JUDGMENT
Dalveer Bhandari, J.
(1) This petition under Article 226 of the Constitution of India has been filed by the son of the detenu Shri John Paulose, for quashing and setting aside the order of detention dated 19.8.1991 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Delhi.
(2) The petitioner has challenged the detention order on the ground that irrelevant material has been taken into consideration by the detaining authority. The petitioner has mentioned that the detaining authority has placed reliance on the detention orders issued against Shri B.K. Mandlekar dated 29.9.87 under the Cofeposa Act, 1974. Besides that the detaining authority also placed reliance upon a detention order and grounds of detention of one Shri Sikhander Abdul Rehman Hamdulay dated 24.11.83. The petitioner submitted that these detention orders have no bearing upon the case of the detenu placed by the sponsoring authority before the detaining authority. Consideration of such extraneous material amounts to non-application of mind, thereby vitiating the subjective satisfaction of the detaining authority and rendering the detention/continued detention of the detenu illegal and bad in law.
(3) Learned counsel for the petitioner Shri Kannali in order to make good his submission that irrelevant material has been taken into consideration by the detaining authority systematically draws the attention to the relevant portion of the pleadings of the parties submitted before this Court, in order to test the submission of the learned counsel for title petitioner it would be appropriate to set out relevant portion of the pleadings. Para 6(h) of the writ petition is set out as under:- “6(H)The petitioner says and submits that amongst the documents and materials allegedly taken into consideration by the detaining authority for arriving at the impugned subjective satisfaction for issuance of the order of detention, the detaining authority has placed reliance upon certain extraneous material which have no bearing upon the present detention of the detenu. These extraneous material are in the nature of detention orders issued against the detenu and the co-detenu under the Cofeposa Act, 1974, in the year 1983 and 1987. Besides the detaining authority also places reliance upon a detention order and grounds of detention of one Shri Sikhander Abdul Rehman Hamdulay issued in the year 1983. The petitioner says and submits that these detention orders have no bearing upon the case placed by the sponsoring authority before the detaining authority. Consideration of such extraneous material amounts to non- application of mind, thereby vitiating the subjective satisfaction of the detaining authority and rendering the detention and/or continued detention of the detenu illegal and bad in law. Consequently, the impugned order of detention deserves to be quashed and set aside.”
(4) Thereafter the learned counsel has drawn my attention to certain portion of the counter-affidavit filed by Mr. J.L. Sawhney, Under Secretary, Department of Revenue, Ministry of Finance, New Delhi dated 13th February, 1992. Para 6(h) of the counter-affidavit is reproduced as under:- “6(H)In reply to para 6(h), the detaining authority arrived at the subjective satisfaction considering all the material and documents placed before him. The detention order of 1983 in respect of the detenu clearly goes to show that the detenu is a habitual offender and the detaining authority was correct in his placing reliance on that order.”
(5) Thereafter, the learned counsel has invited the attention of the Court to Annexure ‘C’ of the petition which starts from page 46. The said annexure deals with the details of documents which have been relied upon detaining authority. Items 68 and 69 of the list are the documents which have been relied upon, they are detention order of Shri B.K. Mandlekar dated 29.9.1987 and the detention order of Shri S.A.R. Hamdulay dated 24th November, 1983.
(6) The learned counsel pointed out that the detention order of Shri Mandlekar was challenged and the same was quashed by the Bombay High Court. Therefore, the detaining authority could not have placed any reliance on this order.
(7) Learned counsel also pointed out the detention order dated 24.11.83 passed against Shri S.A.R. Hamdulay. This order was revoked on the strength of the opinion of the Advisory Board and could not have been taken into consideration by the detaining authority. It was submitted by the learned counsel for the petitioner that the present detenu has nothing to do with that detention order, Admittedly these two detention orders were taken into consideration by the detaining authority. These detention orders could not be taken into consideration for two reasons. They did not relate to the petitioner and secondly these detention orders were quashed or revoked by the government and could not have been taken into consideration. Consideration of such extraneous material amounts to non-application of mind, thereby vitiating the subjective satisfaction of the detaining authority.
(8) The learned counsel has placed reliance on Chhagan Bhagwan Kahar v. N.L. Kalna and others, . The court has come,to the conclusion, “WE hold that this order of detention is vitiated on the ground that the detaining authority has taken into consideration the grounds of earlier detention order Along with other material for passing the impugned order and the order is liable to be set aside. Accordingly, we quash the detention order on this ground and direct that the detenu be set at liberty forthwith if his detention is not required for any other case.”
(9) The learned counsel for the petitioner has also placed reliance on the Judgment of the Supreme Court in Smt. lachu Devi Choraria v. Union of India and ors., . In this case, the Court has held that the documents, statements and other material relied upon in the grounds of detention must be communicated to the detenu because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore, be sufficient to communicate to the detenu aware recital of the grounds of detention. Copies of the documents, statements and other material relied upon in the grounds of detention must be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub- section (3) of the Cofeposa Act. If this requirement of clause (5) of Article 22 read with Section 3, sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void. The learned counsel cited this case to demonstrate that in any view of the matter, the detention order is illegal or bad in law. lf the date 13.6.83 was a typographical error and in fact what the detaining authority meant and relied upon was the detention order of 1986, then also the detention order is vitiated, as the relied upon document was not supplied.
(10) Learned counsel also relied upon the Judgment in Ramesh v. State of Gujarat and others. . The Supreme Court in this Judgment in para 10 has observed as under: “ON a careful scrutiny of the grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases mentioned under Sr.Nos.l and 2 of the table which were the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenu.”
(11) The Supreme Court has relied upon an earlier decision Chhagan Bhagwan Kahar’s case (supra), and came to the conclusion that the detention order is liable to be quashed on this ground.
(12) The petitioner has also relied upon decision of the .Supreme Court in Vashisht Narain Karwaria v. State of U.P. and another, and Vashisht Narain Karwaria v. Union of India and others, . In this case also, the detention order was set aside because the detaining authority relied on extraneous matters which were not referred to in the grounds of detention, might have influenced the mind of the detaining authority. Hence, the detention order was quashed.
(13) The petitioner has also relied upon the order passed by Bombay High Court in Criminal Writ Petition no.902 of 1988, Shri Balgadi Mohd. Hussein Sahib vs. State of Maharashtra and ors. The relevant portion of the order runs thus: “MR.Khan, the learned Advocate for the Detenu has shown the court three documents which were part of the compilation of documents furnished to ‘the Detenu by the Detaining Authority. One of the documents is a fools cape sheet containing Urdu poems or ‘Shayaris’. Impressed as the Court is by their romantic content, the Urdu poetry has no relevance whatsoever to the order of detention. The other two documents are letters addressed to the detenu and his brother, which again have no connection with the order of detention. If irrelevant material has been taken into consideration by the Detaining Authority while arriving at his subjective satisfaction, then it displays non-application of mind, which in turn would vitiate the order of detention.”
(14) The counsel for the respondent strongly resisted the submission of the petitioner by staling that these two detention orders were of course mentioned in the list of documents and statement relied upon but in fact no reliance was placed by the detaining authority. There is no merit in this submission.
(15) The learned counsel for the petitioner has cited another Judgment of the Supreme Court to demonstrate futility of the submission made by the counsel for the respondent.
(16) The learned counsel relied upon Khudiram Das v. The State of West Bengal and others . This case was cited for the proposition that the court should refuse to accept the bald statement of the District Magistrate that he did not take such material into account and excluded it from consideration. It is elementary that the human mind does not function in compartments. When it receives impressions from different sources, it is the totality of the impressions which goes into the making of the decision and it is not possible to analyze and dissect the impressions and predicate which impressions went into the making of the decision and which did not. Nor is it an easy exercise to erase the impression created by particular circumstances so as to exclude the influence of such impression in the decision-making process. The court further observed that, therefore, in a case where the material before the District Magistrate is of a character which would in all reasonable probability be likely to influence the decision of any reasonable human being,- the Court would be most reluctant to accept the ipse dixit of the District Magistrate that he was not so influenced and a fortiori, if such material is not disclosed to the detenu, the order of detention would be vitiated, both on the grounds that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention.
(17) The facts of this case squarely apply to the facts and circumstances of the instant Learned counsel for the respondent urged before the Court that the detention order is based on very serious grounds and ought .not to be quashed on the ground of consideration of certain irrelevant documents. To meet this argument of the learned counsel for the respondent, the petitioner placed reliance on the Supreme Court Judgment of Mahesh Kumar Chauhan alias Banti v. Union of India and others, . This case was cited for the proposition that, whether “the Court in the absence of any explanation wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious nature as in the present case? Our answer would be ‘Not at all’.
(18) Learned counsel cited another judgment of the Supreme Court to show that Court ought not to take generous and liberal view in the matters relating to personal liberty and ignore the lapse of the detaining authority.
(19) The petitioner has placed reliance on the case of Hem Lall Bhandari v. State of’ Sikkim and others, . In this case, the Court has held that it is not permissible, in matters relating to the personal liberty and freedom of a citizen, to lake either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious, action is insisted upon as a safeguard against the manipulation.
(20) On careful analysis of all these Judgments of the Supreme Court, and the High Court, the conclusion is irresistible. The impugned detention order is bad in law and is liable to be quashed. The detenu shall be released forthwith if not required to be detained in any other case.
