AI Structured Summary
Not yet generated for this judgment
Judgment
P. Sathasivam, J.—The petitioner, wife of one Irshad Ahmed, who was detained u/s 3(1)(i) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (in short ''COFEPOSA Act''), by the impugned proceedings of the first respondent dated
15.06.2005, challenges the same in this petition.
Heard Mr. B. Kumar, learned senior counsel for the petitioner, Mr. A. Kandasamy, learned Additional Public Prosecutor for the first
respondent and Mr. P. Kumaresan, learned Additional Central Government Standing counsel for the second respondent.
After taking us through the grounds of detention and the connected materials, the learned senior counsel appearing for the petitioner contended
that the detention order is liable to be quashed on the ground that there is total non-application of mind on the part of the Detaining Authority.
According to him, he relied upon certain extraneous materials, which would not have been available to the Detaining Authority on the date of
passing the order of detention on 15.06.2005. He further contended that since the learned Additional Chief Metropolitan Magistrate, E.O.II,
Chennai, passed an order on 14.06.2005, permitting interrogation of the detenu in prison and the Jail authorities received the same on 15.06.2005
this would not have been available to the Detaining Authority on 15.06.2005, on the date of passing of the order of detention; however, the same
has been referred to in the order of detention. He also contended that reply of the Customs Department dated 15.06.2005 to the representation of
the wife of the detenu was despatched to her only on 16.06.2005; hence, this would not have been placed before the Detaining Authority, whereas
the same has been referred to in the detention order. By pointing out the above factual details, he contended that the grounds as formulated could
not have been in existence when the detention order was made on 16.06.2005; hence, the detention order is vitiated.
The learned Additional Public Prosecutor, by drawing our attention to certain averments in the counter affidavit, would contend that the details
regarding three customs cases and copy of the reply of the Customs Department dated 15.06.2005 were sent to the Detaining Authority on the
same day itself through a Special Messenger. He also contended that the Jail authorities also forwarded the order of the learned Additional Chief
Metropolitan Magistrate, E.O.II, Chennai, dated 14.06.2005 on 15.06.2005 itself through a Special Messenger; hence, according to him, there is
no substance in the claim of the petitioner and the petition is liable to be dismissed.
We have carefully considered the materials placed and the rival contentions.
Let us consider the contentions of the learned senior counsel for the petitioner. In para (xiii) of the grounds of detention, it is seen that the
petitioner, wife of the detenu sent a representation dated 05.06.2005 to the Customs Department, Chennai, denying all the allegations made by the
officials of the Department, and the Deputy Commissioner of Customs, Chennai sent a reply to the petitioner on 15.06.2005, refuting the
statements made in the representation dated 05.06.2005. It is not in dispute that the detention order was passed on 15.06.2005. In the counter
affidavit in para 5 it is stated that copy of the reply was also sent to the Detaining Authority by the Sponsoring Authority through a Special
Messenger on 15.06.2005 itself. It is also explained that since the Detaining Authority received the same on 15.06.2005, the same was considered
by the Detaining Authority before passing the detention order. However, in the counter affidavit, in the same paragraph it is stated that as the
despatch time, viz., 03.00 p.m. in the Customs House was over, the wife of the detenu was not residing in Chennai , the same was sent to the
detenu''s wife by the Sponsoring Authority on the next working day, by post. There is no further explanation by the Sponsoring Authority as to
how the copy was sent through a Special Messenger, after closing of the despatch time, viz., 03.00 p.m.
In para (xv) of the grounds of detention, the Detaining Authority has stated that the detenu was involved in three Custom cases previously. It is
the grievance of the detenu that he wanted the details of those cases but the same were not furnished despite his request. Inasmuch as the Detaining
Authority had taken into consideration three customs cases, involving the detenue, it is not proper on the part of the Detaining Authority not to
furnish all those details in order to make an effective representation, if any.
It is relevant to note that the learned Additional Chief Metropolitan Magistrate, E.O.II, Chennai, passed the order on 14.06.2005, permitting
interrogation of the detenu in prison. It is also brought to our notice that the Jail authorities received the order of the Additional Chief Metropolitan
Magistrate, E.O.II, Chennai, on 16.06.2005 . The order of the Additional Chief Metropolitan Magistrate, E.O.II, Chennai, and interrogation of the
detenu were referred to in the detention order dated 15.06.2005. Here again, it is highly doubtful how the Detaining Authority received the order
of the learned Additional Chief Metropolitan Magistrate, E.O.II, Chennai. Though the learned Additional Public Prosecutor, by pointing out the
information furnished in the counter affidavit (para 8), contended that the copy of the order of the learned Magistrate was received by the Detaining
Authority through a Special Messenger on 15.06.2005 itself, in the absence of further information when the same was received, whether prior to
or after passing the order of detention, we cannot simply reject the doubt raised by the learned senior counsel for the petitioner. In other words, it
is highly doubtful whether the said communication was available to the Detaining Authority at the time of passing the detention order on
15.06.2005.
It is relevant to note that in para 4 of the grounds of detention the Detaining Authority has stated that while arriving at the subjective satisfaction
to detain the detenu under COFEPOSA Act, the State Government have taken into consideration all the facts and materials referred to and relied
upon in the grounds mentioned and also the statements, mahazars, bail petitions, etc. As rightly pointed out, inasmuch as the above documents
have been referred to, relied on and taken into consideration by the Detaining Authority, it is, but, proper on the part of the Government / Detaining
Authority to explain, by placing acceptable materials, whether those documents reached the Detaining Authority to take a decision one way or the
other by placing reliance on the same, when the detention order was passed. In such a circumstance, learned senior counsel for the petitioner is
right in contending that the grounds as formulated could not have been in existence when the detention order was made on 15.06.2005.
With reference to the above conclusion, it is useful to refer the Division Bench decision of the Bombay High Court in the case of Ashwinkumar
v. State of Maharashtra reported in 1987 Cri.L.J. 1798 wherein it was held that grounds of detention have to be formulated and the order has to
be passed only after considering all the materials together and at a time. It was further held that the checking of the fresh material received with the
grounds already formulated and the order kept ready is nothing but a pretense of following the law and is a fraud upon it. We are in respectful
agreement with the said conclusion. We reiterate that when the conclusions are predrawn and the documents received subsequently are referred to
only to confirm or endorse the said conclusions, the process indulged in is not one of forming a subjective satisfaction but one of finding reasons to
support the pre-conceived formulations.
In the case of State of Maharashtra v. Ramesh Kumar Shobhraj Jain reported in 1988 S.C.C. (Cri) 199 the Bombay High Court, after finding
that on the date when the grounds were finalised, all the documents on which reliance was placed were not before the detaining authority, quashed
the detention order. When the matter was taken to the Supreme Court by the Government of Maharashtra, the Hon''ble Supreme Court confirmed
the order of the High Court and dismissed the appeal by the State.
The learned Additional Public Prosecutor by heavily relying on the judgment of the Supreme Court in the case of State of Gujarat Vs. Adam
Kasam Bhaya, contended that the High Court exercising writ jurisdiction under Article 226 of the Constitution cannot go into the question relating
to adequacy of materials. Absolutely, there is no dispute with regard to the above proposition. We are conscious of the fact that this Court in its
writ jurisdiction under Article 226 of the Constitution of India has to see whether the order of detention was passed on the materials before it. If it
is found that the order has been passed by the detaining authority on materials on record, then the Court can not go further and examine whether
the materials are adequate or not, which is the function of appellate authority or Court.
In our case, as pointed out above, though the grounds of detention proceed that the State Government / Detaining Authority have taken into
consideration all the facts and materials referred to and relied upon in the grounds and also the statements, mahazars, bail petition, etc.,
accompanied thereto, as rightly pointed out and in view of reasonable doubts as demonstrated above, we are satisfied that the grounds as
formulated could not have been in existence when the detention order was made on 15.06.2005. On this ground, we are of the view that the
impugned order gets vitiated.
In the light of what is stated above, this habeas corpus petition is allowed and the impugned order of detention is set aside. The detenu is
directed to be set at liberty forthwith unless his detention is required in connection with any other cause.