at the appropriate time, subjective satisfaction of the Detaining Authority was vitiated.
In reply to the aforesaid ground No. 5(v), on behalf of the respondents, the affidavit of Shri S.H. Shool has been filed and in para 8 thereof, the deponent has stated thus :
"8. ................................... It is further stated that the reply of detente to the show cause notice would not in any way influence my mind while issuing the Detention Order as I was subjectively satisfied on the basis of the material on record that it was absolutely necessary to issue the Order of Detention. ..........................................It is submitted that the show cause notice which is issued u/s 124 of the Customs Act pertains to confiscation of property or imposing any penalty and does not pertain to prosecution."
It is very difficult to believe the statement made in the affidavit that the reply to the show cause notice if placed before the authority, there would not have any change in the subjective satisfaction. Since the Detaining Authority is required to arrive at the subjective satisfaction on the basis of the complete material to find out whether detention on the detente was necessary to prevent him from further indulging in smuggling, obviously the reply of the detente to the show cause notice which is of firm denial could have made the difference. In any case what would have been the ultimate outcome is not material, but what is material is the consideration of the complete material by the detaining authority including reply to the show cause notice submitted by the detente when the show cause notice was placed by the sponsoring authority before the Detaining Authority. Post facto consideration of reply to the show cause notice submitted by detente at the time of filing of affidavit in reply and the assertion that the consideration of reply would not have made difference cannot rectify the grave error occurred due to non-consideration of reply at the time of issuance of detention order. We find support from law laid down by the Apex Court in Kurjibhai Dhanjibhai Patel (supra). In paragraph 6 of the report, the Apex Court held thus:
"6. It cannot be disputed that the show cause notice and the detente''s reply thereto, particularly the latter, though these documents formed part of adjudication proceedings constituted the most relevant material which was essential to be placed before the detaining authority before the issuance of the impugned order and admittedly this has not been done. All that has been stated on behalf of the respondent in the Counter Affidavit of Shri Agnihotri. Under Secretary to the Government of India, Ministry of Finance dated 11th April, 1985 is that this reply dated 5th March, 1984 was considered by the detaining authority along with the detente''s representation made by him against the detention order. It has further been averred that the said representation of the detente along with the reply was considered by the Advisory Board and after considering all the facts the Advisory Board had opined that there was sufficient cause for detention. But in our view such post facto consideration of the detente''s reply dated 5th March, 1984 after the impugned detention order had been served upon the detente cannot fill up the lacuna of non-consideration thereof by the detaining authority before the issuance of the detention order. The relevant material namely the detente''s reply dated 5th March, 1984 certainly had a bearing and would have influenced the subjective satisfaction of the detaining authority one way or the other before issuing the detention order and such relevant material was not placed by the sponsoring authority before the detaining authority at the appropriate time and this in our view would go to vitiate the subjective satisfaction of the detaining authority."
We, therefore, have no hesitation in holding that the subjective satisfaction of the Detaining Authority is vitiated since the sponsoring authority failed to place before him the reply to the show cause notice submitted by the detente.
Consequently, writ petition is allowed. The detention order dated 13-4-2000 (Annexure A) is quashed and set aside. The detente be released forthwith if not required in any other case.
Certified copy expedited.
Writ petition allowed.