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Judgment
David Annoussamy, J.—This is a petition by detenu''s brother under Article 226 of the Constitution for the issuance of writ of habeas corpus
quashing the order of detention passed against the detenu and setting him at liberty.
The order of detention was passed by the Authenticating Authority, viz. the Deputy Secretary to Government, Public (SC) Department,
Government of Tamil Nadu, on 9.3.1988 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter
referred to as the Act, with a view to preventing the detenu from smuggling goods. Section 9(1) Declaration was effected by the Additional
Secretary to the Government of India, Ministry of Finance, Department of Revenue, on 4.4.1988.
The facts which prompted the concerning authority to pass the detention order are summarily as follows: On 23.10.1987 at about 23.30 hrs. the
detenu arrived as a passenger at the Madras International Airport from Singapore and declared the value of his goods as 250 Singapore Dollars
and that he was not having any VCR/VCI/gold. However, on suspicion, he was taken for the search of his person. Before commencement of
search, he was again asked whether he was having any gold kept concealed. He replied in the negative. On persistent questioning, however, he
admitted that he had secreted three bundles containing gold inside his body and volunteered to eject the same and the same were ejected in the
presence of witnesses. On examination two bundles were found to contain three gold bars each and the third bundle was found to contain two gold
bars, each bar weighing 10 tolas. Then his baggage was taken for examination. The suit-case was found to contain provisions and cosmetics. The
rexine, covering the top beading, was scrapped and the metal found inside the beading was found to be painted with Aluminium and when the paint
was scrapped the metal was found to be yellow in colour. The bottom portion of the suit case also was scrapped and examined and it was found
to be yellow in colour. The detenu admitted that the metal found inside the headings was gold. The headings were ripped open and the yellow
metal rods admitted to be gold were removed in the presence of witnesses and found to be weighing 420 grams. The detenu neither declared the
aforesaid gold bars and rods to the Customs nor was he in possession of any valid permit issued by the Reserve Bank of India or licence for the
import of the above said gold bars and rods into India.
The main ground urged by the learned Counsel for the Petitioner is that Ground No. 17 with corresponding documents were added subsequent
to the approval of the detention order by the Governor. Ground No. 17 reads as follows:
A Show Cause Notice was issued to you and to Thiru Sulaiman on 10.2.88. The Show Cause Notice sent to Thiru Sulaiman was returned by
Postal authorities with remarks that the person was not in the given address. A complaint has also been filed in the Addl. Chief Metropolitan
Magistrate''s Court.
The documents that were subsequently added are:
Show-Cause notice dated 10.2.88
Criminal Complaint dated 7.1.88
Sanction for prosecution dt 28.12.87
Post acknowledgement dated 11.2.88
It was argued that the detention order, as served upon the detenu is not one and the same as the detention order as approved by the detaining
authority and that therefore the detention order as served was a nullity and the Petitioner was entitled to be set at liberty.
Learned Counsel for the Petitioner relied on for his argument that the detention order should be set aside for addition of grounds and documents
after the order was passed on the judgments in the following cases:
W.P. No. 1885 of 1988 dated 28.6.1988
W.P. No. 3802 of 1988 dated 11.10.1988
W.P. No. 793 of 1988 dated 26.4.1988
W.P. No. 2229 of 1988 dated 8.8.1988
He placed also reliance on a judgment of the Supreme Court in State of Maharashtra Vs. Ramesh Kumar Shobhraj Jain and Others, in which the
judgment of the Bombay High Court in Criminal W.P. No. 1058 of 1986 dated 13.2.1987 setting aside the order of detention was confirmed with
the following observation:
The learned Judge on the basis of this admitted situation of facts came to the conclusion that on the date on which the grounds were finalised all the
documents on which reliance is placed were not before the detaining authority and in such a situation the judgment of the High Court could not be
assailed.
Learned Counsel appearing for the public prosecutor for the state contended that as per Section 5A of the COFEPOSA Act the grounds were
severable and therefore if any ground has been added that will not make the order of detention invalid, if the order can be sustained on the basis of
the other grounds. He further placed before us the observations of the Supreme Court in Rajendrakumar Natvarlal Shah v. State of Gujarat 1988
S.C.C. (Cr.) 575 : (1988) S.C.C. 153 reading as follows:
Nevertheless the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign
exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or
with persons engaged in anti-national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in
anti-social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States
today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to supress the citizen of his right to
life and liberty. The Court must therefore be circumspect in striking down the impugned order of detention which it meets with the requirements of
Article 22(5) of the Constitution.
We are perfectly aware that the orders of detention passed against anti-social elements should not be set aside light heartedly. But, at the same
time, whatever may be the gravity of the act imputed to a person that person''s liberty cannot be taken away without following the procedure
established by the Constitution. The order of detention should be a valid one in the eye of law. Small mistakes and irregularities, which are bound
to occur, are necessarily to be condoned and not taken note of, but, when an order is basically vitiated, this Court''s duty is to set it aside.
The relevant portion of the ground of attack as formulated by the Petitioner in the additional grounds reads as follows:
The detaining authority has not considered all the documents together and formulated the grounds of detention at a single point of time. After
receipt of documents mentioned as item Nos. 1 to 39, the grounds of detention were formulated and detention was approved by the detaining
authority. Subsequently documents mentioned as item Nos. 40 to 47 were received and therefore some additional paragraphs were added to the
grounds of detention. The documents mentioned as item Nos. 40 to 47 were not even placed before the State Government and therefore the State
Government had no occasion to consider the same before formulating and approving the grounds of detention.
In reply to this, the detaining authority in paragraph 4 of the additional counter affidavit stated as follows:
It is respectfully submitted that the contention found in paragraph 3(i) of the affidavit is untenable. The contention that the additional documents 40
to 47 and consequential addition of some paragraphs to the grounds of detention would vitiate the continued detention is incorrect and untenable.
The decision to detain the detenu was validly taken by all the concerned authorities on the basis of the documents 1 to 39. The document numbers
40 to 47 which were received subsequently were considered by the Deputy Secretary, Public and in so far as all the documents which were relied
upon and referred to in the grounds of detention were made available to the detaining authority adding some more documents which came to the
knowledge of the Government at the issuance stage will not vitiate the detention order. Even assuming without admitting that some of the
paragraphs added to the grounds of detention are invalid, they are severable and therefore the continued order of detention will not be vitiated. It is
respectfully submitted that no documents were added and no alterations were made to the grounds of detention after the Deputy Secretary to
Government, Public, signed the order of detention and grounds of detention. Therefore the contention that the subjective satisfaction of the
detaining authority is vitiated is untenable.
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 detenu 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.
The question of severability of grounds does not arise here. If the detention order as determined by the detaining authority contains some
grounds which are not found to be valid, it is obvious that as per Section 5A of the Act the order would still be valid, if any other ground is found
to be acceptable. Such a situation does not arise in this case because the only question is whether the order served on the detenu is the one as
passed by the detaining authority. A person cannot be deprived of his liberty by an order accompanied by the grounds of detention which is
different from the one contemplated and approved by the detaining authority.
At this stage, the learned Public prosecutor stated that the detaining authority should have the possibility of having its order as passed by it
authenticated scrupulously and enforced. We are not seized of that problem. It is open to the detaining authority to take such action as it deems fit
in the circumstances of the case. But it is clear that the order as served upon the detenu is not the order of detention passed by the detaining
authority and therefore that order has to be set aside as vitiated.
In the result, the writ petition is allowed and the detention order is set aside.