2018 (7) TMI 456 - HC - Customs

Principles of Natural Justice - Detention of Mushtaq Abubakar Sayed - Smuggling - Gold - Section 3(1) of the COFEPOSA Act - non-application of mind - it is the case of petitioner that the detaining authority has not considered the documents in piecemeal and has issued the order of detention on the basis of the material on record and on the basis of the documents placed before him which were relied upon for issuing the order of detention. Held that - It was expected from the detaining authority to come out with the clear explanation and details as to which documents were forwarded and in what number to the detaining authority from time to time. It is pertinent to note that the affidavit is silent in that regard. The entire approach of the detaining authority shows total non-application of mind and it is apparent that the orders of detention were issued against 4 detenus in most casual and cavalier manner. The exercise of powers under the law of preventive detention cannot be exercised in such manner. The Petitioners had submitted that the detaining authority could not have applied its mind to the documents due to paucity of time as the volume of material was sent from time to time by the sponsoring authority in Mumbai to its head office in Delhi from where it was forwarded to the detaining authority. It was observed that the movement of documents from one office to another and to the detaining authority would clearly show that the authority had ample time to apply its mind to the question of expediency of making an order of detention. It s a settled law that liberty of citizen cannot be dealt with casually by clamping order of detention and the powers of preventive detention are to be exercised cautiously and without violating the freedom of the citizen and personal liberty guaranteed under the constitution - the issuance of the order of detention against the detenu suffers from nonapplication of mind, which is required to be set aside. Petition allowed.

Issues Involved:
1. Validity of the detention order under Article 226 of the Constitution of India.
2. Application of mind by the detaining authority.
3. Timeliness and procedural aspects of the detention order.
4. Consideration of documents and material by the detaining authority.
5. Legal precedents and their applicability.

Detailed Analysis:

1. Validity of the Detention Order under Article 226 of the Constitution of India:
The petition was filed under Article 226 challenging the detention order dated 7th December 2017, issued under Section 3(1) of the COFEPOSA Act, 1974, aimed at preventing the detenu from abetting smuggling activities. The grounds for detention included alleged habitual smuggling of gold by the detenu, which contravened the Indian Customs Act, 1962. The detaining authority was satisfied that the detenu's activities posed a threat to the national economy and necessitated preventive detention.

2. Application of Mind by the Detaining Authority:
The petitioner argued that the detaining authority did not apply its mind and issued the detention order in a casual and cavalier manner. The petitioner highlighted that the detaining authority received a voluminous amount of documents (687 pages) shortly before issuing the detention order and could not have perused and formulated the grounds of detention within such a short span of time. The detaining authority was accused of adopting the draft grounds or contents of the proposal placed before him without proper scrutiny.

3. Timeliness and Procedural Aspects of the Detention Order:
The petitioner questioned the exact dates on which the proposal for detention was mooted, placed before the Screening Committee, and cleared. It was also argued that the detaining authority could not have perused all the documents (687 pages) and formulated the grounds of detention between 27th November 2017 and 7th December 2017. The petitioner cited several legal precedents to support the argument that the detaining authority could not have applied its mind to the voluminous documents within the short timeframe.

4. Consideration of Documents and Material by the Detaining Authority:
The petitioner contended that the detaining authority should disclose whether all documents referred to in the list (Annexure 'C') were received along with the proposal or subsequently. The petitioner argued that the detaining authority could not have considered the documents in piecemeal and should have perused all documents together before formulating the grounds of detention. The respondent countered that the detaining authority had sufficient time to peruse the documents and issue the detention order.

5. Legal Precedents and Their Applicability:
The petitioner relied on several legal precedents, including the Supreme Court's decision in Umesh Chandra Verma v. Union of India and other High Court judgments, to argue that the detaining authority could not have applied its mind to the voluminous documents within a short period. The respondent cited other judgments to argue that the detaining authority had applied its mind and issued the detention order promptly and vigilantly.

Judgment:
The court found that the detaining authority did not apply its mind adequately to the documents before issuing the detention order. The affidavit in reply filed by the detaining authority and the sponsoring authority was found to be chaotic, confusing, and reflecting non-application of mind. The court noted that the documents were forwarded to the detaining authority even on 7th December 2017, the same day the detention order was issued, indicating a casual and cavalier approach.

The court referred to the Supreme Court's observation in Umesh Chandra Verma that the detaining authority could not have possibly applied its mind to the voluminous documentary evidence placed before it. The court distinguished the present case from other cases cited by the respondent, noting that the affidavit in reply in the present case was vague and did not assert that the grounds were formulated contemporaneously upon considering all materials.

The court emphasized that the powers of preventive detention must be cautiously exercised and that the fundamental freedoms guaranteed under the Constitution cannot be undermined by a casual approach. The court concluded that the detention order suffered from non-application of mind and was required to be set aside.

Conclusion:
The petition was allowed, and the detention order dated 7th December 2017 was quashed and set aside. The detenu was directed to be released forthwith if not required in any other case. The court did not consider other grounds of challenge due to the finding of non-application of mind.

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