JUDGMENT
Jaspal Singh, J.
(1) Here is yet another writ petition seeking the quashing of a detention order passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.
(2) First, the facts. The petitioner Gurdas Seal is one of the eleven partners of M/s. S.C.Dey and B.N. Seal. He also happens to be one of the five partners of yet another firm carrying on business under the name and style of M/s. Seal, Lata & Co. This case. however, relates to M/s. S.C.Dey and B.N.Seal which holds a license for dealing as bullion merchants. On January 21. 1993 the officers of the Customs, Calcutta searched the shop premises of M/s.S.C. Dey and B.N.Seal and seized eight gold biscuits of foreign origin allegedly from inside a cylinder-shaped iron box kept concealed in a room which otherwise was full of rubbish. As per the Customs the said gold biscuits were seized on the reasonable belief (hat those were smuggled in India as none of the partners including the petitioner present there, could produce any document in support of their legal acquisition. possession or importation and as all of them confessed in their respective statements that the said gold biscuits had been smuggled. However, on the other hand the version of the petitioner is that the said gold biscuits had been legally purchased from one A.M. Salley and had been accounted for in (heir records and that the so-called confessional statements were not voluntary.
(3) On April 26, 1993 the detaining authority passed the impugned order of detention of the petitioner in exercise of the powers conferred by section 3(1) of the Act considering the same to be necessary “with a view to preventing him from dealing in smuggled goods otherwise than by engaging in iran sporting or concealing or keeping smuggled goods in future”.
(4) The perusal of the writ petition would go to show that detention has been challenged on number of grounds. However, during arguments the learned counsel for the petitioner sought (he quashing of [he order only on two grounds. His first contention was that while passing the impugned order, the detaining authority had relied upon totally irrelevent documents betraying thereby lack of application of mind. Secondly, it was urged that there was inordinate and unexplained delay in the disposal of the representation made by the petitioner.
(5) The first contention first. However, even before that a word or two on the law for it holds the key. And the law is that 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. [See: Ramesh v. State of Gujarat & Ors. : Chhagan Bhagwan Kahar v. N.L. Kalna & others : Vashisht Narain Karwaria v. Union of India & others .
(6) As far back as in the year 1975. the Supreme Court had observed in Sadhu Roy v. The State of West Bengal Air 1979 Sc 919: “THEsatisfaction, though alternated by “subjectivity” must be real and rational not random divination, must flow from an advertence to relevant factors, not be a more recital or mechanical chant of statutorily sanctified phrases.”
And it was further made clear, this time in Smt. Shalini Soni v. Union of India & Others 1980Crl.L.J. 1487: “IT is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.”
(7) The law being as noticed above, it is time to revert to the first contention. The learned counsel for the petitioner contended that at least the following documents relied upon by the detaining Authority had no relevance to the order of detention: (a) Loose documents placed at pages 25-27 of the relied upon documents; (b) Summons to and statement of Probir Kumar Seal; (c) Copies of the petitions dated January 29, 1993 submitted by Pradip Das, Chandan Saha, Ashok Kumar Laha, Manoj Kumar Seal and Gurudas Seal and (d) Panchnama dated April 13, 1993.
(8) The loose documents referred to in (a) were recovered from the possession of Ashok Kumar Laha. a codetenu and a partner of M/s.S.C.E)ey and B.N.Seal. The perusal of those documents and the confessional statement of Ashok Kumar Laha would go to show that these documents deal with personal business of Laha and relate to some mortgage accounts. True, it was contended by the learned counsel for the Union of India that the accounts pertain to the business of M/s. S.C. Dey and B.N.Seal. However, there is nothing on the record to lend support to this assertion.. Rather, as noticed above, the statement of Laha completely belies this stand. This being the prositition I find myself one with the learned counsel for the petitioner that the said loose sheets were of no relevance.
(9) Coming to (b) relating to summons to and statement of Probir Kumar Dass, it was argued that the statement was relevant as it showed that there was afraid by the Customs, that there was the alleged recovery and that the confessional statements were voluntary. Undoubtedly, the statement does go to show all this and may, to that exten’t, be taken to be relevant but what about the “summons” issued to Dass?- There was no explanation with regard to the same. Even in the Counter, not a word has been said about p73 its relevance.
(10) Coming to the copies of the petitions referred to as (c) above, the petitions were by the partners of the firm and they were all to the effect that they would not be able to make statement on January 29, 1993. Prayer was made for another date. It was contended that the petitions were relevant as they were verbatim reproduction of each other showing that all the partners were closely knit to each other and were acting on the same line and pattern. I do feel that this does make the documents worthy of consideration and thus relevant.
(11) Lastly, we come to the Panchnama dated April 13,1993. It says that the residence of A.M. Salley could not be traced by the Customs and that consequently, the Calcutta address furnished by him to the Customs was fictitious. Interestingly, the Counter filed by the Union of India provides no clue with regard to its relevance, and during arguments also though the learned counsel for the Union of India did remain firm that the document was relevant he fumbled for the words and appeared at a loss to explain how. To me, the document appears to be one which being totally irrelevant, ought not to have been taken into consideration.
(12) What is the sum total of the above discussion? It is that the detaining Authority did take into consideration some of the documents which were of no relevance.
(13) It was contended that if out of numerous documents taken into consideration by the Detaining Authority, one or two turn out to be of no relevance, this in itself should not be allowed to till the balance and make the whole exercise illegal. An attractive proposition, undoubtedly. However, what is material is proper application of mind and once a Detaining Authority not only takes into consideration but even relies upon irrelevant documents it displays a totally casual and mechanical approach and betrays lack of application of mind. It is against this solid rock that the argument gets shattered.
(14) Of course, the legality of the Detention Order has been challenged on the ground of delay as well. Since I am granting relief on the basis of the first objection itself, I feel no need to delineate on the second contention.
(15) The writ petition is allowed. The petitioner be set at liberty in case his not required to be delaine in any other case.