JUDGMENT
S.C. Jain, J.
(1) The facts leading to the passing of the detention order so far as they are relevant are as under.
(2) Acting on intelligence that various Honda cars are being attempted to be imported surreptitiously and fraudulently thereby defrauding the Government by not producing a proper import license and not paying customs duty at the appropriate rate, at Air Cargo Complex, I.G.I. Airport, New Delhi, the officers of Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi located nine Honda cars which were lying there pending customs clearance covered under Bills of Entry No. 229848 dated 11.6.92 in the name of Shri Mohammed Ahmed, R/oB-9, Housing Society, South Extension Part I, New Delhi; 225431 dated 18.5.92 in the name of Shri J.M.A. Wahab.R/o 206, Rawali Apartments. Aloknagar, New Delhi-19; 225374 dated 18.5.92 in the name of Shri K.S. Shanmugham, R/0 33E, Munirka, New Delhi; 234386 dated 6.7.92 in the name of Shri Ravi Puthenveetil Sreedharan, R/0 C-24, N.D.S.E. Part-I, New Delhi; 221564 dated 27.4.92 in the name of Shri G.R. Bhumayya, R/o 263, Masjid Motji, South Extension Part Ii, New Delhi 110049; 238484 dated 28.7.92 in the name of Shri Sheikh Hussain Saheb, R/0 D-19, Krishna Nagar, Deoli Road, Khanpur, New Delhi; 225429 dated 18.5.92 in the name of Shri Panachickal Hassan Anthru, R/o 27/801, Madan Girl, New Delhi-62; 225430 dated 18.5.92 in the name of Shri Paul Daniel Mohandas, 2680 Baradari Balimaran, Delhi-110006 and Air Way Bill No. 220- 6695-7881 dated 26.5.92 in the name of Shri Kolavayal Gangadharan, C-6, Kailash Colony. New Delhi. The said nine Honda cars were seized on 20.8.92 and 22.9.92 under the provisions of Section 110 of the Customs Act,1962 on the reasonable belief that the same 373 are liable to confiscation under the said Act. Summons were issued to the importers in whose names these cars were imported at the addresses given on the bills of entries and Air Way Bill but nobody appeared before the summoning officer. The business premises of M/s Technic Automobiles Pvt.Ltd, was searched on 18.8.92, but nothing incriminating was recovered. Another business premises of the same firm, i.e. M/s Technic Automobiles Pvt Ltd 83/1, Adchini, Aurobindo Marg, New Delhi was searched which resulted in the recovery of certain documents and four keys of Honda cars bearing No. 6279,7330,5892 and 5838. Two of the keys Nos. 6279 and 7330 contained tags mentioning Gulf Airway Bills 072-22756786 and 072-2298-1431 respectively and it was found that the two cars against these air way bills were cleared through Air Cargo Complex, I.G.I. Airport, New Delhi against Bill of Entry No. 203480 dated 22.1.92 in the name of Shri Shyam Lal Shukla R/o 61, Kallu Sarai, S. Vihar, New Delhi and Bill of Entry No. 221563 dated 27.4.92 in the name of Shri Shaikh Rahim Shaikh Bismillah, R/o 24, Mandakini, New Delhi respectively. On enquiry at the addresses mentioned in these Bills of Entries it was found that no such person lives there.
(3) The search of M/s Seal and India, Customs House Agent located at 201, Oriental House, 20 Commercial Complex, Gulmohar Park Extension, New Delhi was conducted and as a result certain documents including 8 passports were recovered. Enquiries were caused from respective passport authorities and from the persons whose passports were recovered from M/s Seal and India and it was revealed that none of the persons are genuine importers and their passports were utilised for the purpose of importation of the cars.
(4) Statement of Shri A.K. Joshi, Customs House Agent, M/s Seal and India, New Delhi was recorded under Section 108 of the Customs Act. In his statement he, inter alia, stated that he has cleared 10 foreign cars of the detenu.
(5) On 15.1.93 this detenu, Mohd. Salim Khatri was apprehended and arrested by the D.R.I. officers and produced before the Judicial Magistrate concerned. On 21.1.93 detention order under Section 3(1) of Cofeposa was passed and the same was served on the detenu on 23.1.93 when he was in detention. On 18.2.93 an interim representation was made by the detenu to the Joint Secretary (COFEPOSA), Government of India, but the same was rejected after considerable delay and the second representation dated 22.3.1993 has not yet been decided.
(6) This detenu, Mohd. Salim Khatri had challenged the detention order on various grounds including that there is violation of Article 22(5) of the Constitution of India read with Section 3(3) of COFEPOSA inas much as the detenu has not been supplied all the relied upon documents pari passu grounds of detention. According to the learned counsel for the petitioner in the grounds of detention reliance has been placed on search of the business premises of M/s Seal and India, Panchnama dated 18.8.92 which finds mention at serial No. 27 (pages 123-237). A perusal of this Panchnama reveals seizure of certain documents i.e. a file containing pages 1 to 23 and eight passports. Learned counsel for the petitioner submits that while a file containing 23 pages was seized, documents comprising only 12 pages have been supplied and thus there is a shortage of 11 pages of relied upon documents to the detenu. Learned counsel submits that the non supply of the relied upon documents rendered the detention void ab initio. 374
(7) The other submission which the learned counsel for the petitioner has made is that in the grounds of detention reliance has been placed on the search of the detenu’s business premises. Panchnama dated 18.8.93 finds mention at serial No. 29 (pages 239-241) of the relied upon documents. A perusal of the annexure to the Panchnama reveals seizure of certain documents and four car keys, two of which allegedly had some tags having some airway bills numbers. He submits that while the above Panchnama has been relied upon, detenu has not been supplied copies of documents at serial Nos. 1 to 9 and serial No. 10. Similarly two tags allegedly fixed to two of the four car keys, purportedly having some details of some airway bills have not been supplied to detenu along with the relied upon documents. He submits that this has rendered his detention void ab initio.
(8) The next submission made by the learned counsel for the petitioner is that in the grounds of detention reliance has been placed on the statement of Mr. A.K. Joshi dated 18.1.93 which shows that D.R.I. officers have confronted Mr. Joshi with five more bills of entry for the import of five cars about which Mr. Joshi is alleged to have said that these cars were also cleared by him on reference from the detenu. Learned counsel submits that the said bills of entry having been relied upon against detenu, the non supply of the same to the detenu has rendered the detention void ab initio.
(9) Learned counsel for the petitioner submits that in the grounds of detention reliance has been placed on an investigation report dated 18.8.92. A perusal of the above report reveals recovery of certain documents and recording of certain statements in connection with the enquiries about S/Shri Ravi P. Sreedharan, G.R. Bhumayya, Shaikh Hussain Saheb and P.H. Anthru. Learned counsel submits that the non supply of the aforesaid documents and statements to the detenu has also rendered the detention void ab initio.
(10) Learned counsel further submits that in the grounds of detention reliance has been placed on seizure memo dated 20.8.92 which is for seizure of nine cars and talks of nine bills of entry and airway bills and seizure memo dated 22.9.92 which is for seizure of one car and talks of one air way bill. It is submitted that the detenu has not been supplied with the bills of entry and airway bills relating to serial No.2 of the seizure memo dated 20.8.92. According to the learned counsel for the petitioner this non supply of the relied upon documents has rendered the detention void ab initio.
(11) Learned counsel further submits that there is total non application of mind on the part of the detaining authority in directing detention without considering the most relevant and vital material which could have weighed the,subjective satisfaction of the detaining authority either way. Elaborating this point, learned counsel has submitted that the most relevant and vital material was the record of the Registration Authorities in United Arab Emirates to check up whether the seized cars stood registered in the names of the importers or not; if yes, whether all the particulars given in the documents submitted to the customs authorities for clearing the cars were correct or not; the record of the immigration authorities in India as to the genuineness of the endorsement made on the passports of the importers showing the date of his departure from India and his arrival back in India; and the records of the customs authorities whether the endorsement made on their passports regarding their having come back to India on transfer of residence were genuine or not. According to learned counsel the non placement of the above relevant material has vitiated the subjective satisfaction of the detaining authority to detain the detenu.
(12) Though some other points have been taken in the grounds challenging the detention order, but the arguments were confined on these two material points. Reliance has been placed by the learned counsel on various decisions of the Supreme Court and this Court in support of his contention that if an important document on which reliance has been placed by the detaining authority and it has not been supplied to the detenu, it is sufficient to vitiate the order of detention. In a decision of the Supreme Court in Manna Tuin vs. District Magistrate, Lucknow and Others one of the important documents on which reliance was placed by the detaining authority was an inquiry report which was not supplied to the detenu along with the grounds and that resulted in quashing of the detention order.
(13) Learned counsel also placed reliance upon the decision of the Supreme Court in Dharamdas Shamlal Agarwal vs. The Police Commissioner and Another and the decision of this Court in Madan Gopal @ Madan Bhaiya vs. Union of India and Ors [49 { 1993} Delhi Law Times 174] in support of his contention that it is the duty of the sponsoring authority to collect all the relevant material and place it before the detaining authority. The requisite subjective satisfaction the formation of which is a condition precedent to passing of attention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. Learned counsel submits that the subjective satisfaction has not been fulfillled in this case. According to the learned counsel, on these two grounds alone this detention order is liable to be quashed for violation of Article 22(5) of the Constitution read with Section 3(3) of COFEPOSA.
(14) Learned counsel for the Union of India, Mr. Anil Sapra refuted the arguments advanced by the learned counsel for the petitioner and argued that where the detenu was not furnished with copies of the documents to which only casual or passing reference was made in the course of narration of facts, but which were not relied upon by the detaining authority while passing the detention order, it cannot be said that the detenu was prevented from making an effective and purposeful representation or that his right under Article 22(5) of the Constitution was violated. Every failure to furnish copy of a document to which reference is made in the grounds of detention under Section 3(1) of Cofeposa is not an infringement of Article’ 22(5) of the Constitution fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by Article 22(5). He has put reliance on a decision of the Supreme Court in the case of Mst. L.M.S. Ummu Saleema vs. B.B.Gujaral and Another in support of his contention.
(15) According to the learned counsel for the respondent no doubt it is true that it is the duty of the authority concerned to collect relevant material and place it before the detaining authority, but in this case the copies of the documents relied upon by the department have been supplied to the detenu, a proper inquiry and investigation was made and it was not felt necessary that inquiry from the registration authorities of U.A.E. should have been made when particularly the inquiry has been made from the passport office. According to the learned counsel, all the documents which had been relied upon have 376 been supplied to the detenu and it has not prevented him from making an effective and purposeful representation. He submits that the supply of the copies of all the documents though mentioned in the Panchnama is not required under the law.
(16) In this case in the grounds of detention it has been mentioned about the search of the business premises M/s Technic Automobile Pvt. Ltd. 83/1, Adchini, Aurobindo Marg, New Delhi which resulted in the recovery of certain documents and four keys of Honda cars bearing Nos. 6279,7330,5892 and 5838. Two of the keys Nos. 6279 & 7330 contained tags mentioning Gulf Airway Bills 072-22756786 and 072-2298-1431 respectively and it was found that the two cars against these air way bills were cleared through Air Cargo Complex . It was also mentioned that it was found that at the addresses mentioned in the airway bills no such persons lives there and that inquiries were made from the persons whose passports were recovered from M/s Seal and India and it was revealed that none of them were genuine importers and their passports were utilised for the purpose of importation of the cars.
(17) In grounds para 10(ii) the detenu has specifically mentioned that in the Panchnama dated 18.8.93 which was prepared at that time and relied upon mentioned about documents 1 to 9 . Similarly, two tags purportedly having some details of airway bills, but the same have not been supplied to him. In the counter affidavit filed by the department, it has not been mentioned that these tags which find mention in the Panchnama were supplied to the detenu. These are the most material documents the withholding of which has resulted in the fact that the detenu was prevented from making an effective representation. Similarly, in the grounds of detention reliance has been placed On the statement of Mr. A.K. Joshi deled 18.1.93. Mr. Joshi was confronted with 5 more bills of entry. Copies of these bills have not been supplied to the detenu. As is apparent from the counter affidavit, these bills of entries cannot be said to be irrelevant when a reliance has been placed on the said documents in the grounds of detention. Similarly reliance has been placed on the investigation report dated 18.8.92. This investigation report talks about the recovery of certain documents and recording of certain statements in connection with the enquiries about S/Shri Ravi P. Sreedharan, G.R. Bhumayya, Shaikh Hussain Saheb and P.H. Anthru. The copies of the documents and the statements relied upon have not been supplied to the detenu which were most-important for the purpose of making an effective representation. Similarly in the seizure memo dated 20.8.92 there is a mention of seizure of nine cars and talks of nine bills of entry and airway bills and seizure memo dated 22.9.92 which is for seizure of one car and talks of one air waybill. The detenu has not been supplied with the bills of entry and airway bills relating to serial No.2 of the seizure memo, which has also prevented him from making an effective representation. In view of these facts which are apparent on record, the non supply of copies of relevant documents has prevented the detenu from making an effective and purposeful representation and, therefore, has resulted in violation of Article 22(5) of the Constitution of India read with Section 3(3) of COFEPOSA. These documents cannot be said to be irrelevant when they have been mentioned in the detention order and reliance has been placed upon them.
(18) Regarding the plea that there is non application of mind on the part of the detaining authority in directing the detention of the detenu without consulting important and vital material which could have weighed the subjective satisfaction of the detaining authority, in the counter affidavit it is on record that the records of the Registration Authorities in U.A.E. was not checked to see whether the seized cars stood registered in the names of 377 the importers or not. The detaining authority did not make any inquiry from the Registration Authorities. The non application of mind by the detaining authority has also vitiated the detention order. Learned counsel for the petitioner also relied upon the decision of this Court in Andrew Simon King vs. Union of India & Ors [1988 {l}Delh’ Lawyer 50] in support of his contention that it is the duty of the authority concerned to collect the relevant materiel is not so, the order of detention is bound to be quashed.
(19) Without commenting upon the other grounds which have been taken in this writ petition, these two grounds are more than sufficient to quash the order of detention of this detenu, Mohammed Salim Khatri and I, therefore, quash the order of detention and allow the writ petition as far as this detenu is concerned. Ordered accordingly.
(20) P A copy of this order be sent to the Superintendent, Jail for his information. dusty.