2021 (10) TMI 545 - HC - Customs

Detention of detenue - Smuggling of goods/abetting the smuggling of goods - seizure of gold weighing 30244.90 grams - presence of evidences or not - non-application of mind - HELD THAT - Having gone through Ext.P9 order, in a case about which the detaining authority was fully aware that the non-placing and non-consideration of the same assumes significance. The order was passed on 10-082021, whereas the order of detention in the instant case is almost two months later on 9-10-2020. We cannot but hold that Ext. P9 was vital and relevant material, that had a bearing on the question to detain or not, and non-consideration of the said material vitiates the detention for non-application of mind. What weight Ext.P9 would carry if it was within the knowledge of the detaining authority is altogether a different matter. It is not disputed that Ext. P9 was not placed before and considered by the detaining authority. The detention order will be vitiated on the ground of non-application of mind if a piece of evidence that is relevant, though not binding, had not been considered at all. If a fact or material that might reasonably have affected the decision, whether or not to pass an order of detention, is excluded from consideration, there would be a failure of application of mind which would, in turn, invalidate the detention order. Though we are conscious of the fact that the period of detention would come to an end in a couple of days, since it is our constitutionally entrusted duty to safeguard the rule of law, more so, in a matter involving personal liberty which is sacrosanct and protected under Article 21 of the Constitution of India, we have no choice but to hold the detention to be bad in the eye of law. The order of detention impugned is quashed - Petition allowed.

Issues Involved:
1. Non-supply of documents to the detenues.
2. Suppression of material facts by the Sponsoring Authority.
3. Subjective satisfaction of the Detaining Authority.
4. Validity of detention orders when detenues are already in judicial custody.
5. Delay in considering representations and refusal for temporary release due to the pandemic.

Detailed Analysis:

1. Non-supply of Documents to the Detenues:
The petitioners argued that the non-supply of documents related to cases registered by the National Investigating Agency (NIA) and the Enforcement Directorate (ED) prevented them from making an effective representation, violating Article 22(5) of the Constitution. The court, however, held that only those documents relied upon by the Detaining Authority need to be furnished. Documents merely referenced but not forming the basis of the detention order do not need to be supplied. Therefore, the court rejected the contention of non-supply of documents affecting the detenues' ability to make a representation.

2. Suppression of Material Facts by the Sponsoring Authority:
The petitioners contended that there was suppression of material facts by the Sponsoring Authority, impairing the subjective satisfaction of the Detaining Authority. The court distinguished the present case from others by noting that the cases registered against the detenues were independent and under different enactments. It concluded that there was no suppression of materials by the Sponsoring Authority that would vitiate the subjective satisfaction of the Detaining Authority.

3. Subjective Satisfaction of the Detaining Authority:
The petitioners argued that the subjective satisfaction to invoke COFEPOSA was not genuine as there were no compelling reasons for detention since the detenues were already in judicial custody. The court held that the Detaining Authority was aware of the judicial custody and had noted the likelihood of the detenues being released on bail and continuing their prejudicial activities. The court emphasized that subjective satisfaction is not to be tested for adequacy by the court and rejected the contention that the detention orders were based on mere ipse dixit.

4. Validity of Detention Orders When Detenues Are Already in Judicial Custody:
The court noted that the Detaining Authority was aware of the judicial custody and had compelling reasons to believe that the detenues would continue their activities if released on bail. The court found that the possibility of bail could not be ruled out and upheld the Detaining Authority's conclusion. The court dismissed the argument that the detention orders were invalid because the detenues had not applied for bail in certain cases.

5. Delay in Considering Representations and Refusal for Temporary Release Due to the Pandemic:
The court found that the representations were duly considered and rejected by the appropriate authorities. Regarding the refusal for temporary release due to the pandemic, the court did not find it sufficient to invalidate the detention orders.

Separate Judgments:
- W.P. (Crl.) 102 of 2021: The court dismissed the petition, finding no grounds for interference with the detention order.
- W.P. (Crl.) 152 of 2021: The court allowed the petition, quashing the detention order due to the non-consideration of a vital bail rejection order by the Special Court for NIA cases, which was not placed before the Detaining Authority. The court ordered the immediate release of the detenue unless held under another lawful order.

Conclusion:
The court upheld one detention order while quashing another based on the specific facts and circumstances of each case, emphasizing the importance of procedural safeguards and the subjective satisfaction of the Detaining Authority.

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