Delhi High Court
Jagdish Mitr vs Union Of India And Ors. on 26 September, 1989
Equivalent citations: 1990CRILJ269, ILR1989DELHI537
JUDGMENT Bahri, J.
(1) This petition has been brought under Article 226 of the Constitution of India read with Section 482. Code of Criminal Procedure seeking quashment of the detention order dated February 28, 1989 passed under Section 3(1) of the Cofeposa Act with a view to preventing The petitioner from acting in any manner prejudicial to the augmentation of foreign exchange.
(2) Various grounds have been taken for challenging the impugned order but it is not necessary to deal with all those grounds because in my view this petition is liable to be allowed on a very short ground.
(3) In Para 17 of the Grounds of Detention served on the petitioner it has been averred by the detaining authority as follows: "WHILE passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list".
One of the documents mentioned in the enclosed list appears at Sr. No. 25 which is a statement dated February 24, 1989 of Shri Krishan Kumar Aggarwal. So, it is evident that while reaching the subjective satisfaction in passing the impugned order, the detaining authority has categorically relied upon this statement of Shri Krishan Kumar Aggarwal.
(4) In Ground Xx, it has been averred in the writ petition that the aforesaid statement of Krishan Kumar Aggarwal which has been relied upon by the detaining authority in passing the detention order, not a single word has been uttered with regard to any prejudicial activity of the petitioner.
(5) In the counter-affidavit filed by Shri A. K. Batabyal, Joint Secretary in the Ministry of Finance who had passed the impugned detention order, replying to this particular ground it is averred to the following effect: "THE imputations in ..Ground Xx that there is no application of mind are denied. It is submitted that the copy of passport of Shri Krishan Kumar Aggarwal is an integral part of this statement".
It is not clarified at all by the detaining authority how and in what manner the statement of Krishan Kumar Aggarwal has any relevance with regard to the prejudicial activity of the petitioner. Even the counsel for the respondent has not been able to point out any portion of the statement of Krishan Kumar Aggarwal linking the same with the activity of the petitioner. So, the statement of Krishan Kumar Aggarwal which has been relied upon by the detaining authority was a totally irrelevant document. It is evident that an irrelevant material has been taken into consideration by the detaining authority in reaching the subjective satisfaction for passing the impugned order.
(6) The learned counsel for the petitioner has cited Smt. Shalini Soni versus Union of India; wherein the Supreme Court has laid down the law : "IT is an unwritten rule of the law, constitutional and administrative, 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 matters only, eschewing the irrelevant and the remote."
It has further been observed in the above-cited case that: "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 a necessary corollary that the grounds communicated, that is, grounds so made known, 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 ihe inferential conclusions."
(7) A Single Bench of this Court in Diwan Singh Verma versus Union of India & others; 1988 (2) Delhi Lawyer 197(2) also considered this very point. In the cited case certain documents had been relied upon in reaching the subjective satisfaction of the determine authority which had no link whatsoever with the activity of the detenu. The Court observed that if the detaining authority has really applied his mind and if the subjective satisfaction were really based on proper application of mind, the detaining authority would not have said that it has also relied on this set of documents. The order of detention was quashed on the ground that there has been non-application of mind by the detaming authority.
(8) Following the aforesaid judgments I hold that in the present case also the order of detention is vitiated on account of irrelevant material being relied upon by the detaining authority for reaching the subjective satisfaction for passing the detention order which shows in fact non-application of mind.
(9) Hence, I allow the writ petition, make the rule absolute, quash the detention order and direct that the petitioner be set at liberty if not required to be detained in any other case. Parties are left to bear their own costs.