Karnataka High Court
Shri Anwar Abdulla Etc. vs The Union Of India And Others on 5 December, 1991
Equivalent citations: 1992CRILJ3616, ILR1992KAR353, 1991(3)KARLJ262
ORDER
1. These are four separate writ petitions filed under Art. 226 of the Constitution, by which the petitioner concerned in each of them has sought the quashing of the detention order and declaration made against him respectively under clause (i) of sub-section (1) of S. 3 and sub-section (1) of S. 9 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act').
2. As the material facts relating to the four petitions being almost common, they could be briefly stated thus :
On the morning of 21-2-1991, an Arab Dhow, 'A1 Niamat', which was said to be moving in a suspicious manner in the Customs waters of the Coast of Coondapur, appears to have been sighted by the Coast Guards in the Coast Guard Ship 'Varuna' and asked to be stopped with stop signals given therefor. That Arab Dhow not having responded to stop signals, appears to have been chased by the Coast Guard Ship and apprehended by the Coast Guards. Thereafter, the Arab Dhow found with the crew members and heavy metal blocks appeared to be of silver, being regarded by the Coast Guards as the one which had entered into the Indian territorial waters to carry out smuggling activity, is said to have been brought to Mangalore Port along with its crew members and metal blocks (silver) by the early hours of 22-2-1992 and handed over to the Customs Authority stationed there. Officers of the Customs Authority along with the Coast Guards and Panchas appear to have then entered upon the Arab Dhow and drawn up a mahazar as to the persons found in the Arab Dhow and the heavy metal blocks of silver found in it and the manner in which the Arab Dhow entered the Indian customs waters and came to be apprehended by the Coast Guards of the Coast Guard Ship. The Customs Officers appear to have subsequently recorded the crew members' statements which disclosed their previous smuggling activities. The crew members the petitioners having been arrested thereafter by the Customs Authority on 23-2-1991, have come to be produced before the Court of II Additional Chief Judicial Magistrate, Mangalore, and remanded to judicial custody by that Court. The Customs Authority, who feared the likelihood of the petitioners securing their release from judicial custody by moving bail applications before the Court of II Additional Chief Judicial Magistrate, and indulging again in smuggling activity, are said to have moved the Government of Karnataka to make detention orders respecting the petitioners under the COFEPOSA Act. Letter dated 6-6-1991 of the Customs Officer, Bangalore, by which detention orders were required to be made by the Karnataka Government respecting the petitioners under the COFEPOSA Act, appears to have been received on the very day, in its Secretariat's Home Department. Detention orders impugned in the present writ petitions appear to be have been accordingly made and issued by the Karnataka Government on 7-3-1991. Those detention orders and the grounds of detention and the documents accompanying them are said to have been served on the petitioners on 11-3-1991 leading to their detention in the Central Prison, Bangalore, under the COFEPOSA Act. Declarations under S. 9(1) of the COFEPOSA Act made pursuant to the said detention orders are issued thereafter on 8-4-1991 by the Special Secretary to Government of India.
On references being received by the Advisory Board constituted under the COFEPOSA Act respecting the impugned detention orders and the declarations, the Advisory Board has, by its reports dated 13-8-1991, opined that there was sufficient cause for the making of the said detention orders and declarations, which are impugned in these writ petitions. Having regard to the opinion so received from the Advisory Board, the Karnataka Government has, by its orders issued on 20-8-1991, directed that the detention of the petitioners under the impugned detention orders shall continue up to 10-3-1993. This being the actual state of facts the writ petitions under consideration are filed by the petitioners seeking the quashing of the afore-mentioned detention orders and the declarations made against them, as stated at the outset.
3. Sri M. G. Karmali, learned Counsel appearing for the petitioners, raised before us several contentions against the validity of the detention orders and the declarations impugned in the writ petitions. His contention raised, among others, that the impugned detention orders are vitiated since they were made by the detaining Authority without arriving at the satisfaction required under sub-section (1) of S. 3 of the COFEPOSA Act, i.e., without arriving at the pre-requisite satisfaction required to be arrived at by application of its mind to the relevant materials, on which such satisfaction had to be based, if merits our acceptance, no option will be left to us except to quash the impugned detention orders and the declarations, as vitiated by illegality. As it is felt by us on consideration of the pleadings in the writ petitions and on perusal of the material documents including the office file of the detaining Authority pertaining to the cases produced before us, in the light of the arguments addressed by learned Counsel for the petitioners as also the detaining Authority and the sponsoring Authority, that the said contention of learned Counsel for the petitioners merits our acceptance, we shall proceed to examine that contention after adverting to the legal principles governing the satisfaction to be arrived at by a detaining Authority in making an order of detention against a person under a preventive detention law and reviewability of such satisfaction by Courts.
4. The case of State of Bombay v. Atma Ram is a leading decision of a six Judges Bench of our Supreme Court which deals with important aspects of law relating to preventive detention. Kania, C.J., who spoke in that case for himself and Fazl Ali, J., Mukherjea, J. and Chandrasekhara Aiyar, J. forming the majority, has expounded the law relating to powers of detention under the Preventive Detention Act, 1950, nature of satisfaction required to be arrived at by the detaining Authority in making a detention order respecting a person and the ground of challenge of such satisfaction available to a detained person in Court, this (at page 375 & 376) :
"The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section 3, Preventive Detention Act, therefore, requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relation of India with foreign powers, or the security of India, or (2) the security of the State of the maintenance of public order, or (3) the maintenance of supplies and services essential to the community or ......... it is necessary so to do, make an order directing that such person be detained. According to the wording of S. 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a Court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a Court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government."
5. The case of Khudiram Das v. State of West Bengal , is a four Judges Bench decision of our Supreme Court where Bhagwati, J. (as he then was), speaking for the Bench, while examining the validity of a detention order to be made under sub-secs. (1) and (2) of S. 3 of the Maintenance of Internal Security Act, 1971, has exhaustively dealt with and thoroughly explained as to what is the subjective satisfaction which was to be arrived at by the detaining Authority as a prerequisite in making the detention order respecting a person under those sub-sections and as to when the validity of such subjective satisfaction of the detaining Authority could be subjected to judicial scrutiny and review of Courts, thus (at page 452) :
"8. Now it is clear on a plain reading of the language of sub-secs. (1) and (2) of S. 3 that the exercise of that power of detention is made dependent on the subjective satisfaction of the detaining authority that with a view to preventing a person from acting in a pre-judicial manner, as set out in sub-clauses (i) (ii) and (iii) of clause (a) of sub-section (1), it is necessary to detain such person. The words used in sub-sections (1) and (2) of S. 3 are 'if satisfied' and they clearly import subjective satisfaction on the part of the detaining authority before an order of detention can be made. And it is so provided for a valid reason which becomes apparent if we consider the nature of the power of detention and the conditions of which it can be exercised. The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J., pointed out in State of Madras v. V. G. Row, that preventive detention is "largely precautionary and based on suspicion" and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday, 1917 AC 260 namely, that "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based."
This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of S. 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. They are essentially matters which have to be administratively determined for the purpose of taking administrative action. Their determination is, therefore, deliberately and advisedly left by the legislature to the subjective satisfaction of the detaining authority which by reason of its special position, experience and expertise would be best fitted to decide them. It must in the circumstances be held that the subjective satisfaction of the detaining authority as regards these matters constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. The Court cannot on a review of the grounds, substitute its own opinion for that of the authority, for what is made a condition precedent to the exercise of the power of detention is not an objective determination of the necessity of detention for a specified purpose but the subjective opinion of the detaining authority and if a subjective opinion is formed by the detaining authority as regards the necessity of detention for a specified purpose of detention would be fulfilled. This detention is not a quasi-judicial power. It was, however, sought to be contended on behalf of the petitioner, relying on the observation of this Court in Bhut Nath Mate v. The State of West Bengal, that the exercise of the power of detention "implies a quasi-judicial approach", that the power must be regarded as a quasi-judicial power. But we do not think it would be right to read this observation in the manner contended on behalf of the petitioner. This observation was not meant to convey that the power of detention is a quasi-judicial power. The only thing which it intended to emphasis was that the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention.
9. But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji, AIR 1943 FC 75 : (1944 (45) Cri LJ 341) at p. 92 is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commr. of Police v. Gordhandas Bhanji, and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service, (1946) 2 All ER 201 the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded 'on materials which are of rationally probative value'; Machinder v. King, AIR 1950 FC 129 : (1950 (51) Cri LJ 1480). The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the enquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Pratap Singh v. State of Punjab, . If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.
10. There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of Lord Halsbury in Sharpe v. Wakefield, 1891 AC 173 at p. 179 :
"....... when it is said that something is to be done within the discretion of the authorities ..... that something is to be done according to the rules of reason and justice, not according to private opinion .... according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular."
So far as this ground is concerned, the Courts in the United States have gone much further than the Courts in England or in this country. The United States Courts are prepared to review administrative findings which are not supported by substantial evidence, that is by "such relevant findings as a reasonable man may accept adequate to support a conclusion." But in England and in India, the Courts stop-short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. "If", to use the words of Lord Greene, M.R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 - words which have found approval of the House of Lords in Smith v. Rest Ellor Rural District Council, 1958 AC 736 and Fawoet Properties Ltd. v. Buckingham County Council, AIR 1961 SC 636 - "the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere". I such a case, a legitimate interference may fairly be drawn either that the authority "did not not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts." Ross v. Papadopolos, (1958) 1 WLR 546. The power of the Court to interfere in such a case is not as an appellate authority to override a decision taken by the statutory authority, but as a judicial authority which is concerned, and concerned only, to see whether the statutory authority has contravened the law by acting in exercise of the power which the legislature has confided in it. It is on this ground that the order of preventive detention made by the District Magistrate in Debu Mahto v. State of West Bengal, was struck down by this Court. There, in that case, one single solitary act of wagon breaking was relied upon by the District Magistrate for reaching the satisfaction that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services to the community, it was necessary to detain him. This Court pointed out subject to certain reservations that it was difficult to see how, "One solitary isolated act of wagon breaking committed by the petitioner could possibly persuade any reasonable person to reach the satisfaction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking."
This Court did not go into the adequacy or sufficiency of the grounds on which the order of detention was based, but merely examined whether on the grounds given to the detenu, any reasonable authority could possibly come to the conclusion to which the District Magistrate did. It is true that this ground in a sense tends to blur the dividing line between subjective satisfaction and objective determination but the dividing line is very much there however faint or delicate it may be, the Courts have never failed to recognise it.
11. This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. "Law has reached its finest moments", said justice Douglas, "When it has freed man from the unlimited discretion of some ruler, some ...... official, some bureaucrat ...... Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions." United States v. Wunderlich, (1951) 342 US 98. And this is much more so in a case where personal liberty is involved. That is why the Courts have devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds."
6. Krishna Murari Aggarwala v. The Union of India, is a decision where the Supreme Court having held that the subjective satisfaction of the detaining authority in making a detention order under the Maintenance of Internal Security Act, 1971, is a sine qua non for the exercise of power of detention, has pointed out that such power by the detaining authority has got to be exercised properly and discretely and not in a casual or cavalier manner. It was a case where a detention order made under section 3 of the Maintenance of Internal Security Act, 1971, was under challenge. The challenge to the detention order was founded on the contention that the detention order had not been made by the detaining authority after arriving at the pre-requisite subjective satisfaction. But, sustenance of the detention order had been sought on behalf of the detaining authority on the averment that "the order of detention was passed by the detaining authorities after they are fully satisfied themselves about the existence of the grounds." In dealing with the said averment in the light of other facts found in the case, the Supreme Court has explained the matter thus at page 1653 :
"It would thus appear from the averment that the order of detention was not passed by one single person but by more than one person and taking the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages - in the first instance by Mr. S. K. D. Mathur who was full-fledged District Magistrate on November 8, 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds. The order of detention was then signed by Mr. R. C. Arora on November 13, 1974 and served on the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before the High court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds, but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case. Even if the order had been made by Mr. S. K. D. Mathur and signed by him, there could have been no objection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu. But in this case it is not possible to determine as to who in fact made the order of detention.
6. ....................................... ..........................................
7. Section 3(1) of the Act runs thus :
"3. (1) The Central Government or the State Government may, -
(a) if satisfied with respect to any person (including foreigner) that with a view to preventing him from acting in any manner prejudicial to -
(i) the defence of India, the relations of India with foreign powers, or the security of India, or
(ii) the security of the State or the maintenance of public order, or
(iii) the maintenance of supplies and services essential to the community, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India :
it is necessary so to do, make an order directing that such person be detained."
This power can also be exercised by the officers mentioned in sub-section (2), and in the instant case we are concerned with the District Magistrate. The words "make an order directing that such person be detained" clearly postulate three conditions - (i) that the order must be made by the authority mentioned in Section 3; (ii) the order must be duly signed by the said authority; and (iii) that only one authority and one authority alone can pass such order of detention. The statute does not contemplate a sort of composite or a joint order passed by several authorities. In the instant case the original order of detention passed by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by him which were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to whom among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case."
7. Icchu Devi v. Union of India is a decision where the Supreme Court has cautioned that the Courts which deal with, and consider the challenge made to, the detention orders made under the COFEPOSA Act, should not exhibit an attitude different from the one which they exhibit in dealing with and considering the challenges to the detention orders made under other Preventive Detention Acts. The observations made by the Supreme Court in the decision in that regard, run thus at pp. 1986 and 1987 :
"3. ...................................... We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The Courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has, therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the Courts have always zealously tried to uphold and enforce these safeguards. Thus Court has also through its judicial pronouncements created various legal bulwarks and break-waters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the Courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that it is a case where a possible smuggler is seeking his release from detention."
8. Ashadevi v. K. Shivraj, reported in AIR 1979 SC 447 : (1979 Cri LJ 203) is a decision of the Supreme Court where it is pointed out that ignorance or non-consideration by the detaining authority of the material vital facts, which bear on requisite subjective satisfaction for making the detention order, would result in vitiation of such detention order, by stating thus at page 205 :
"It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order."
9. Shri Umeshchandra Verma v. Union of India (Criminal Appeal No. 878/1985) relates to an order made on 20-12-1985 by our Supreme Court where possible non-application of the mind of the detaining authority to the facts and circumstances of the case at the time of making the impugned detention order, has weighed with it as the sole vitiating ground for quashing that detention order, obviously for the reason that in making the impugned detention order, the detaining authority had not arrived at the pre-requisite subjective satisfaction on the basis of which such detention order had to be necessarily made. The order of the Supreme Court, which is short, since illustrates how even a possible non-application of the mind of the detaining authority in making a detention order under the COFEPOSA Act vitiates such order, it is reproduced :
"The appellant was intercepted by the Officers of the Directorate of Revenue Intelligence on the evening of 12-6-1985 and a large quantity of alleged contraband gold was recovered from him. He was interrogated on 13-6-1985, almost the whole day, and thereafter at 6 p.m. he was formally arrested under section 104 of the Customs Act. The same night a detention order was made by the Joint Secretary to the Government of India, Finance Department. Shri Jethmalani's contention before us is that the detaining authority could not have possibly applied his mind to the facts and circumstances of the case having regard to the fact that the documents on which the detaining authority purported to rely in making the order of detention ran to about 234 pages and the documents included the arrest Memo which was prepared at 6 p.m. on 13-6-1985. The reference to the arrest memo which was prepared at 6 p.m. as one of the documents which was relied upon by the detaining authority indicates that the documents and the proposal for detention must have been placed before the detaining authority sometime after 6 p.m. in which case it would certainly be difficult, if not, impossible for the detaining authority to make the order the same night. We think that in the facts and circumstances of the case the detaining authority could not have possibly applied his mind to the voluminous documentary evidence which was placed before him and for that reason alone the order of detention has to be quashed. The detenu is directed to be set at liberty forthwith. The appeal is disposed of accordingly."
10. The case Ayya alias Ayub v. State of Uttar Pradesh is another decision of our Supreme Court, which refers to the well recognised objective and judicial tests of subjective satisfaction for preventive detention thus at page 996 :
"10. There are well recognised objective and judicial tests of the subjective satisfaction for preventive detention. Amongst other things, the material considered the detaining authority in reaching the satisfaction must be susceptible of the satisfaction both in law and in logic. The tests are the usual administrative law tests where power is couched in subjective language. There is of course, the requisite emphasis in the context of personal liberty. Indeed the purpose of public law and the public law Courts is to discipline power and strike at the illegality and unfairness of Government wherever it is found. The sufficiency of the evidentiary material or the degree of probative criteria for the satisfaction for detention is of course in the domain of the detaining authority."
11. In a Division Bench decision of the Madras High Court found in the order dated 18-7-1989 rendered in Writ Petition No. 53/1988, a detention order impugned therein has been quashed. The petitioner concerned there, had been arrested for alleged involvement of smuggling of gold on 9-12-1988 and produced before the Additional Chief Metropolitan Magistrate for remand to judicial custody. When the bail application was pending decision by the Additional Chief Metropolitan Magistrate, a detention order under the COFEPOSA Act in respect of that person was made on 12-12-1988. For satisfying the High Court that the office hours between 12.00 noon and the time of the closing of the office on 12-12-1988 was sufficient for the detaining authority to go through the annexures and 40 documents running to 137 foolscap closely typed pages, grounds were urged on behalf of the detaining authority as to the application of its mind in making the detention order after its subjective satisfaction. Dealing with the matter with reference to the annexures and the documents, which, it was pointed out by the learned Counsel for the detenu, had to be perused, the Court has stated thus :
"He pointed out that the annexures and 40 documents running to 137 foolscap closely typed pages could not have been purused by the first respondent in order to come to a subjective satisfaction before passing the impugned order of detention. There is no indication as to in what part of the daly, the detention order was passed. Evidently, it must have been passed during Office working hours and if that is so, the time available for the first respondent was very short and normally it cannot be possible to go through the entire records and pass the order of detention. We are not here to find out whether such a decision could be arrived at by some extraordinary skilled Officer, but, there is reasonable ground to assume that the authority concerned could not have had enough time to apply his mind, before passing the impugned order."
It is the said factual situation emerging in that case, which was considered by the Madras High court to invalidate the detention order by relying on the decision of the Supreme Court in Umesh Chandra Verma's case (supra).
12. In Aktar Sakeena v. Government of India, (Writ Petition (H.C.) No. 37/1989 decided on 3-7-1989), a Division Bench decision of our Court, in quashing the detention order impugned therein, as the same having been made by the detaining authority without application of its mind, Shivashankar Bhat, J. (one of us) speaking for the Bench, has stated thus :
"10. .................................... If the detaining authority misdirects himself on a vital issue or point of law, commits a patent mistake regarding matter of a material or vital fact the order cannot be sustained. It is all the more so, when the Court is concerned about the personal liberty of a person and is entrusted with the responsibility of examining the order pertaining to the said liberty. If the order of detention and the grounds for the same disclose that the detaining authority failed to apply his mind or treated the entire matter very casually, the order of detention cannot be sustained.
11. This is a case where the core of grounds of detention read with the basic facts clearly establishes that the detaining authority did not apply his mind and missed the real facts involved in the case. Consequently, the alleged subjective satisfaction of the detaining authority cannot be held to be a satisfaction approved of by the Parliament as a justification for the detention under the preventive detention law."
13. Legal principles, which, therefore, govern satisfaction to be arrived at by a detaining authority in making a detention order under a preventive detention law and the reviewability of such satisfaction by Courts, as have emerged from the decision of Courts, to which we have adverted, could be formulated thus :
(1) 'Satisfaction' arrived at by the detaining authority in having made the detention order must have been a pre-requisite satisfaction.
(2) Satisfaction arrived at by the detaining authority on the basis of materials must have been such which a reasonable person could have possibility arrived at on the basis of the same material.
(3) Satisfaction arrived at by the detaining authority in having made the detention order must have been grounded on materials of rationally probative value.
(4) Materials on the basis of which satisfaction was arrived at by the detaining authority to detain a person, must have been such as which a human being could say that there was rational nexus or connection between the materials and the person to be detained for preventing him from indulging in prejudicial activity.
(5) Satisfaction of the detaining authority on materials which constitute the foundation for exercise of its power of detention not being susceptible for objective determination intended to be judged by subjective standards, could be subjective satisfaction itself inasmuch as the satisfaction which could be arrived at, ought to be founded on materials which give rise merely to suspicion of the possibility of the person to be detained indulging in prejudicial activity sought to be prevented.
(6) Subjective satisfaction arrived at by the detaining authority should have been neither the one which no reasonable authority could have been arrived at nor the one arrived at by the authority in a casual or cavalier manner.
(7) Subjective satisfaction arrived at by the detaining authority in making the detention order cannot be regarded to be wholly immune from judicial scrutiny and judicial reviewability. Instances of satisfaction arrived at by the detaining authority in making detention orders which could become the subject of judicial scrutiny and judicial reviewability, could be the following :
(a) Where the subjective satisfaction arrived at by the detaining authority in making a detention order is challenged as the one arrived at without application of the authority's mind to the material placed before it as would have enabled it to find rational nexus or connection between such material and the impending prejudicial activity of the person to be detained;
(b) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged on the plea that there was no time or there was hardly any sufficient time, which could have possibly enabled the detaining authority in applying its mind to the materials placed before it having regard to their nature and volume;
(c) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one not arrived at by application of its independent mind, but on the satisfaction of an outside agency;
(d) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at, the dictates of some outside authority or agency;
(e) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by dishonest exercise of power by the detaining authority;
(f) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority for an improper purpose, that is, a purpose not contemplated by the statute;
(g) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority when it was under a disability recognised under law to apply its mind;
(h) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one made due to the application of a wrong test or misconstruction of a statute;
(i) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority without due regard to matters required to be taken into account by the statute in reaching such satisfaction; and
(j) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one which could not at all have been arrived at by any reasonable person in the facts and circumstances of the case.
14. Sub-section (1) of Section 3 of the COFEPOSA Act, under which the orders of detention impugned in these writ petitions are made, empowers one or the other authority mentioned therein to make a detention order envisaged therein to make a detention order envisaged therein respecting a person where it is satisfied that such order is necessary with a view to preventing him from indulging in any of the prejudicial activities mentioned therein. It cannot be disputed, and is not, in fact, disputed, that the satisfaction to be arrived at by the detaining authority under the said sub-section for making the detention order respecting a person, is a pre-requisite for making such detention order. So also, the satisfaction to be arrived at by the detaining authority for making the detention order under the sub-section is the subjective satisfaction, is not disputed. If regard is had to the legal principles governing the subjective satisfaction, already adverted to by us, a detention order made by the detaining authority under the sub-section on the subjective satisfaction arrived at without the application of the mind of the authority can become the subject matter of judicial scrutiny and reviewability, if challenged in Court. Such challenge to the subjective satisfaction could become sustainable when it is shown that the subjective satisfaction purported to have been arrived at by the detaining authority in making the detention order, could not be real, but illusory due to the reason that the detaining authority had either no time at all or the time at its disposal was insufficient, for arriving at such satisfaction possibly by application of its mind to all the materials placed before it in the matter by the sponsoring authority. So also, the challenge to the subjective satisfaction could become sustainable when it is shown that the subjective satisfaction purported to have been arrived at by the detaining authority in making the detention order, is on the basis of the satisfaction reached by some other authority and not by application of its own mind.
15. As the detention orders impugned in the writ petitions are challenged on the ground that the purported satisfaction arrived at by the detaining authority in making them is not real, but illusory, in that, the same was not arrived at possibly by the application of the mind of the detaining authority itself, we shall now proceed to examine the facts of the instant cases in the light of the aforesaid legal principles governing the reviewability of detention orders made under sub-section (1) of Section 3 of the COFEPOSA Act and the arguments addressed by learned Counsel appearing on either side.
16. The averments in the writ petition, W.P. No. 48/1991, relating to the challenge to the satisfaction of the detaining authority arrived at in making the impugned detention order without application of its mind, found in Paragraph 4 thereof being similar to the averments in other writ petitions as well, the same are reproduced for the purpose of examination of the challenge under consideration :
"4 (i) ....................................
The impugned order of detention was issued on 7-3-1991 before the said bail application had been decided and before any orders could be passed on it either granting or refusing the bail. In the premises, the petitioner says and submits and it is enjoined upon the 3rd respondent to disclose to this Hon'ble Court as to on what date the proposal was received for the detention of the petitioner and the other co-detenus and whether all the documents, the copies of which have been furnished to the petitioner, were received along with the proposal and if not, which documents were received along with the proposal and which documents were received thereafter and if so on what date or dates they were received from the sponsoring authorities. The petitioner says and submits that it is further enjoined upon the 3rd respondent to disclose to this Honourable Court, who on behalf of the State Government, weilded the statutory power and who on behalf of the State Government applied his mind and issued the impugned order of detention. The petitioner says and submits that it is further enjoined upon the 3rd respondent to disclose to this Hon'ble Court, as to when exactly the said authority who issued the impugned order of detention; commenced the scanning of the said documents and the material and when the same ended and when the authority started formulating the impugned grounds of detention and when the said process ended and the time taken for carrying out the said exercise and when the said authority ordered on the file to issue the impugned order of detention. The petitioner says and submits that taking into account the paucity of time at the disposal of the detaining authority; the detaining authority could not have himself perused and scanned the material and applied his own mind and could not have himself formulated the grounds of detention. It, therefore, appears that the detaining authority has verbatim adopted the draft grounds or the proposal placed before him as the grounds of detention for issuing the impugned order of detention, which course of action, if adopted, was impermissible in law; as the detaining authority could not have abdicated his statutory authority and left it to the sponsoring authorities to carry out the said statutory exercise. The petitioner says and submits that it is, therefore, incumbent upon the 3rd respondent to place before this Hon'ble Court the proposal and the draft grounds, if any, placed before the detaining authority so as to enable to this Hon'ble Court to ascertain and verify as to whether the detaining authority had so done, in which case the impugned order of detention be held as suffering from the vice of non-application of mind and a casual and cavalier exercise of the statutory power by the detaining authority rendering the impugned order of detention, mala fide, and ab initio null and void. The petitioner says and submits that on the failure of the detaining authority to place before this Hon'ble Court such proposal and the draft grounds; an adverse inference be drawn against the detaining authority and the impugned order of detention on that count be held to have been rendered mala fide and ab initio null and void.
(ii) The petitioner further says and submits that assuming that the detaining authority, who weilded the statutory authority had himself scanned all the documents and the material; it is enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the detaining authority had formulated the ground of detention by considering some of the documents from amongst the said total of sixteen documents; it is enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether after the receipt of the rest of the documents, if any, were so received at a later date; the detaining authority had rescinded the draft grounds earlier formulated; and had reformulated the grounds by taking into account the said rest of the documents if so received at a later date together with the documents earlier received."
17. The said averments in the writ petition are traversed in the counter-affidavit filed in the writ petition by Sri. N. A. Muthanna, Commissioner and Secretary to Government of Karnataka, Home Department, who claims to have exercised the power of detention exercisable by respondent 3, the State Government. We shall reproduce the same inasmuch as similar counter-affidavit is filed in all other writ petitions under consideration :
"8. ......................................
(b) It is respectfully submitted that I, as the Commissioner and Secretary to Government of Karnataka, Home Department exercised the power to pass the order of detention. I further submit that I considered all the documents together and applied my mind to the relevant materials on record as disclosed in the grounds of detention and derived the subjective satisfaction before passing the order of detention.
(c) I commenced the scanning the documents and materials which were received along with the proposal, from 6-3-1991 itself and it ended on 7-3-1991. The draftgrounds of detention were also received along with the proposal and I applied my mind to the same and effected correction wherever necessary and approved the order of detention on 7-3-1991. It is respectfully submitted that I applied my mind to the relevant materials on record and derived the due subjective satisfaction to detain the detenu, before passing the order of detention. The allegation that the detaining authority himself could not have perused and scanned the material and applied his own mind, is denied as false and baseless. As already submitted, I applied my mind to the relevant materials on record. It is respectfully submitted that it is incorrect, to state that the detaining authority himself should formulate the grounds of detention. It is respectfully submitted that the detaining authority did receive the draft grounds of detention and before approving the same, the detaining authority has perused the draft grounds of detention and after making necessary corrections, has approved the same. Therefore, it is incorrect to state that it was impermissible in law for the detaining authority to approve the draft grounds of detention. It is further not correct to state that the detaining authority has abdicated any of its statutory authority to the sponsoring authorities. The further allegation that the impugned order of detention suffers from the vice of non-application of mind and a casual and cavalier exercise of the statutory power by the detaining authority rendering the impugned order of detention mala fide, and ab initio null and void, is denied as false and baseless. The detaining authority will place before this Hon'ble Court the entire original records relating to the order of detention for its kind perusal. The averments to the contrary in paras 4(i) and 4(ii) of the writ petition are denied as not tenable.
Re. Para 4(1) : It is respectfully submitted that I, as the Commissioner and Secretary to Government, Home Department, exercised the statutory power on behalf of the State Government. I have gone through the records, applied my mind and arrived at a subjective satisfaction before passing the detention order."
18. As could be seen from the facts, to which Sri. N. A. Muthanna, Commissioner and Secretary to Government, Home Department, has sworn, it is Sri N. A. Muthanna who has, acting as the detaining authority for the Karnataka State Government (respondent 3), made the impugned detention orders respecting the petitioners, after arriving at the pre-requisite subjective satisfaction required under sub-section (1) of Section 3 of the COFEPOSA Act, by application of his own mind to the materials placed before him by the sponsoring authority. Though there was an attemption on the part of the learned Counsel for the petitioners to show thhat regard, that attempt was not pursued when a specific order of the Karnataka State Government, by which that Commissioner and Secretary to Government, was empowered to exercise all powers under the COFEPOSA Act on behalf of the State Government, was brought by the learned High Court Government Pleader to his notice as well as to our notice. Hence, there could not have been any impediment for Sri N. A. Muthanna, Commissioner and Secretary to Government, Home Department, in making the impugned detention orders under the COFEPOSA Act by application of his mind to the materials placed before him by the sponsoring authority, for satisfying himself that the orders of detention had to be made to detain the concerned persons to prevent them from indulging in prejudicial activity which was sought to be prevented under the COFEPOSA Act.
19. In traversing the averments made by the petitioners in their writ petitions that the detaining authority had not arrived at the purported satisfaction in making the impugned detention orders possibly by application of his mind for want of sufficient time and that he had acted on the views expressed in the matter by others without application of his own mind, Shri N. A. Muthanna, in his counter-affidavit, has not only unequivocally denied those averments as wholly untrue, but also made a categorical statement therein that he, acting for the detaining authority, had two days' time, that is, the 6th day and the 7th day of March 1991, for scanning all the materials, that is, the papers relating to the proposed detention of the petitioners placed by the sponsoring authority to enable him to arrive at the prerequisite satisfaction needed for making the detention orders respecting the petitioner and that he had, in fact, arrived at such subjective satisfaction before making the detention orders after perusing and scanning through all the documents and materials which wee received along with the proposal for detention of the petitioners apart from effecting certain corrections in the draft grounds of detention. If the said categorical statement made by Sri Muthanna, in his counter-affidavit, as to the time available to him for perusing and scanning or scrutinising the documents and materials placed before him along with the proposal for detention of the petitioners is true and if he had, in fact, effected certain corrections in the draft grounds of detention as claimed, we would be left with no option except to uphold the detention orders finding, inter alia, that the prerequisite subjective satisfaction needed in law for making the detention orders had been duly arrived at by the detaining authority.
20. On the other hand, if we are to find, on the basis of the information which becomes available from the original records of the detaining authority volunteered to be produced before us on behalf of the detaining authority, as stated in the counter-affidavit, and in fact produced before us, that the categorical statement made in the counter-affidavit by Sri Muthanna, Commissioner and Secretary to Government, Home Department, as the detaining authority, relating to the application of his mind for arriving at the prerequisite subjective satisfaction for making the detention orders, is not true and acceptable and in fact the original records if make it apparent that the Commissioner and Secretary to Government, Home Department, could not have possibly applied his mind in arriving at the prerequisite subjective satisfaction required for making the detention orders, we will be left with no alternative but to allow the writ petitions and quash thee impugned detention orders as those vitiated by illegality.
20A. The information, which may be come available from the original records of the detaining authority, since could clinch the said controversy as to the application of mind of the detaining authority in the matter of pre-requisite subjective satisfaction arrived at by him in making the impugned detention orders, either in favour of the petitioner or against them, we have examined those records.
20B. The order-sheet in File No. HD. 21. SEF. 91(A) refers to the subject dealt with therein as 'proposal for detention of Sri Anwar Abdul and three others under the COFEPOSA Act, 1974'. As seen from the file, the COFEPOSA Cell of the Home Department has received the letter bearing No. C. VIII/48/18/91 C.P. dated 6-3-1991 from the Collector of Customs, Bangalore. When the original letter is seen, we find on its margin a note to the effect that it has been received in the COFEPOSA Cell of the Home Department at 5.25 p.m., on 6-3-1991. The contents of that letter are these :
"The proposal for detention of Shri Anwar Abdulla and 3 others persons was discussed in the Screening Committee meeting held on 6-3-1991 and the same was unanimously approved after a detailed discussion.
Draft detention orders and grounds for detention in respect of all the four persons and copies of all the connected documents are sent herewith for favour of early necessary action."
That letter has been, in fact, addressed to the Under Secretary to the Government of Karnataka, Home Department, Vidhana Soudha, Bangalore. The Screening Committee, adverted to in the letter, did not include the Commissioner and Secretary to Government, Home Department, the detaining Authority, becomes clear from the minutes of the Screening Committee meeting held on 6-3-1991 annexed to the letter. Notings, as appear in the order-sheet of the file, clearly indicate that that letter is processed by the Case Worker of the COFEPOSA Cell only on 7-3-1991. Noting in the order-sheet at Paragraph 14 thereof refers to the Members of the Screening Committee having made an in-depth discussion in the matter and recommended the detention of all the four persons involved in the case, by the State Government by issue of detention orders against all of them. However, nothing in the order-sheet at Paragraph 15 thereof shows that the file may be referred to the Department of Law and Parliamentary Affairs for scrutiny of the proposal in the first instance. That noting running to more than two full scape closely typed pages, indicates that considerable time must have been taken during early office hours of 7-3-1991 to have prepared it. The Section Officer of the Cell has, thereafter, on the same day, put up a note in the order-sheet to the effect that the notings in the order-sheet may be perused and approved; detention order and grounds of detention may be referred to the Department of Law and Parliamentary Affairs for scrutiny and remarks in the matter. When the file has come to the Under Secretary of the COFEPOSA Cell of the Home Department, a noting is made at paragraph 17 thereof, thus :
"Since the proposal is required to be approved and orders are required to be approved on or before 8-3-91 as the accused are likely to be enlarged from bail, the file may be moved to the Secretary, Law Department, through the Home Commissioner with a request to return the file before 7-3-91."
Entries in the order-sheet disclose that the file is proposed to be sent to the Secretary, Law Department, and it is ordered 'For immediate scrutiny please' with initials of the Home Commissioner himself, the detaining Authority. Order of the Home Commissioner in the matter appears to have been obtained by by-passing the Deputy Secretary since he was on half-a-day's Casual Leave on the 7th. Subsequent notings in the file disclose that the file has been received by the Law Department and the Under Secretary to the Government, Law Department, has got his two pages opinion in the matter typed and singed it. The noting shows that the Under Secretary concerned had obtained the approval of the Additional Law Secretary for that noting. The last two paragraphs of that noting read thus :
"25) The draft grounds of detention and the draft detention order are perused. Certain corrections are made therein which may be noted.
26) The Administrative Department may issue detention order and on the basis of their subjective satisfaction, persons may be detained."
Again, the file having been marked to the Home Department, there are notings made in hand in about two pages by the Under Secretary to the COFEPOSA Cell, if regard is had to the initial done therein with date '7/3'. Paragraphs 30 to 32 thereof read thus :
"30. The opinion of the L.D. may be perused from paras 19 to 26/N.F.
31) The L.D. has scrutinised the draft detention orders and grounds of detentions of the following persons :-
i) Shri Ibrahim Usman
ii) Shri Anwar Abdulla
iii) Shri Ratilal Mohan and
iv) Shri Vijaya Prabhakar Keeni and opined to issue detention orders against them, on the basis of their subjective satisfaction.
32) The draft detention orders and grounds of detention are placed in the file for kind appl. on the basis of its subjective satisfaction."
Thereafter, the file is marked to the Deputy Secretary, Home Department, who has initiated it with date 7-3-1991 having come to the Office in the afternoon, and marked it to the Home Commissioner. The Home Commissioner has indicated his approval by writing 'appd.' and initialled it and dated it as 7-3-1991. Then, the file has come back to the Under Secretary to Government, COFEPOSA Cell, who has ordered the issue of detention orders with initials and dating it as 7-3-1991. Again, fair copies are said to have been placed in the file for the signature of the Home Commissioner, which is initialled by the Under Secretary, COFEPOSA Cell, and dated as 7-3-1991. Then, on 7-3-1991 itself, the Home Commissioner has initialled the order-sheet with date 7-3-1991. Further, on the same day, that is, 7-3-1991, detention orders are directed to be issued by the Under Secretary to Government, Home Department, COFEPOSA Cell, and consequently, issued on that very day (7-3-1991).
21. The said notings and the movement of the file in the Secretariat of the Karnataka Government shows that the file had been put up to the Home Commissioner for the first time obviously towards the end of pre-lunch office hours of 7-3-1991, after the making of elaborate notings thereon by the COFEPOSA Cell and the Under Secretary in regard to the proposed detention of the petitioners. But, he has not then scrutinised the papers relating to the proposed detention orders required to be made by him, since he has ordered for their immediate scrutiny by the Law Department of the State Government's Secretariat. As seen from the noting of the Under Secretary, Law Department, he appears to have gone through the draft grounds of detention and draft detention orders. He has said in that noting that he has effected corrections in the draft detention orders. When we see the draft detention orders and grounds of detention relating to the persons proposed to be detained under the COFEPOSA Act, to wit, the four petitioners, the running matter is found in as many as 260 full scape closely typed pages. If the Under Secretary had to effect some corrections in the draft grounds and detention orders, as has been done, having regard to the volume of papers, he would have taken not less than two hours even to glance through them cursorily. If that be so, by the time the notings were put up on the basis of the opinion of the Law Department by the Under Secretary to Government, Home Department, COFEPOSA Cell, they would have come to the closing office hours on 7-3-1991. When at that point of time the file has been brought back to the Home Commissioner (the detaining authority) and his initials thereon are obtained with the endorsement 'appd.' and dated as 7-3-1991, his categorical statement contained in his counter-affidavit that he had received the proposal for ordering detention of the petitioners along with the draft detention orders and grounds of detention with materials and that he has perused and scanned (scrutinised) them and effected corrections in those drafts on two days, viz., 6th day and the 7th day of March 1991 in satisfying himself before making the orders of detention, looses its credibility. The order made by him in the file probably sometime towards the end of pre-lunch hours of the 7th day of March 1991 directing scrutiny of the draft detention orders and draft grounds of detention by the Department of Law and Parliamentary Affairs, shows that such proposals, according to him, had to be scrutinised by the Law Department and he had to give approval to the opinion expressed by the Law Department. The manner in which he has made the endorsement in the order-sheet as 'appd.' and time at which and within which he must have made it clearly demonstrates that probably he then entertained the view that his job was over, if he signified his approval for the proposal. When we see the volume of papers (materials) running to 260 full scape closely typed pages, which were required to be gone through by the detaining authority to arrive at the satisfaction needed for making the orders under the COFEPOSA Act by applying his mind and consider the matter with reference to the notings found in the order-sheet, we cannot but hold that the Commissioner and Secretary to Government, Home Department, acting for respondent-3, by initialling the proposal for detention of the petitioners with the endorsement 'appd.' has merely approved the opinion of the Law Department furnished in the matter without going through the materials, on the basis of which his satisfaction under the COFEPOSA Act had to be founded. In any event, having regard to the shortness of time at the fag end of the office hours on 7-3-1991 available for him to apply his mind to the proposal and the urgency shown by the sponsoring authority in the matter of getting the detention orders made by the State Government, we find that the detaining Authority could not have possibly applied his mind at all in arriving at the pre-requisite subjective satisfaction needed under sub-section (1) of Section 3 of the COFEPOSA Act for making such detention orders.
22. Thus, when the detention orders impugned in the writ petitions directing detention of the petitioners are made by the detaining Authority under sub-section (1) of Section 3 of the COFEPOSA Act on the purported satisfaction, which would not have been possibly arrived at by application of its mind to the materials, on the basis of which detention orders detaining the petitioners had to be made, we cannot help quashing such detention orders as vitiated by illegality, despite a feeling in us that the petitioners, if freed, may probably indulge in prejudical activity sought to be prevented by detaining them, for which the detention orders had been made under the COFEPOSA Act. However, this inevitable course has to be adopted by us when the impugned detention orders are found to have been made under the preventive detention law, the COFEPOSA Act, by a detaining Authority empowered thereunder to make such orders, without any regard to the procedural safeguards provided under our Constitution and laws as a protection against arbitrary and unjustified invasion of personal liberty.
23. In the result, we allow these writ petitions, make the Rule issued in each of them absolute and quash the detention orders impugned therein, by which the petitioners are detained under thee COFEPOSA Act.
24. As the impugned detention orders themselves are quashed, the impugned declarations made under the COFEPOSA Act on the basis of such detention orders, cannot survive. Consequently, the declarations, by which detention of the petitioners is extended up to 7-3-1991, impugned in the writ petitions are also quashed.
25. However, in the facts and circumstances of the writ petitions, we made no order as to costs.
26. Petitions allowed.