Delhi High Court
Jagpreet Singh vs Union Of India And Ors. on 3 September, 1993
Equivalent citations: 1993IIIAD(DELHI)965, 52(1993)DLT217
JUDGMENT Anil Dev Singh, J.
(1) This writ petition under Article 226 of the Constitution of India calls in question the order of detention dated 17/12/1992 passed against the petitioner by the Joint Secretary to the Government of India, respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling ActivitiesAct, 1974 (for short 'COFEPOSA').
(2) The allegations against the petitioner are that he was intercepted at the exit of the 101 Airport Terminal Ii, New Delhi on the night intervening19th and 20th November, 1992, on his arrival from Hongkong in an assumed name of Kanwal Mohan Singh Sehgal. On search of the person of the petitioner, one wrapped packet was recovered from the inner waist pocket of his pant. This packet on opening was found to contain 35 gold biscuits of 10 tolas each. The petitioner was not able to produce any document in support of the legal possession and import of the aforesaid gold into India.Pursuant to the notice under Section 108 of the Customs Act, the petitioner admitted to have smuggled the aforesaid gold into into India with a motive to earn profits. On the same date viz 20/11/1992 the petitioner was arrested and was produced before the Court of Acmm, New Delhi,who remanded him to judicial custody till December 4, 1992. Before the ACMM on the said day the petitioner retracted the confession earlier made to the customs authorities. On 17/12/1992 the impugned order of detention was passed against the petitioner which was served on him on December 19, 1992.
(3) The only ground urged before me by the learned Counsel for the petitioner is that the Detaining Authority, while passing the impugned order considered irrelevant material which vitiates the detention order. Learned Counsel for the petitioner has invited my attention to ground (1) of THE petition where it is specifically pointed out that the Detaining Authority relied upon at least six documents which were wholly irrelevant to the question of detention of- the petitioner under the COFEPOSA. In reply to ground (1) of the petition, the Detaining Authority in para 11 has stated asunder:- "II.Regarding ground I of the petition, it is submitted that it is Detaining Authority who knows best which document help him and in what way in reaching the subjective satisfaction. The documents which helps the Detaining Authority in reaching the subjective satisfaction directly or indirectly, the copies of the same were served on the detenu as relied upon documents and the same is the legalrequirement."
(4) A perusal of the aforesaid reply shows that the Detaining Authority has not denied that it relied upon the documents referred to in ground (1) of the petition in reaching the subjective satisfaction to detain the petitioner.
(5) I have carefully gone through the documents referred to in THE petition and I find that these documents are totally irrelevant and should not have been relied upon by the Detaining Authority for reaching the subjective satisfaction.
(6) The first document is an application dated 23/11/1992filed by the petitioner in the Court of Acmm, New Delhi. This application was for return of the goods which were taken into possession by the DRI officers while conducting the search of the petitioner. The second application, which is dated 27/11/1992, filed before the Acmm, New Delhi pertains to some newspaper reports which had been published in the various newspapers in regard to the case of the petitioner. In this application the petitioner prayed that the Dri and the Public Prosecutor be directed not to disclose the facts of the case to the newspapers as this would prejudice hisdefense.
(7) The third document is a reply of the Dri to the application of the petitioner dated 23/11/1992. The fourth document is an application for grant of "B" Class facilities to the petitioner in Tihar Jail.
(8) The 5th document is an affidavit of the petitioner in support of his application for grant of 'B' Class facilities in Tihar Jail.The 6th document is an application of the petitioner for his transfer from jail No. 3 to jail No. 1.
(9) The aforesaid documents to say the least were totally irrelevant and did not pertain to or had any bearing on the activities of the petitioner which were required to be prevented. There is a clear non-application of mind by the Detaining Authority in regard to the passing of the impugned order of detention against the petitioner.
(10) This Court while dealing with the similar situation in Prabhat Kumar Srivastava v. Union of India and Others, (CrI.W. No. 163 of 1993decided on 12/08/1993 observed as follows : "FROM the perusal of the above para, it is evident that all the documents which accompanied the grounds of detention were relied upon by the Detaining Authority while forming the subjective satisfaction for the purpose of passing the detention order. A perusal of the list of documents accompanying the grounds of detention would show that some of the documents are absolutely irrelevant and should not have relied upon for reaching the subjective satisfaction".
(11) Again in Ved Parkash Sikri @ Vedi v. Union of India and Others42 (1990) Delhi Law Times 295 it was held as under : "I am conscious of the fact that the decision has to be arrived at by the Detaining Authority by subjective satisfaction and Court is not to sit over judgment to find out if the material was sufficient orinsufficient. However, in case the Detaining Authority relies upon irrelevant document it would clearly indicate that there was complete non-application of mind. The law is well settled that all the material against a person has to be placed before the Detaining Authority who has to scrutinise the same and has to rely only on material documents showing the link of the person concerned with his prejudicial acitivities. In case Smt. Shalini Soni and Others v.Union of India and Others, , Supreme Court has observed as follows:"......It is an unwritten rule of the law, constitutional andadministrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matter only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is necessary corollary that the grounds communicated, that is, the grounds so madeknown, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions.. ...".
(12) In another case Diwan Singh Verma v. Union of India and Ors.,1988 (2) Delhi Lawyer 197, it has been held that if the Detaining Authority relies upon a set of documents which provide no evidence against the detenu,it would follow that the application of mind was totally casual and mechanical and it was not the types of the application of mind which the law insistsupon. The subjective satisfaction of the Detaining Authority, thus, stands vitiated if some irrelevant documents are taken into consideration while arriving at a conclusion to pass to order of detention. To the same effect are two cases Jagdish Mitr v. Union of india and Others, 1990 Crl.L.J-269and Cri. Writ Nos. 568, 686 and 691 of 1989 decided on 9/01/1990.
(13) Considering the facts of this case in the light of the aforesaid decisions, it is clear that the Detaining Authority has placed reliance upon irrelevant documents on account of which the impugned order is liable to be set aside. It is clear that there is non-application of mind by the Detaining Authority as the aforesaid documents are not in any manner shown to be connected with the prejudicial activities of the petitioner.
(14) Learned Counsel for the respondents urges that apart from the aforesaid six documents there are other documents which are absolutely relevant and pertinent to the question of detention of the petitioner. He submits that having regard to the remaining documents it cannot be said that the Detaining Authority did not correctly apply it? mind in making the order of detention against the petitioner.
(15) It is well settled that the High Court cannot sit in judgment over the subjective satisfaction arrived at by the Detaining Authority for purposes of passing of a detention order against a person. A probe into the recesses of the mind of the Detaining Authority, to find out what weighed with it while reaching its subjective satisfaction for passing the detention order, is not possible. In case, even if a probe is possible and is to be made with regard to the matters which are clearly in the domain of the detaining authority, then it will amount to substituting the opinion of the detaining authority for the opinion of the Court. Since, however, the detaining authority has not denied that it relied upon the aforesaid documents mentioned in Ground I of the petition, it is open to the Court to see whether these documents are relevant and pertinent for the purpose of passing the detention order or not.On the face of it, the documents are not relevant and no reasonable man could have relied upon them as they have no rationally probative value for the purpose of forming the subjective satisfaction in regard to the matter inquestion. The Court would strike down an order passed by an ExecutiveAuthority, where the authority has relied upon material which is extraneous to the scope and purpose of the statute. In these circumstances the Court is entitled to interfere and must interfere in discharge of its constitutional duly to knock down such an order.
(16) Having regard to the aforesaid discussion, I am of the opinion that the detention order is illegal and cannot be allowed to stand.
(17) Accordingly, this writ petition succeeds. The rule is made absolute and the detention order is hereby quashed. The petitioner is directed to be released forthwith if not wanted in connection with some other matter.