JUDGMENT
A.V. Savant, J.
1. Heard all the learned Counsel. Since the facts and contentions are common to both the petitions they are disposed of by common judgment.
2. The two detenues who are Russian citizens, claim to have been employed aboard Russian ship “Novikov Priboy”. Andrey, the detenu in Writ Petition No. 232 claims to have been employed as First Officer whereas Aleksander, the detenu in Writ Petition No. 233 claims to have been employed as a Radio Officer aboard the said ship. They have been detained under the orders dated 3rd April, 1996 issued by the Principal Secretary, Government of Maharashtra, Home Department (Preventive Detention), who is the Detaining Authority. In exercise of his powers under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (For short ‘COFEPOS A’) the orders of detention have been issued on 3rd April, 1996 with a view to preventing the detenues from smuggling goods.
3. Having regard to the only contention raised before us, it is not necessary to set out the details of either the grounds of detention or the contentions raised in the petitions. We may however briefly indicate the facts as under.
4. On the basis of intelligence, Officers of the Directorate of Revenue Intelligence (for short ‘DRI’) had kept discreet surveillance on the crew members of vessel Novikov Priboy berthed at Mole Station, Mumbai Port Trust on 1st March 1996. In the evening of 1st March, 1996, the two detenues disembarked from the said vessel. They reached the Newyork Restaurant on Pandita Ramabai Marg. Ten minutes later another person viz., Patiram Bariar Yadav who was the detenu in Criminal Writ Petition No. 494 of 1996 before the Aurangabad Bench, joined the present detenues and after a brief talk, all of them engaged a taxi and proceeded towards Grant Road. At the junction of Jagannath Shankar Seth Chowk (Nana Chowk) the DRI Officers intercepted the said taxi with the help of the mobile van stationed nearby at about 22.00 hours on 1st March, 1996. All the three were searched and certain gold bars were recovered from them. From detenu Andrey 95 gold bars were recovered and from detenu Aleksander 93 gold bars were recovered. Thus 188 gold bars were recovered from them under a Panchanama dated lst/2nd March, 1996 having a total weight of 1880 tolas, valued at Rs. 1,16,09,000 at the local market value. They were seized by the DRI in the reasonable belief of being smuggled into India and hence liable for confiscation under the provisions of Customs Act, 1962.
5. It is not disputed before us that the orders of detention (Exhibit.’A’) dated 3rd April, 1996 were served on the detenues on 4th April, 1996. The grounds of detention are dated 6th April, 1996 and were served on the same day viz. 6th April 1996. The principal contention raised by Mr. Shivramkrishnan, the learned Counsel appearing on behalf of the detenues is in ground 3(aa) which reads as under:
The order of detention dated 3 April 1996 (Exhibit A) should be set aside as the grounds of detention (Exhibit B) came into existence only three days later on 6th April, 1996 and were not in existence when the order of detention was passed.
6. In reply to this contention, Mr. M.M. Kamble, Deputy Secretary to the Government of Maharashtra, Home Department has filed an affidavit and the relevant averments are to be found in para 4 of the affidavit of Mr. Kamble as under:
4. The Assistant Director, DRI, BZU, Mumbai submitted the proposal in respect of the detenu alongwith the documents mentioned in the list of documents which was received in the Home Department on 26.3.1996. The Detaining Authority considered the proposal and scrutinized the documents and discussed the matter with Investigation Officer DRI on 3.4.1996 in detail and had formulated the Grounds of Detention and the Detention Order. I say that although the Grounds of Detention were formulated contemporaneously alongwith the Detention Order on 3.4.1996, the same were signed on 6.4.1996. Hence the same could be issued alongwith relied upon documents on 6.4.1996….
Admittedly when the orders of detention and grounds of detention were issued in both the cases, Mr. Kamble was not the detaining authority. Mr. C.D. Singh was the detaining authority. No affidavit has been filed by Mr. C.D. Singh. Nothing has been produced before us to show that the grounds of detention were actually formulated contemporaneously with the order of detention dated 3rd April, 1990.
7. That apart, in the case of the co-detenu, Patiram Bariar Yadav in Criminal Writ Petition No. 494 of 1996 decided by the Aurangabad Bench on 7th November 1996 an identical contention was raised and the affidavit-in-reply was more or less similar though not identical. In para 5 of the affidavit of Mr. C.D. Singh in Criminal Writ Petition No. 494 of 1996 at Aurangabad it was stated as under:
…I had discussed these cases with the Investigating Officers on 3.4.96 in detail and had formulated the Ground of Detention and Detention Order. It was brought to my notice that the detenu was in judicial custody and before issue of the Grounds of Detention it was absolutely necessary to know if there was any change in the custodial remand of the accused detenus which was made known to me on 8.4.96. It was not possible to issue the Grounds of Detention before 8.4.96 although it was formulated. Hence I issued the Grounds of Detention, along with relied upon documents on 8.4.96 which was served upon the detenu on 8.4.96.
8. In Krishna Murari Aggarwala v. The Union of India the Apex Court had occasion to consider the question as to whether the order of detention can be made without the grounds of detention being in existence contemporaneously. In that case, the order of detention was made on 8th November, 1974 by the District Magistrate, Badaun under Section 3(1)(a)(iii) of the Maintenance of Internal Security Act, 1971.
The grounds of detention were served on the detenu on 13th November, 1974. Dealing with the exercise of power under Section 3(1), the Apex Court observed in para 7 of the judgment at page 1833 of the report as under:
It is obvious that unless the order made and the grounds prepared are signed by the authority concerned, the order is not made as contemplated by Section 3 of the Act. Furthermore, since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory.
9. Similar view has been taken by this Court in Mohmood Abubukar Marwari v. Union of India 1982 Cri L.J. 53: 1981 Bom. CR. 551 : (1981 Cr. L.R (Man.) 445 in a case under the COFEPOS A Act. Dealing with the contention that the Grounds of Detention in support of the Order of Detention must be formulated, framed and signed by the Detaining Authority at about the time or contemporaneously with the making of the order of detention this Court observed in para 10 of the Judgment at page 57 of the report as under:-
10. It is thus not enough that there is material with the concerned authorities. Existence of material is one thing, sifting and scanning thereof is altogether different. Then again, sifting and scanning of material is one thing, drawing and formulating conclusions therefrom is again a process altogether different. Each stage is important. If a person’s liberty is to be circumscribed and restrained the authority intending to do is expected to take the minimal care and precaution in that behalf. It is not that liberty cannot be restrained. It can be of paramount interest of the nation-and sometimes necessitates it. Our Constitution, therefore, permits preventive detention, but it has placed certain limitations in that behalf. Formulation framing and signing of the grounds by the detaining authority at about the lime of making of the order of detention is an important assurance and a safeguard inter alia on the question that there was material: that the said material was scanned and sifted; that the irrelevant, if any, was rejected and the relevant only relied upon; that thereafter conclusions were drawn and grounds formulated therefrom; and there was thus, at the relevant time, a case for detention made out, although under the subjective but bonafide satisfaction of the detaining authority.
10. We may also indicate that similar view was taken by the Aurangabad Bench in the case of the co-detenu Patiram Bariar Yadav while allowing Writ Petition No. 494 of 1996 on 7th November, 1996.
11. As stated earlier, no material has been placed before us to show that the grounds were actually formulated on 3rd April, 1996 and were signed on 6th April-1996. The affidavit made by Mr. Kamble at one stage suggests that the Detaining Authority had considered the proposal, scrutinised the documents and discussed the matter with the Investigating Officer, DRI on 3rd April, 1996 in detail and had formulated the grounds of detention and detention order. However, the grounds of detention are dated 6th April, 1996 and the opening para of the Grounds of Detention reads as under:
With reference to the Detention Order, bearing No.SPL. 3(A)/PSA 0196/22, dated 3rd April, 1996 made against you by me under Section 3(1) of the COFEPOSA Act, 1974, furnished below is the material brought to my notice and the Grounds of Detention on the basis of which the said Detention Order is made by me;”
Relying upon this, it is contended that having regard to the date mentioned on the Grounds of Detention viz., 6th April, 1996, it is clear that the Grounds of Detention have been subsequently formulated after the order of detention dated 3rd April, 1996 was served on 4th April, 1996. Though a similar contention was raised on behalf of the respondents before the Aurangabad Bench in case of the co detenu on the basis of a similar affidavit made by the Detaining Authority himself that the matter was discussed with the Investigating Officer on the 3rd April, 1996 in detail and the detention order with the grounds of detention were formulated, such a contention has been rejected since the grounds of detention were dated 8th April 1996. In this view of the matter it is not possible to accept the bald statement made by Mr. Kamble that “although the grounds of detention was formulated contemporaneously along with the detention order on 3.4.96, the same were signed on. 6.4.96.
12. We may indicate one more factor in favour of the petitioner. Before the Aurangabad Bench, the affidavit was made by Mr. C.D. Singh who is himself the Detaining Authority. Though Mr. Singh has stated in para 5 of his affidavit in Criminal Writ petition No. 494 of 1996 that he had discussed the details with the investigating Officer on 3rd April, 1996 and had formulated the grounds of detention and detention order, in the subsequent part of para 5 he stated that the grounds of detention could not be issued before 8th April, 1996 though they were formulated meaning thereby that they were formulated earlier. Such a contention has been rejected by the Aurangabad Bench. In view of the above, it is not possible to accept the ipsi dixit of Mr. Kamble who was not himself the Detaining Authority when the order of detention was issued on 3rd April, 1996 and the grounds of detention dated 6th April, 1996 were issued by Mr. C.D. Singh. The contention raised in para 4 of the affidavit of Mr. Kamble cannot be accepted.
13. It therefore follows that the grounds of detention were not formulated contemporaneously with the order of detention. Having regard to the ratio of the two decisions mentioned above; one of the Supreme Court and the other of this Court, we are of the view that this would be clearly impermissible in the Scheme of the Law of preventive detention, rendering the orders of detention illegal. In this view of the matters orders of detention in both the cases are liable to be quashed and set aside. Accordingly the orders of detention dated 3rd April, 1996 passed against both the detenues are hereby quashed and set aside. The detenues are ordered to be set at liberty forthwith unless they are otherwise required to be detained.
14. Rule is accordingly made absolute in the above terms.