Bombay High Court
Mohammed Afzal Yakub And Yashpal ... vs The State Of Maharastra And Ors. on 13 August, 1986
Equivalent citations: 1987(11)ECC83
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT P.B. Sawant, J.
1. These two petitions can be disposed of by a common judgment, on a very short point. In petition No. 165 of 1986 the detention order was passed on 13th September, 1985 and in Petition No. 384 of 1986 the order was passed on 24th February, 1986 both under COFEPOSA.
2. In Petition No. 165 of 1986, in paragraph 8 of the affidavit filed on behalf of the State Government it is admitted that the sponsoring authority submitted to the State Government the proposal for detention on 1st June, 1985 with some documents. Thereafter the order of detention was passed and the grounds of detention were formulated on 14th June, 1985. It is then admitted that other documents and translations were received from the Customs under their letters dated 24th June, 1985, 27th June, 1985, 3rd July, 1985, 12th July, 1985, 17th July, 1985, 23rd July, 1985, 26th July, 1985, 3rd September, 1985 and 10th September, 1985, on 27th June, 1985, 4th July, 1985, 18th July, 1985, 24th July, 1985, 29th July, 1985, 4th September, 1985 and 11th September,1985 respectively. Thereafter the only averment is as follows:-
and the order were (sic) finally issued on 13-9-1985.
3. It is needless to emphasise that the detaining authority cannot make his decision without considering all the evidence together against the detenu. The grounds of detention cannot be formulated without persuing the entire evidence together. The facts admitted above by the Government show that in the present case the order of detention was passed and the-grounds of detention were ahead formulated on 14th June, 1985, that is, even before the receipt of the further documents mentioned above. There is further no averment in the affidavit that after the receipt of the further documents they were also, considered and yet the detaining authority did not think it necessary to alter the grounds or its conclusion to detain. This is apart from the fact that as stated earlier in fact no grounds for detention could have been formulated and no order of detention could have been passed before perusal of all the documents together. A haphazard or piecemeal consideration of the evidence against the detenu only connotes a cavalier and a casual approach which must be deprecated particularly in matters which concern the life and liberty of the individuals. It must he remembered by the authorities that the Courts rely upon their subjective satisfaction of the need to detain a particular individual. The Courts do not go behind the material nor into the question of its sufficiency or otherwise. The subjective judgment of the authority, if it is to command respect, must therefore, follow at least the elementary principles and procedure. The least that is expected is that it is arrived at after considering all the evidence at a time. Mr. Hudlikar, the learned Counsel for the State Government, wanted to show us the record with a view to convince us that although it has not been stated so in the affidavit, the detaining authority had in fact seen the further documents and considered them before passing the order of detention. We declined to accept this invitation, for the obvious reason. At the most the record will show and it is not disputed by Mr. Hudlikar, that the documents in question bear, the remarks of the detaining authority as "seen". That expression falls far short of the requirement under the law that the detaining authority must consider them from the angle of their bearing on the grounds and the order of detention which were already kept ready. The detention order will have therefore to be quashed on the ground that the subjective satisfaction of the detaining authority is vitiated by the cavalier approach to the material on record and by a failure to observe the minimum safeguard while arriving at it.
4. As regards Petition No. 384 of 1986, there is only a superficial change in the language used in the affidavit filed by the State Government. It is stated there that after "consideration" of the further documents, the order was finally issued on 24th February, 1986. It is, however, admitted that the proposal fox-detention in this case, along with four other proposals was received from the sponsoring authority by the State Government on 29th August, 1985 with some documents. The detaining authority considered the proposal and passed the detention order on 10th September, 1985. Further documents and translations were received from the Customs on 31st January, 1986, 6th February, 1986 and 20th February, 1986 and as stated earlier "after consideration" of these further documents the order was finally issued on 24th February, 1986. Here again, the position is that the order was already passed on 10th September, 1985 which would mean that, the grounds of detention were also formulated on or before that date. However, there is nothing to indicate in the affidavit that the, detailing authority after considering the further documents received in January and February 1986, had felt no need to alter either the grounds of detention or the order. As stated earlier this is apart from the fact that no grounds of detention can be formulated and the detention order passed without considering all the evidence together.
In the result, we are impelled to quash the orders of detention in both the cases for similar reasons. Rule is made absolute accordingly in each of the petitions and the detenu in each of the petitions is directed to be set at liberty forthwith unless he is required in any other case.