2018 (7) TMI 455 - 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. Whether the detaining authority applied its mind to the documents before issuing the detention order.
3. The adequacy of time for the detaining authority to peruse the documents.
4. Whether the documents were considered in a piecemeal manner.
5. The grounds of challenge raised by the petitioner.

Detailed Analysis:

1. Validity of the Detention Order under Article 226 of the Constitution of India:
The petition was filed by the wife of the detenu 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 of detention indicated that the detenu was involved in regularly smuggling gold into India, contravening the Customs Act, 1962, and the COFEPOSA Act, 1974.

2. Whether the Detaining Authority Applied Its Mind to the Documents Before Issuing the Detention Order:
The petitioner argued that the detaining authority did not apply its mind to the documents before issuing the detention order. The petitioner highlighted that the documents, running into 687 pages, were received by the detaining authority in a short span of time, making it impossible for the authority to peruse and formulate the grounds of detention adequately. The detaining authority was accused of adopting the draft grounds verbatim, reflecting a non-application of mind.

3. The Adequacy of Time for the Detaining Authority to Peruse the Documents:
The petitioner contended that the detaining authority could not have perused the 687 pages of documents within the short time frame between receiving the last documents on 4th December 2017 and issuing the detention order on 7th December 2017. The petitioner argued that it was not feasible for the detaining authority to scan and peruse the documents and formulate the grounds of detention in such a short period.

4. Whether the Documents Were Considered in a Piecemeal Manner:
The petitioner argued that the documents were considered in a piecemeal manner, which is not permissible. The detaining authority was required to consider all the documents together and not in parts. The petitioner emphasized that the detaining authority should disclose whether the grounds of detention were reformulated after receiving additional documents.

5. The Grounds of Challenge Raised by the Petitioner:
The petitioner relied on several judicial decisions to support the contention that the detention order should be set aside due to non-application of mind and the piecemeal consideration of documents. The petitioner cited the Supreme Court's decision in Umeshchandra Verma Vs. Union of India and other relevant cases to argue that the detaining authority could not have applied its mind to the voluminous documents in the short time available.

Respondent's Arguments:
The respondent countered that the detaining authority had duly considered the documents and issued the detention order after arriving at a subjective satisfaction. The respondent argued that the detaining authority had sufficient time to peruse the documents and that the order did not suffer from non-application of mind. The respondent also relied on judicial decisions to support the validity of the detention order.

Court's Findings:
The court found that the detaining authority did not provide a clear explanation regarding the dates on which the documents were received and considered. The court noted contradictions in the affidavits filed by the detaining authority and the sponsoring authority, which created confusion and indicated non-application of mind. The court observed that the detaining authority received documents even on the date of issuing the detention order, which further compounded the issue of non-application of mind.

The court referred to the Supreme Court's decision in Umesh Chandra Verma, which held that the detaining authority could not have possibly applied its mind to the voluminous documents in a short period. The court distinguished the present case from other cases cited by the respondents, noting that the affidavits in the present case were vague and did not assert that the grounds were formulated contemporaneously.

Conclusion:
The court concluded that the detention order suffered from non-application of mind and was issued in a casual and cavalier manner. The court set aside the detention order and directed the immediate release of the detenu. The court did not consider other grounds of challenge raised by the petitioner, as the primary ground of non-application of mind was sufficient to quash the detention order.

Judgment:
The petition was allowed, and the detention order was quashed and set aside. The detenu was ordered to be released forthwith, if not required in any other case. The writ petition was disposed of accordingly.

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