JUDGMENT
Vishnu Sahai, J.
1. Through this criminal writ petition, preferred under Article 226 of the Constitution of India, the petitioner, who describes himself as the brother of one Dashrathlal Bhagwandas Gupta, hereinafter referred to as the detenu, has Impugned the order dated 16.11.2000, passed by the second respondent Mr. Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau. 6th Floor, ‘B’ Wing, Janpath Bhawan. New Delhi, detaining the detenu under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), (hereinafter referred to as the “COFEPOSA Act”) with a view to preventing him from smuggling goods in future.
The detention order along with the grounds of detention, which are also dated 16.11.2000, was served on the detenu on 18.11.2000 and their true copies are annexed as Annexures ‘A’ and ‘C’ respectively to this writ petition.
2. The prejudicial activities of the detenu, prompting the second respondent to issue the impugned order against him, are contained in the grounds of detention (Annexure-C). In short the averment therein is as under:
One M/s. Freightwings & Travel Limited are Customs House Agent, handling the export consignments of two firms, namely M/s. Quality Apparel Exports (P) Limited and M/s. Quality Exporters, both based at Mumbai. The detenu at the relevant time was working as Customs Clerk with M/s. Freightwings & Travel Limited. He had been working in that capacity for the last 16years. Shipping bills were prepared by M/s. Quality Apparel Exports (P) Limited and given to the detenu for ladies skirts worth Rs. 8,44,98,749/- and subsidy or drawback was claimed on the satd amount. But on the converse, what was actually being exported were rags and poor quality fabrics, which were crudely stitched, of the value of Rs. 7,40,031/-. Since the detenu was the Customs Clerk, the averment in the grounds of detention is that he committed an offence under the Customs Act, 1962 and was guilty of smuggling and was liable to be detained under section 3(1) of the COFEPOSA Act. In the grounds, the Detaining Authority has also referred to the statement of the detenu, recorded under section 108 of the Customs Act, 1962,wherein he admitted that since January, 2000 he had been clearing rags and crudely stitched fabrics as ladies skirts. Therein the Detaining Authority has stated that looking to the propensity and potentiality of the detenu to commit smuggling in future, it was imperative to detain him vide the impugned order. The detenu has also been communicated, in para 54 of the grounds of detention, his right to prefer representations to various authorities.
3. We have heard learned Counsel for the parties. Although in this writ petition Mr. Maqsood Khan, learned counsel appearing for the petitioner.
has pleaded a large number of grounds, numbered as 6(1) to 6(vi), but since in our view this writ petition deserves to succeed on ground 6(1) alone, we are not adverting to other grounds of challenge raised in the petition.
Ground 6(1) in short is that on 13.11.1987 the detenu’s employer M/s. Freightwings & Travel Limited were granted Customs House Agent (C.H.A.) Licence under section 146 of the Customs Act, 1962, for transacting customs house business as shipping and clearing agents, which licence was valid, till 31.12.2003. Pursuant to the said licence, customs entry pass bearing Kardex No. G-431 was issued to the detenu, which also was valid till 31.12.2003, and similar passes were also issued to other staff members of the said concern. After seizure of goods, which were sought to be exported by M/s. Quality Apparel Exports (P) Limited and M/s. Quality Exporters on 2.6.2000, the Commissioner of Customs, Mumbai, vide his order dated 14.9.2000, a true copy of which has been annexed as Annexure-G to the petition, suspended the Customs House Agent Licence Issued to M/s. Freightwings & Travel Limited, with immediate effect. Pursuant to that, the detenu’s employers M/s. Freightwings & Travel Limited, vide letter dated 28.9.2000, addressed to the Deputy Commissioner of Customs, Personnel & Establishment Department. Ballard Estate, Mumbai. which was handed over to the Assistant Commissioner of Customs, Admn. Department, New Customs House, Mumbai, on or about 3.10.2000, returned the original Customs House Agent (C.H.A.) Licence, along with the original customs passes issued to their staff members, including the customs pass issued to the detenu, as is manifest from documents annexed as Annexure-H to the petition.
The averment in ground 6(1) is that since the Customs House Agent Licence of M/s. Freightwings & Travel Limited was suspended by the Commissioner of Customs and thereafter M/s. Freightwings & Travel Limited surrendered the said licence and customs entry passes issued thereunder, including the one issued to the detenu, there was not even a remote possibility of either M/s. Freightwings & Travel Limited or the detenu of indulging in any such alleged prejudicial activities in future. It has further been averred in ground 6(1) that the said documents (annexed as Annexure-H to the petition) were vital documents and it was incumbent on the part of the Sponsoring Authority to have placed them before the Detaining Authority. It has also been averred in ground 6(i) that failure to do so would vitiate the impugned detention order on dual count :-(a) on account of non-placement of vital documents by the Sponsoring Authority before the Detaining Authority, the subjective satisfaction of the Detaining Authority, to detain the detenu, vide the impugned order, would be vitiated on the vice of non-application of mind: and (b) since copies of vital documents were not furnished by the Detaining Authority to the detenu, the latter’s fundamental right to make an effective and purposeful representation, guaranteed by Article 22(5) of the Constitution of India, was Impaired.
4. To fortify his submission, Mr. Maqsood Khan, learned Counsel for the petitioner, invited our attention to the decision of the Supreme Court
rendered in the case of Smt. Jyoti Nandlal Manglani v. State of Maharashtra,. In the said case the detenu had been detained under the COFEPOSA Act with a view to prevent him from indulging in prejudicial activities in future. But since the suspension order was not placed by the Sponsoring Authority before the Detaining Authority, the Supreme Court held that the detention order was vitiated and caption No. 6 – replies to grounds under para 6 of the writ petition.
5. Ground 6(i) has been replied to by the Detaining Authority in his return at a number of places under caption No. 2 – reply to grounds of challenge.
In 2(i) at page 8 of the affidavit it has been stated that Annexure-H is a matter of record and it has been denied that non-placement of the documents referred to in the said annexure has vitiated the subjective satisfaction of the Detaining Authority in any manner. It has also been averred that since the said documents were not relied upon, the question of furnishing their copies to the detenu did not arise and consequently, the detenu’s fundamental right to make a representation at the earliest opportunity, was not impaired.
In 2(iii) it has been stated that the impugned order was passed on the basis of the material relied upon and on the said material the Detaining Authority, bearing in mind the nature and gravity of the offence and the propensity and potentiality of the detenu to indulge in such prejudicial activities in future was satisfied, that it was imperative to detain him under the COFEPOSA Act.
In 2(v) it has been averred that the detenu was Customs Clerk of the Customs House Agent, handling the export consignments of two exporting firms involved in this case and he had specific obligations to fulfil in that capacity and he was actively and closely associated with the prejudicial activities of the two exporting firms, claiming duty drawback, running into crores of rupees by applying fraudulent means. It has also been averred therein that bearing in mind his propensity and potentiality, to commit the said activities in future also, it was imperative to detain him.
Ground 6(1) has also Been replied to in caption No. 6, at page 18 of the affidavit, styled as replies to the grounds under para 6 of the writ petition. It has been averred therein that the subjective satisfaction to detain the detenu was based on his potentiality and propensity, bearing in mind his past conduct and antecedent activities. It has also been averred that suspension of C.H.A. Licence did not in any manner diminish or reduce the detenu’s potentiality or propensity. It has also been averred that non-placement of the documents (documents referred to in Annexure-H) did not in any manner affect the subjective satisfaction of the Detaining Authority, which was arrived at on the basis of the material relied upon by it. It has further been averred that the detenu was an experienced person and is an employee of a Customs House Agent. He had admittedly been working for the past 16 years and he could have joined some other Customs House Agent and could have obtained another pass and continued to indulge in such prejudicial activities.
The burden of the song is that the impugned order is justified, bearing in mind the propensity and potentiality of the detenu to commit such prejudicial activities.
At the end it is mentioned that since the order issued by the Commissioner of Customs suspending the licence of C.H.A. (M/s. Freightwings & Travel Limited) alongwith the original customs passes were not relied upon by the Detaining Authority, the question of furnishing their copies to the detenu did not arise and consequently the impugned detention order cannot be said to be violative of Article 22(5) of the Constitution of India nor castigated as mala fide, null or void.
6. We have perused the averments made in ground 6(i) and also perused portions of the affidavits of the Detaining Authority where the said ground has been replied to. We have also heard learned counsel for the parties. We find substance in ground 6(i).
We have no reservations in observing that the Detaining Authority. In his return, has no where refuted or disputed that the original Customs House Agent (C.H.A.) Licence and the customs passes issued to the staff members of M/s. Freightwings & Travel Limited, including the customs pass issued to the detenu, all of which were handed over by M/s. Freightwings & Travel Limited, as is manifest from Annexure-H to the petition, were not vital documents. In our view also they were vital documents because after their being handed over, it cannot be said with certainty whether there was even a remote possibility of either the detenu or the said employers of indulging in any such prejudicial activities in future. Consequently, their perusal by the Detaining Authority was imperative in arriving at a subjective satisfaction either way. It may be that after perusing them the Detaining Authority may not have passed the impugned order. It may equally be that bearing in mind the propensity and potentiality of the detenu to indulge in such prejudicial activities in future, he may have passed it. Since it is a matter of subjective satisfaction of the Detaining Authority, nothing can be said by us nor by him, as to which way his subjective satisfaction would have gone had they been placed before him. In our view, it was absolutely essential for the Sponsoring Authority to have placed them before the Detaining Authority.
7. It is well-settled that if a vital document or a vital piece of evidence, which could have influenced the subjective satisfaction of the Detaining Authority either way, is not placed by the Sponsoring Authority before the Detaining Authority, the detention order would be vitiated on the vice of non-application of mind. There is no dearth of authorities on this proposition but to eschew prolixity we only want to refer to a solitary authority of the Apex Court, namely its judgment rendered in the case of Ayya alias Ayub v. State of U.P.,. In Ayya alias Ayub’s case (supra) a telegram was sent by the petitioner wherein he had refuted the time of his arrest. The submission before the Supreme Court, canvassed from the side of the respondents, was that the said telegram was not sent at about 12.30 midnight on the night of 18.2.1988, as urged from the side of the Petitioner, but was sent at 12.30 noon on 19.2.1988 and it might have been given in pesh-bandi. But it was not disputed that the said telegram was sent and
not placed before the Detaining Authority. M. N. Venkatachaliah, J., as he then was, held that the failure to place it before the Detaining Authority vitiated the detention order. In para 13 His Lordship observed thus :
“What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the Detaining Authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which. In turn, vitiates the detention. The Detaining Authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality.”
8. Since the said documents (documents referred to in Annexure-H) were vital documents and were not placed by the Sponsoring Authority before the Detaining Authority, the detention order would be vitiated on the vice of non-application of mind, as held in Ayya alias Ayub’s case (supra).
We also find merit in the second leg of the grievance pleaded in ground 6(i) that since the said documents were vital documents and their copies were not supplied to the detenu, his right to make an effective and purposeful representation, guaranteed by-Article 22(5) of the Constitution of India, was impaired.
9. Before we proceed to the operative part of the judgment, fairness necessitates that we refer to the burden of song averred by the Detaining Authority in his affidavit. As we have seen, it is not that the documents referred to in Annexure-H were not vital documents but it is that since he did not place reliance on them, the impugned detention order would not be vitiated in law and failure to supply their copies would not impair the detenu’s right to make an effective representation.
10. We are constrained to observe that we find no musical tones in the said song of the Detaining Authority, averred by him in his return.
The issue is not whether the Detaining Authority has not relied upon the said documents but whether they were vital documents which could have Influenced his subjective satisfaction, one way or the other, had they been placed before him. Since it was a question of his subjective satisfaction, it was incumbent for the Sponsoring Authority to have placed them before him. This is the ratio which has been laid down by Venkatchallah, J. In Ayya alias Ayub’s case (supra).
11. Again another averment which has been consistently repeated by the Detaining Authority in his return, namely that looking to the past conduct of the detenu and his propensity and potentiality to commit prejudicial activities in future. It was imperative to detain him under the COFEPOSA Act, would also not save the detention order.
The issue is not whether the detenu had propensity and potentiality to commit similar crimes. On the converse it is as to what would have been
the impact of those vital pieces of evidence (referred to in Annexure-H) on the mind of the Detaining Authority had they been placed by the Sponsoring Authority before him. It may be that despite those documents being placed before him, the Detaining Authority, bearing in mind the propensity and potentiality of the detenu, may still have passed the impugned order but it may also equally be that he may not have passed it had they been placed before him. What would his subjective satisfaction been is something which cannot be speculated today.
12. It may be that the detenu was a bad man in the judgment of the Detaining Authority but a bad man is equally entitled to legal safeguards as a good man. And if the law mandates that a vital piece of evidence should be placed before the Detaining Authority and the same is not done, then simpliciter the circumstance that the detenu is a bad man and has propensity and potentiality to commit prejudicial activities of the type for which he has been detained by the detention order would not result in this Court upholding the detention order.
This Court under Article 226 of the Constitution of India decides habeas corpus petitions in preventive detention matters, not on moral considerations but examines whether the detention is in conformity with requirements of law. And where it is not, as is the case here, it has no compunction in quashing the detention order.
13. In the result, we allow this writ petition; quash and set aside the impugned detention order: direct that the detenu Dashrathlal Bhagwandas Gupta be released forthwith unless wanted in some other case; and make the rule absolute.