ORDER
1. This order will dispose of W.P. Nos. 10598 and 10603 of 1989. The first Writ Petition is filed on behalf of the detenu, Maniklal, and the second is filed on behalf of the detenu, Govindram Agarwal.
2. The orders of detention against both the detenus were passed separately on 25-5-1989. The facts of the case need not be mentioned in detail. Suffice it to say that certain contraband gold and some jewellery were recovered from a box in the premises of Ramgopal Goel, which was alleged to have been secreted therein by the detenu, Govindram Agarwal. The key for the box was found in the premises of Govindram Agarwal and thereupon, the gold and jewellery lying in the box were seized on 29-11-1988. At the time of seizure neither the detenu, Govindram Agarwal, nor the detenu Maniklal was available. So far as Govindram Agarwal is concerned, he is detained because of the recovery of the gold from a box which he kept in the premises of Ramgopal Goel. Maniklal is detained because Govindram Agarwal Stated that the gold biscuits, which were 10 in number, were kept by Maniklal with him for sale.
3. Numerous points have been taken in the Writ Petitioner, including the point that the detenu was not provided certain documents he requested for. A point is also taken that Maniklal was not allowed representation through a next friend. But we, do not propose to go into these points.
4. While going through the record of the State Government in connection with these two points, it transpires that the proposal for detention was approved by the Chief Secretary on 7-4-1989 and by the Chief Minister of the State on 11-4-1989. By that time, the ground of detention were neither drafted nor prepared. It transpires that the grounds of detention were approved by the Secretary, General Administration Department only on 1-5-1989. Therefore, it boils down to this, that the person whose duty it was to decide about the detention started without any grounds.
5. The order of detention again the detenu, Maniklal has been passed under Section 3(1)(iv) of the Conservation of Foreign Exchange and prevention of Smuggling Activates Act, 1974 (COFEPOSA Act), with a view of preventing him effectively from further engaging in illegal and clandestine dealings in smuggled gold. So far as the detenu, Govindram Agarwal, is concerned, the detention order has been passed under Section 3(1)(iii) of the COFEPOSA Act, with a view to effectively preventing him from further engaging in illegal and clandestine keeping and concealing of smuggled gold.
6. Section 3 (1) and (2) of the aforesaid Act provides as under :
“3. Power to make orders detaining certain persons. – (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of Joint Secretary to that Government, especially empowered for the purpose of this sections by the Government, or any officer of a State Government, not below the rank of a Secretary to that Government, especially empowered for the purpose of this Section by that Government may, if satisfied, with respect to any persons (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or argumentation of foreign exchange or with a view to preventing him from –
(i) xx xx xx xx (ii) xx xx xx xx (iii) engaging in transporting or concealing or keeping smuggled goods, or, (iv) dealing in smuggled goods otherwise than by engaging in transporting or concerning or keeping smuggled goods. (2) xx xx xx xx
(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later that five days, and in exceptional circumstances and for reasons to be record in writing not later than fifteen days, from the date of detention.”
It is clear form a reading of the Section and the facts of the present case that before making the order of detention, the State Government or the officer specially empowered by it for the purpose of this Section must be satisfied on the basis of the grounds of detention that it is necessary to prevent the detenu from engaging in illegal and clandestine dealings smuggled gold, and an order approving the proposal of the detention has to be passed by the Chief Minister. In this case, before, the approval of there was no grounds drafted for detention. The grounds of detention came to be drafted only on 1-5-1989 and the file was never put up again to the Chief Minister. The detention orders are dated 25-5-1989. In Krishna Murari v. Union of India , the Supreme Court considered the provisions of Section 3(1) of the Maintenance of Internal Security Act, 1971. The provisions of Section 3(1) of the Act are to some extent in pari material with Section 3(1) of the COFEPOSA Act in so far as it relates to the authorities competent to pass the order of detention. While dealing with the provisions of Section 3(1) of the Maintenance of Internal Security Act, 1971 referred to above, the Supreme Court observed in para 7 of its judgment.
“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. Further more, 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. In view, however, of the contradictory affidavits given Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case.”
Again, in Shalini Soni v. Union of India 1981 SCC (Cri) 38 : (1980 Cri LJ 1487), the Supreme Court, while interpreting Article 22(5) of the Constitution of India, observed (at p. 1490 of Cri. L. J.) :
“Communication of the grounds presupposes the formulation of the grounds and formulation of he grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say, to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). 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 pre-eminent and proximate matters only, eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went into make up the mind of the statutory functionary and not merely the inferential conclusions.”
As stated earlier, the grounds of detention were not even formulated before the Chief Minister approved the proposal of detention on behalf of the State Government.
7. For the above reasons, we have no option but to hold that the orders of detention passed in these two cases suffer from non application of mind by the detaining authority and are in violation of Article 22(5) of the Constitution of India and also Section 3(1) of the COFEPOSA Act and, therefore, they are liable to be quashed. The Writ Petitions are allowed and the detenu shall be released forthwith unless wanted in some other case.
8. Petition allowed.