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V. Bakthavatsalu, J.—Petitioner; the detenu, detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "Act") has filed this petition to set aside the order passed by the first respondent dated 1.12.1997. The first respondent has passed the above order with a view to preventing the petitioner from indulging in smuggling activities.
The brief facts of the case, which led the detaining authority to pass the impugned order of detention are as follows:
The detenu was a passenger bound for Singapore On 2.10.1997, the petitioner was intercepted by the Customs Officer, and after he cleared the custom and on questioning the petitioner, he confessed that he had concealed foreign currencies in his body and therefore, he was brought to the Air Intelligence Room situate in the Arrival Hall of the Anna International Airport, Chennai alongwith his two luggages. On examining the above two luggages and search of detenu it did not result in the recovery of any incriminating materials. As the petitioner detenu was found to be very nervous and restless, he was repeatedly questioned. On repeated and persistent questioning by the customs officials, the petitioner admitted that he had concealed one bundle containing foreign currencies inside the body through rectum and volunteered to eject the said bundle in the natural course. Thereafter, he was taken to Gents toilet room and the petitioner found it difficult to eject the bundle and the petitioner requested medical assistance. On 3.10.1997, at about 1.30 p.m. the petitioner was produced before Additional Chief Metropolitan Magistrate, E.O.I. Egmore, Chennai. The petitioner deposed before the Magistrate that he has concealed a bundle containing foreign currencies inside the body and that he could not eject them voluntarily and that if medical assistance is provided, he could eject the said bundle. The petitioner also requested that he may be taken to Toilet room to answer the calls of nature. Thereafter, at about 2.40 hours on 3.10.1997, two independent witnesses were called upon by the customs officer to be present at the Gents toilet situate near E.O.I Court in the main building, Egmore and accordingly, the petitioner was taken to the Gents toilet room in the first floor of Additional Chief Metropolitan Magistrate Court, Egmore, Chennai. In the said Gents toilet, the petitioner in the presence of witnesses ejected one bundle covered with condom and washed the same, and handed over it to the Customs Officer. The customs officer removed the condom covering the bundle and examined the bundle in the presence of official and witnesses. On examination, the said bundle was found to contain U.S.Travellers cheque of the denomination of 500 and 1000. In all the said bundle was found to contain 230 nos. of Traveller cheques of 500 denomination of U.S.Dollars and 5 nos. of Travellers cheques in 1000 denomination of U.S.Dollars. In all the officer recovered 235 nos. of U.S.Dollars in Travellers cheques amounting to 1,20,000 U.S.Dollars from the said bundle, as detailed in the Annexure A, B. and C to the mahazar. As the petitioner was not in possession of any document to export U.S.Dollars in Travellers cheques out of India as he had attempted to smuggle from out of India without declaring to customs Authorities, the officer seized the said Travellers cheques under the mahazar for action under the Customs Act, read with Foreign Exchange Regulation Act, 1973. The officer also seized the material objects, boarding pass luggage, claim tag etc. under the mahazar.
The petitioner also gave a statement to the customs officer on 3.10.1997 wherein he has stated that he knew one Farook of Singapore and that he asked him to contact one Ariff at a particular apartment and that it is the said Ariff who gave him the foreign currencies and promised 1200 Singapore Dollars, if they are handed over at Singapore.
The petitioner was arrested at 9.20 hrs on 3,10.1997 and remanded to Judicial Custody till 17.10.1997.. The house of the petitioner bearing Door No. 121, Miller Bungalow Street, Ramanathapuram was searched by the Officials. But the enquiry revealed that no such door number and no such person like the petitioner was available in the above address. A search warrant was also issued on 3.10.1997 for the search of the residential premises of Ariff. The photograph of Ariff was recovered from the said house. But, no contraband or any incriminating documents were recovered from the said house. The said Ariff was not available at the time of the search. The above photograph of Ariff was shown to the petitioner. The petitioner identified the same as Ariff and made an endorsement on the photograph. On 4.10.1997, the petitioner filed bail application stating that he was innocent and that the confession statement alleged to have been given by him was not voluntary. The remand period of the petitioner was further extended till 3.12.1997. After following the necessary formalities, the impugned order of detention was passed on 1.12.1997.
The petitioner has filed this application challenging the above detention on several grounds. It is contended by the petitioner that Article 22(5) of the constitution was violated and that. The documents such as photograph of Ariff and the statement given by the petitioner before the Magistrate were not furnished to the petitioner before the Magistrate were not furnished to the petitioner and that as the above documents were relied on by the detaining authority, they ought to have been furnished to the petitioner and that the failure to furnish the above documents is flagrant violation of article 22(5) of the constitution. It is further contended that even after the petitioner demanded the authority to furnish the above material documents, the same were not furnished to him. It is further contended that in the detention order, the particulars contained in the remand report are repeated in verbatim and that therefore, it is proved that the Detaining Authority has not applied his mind independently of the remand report and that the report u/s 3(2) of the Act has not been considered and the decision taken thereon was not by a person competent to do so. Learned counsel for the petitioner Thiru Kumar submitted arguments by relying upon number of decision about which we will discuss at the appropriate stage of the case.
The learned Additional Public Prosecutor repelling the above contentions strenuously argued that the photograph of the said Ariff is not a core of the grounds urged in the order and the facts relating to Ariff photo were casually remarked in the order and as such, it is not a primary document. It is further contended that the said Ariff is absconding and that if the photograph is furnished to the detenu, there is very likelihood that the said Ariff may abscond and that the investigation would get jeopardized and that therefore, the question of furnishing the photograph of Ariff will not arise. Regarding the second document, it is contended by the learned Additional Public Prosecutor that the order of the learned trial Judge itself bears an endorsement that the accused admitted that he concealed one bundle of foreign currencies covered by adhesive tape and he was not able to eject the same out of rectum and that order copy dated 3.10.1997 was furnished to the petitioner. It is, further contended that the detaining authority after careful consideration and application of mind and after perusing all the materials available on record formulated the grounds of detention and that therefore, the allegation that the detention order is nothing but a verbatim of remand report is not true. It is also contended that the detention order was sent to Central Government on 8.12.1997 and that therefore, it has to be held that the requirement of Section 3(2) of the Act has been complied with. The first respondent/State filed Counter denying the allegation contained in the affidavit filed by the petitioner.
The Second respondent has stated in the counter that the Secretary, Revenue of the Central government considered the report of the State Government and found no reason to interfere with the finding and that the representation dated 26.12.97 was considered and disposed of by the appropriate authority of the Central Government.
The point for determination is whether the order of detention is liable to be set aside on the grounds raised by the petitioner?
One of the main contentions urged by the learned counsel for the petitioner Thiru B.Kumar is that the respondents failed to furnish the documents relied upon by the Detaining Authority in the order alongwith the grounds of detention and that therefore, the order is vitiated. It is alleged by the petitioner that the petitioner is said to have identified the photo of Ariff and that he has also signed on the back of the photo. Learned Counsel has also drawn our attention to several paragraphs found in the grounds of detention to substantiate his plea that the above document was relied upon by the detaining authority. In paragraph 4 of the grounds of detention, it is stated that a photograph was shown by the Customs Officer and that the petitioner identified the person found in the photograph and as a token of identification, he has affixed his signature on the backside of photograph. In paragraph 8, it is stated, that the photo of Ariff was recovered from the house when his house was searched. When the petitioner filed bail application, the Assistant Commissioner of Customs filed counter. In paragraph 4 of the above counter, it is stated that the petitioner has admitted that he had committed the offence for offer of Singapore Dollars made by Ariff who gave the bundle containing Travellers Cheque and that the said photograph was also identified by the petitioner. Relying upon the above facts it is contended by the detenu that the photograph of Ariff and the signature affixed by the detenu on the backside of the photo was relied on by the detaining authority for passing the impugned order of detention and as such, the above photo is a material document and that non- furnishing of the above document is violation of Article 22(5) of the Constitution and that he was prevented from making an effective representation, as he was not furnished with the copy of the above document.
Learned Additional Public Prosecutor contended that the photograph of Ariff is not a relied upon document and that the said Ariff is absconding and that if the photograph of the said Ariff is furnished to the detenu, there is very likelihood that the said Ariffmay abscond and that the reason for not furnishing the photo of Ariff was already communicated to the detenu and that therefore, the question of non furnishing the photo of Ariff will not arise in this case. Learned counsel for the petitioner and learned Additional Public Prosecutor also relied upon number of decisions to substantiate their respective contentions.
It cannot be disputed that the detenu has the right to be furnished with grounds of detention alongwith the documents relied on by the Detaining Authority. It is well settled that if there is failure or even delay in furnishing the documents, it would amount to denial of right to make an effective representation guaranteed under Article 22(5) of the Constitution. The above principle of law has been enunciated in Mahamed Kutty v. Union of India 1990 SCC Cri. 258. It is also clearly observed in the above decision that it is immaterial whether the detenu already knew about their contents or not. In the above judgement, the Supreme Court relying upon the judgement reported in Khudiram Das Vs. The State of West Bengal and Others, , has observed thus:
Where the liberty of the subject is involved it is the bounden duty of the Court to satisfy, itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. The Constitutional requirement of Article 22(5) is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to making the detention order must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention.
Learned counsel for the petitioner re-lies upon one of the earliest judgment on this aspect reported in Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, In the above decision, it is held as follows:-
If there are any documents'' statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they, form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
Learned counsel for the petitioner relies upon the above decision to show that the tapes recovered in the above case was a relied upon document.
Nextly, learned counsel for the petitioner relies upon a decision reported in Kirit Kumar v. Union of India AIR 1981 SCC 1621, wherein it is held that whether the documents concerned are referred to, relied upon or taken into consideration by the Detaining Authority, they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. In the above case, the High Court rejected the contention of the detenu for supply of documents on the ground that the documents were merely referred to and not relied on by the Detaining Authority and the High Court after examining the documents found that the same were not relevant. The above reasons given by the High Court was not accepted by the Supreme Court. The Supreme Court has held that it was not open to the Court to have waded through the confidential file of the government in order to fish out a point against the detenu and that the question of relevance was not to be decided by the Court but by the detaining authority which alone had to consider the representation of the detenu on merits. The Supreme Court has also held that once the documents are referred to in the grounds of detention, it becomes the bounden duty of the Detaining Authority to supply the same to the detenu. The above decision is distinguished by Apex Court in Madan Lal Anand Vs. Union of India and others,
In Mehrunissa Vs. State of Maharashtra, also the Supreme Court has held that the contention of the State that the documents were not supplied to the detenu as the detenu was already aware of the contents of the documents is hardly an answer to the submission made by the detenu. The Court has further held thus:-
The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents.
The principles laid down in the above decision would show that alongwith the grounds of detention, the documents relied on by the detaining authority should be supplied to the detenu without any delay, and that non-supply of the said document is violation of Article 22(5) of the Constitution.
Learned counsel for the petitioner also relies upon an unreported decision of this Court in W.P.No.6289 of 1986 decided on 17.3.1987,. It is held in the above decision that the petitioner contended that passport is one of the documents that is not only referred to but heavily relied upon in the grounds of detention. It is seen from the facts of the above case, that officials searched the house of the detenu and showed the photograph of the detenu to his wife and mother who identified the same as that of their husband and son respectively. The State has filed counter in the above case alleging that the detenu has stated that his name was Jamal and that as per the records, it is found that his real name is Jamal Khan and not Jamal and that the Customs Department was requested to verify and report the correct name of the detenu with reference to his photograph and that on verification, it is found that his real name was Jamal Khan. A Division Bench of this Court on the above peculiar facts of the case has held that the document has been taken into consideration by the detaining authority while passing the order of detention and that it had come to the subjective satisfaction only after perusing the documents and that therefore, the detenu is entitled to have copy of the above document. Learned Additional Public Prosecutor contended that the facts of the above case are distinguishable from the facts of this case. Whether the contention raised by the State on this aspect is acceptable or not would be discussed at the appropriate stage.
Learned Additional Public Prosecutor contended that the documents which are not relied upon by the detaining authority and the documents about which only casual reference was made in the order need not be supplied to the detenu. To substantiate the above contention, he also relies upon number of decisions.
In L.M.S. Uma Saleema v. B.B. Gujarat 1981 Cri.L.J. 889. it is held that the detenu cannot be said to be prevented from making an effective representation for non supply of documents which are casually referred in the order. The above decision is an authority for the proposition that every failure to furnish documents is not violation of article 22(5) of the constitution. The relevant passage reads thus:-
Every failure to furnish copy of a document to which reference is made in the grounds of detention u/s 3(1) of the Act is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by Article 22(5).
The next decision relied on by the learned Additional Public Prosecutor is reported in Kamarunnissa and Others Vs. Union of India and another, The Supreme court in the above decision has held thus:-
Demand of any or every document, however irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention, cannot vitiate an otherwise legal detention order.
The Supreme Court has also held that is must be shown by the detenu that non-supply of document had impaired his right to make an effective and purposeful representation. In the above decision, the Supreme Court has held that only copies of documents on which the order of detention is primarily based should be supplied to the detenu and not any and every document. A Division Bench of this High Court had occasion to consider the above aspect of the case, in the case reported in Subbiah v. The Commissioner of Police Madras City 1993 L.W. (Cri.) 113 The Division Bench relied upon a decision rendered by another Division Bench in Govinda Gounder v. The Government of Tamilnadu W.P.Nos. 5538, etc. of 1990 dated 17.9.1990. The Division Bench in Govinda Gounder''s Case has held thus:-
Having regard to the scope and object and the facts discharged in the order of detention, we have to examine whether the documents asked for by the detenu have any relationship to the allegations made against the detenus. It will not be proper to hold that the detenu can ask for the moon and if it is not made available, the order of detention is vitiated.
In the light of the principles of law laid down in the authorities, we shall proceed to decide the crucial point involved in this case. To decide the above point, it must be decided first whether the photo of Ariff was relied upon by the Detaining Authority for arriving at a subjective satisfaction.
In the order of detention, the Detaining Authority has stated that a photograph was shown by the customs officer and that the detenu identified the person in the photograph as Ariff and that the detenu also affixed his signature on the backside of the photograph. Learned counsel for the detenu contended that the above photograph was relied upon by the Detaining Authority. On the other hand, it is specially stated in paragraph 13 of the counter filed by the first respondent that the above photograph is not a relied upon document and that the above photograph is not core of the ground as alleged in the order. The Counter is filed by the State represented by Secretary, Public (SC) department. The Secretary to Government, Public (SC) Department is the Detaining Authority in this case. The counter affidavit has been sworn by Secretary who succeeded the Secretary who passed the detention order. As the Counter affidavit has been filed by the Detaining Authority stating that the photograph of Ariff was not a relied upon document, we have to attach some importance to the above avernments. It is further, stated in the counter that the search warrant under mahazar drawn at the residence of Ariff were furnished to the detenu. It is further, stated that the said Ariff is absconding and that if the photograph of Ariff is furnished to the detenu, the investigation will get jeopardized. It is further alleged that separate action is in progress so far as Ariff is concerned. We fail to understand as to how the above photograph will assist the detenu to make an effective representation. It is contended on behalf of the first respondent that de-hors the above photograph, there were some other materials placed before the Detaining Authority to pass the; order of detention. The mere fact that there is reference to photo in the detention order, it would not lead to any conclusion that is is the primary document upon which the grounds of detention were formulated. The contention of the learned Additional Public Prosecutor that there is only a casual reference to the above photo and that it was not a relied upon document appears to be acceptable. Therefore, we hold that non-furnishing of Ariff''s photo to the detenu would not affect his right in making an effective representation. As the above photo is not a relied upon document, the non-furnishing of the same to the detenu would not vitiate the detention order. Hence, the decision rendered in W.P.No.6289/86 will not apply to the facts of this Case.
Learned counsel for the detenu further contended that the Detaining Authority failed to furnish another material document. In the detention order,it is stated that the detenu was produced before the Magistrate and that he has admitted that he had concealed foreign currencies in the rectum and that the document containing the above admission of the detenu was not furnished to the detenu. It is seen from the order dated 3.10.1997 passed by the Additional chief Metropolitan Magistrate that the accused was produced before him at 1.30 p.m. and that the accused admitted that he had concealed one bundle of foreign currencies covered by adhesive tape and that he was not able to eject the same out of the rectum and that endorsement is made by him to that effect. What was admitted by the detenu is written under an endorsement. The endorsement alleged to have been made by the detenu is clearly stated in the above order. Except the above endorsement, there are no materials to show that the detenu has given any other confession statement before the Additional Chief Metropolitans Magistrate. As the order dated 3.10.97 which contains the endorsement made by the detenu was furnished to the detenu, it is not open to him now to contend that the material document was not furnished to him and that he was prevented from making an effective representation. Therefore, we are unable to accept the contention of the detenu that the material documents were not furnished to him and that he was prevented from making an effective representation. The order of detention is not liable to be set aside on the above ground.
The second contention put forward by the learned counsel for the detenu is that the grounds of detention is nothing but a verbatim copy of the remand report with certain inconsequential changes and that paragraphs after paragraphs of the remand report has simply been copied in the grounds of detention and that therefore, the order is clear example of non-application of mind as well as total abdication of the vital power of passing the order of detention. On the other hand, it is alleged in the counter that the Detaining Authority after careful consideration and after due application of mind and after perusing all the materials available on record formulated the grounds of detention. Learned counsel for the petitioner took us through the various averments contained in the remand report and compared the same with the averments contained in the detention order. Learned counsel for the petitioner contended that on perusal of the remand report and detention order i.e, paragraph 1 to 5 would clearly indicate that paragraph 1 to 5 in the order of detention is nothing but a verbatim of paragraph 1 to 5 stated in the remand report. We see there is considerable force in the above contention. The superintendent of customs. Prosecution Unit, Customs House filed remand report on 8.10.97 before the Additional Chief Metropolitan Magistrate. On a careful perusal of the remand report and the averments contained in the detention order, it is manifestly clear that paragraph 1 to 5 in the detention order were copied from the remand report in verbatim.
In the remand report, the petitioner is addressed in name. But in the grounds of detention the petitioner is referred to as "you, Thiru Seeni Midhar Abdul Sakkor". In the first paragraph of the remand report, the facts as to how the petitioner was apprehended are narrated with reference to passport number. The above paragraph has been extracted in verbatim, except few changes in the grounds of detention. The last lines of paragraph 1 ends with the word s"he then requested that he may be provided with the medical assistance to enable him to eject the said bundle". In paragraph 1 of the detention order, in place of the word "he" the word "you" have been written.
The Second paragraph of the remand report starts with the words "In his voluntary statement dated 2/3/10.97 given before the customs Officer". In paragraph 2 of the detention order, the same sentence is extracted alongwith the dated 2/3.10.97. The Detaining Authority did not take care even to score off either the date 2 or 3. It is not clear whether the above voluntary statement was given on 2nd or 3rd of October 1997. The only conclusion that can be drawn from the above fact is that since in the remand report, the date 2/3.10.97 is mentioned-, the same is repeated in the grounds of detention. In paragraph 3 of the remand report also, it is stated that the accused was brought to Customs House. The third paragraph in the detention order also starts with the words "were brought to Custom House". Most of the facts contained in the earlier paragraphs are repeated in subsequent paragraphs. It is seen that the last four lines in paragraphs 3 alone are omitted to be stated in paragraph 3 of the grounds of detention.
In paragraph 4 of the remand report, the passage starts with the words"in his voluntary statement", dated 3.10.97 given before the Customs Officer". In paragraph 4 of the grounds of detention also the passage starts with the words "In your voluntary statement". Paragraph 4 is a lengthy paragraph. Paragraph 4 appearing in the grounds of detention is almost verbatim of paragraph 4 stated in the remand report. In paragraph 5, it is stated that "The Indian equivalent of the U.S.S in the form of Travellers Cheques seized is Rs.42,90,000/- on the day of seizure. Of course, in the remand report, the date 3.10.1997 is mentioned. But, in paragraph 5 of the detention order, the above date is not mentioned. Except few changes, paragraphs 1 to 5 under which the facts of apprehending and recovery of photo of Ariff are copied in the detention order in verbatim. On perusal of the detention order and remand report it can be reasonably concluded that the Detaining Authority has not formulated the grounds of detention independently of the remand report. It is no doubt true that the averments contained in the remand report discloses the grounds and circumstances under which the detenu was apprehended and incriminating materials were recovered. But, there is no indication to show that the Detaining Authority applied its mind to the material placed before him to formulate the grounds of detention. The very fact that paragraphs 1 to 5 in the detention order are verbatim of paragraphs 1 to 5 of the remand report will only lead to a reasonable conclusion that the Detaining Authority has not applied its mind in formulating the grounds of detention.
Learned Additional Public prosecutor contended that the grounds of detention contain number of paragraphs and that paragraphs 6 to 10 will show that the Detaining Authority has applied its mind while passing the detention order. Paragraph 6 of the grounds of detention deals with Provisions of Customs Act, and consequential confiscation. Paragraph 7 deals with the facts as to when the detenu was remanded. In paragraph 8, it is alleged that the search" warrant was issued and mahazar was drawn up in the house premises of Ariff. The above paragraph is nothing but a verbatim of the earlier paragraph which in our opinion were copied from the remand report. Paragraphs deals with the voluntary statement dated 3.10.97 alleged to have been given by one Najeeb. In paragraph 10, it is stated that the detenu filed bail application which was opposed by the customs department and that the bail application was dismissed on 14.10.97. Paragraph 11 deals with the representation sent by the petitioner on 20.10.1997. In paragraph 12, it is stated that from the above materials the State Government are satisfied that the detenu had indulged in smuggling goods. In sub clause (4) it is stated that the State Government has taken into consideration all the facts and materials referred to and relied upon in those grounds mentioned above and also the statements, mahazars etc., Paragraph other than paragraphs 1 to 5 deals with follow-up action taken by the customs officials. But paragraphs 1 to 5 narrates the ground events leading to apprehension of the petitioner and recovery of the incriminating materials and admission before the Additional Chief Metropolitan Magistrate and recovery of photo of Ariff. As already stated, it is seen that the Detaining Authority has only copied paragraphs 1 to 5 of the remand report for coming to the conclusion that the detenu has indulged in smuggling activities. The paragraphs dealing with other aspect of the case will not show that the Detaining Authority has applied its mind independently of the remand report and considered all the relevant documents before passing the order of detention. It cannot be disputed that the Detaining Authority in whom the power of detention is vested should have applied its mind to the material on record placed by the Sponsoring Authority and arrive at a decision to pass the order, by formulating the grounds of detention. As the grounds of detention reflects only the verbatim copy of the remand report, we have no hesitation in holding that the Detaining Authority has not applied its mind and that the order of detention is vitiated by non application of mind.
Learned counsel for the petitioner relies upon decision of the Delhi High Court reported in Durga Dass Sharma Vs. Union of India and Others,
In the above decision, it is held thus:-
Where the grounds of detention served on detenu are almost verbatim copy of the contents of remand implication against him, the detention order is liable to he quashed".
Learned counsel for the petitioner relics upon another decision of the Supreme Court reported in Jai Singh and Others Vs. State of Jammu and Kashmir, . Though, it is not specifically observed in the above decision that the fact that the Detaining Authority has copied the police dossier in the order would vitiate the detention order, the observation of the Supreme Court that aspect would show that the Supreme Court expressed anguish at the manner in which the detention order was drafted. The relevant passage reads thus:-
First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father''s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter, it is recited "The subject is an important member of...
After discussing the above aspect, the Supreme Court has observed that in the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is "into"you Jai Singh s/o. Ram Singh and that thereafter, word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. On the analysis of the above facts, the Supreme Court has also observed thus:-" We are afraid it is difficult to find greater proof of non- application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner.
The above two decisions relied on by the learned counsel for the petitioner would support his plea that the detention order passed by the first respondent clearly reflects non-application of mind. For the above reasons, we hold that the detention order is nothing but a verbatim copy of the remand report. Hence we have no hesitation in holding that the Detaining Authority has not applied its mind in formulating the grounds of detention and as such, the order of detention has to be held to be vitiated.
The next ground urged by the learned counsel for the petitioner is that Section 3(2) of the Act was not complied with. Section 3(2) of the COFEPOSA Act states that the State Government shall within 10 days forward to the Central Government the report in respect of the order of detention made by the State Government. The learned Central Government Standing Counsel for the second respondent filed counter alleging that the provisions contained u/s 3(2) of the Act are complied with. It is alleged in the counter that the detention order passed on 1.12.1997 by the State Government was received by the COFEPOSA unit of the Central Government on 8.12.97. It is, thus, clear that the order of detention passed by the State Government was received by the Central Government within 10 days from the date of the order. Therefore, we hold that the provisions of Section 3(2) of the Act are complied with.
In view of our findings on the second point that the Detaining Authority has not applied its mind in formulating the grounds of detention and as the grounds of detention are nothing but a verbatim copy of the Remand Report, the order of detention is vitiated. Therefore, it is needless for us to consider the other points mentioned in the affidavit filed by the petitioner. The order of detention is liable to be set aside on the ground of non application of mind.
In the result, this Habeas Corpus Petition is allowed. The order of detention passed by the first respondent is set aside. The detenu is directed to be set at liberty forthwith, unless his detention is required in any other proceedings.