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Bombay High Court
Rakesh Sherpalsingh Rana (Shri) vs State Of Maharashtra And Ors. on 9 October, 2000
Equivalent citations: 2001 (5) BomCR 186, 2001 CriLJ 606
Author: R Lodha
Bench: G Patil, R Lodha


JUDGMENT

R.M. Lodha, J.

1. The petitioner who claims to be friend of detenu Desh Raj Gulati, by this habeas corpus petition prays for quashing and setting aside of the detention order dated 27th October, 1999 issued by the detaining authority under section 3(1) of the COFEPOSA Act.

2. On 27th October, 1999 the detaining authority especially empowered under section 3(1) of the COFEPOSA Act issued detention order directing that Shri Desh Raj Gulati be detained under the COFEPOSA Act after being satisfied that his detention was necessary to prevent him in future from abetting in the smuggling of goods. The detention order was served upon the detenu on 19th February, 2000.

3. Though the learned Counsel appearing for the petitioner raised many grounds, in our view this writ petition deserves to be allowed on the basis of ground (iv) raised in the writ petition and accordingly we are not dealing with the other grounds raised by the learned Counsel. Ground (iv) raised in the writ petition reads thus :

“(iv) The petitioner says and submits that it is enjoined upon the detaining authority to disclose to this Honourable Court, the date on which the detaining authority received the proposal for the detention of the detenu and which documents he received along with the proposal. The petitioner says and submits that it further enjoined upon the detaining authority to disclose to this Hon’ble Court as to when the detaining authority formulated the grounds of detention. The petitioner says and submits that it is further enjoined upon the detaining authority to disclose to this Honourable Court as to whether the detaining authority had received any further documents thereafter and if so, when and which documents he had received at a later date after he had drafted the grounds of detention. The petitioner says and submits that if the detaining authority had received any further documents after he had drafted the grounds of detention, then it is further enjoined upon the detaining authority to disclose to this Honourable Court as to whether the detaining authority had rescinded the grounds already drafted by him and as to whether he had reconsidered afresh the documents earlier received along with the proposal and the documents received at a later date together, all at a time, and whether he had reformulated the grounds of detention all over again before issuing the impugned order of detention. The petitioner says and submits that if the detaining authority had received any additional documents after he had drafted the grounds on the basis of the documents earlier received along with the proposal then in that case, unless the detaining authority had rescinded the grounds already formulated and had reconsidered the matter afresh and had reformulated the grounds as stated above, the impugned order of detention per se mala fide and ab initio null and void”.

4. In substance, the said is raised that the detaining authority initially formulated the draft grounds of detention on the incomplete material since the detaining authority sought for additional information and documents from the sponsoring authority. The draft grounds of detention were formulated by the detaining authority on 16-10-1999 and instructed his office to put a fair copy. After 16-10-1999 and to be precise on 18-10-1999 the detaining authority received the additional information and documents from the sponsoring authority and the detention order was passed on 27-10-1999 without reformulating the grounds for detention.

5. In the affidavit in reply filed by one Mr. P.M. Nimonkar, Deputy Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, Ground (iv) raised by the petitioner has been dealt with in paragraph 9 of the said affidavit, which reads thus :

“9. With reference to paragraph 4(iv) of the writ petition, it is stated that it is not open for the petitioner to initiate as to when and on what date the proposal of Detention and which documents were received by the Detaining Authority and at what time the date and scanning of the material started and at what date and time it is concluded. The work schedule of the Detaining Authority need not be disclosed. I say that whatever time was consumed for the purpose of the issuance of the order of detention was consumed for the purpose of better verification, scrutiny and examination of material placed before the Detaining Authority. I say that the petitioner is seeking fishy inquiry into the matter which is not permitted as the time to formulate or reformulate, modify or remodify, add, change, delete etc. cannot be recorded. After considering the proposal the Detaining Authority arrived at his subjective satisfaction and issued the order of detention. The Detaining Authority has acted promptly and vigilantly and issued the Detention order at the earliest. Therefore, it is denied that the order of detention is mala fide, ab-initio, null and void.”

6. The substance of the reply contained in paragraph 9 is that the Detaining Authority passed the detention order after considering the proposal and arriving at his subjective satisfaction. We find that in paragraph 9, the ground raised by the petitioner in ground (iv) has not been specifically rebutted. In paragraph 7 of the affidavit of Shri P.M. Nimonkar, reference of which has been made above while answering to the ground raised in ground (ii), the following facts have been stated :

“The additional information, documents regarding the copy of adjudication order, copy of Show Cause Notice, copy of retraction application filed and arbitrary reply, legible copies of page Nos. 45, 75, 555, 771, 900, 2157, 2230, 2500, 2598, 2956, 2957, 3038, 3543, 3555, 3586, 3631, 3705, 3717, 3731, 3737, 3761, 3937, 3939, 3945, 3947, 4137, 4152, 4153, 4176, 4203, 4211, 4212 whether there were any compliance made to the Magistrate about ill-treatment, etc. and whether medical examination were ordered by the Magistrate and copies of pages 300, 301, 430, 491, 641, 707, 969, 1057, 1212, 1580, 3166, 3221, 3524, 3854, 4073, 4124, 4133, 4177 which were not received along with the proposal were called from the Sponsoring Authority vide Government letter, Home Department dated 8-10-1999. The Sponsoring Authority vide its letter dated 18-10-1999 forwarded the required information, documents which were received in the Home Department on 18-10-1999. The under Secretary prepared the detailed note on 11-10-1999 and submitted to the Deputy Secretary. The Deputy Secretary considered the same and submitted it to the Detaining Authority on 12-10-1999. After receipt of the documents, the Detaining Authority carefully considered the proposal and scrutinized the documents and formulated the draft grounds of detention on 16-10-1999 and instructed to put a fair copy. Accordingly fair copy was prepared and the same was submitted to the Detaining Authority on 26-10-1999. The Detaining Authority considered the proposal and all the documents and then issued the Detention Order on 27-10-1999 and contemporaneously finalised the grounds of detention.

7. It is clear from the aforesaid assertion of facts that the Detaining Authority applied his mind on the documents supplied by the sponsoring authority on 4-10-1999 and sought for additional information and documents regarding copy of adjudication order, copy of show cause notice, copy of retraction application and legible copies of various pages. The Detaining Authority also sought for information on the point about ill-treatment whether there was any complaint by the detenu and whether medical examination was ordered by the Magistrate. The Detaining Authority also sought for certain copies of pages which were not received along with the proposal. The additional information and documents were sought by the Detaining Authority by sending letter to the sponsoring authority on 8-10-1999. Before the additional information and documents could be supplied by the sponsoring authority, it is clear from the affidavit of Mr. P.M. Nimonkar that on 11-10-1999 the Under Secretary prepared a detailed note as per the documents which were available on that day and the same were submitted to the Deputy Secretary for consideration. The Deputy Secretary considered the materials on 11-10-1999 and submitted the same on 12-10-1999. Upon consideration of the documents which were already available, the Detaining Authority formulated the draft grounds of detention on 16-10-1999 and instructed his office to put a fair copy. The fair copy appears to have been placed before the Detaining Authority on 26-10-1999 as per the draft grounds of detention formulated by the Detaining Authority on 16-10-1999. In the meanwhile on 18-10-1999 though the sponsoring authority forwarded the requisite information and documents which were received on that very day, the Detaining Authority passed the detention order on 27-10-1999 as per the draft grounds of detention formulated on 16-10-1999. The aforesaid facts leave no manner of doubt that on 16-10-1999 the Detaining Authority applied his mind upon the documents which were incomplete and on the basis of incomplete documents formulated the draft grounds of detention and then the detention order was issued on 27-10-1999 by the Detaining Authority though in the meanwhile the required information and documents have been received. The manner in which the Detaining Authority applied his mind in piecemeal for reaching his subjective satisfaction is impermissible in law and renders the detention order bad in law. The Detaining Authority is required to apply his mind on the availability of complete material at one time and cannot scrutinise the documents and reach his satisfaction in phases for passing a detention order. How could the draft grounds of detention be formulated by the Detaining Authority on 16-10-1999 when on 4-10-1999 the Detaining Authority found that many of the pages were not legible, some of the pages were missing and some documents he wanted to peruse before passing the detention order and the said documents did not reach him before 16-10-1999. The very consideration of the documents in piece meal and formulation of the draft grounds of detention vitiates the subjective satisfaction reached by him. We find from the affidavits filed by the respondents that in none of these affidavits it has been mentioned that grounds of detention which were formulated on 16-10-1999 were subject to fresh review and were reformulated after the additional documents and information sought for vide letter dated 8-10-1999 and which was received on 18-10-1999 were considered by the Detaining Authority. We are fortified in our view from the various judgments of this Court namely Criminal Writ Petition No. 165 of 1986 Mohammed Afzal Yakub v. The State of Maharashtra & others, decided by this Court on 13th August, 1986. Criminal Writ Petition No. 1058 of 1986 Mrs. Savita Ramesh Jain v. State of Maharashtra & others, decided by this Court on 13th February, 1987, 1987 Cri.L.J. 1798 Ashwinkumar B. Halari v. State of Maharashtra & others, Criminal Writ Petition No. 1293 of 1986 Prakash Amritlal Shah v. The State of Maharashtra & others, decided on 25th March, 1987.

8. In Mohammed Afzal Yakub (supra), the Division Bench of this Court held that a haphazard or piecemeal consideration of the evidence against the detenu only connotes a cavalier and a casual approach which must be deprecated particularly in matters which concern the life and liberty of the individuals. In the case of Mrs. Savita Ramesh Jain (supra) the Division Bench passed the following order :

“The detention order in the present case was issued on 4th March, 1986 under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the grounds of detention were formulated on 23rd December, 1985. It is not disputed that at the time the grounds were formulated, the Detaining Authority had before it documents only at serial Nos. 1 to 5 in the list of documents furnished to the detenu and the document at Serial No. 6 was actually received and considered by the Detaining Authority on 24th February, 1986 although, according to the Detaining Authority, along with earlier documents. The affidavit filed by the Detaining Authority is however silent on whether after considering all the documents together the grounds of detention were re-formulated. It is the case of the Detaining Authority that the documents are considered together with a view to conform to the decisions of this Court delivered earlier. What is required by the said decisions is that the grounds should be formulated only after considering all the documents together. That certainly has not been done in the present case. And, hence, the detention order has to be set aside. Detenu to be releated forthwith unless required in any other case. Rule is made absolute accordingly. ”

In Savita Jain, the Division Bench allowed the habeas corpus petition since it was found that at the time the grounds were formulated the Detaining Authority did not have some of the documents which were subsequently received, although before the detention order was passed and although according to the Detaining Authority the documents which were received subsequently were considered along with earlier documents before issuance of detention order. The judgment of this Court passed by the Division Bench in Savita Jain was challenged by the State before the Apex Court. The Apex Court dismissed the Special Leave Petition on 12-1-1988. The judgment of the Apex Court is reported in (1988(1) SCALE 16). The Apex Court in paragraph 3 of the order observed thus :

“The learned Judge on the basis of this admitted situation of facts came to the conclusion that on the date on which the grounds were finalised all the documents on which reliance is placed were not before the Detaining Authority and in such a situation the judgment of the High Court could not be assailed. The only contention advanced by the learned Counsel for the appellant was that this statement of fact as quoted above is not disputed, that all documents were not before the Detaining Authority is not correct. Except this no other gound is raised and as stated earlier this contention cannot be accepted without an affidavit filed by the learned Counsel who was present at the hearing in the High Court. We, therefore, see no reason to entertain this appeal. It is therefore dismissed. The order passed by the High Court is maintained. It appears that the respondent has been taken into custody under orders of this Court on grant of leave. It is therefore directed that he be set at liberty forthwith.”

9. The facts of the present case are quite similar to the case of Savita Jain which was decided by this Court on 13-2-1987 and the said judgment was upheld by the Apex Court vide its order dated 12th January, 1988 aforestated.

10. In yet another case Ashwinkumar B. Halari v. State of Maharashtra, 1987 Cri.L.J. 1798 the Division Bench of this Court observed thus :

“It appears that there is a grave misunderstanding on the part of the Detaining Authority of the correct import of our decisions on the subject given earlier. We have been at pains to emphasize that the detention order is passed on the basis of the subjective satisfaction of the Detaining Authority, which satisfaction is to be arrived at by applying mind to all the material available on record. We thought that it is elementary that the grounds of detention have to be culled from the material in question after considering it together at a time. It is only the satisfaction so arrived at which can be considered valid in the eye of law. For then alone it satisfies the test of a conclusion arrived at on the basis of the totality of the circumstances taken together. We had pointed out that this test cannot be satisfied if the documents are considered piecemeal. When the grounds are formulated and the order is passed already and kept ready earlier on the basis of the material then available and such grounds and order are merely endorsed from time to time after considering the documents received subsequently whether in isolation or together with the earlier documents, it makes a mockery of law and can hardly satisfy the test of a conclusion drawn by considering all the material together. Where the conclusions are pre-drawn and the documents received subsequently are only referred to, to confirm or endorse the said conclusions, the process indulged in is not of forming a subjective satisfaction but one of finding reasons to support the preconceived formulations. That is exactly what the Detaining Authority has done in the present case. Such an approach can hardly be countenanced. We once again reiterate in as clear terms as is possible for us to do that the grounds of detention have to be formulated and the order has to be passed only after considering all the material together and at a time. The checking of the fresh material received with the grounds already formulated and the order kept ready is nothing but a pretence of following the law and is a fraud upon it.”

11. The Division Bench of this Court highlighted that the detention order is passed by the Detaining Authority on the basis of subjective satisfaction which is required to be reached by applying mind to all the material available on record. The piecemeal consideration of the material was held to be not permissible.

12. In yet another case Prakash Amritlal Shah (supra) decided on 25-3-1987 the Division Bench has reiterated the same position.

13. In the present case, as noted above though the Detaining Authority on consideration of the material on 4-10-1999 sought for additional documents and information from the sponsoring authority, yet on the available material without waiting for the said additional documents and information on 16-10-1999 formulated the draft grounds of detention and then though on 18-10-1999 the additional documents and information were received without reviewing and reformulating the earlier ground issued the detention order on 27-10-1999. We have no hesitation in holding that in the facts and circumstances aforestated, the subjective satisfaction of the Detaining Authority is vitiated and that invalidates the detention order.

14. For the reasons indicated above, we allow this writ petition in terms of prayer (a) which reads thus :

“(a) That this Honourable Court be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction quashing and setting aside impugned order of detention bearing No. PSA 1199/57/SPL 3(A) dated 27-10-1999 (Annexure A) hereto issued by Shri G.S. Sandhu, the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Mantralaya, Mumbai – 400 032, under section 3(1) of the COFEPOSA Act against the detenu Mr. Desh Raj Gulati and that the said detenu be released from detention forthwith and be set at liberty”.

The detenu Desh Raj Gulati be released from detention forthwith, if not required in any other case. Rule is made absolute in the aforesaid terms.


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