1987 (8) TMI 453 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention order under the Cofeposa Act.
2. Alleged double detention and non-application of mind.
3. Delay in considering the petitioner's representation.
4. Suppression of material documents by the detaining authority.

Detailed Analysis:

1. Legality of the Detention Order under the Cofeposa Act:
The High Court examined the validity of the detention order issued to prevent the petitioner from smuggling and abetting the smuggling of goods. The order was based on the recovery of significant quantities of Hashish concealed in machinery items meant for export, and the petitioner's alleged involvement in these activities. The detaining authority concluded that despite pending adjudication and prosecution under the Customs Act and N.D.P.S. Act, the petitioner's detention under the Cofeposa Act was necessary.

2. Alleged Double Detention and Non-Application of Mind:
The petitioner's counsel argued that the detention order was issued mechanically without due application of mind, violating Article 22 of the Constitution and Section 3(1) of the Cofeposa Act, as the petitioner was already in jail as an under-trial prisoner. The court emphasized that a preventive detention order against an already confined person requires the detaining authority to show awareness of the detainee's current confinement and a compelling necessity for further detention. The court noted the Supreme Court's stance that the detention order must reflect this awareness and necessity, failing which it would suffer from non-application of mind. The court found that the detaining authority did not demonstrate such awareness, rendering the order of detention invalid.

3. Delay in Considering the Petitioner's Representation:
The petitioner claimed that his representation sent on 23/12/1986 was neither considered nor decided upon promptly. The respondents denied receiving the representation but alternatively stated that it was rejected on 6/03/1987. The court observed that even taking the respondents' stand at face value, the delay in communicating the decision was unreasonable. Citing Supreme Court precedents, the court held that any unreasonable delay in considering a detenu's representation invalidates the detention. The court found the delay in this case unjustifiable and sufficient to invalidate the detention order.

4. Suppression of Material Documents by the Detaining Authority:
The petitioner contended that several crucial documents were either not placed before the detaining authority or were not given due importance, constituting suppression of material facts. These documents included the petitioner's retraction of his confessional statements, applications for medical examination, medico-legal reports, and bail applications. The respondents claimed that these documents were considered but not relied upon. The court emphasized that all relevant documents must be considered by the detaining authority, and their non-consideration or dismissal as irrelevant amounts to non-application of mind. The court held that the failure to consider these material documents vitiated the detention order.

Conclusion:
The High Court concluded that the detention order suffered from non-application of mind, unreasonable delay in considering the petitioner's representation, and suppression of material documents. Consequently, the court set aside the detention order and directed the petitioner's immediate release unless required to be detained under other competent orders.