2022 (5) TMI 89 - HC - Customs

Smuggling - detention of detenues - non-supply of certain RUDs (relied upon documents) and the supply of illegible RUDs - non-application of mind or not - retraction of statements - HELD THAT - As the RUDs; supplied to the Detenus as well as relied upon by the Detaining Authority, in arriving at its subjective satisfaction were admittedly illegible; it has the unnerving consequence of violating the constitutional rights guaranteed to the Detenus. There are considerable gap of time between the retraction of their statements by the detenus and co-detenus, and the rebuttal thereof by the DRI. This belated rebuttal on the part of the official respondents was relevant and germane and therefore, merited consideration by the Detaining Authority, particularly when extensive reliance was evidently placed upon those statements. The Detaining Authority would also have been well-advised to consider the aspect of admissibility of the statements, which stood retracted; and were only belatedly rebutted by the Sponsoring Authority, two days before the passing of the impugned orders of detention. Once the Detaining Authority has relied upon the inculpative statements of the co-accused their retractions assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes dubious once there is a retraction, which issue merited consideration, was evidently not afforded to it by the Detaining Authority. The legal position is that, if the documents are relevant and have a direct bearing on the case, they must be placed before the Detaining Authority for its subjective satisfaction . It is trite to say that when a person is detained in pursuance to an order of preventive detention, the statutory authorities are constitutionally charged with the responsibility of ensuring that the grounds of detention, including legible copies of all RUDs and other relevant documents that are considered whilst forming the subjective satisfaction, are provided to the detenu by the Detaining Authority; so as to enable the detenu to make an effective representation to the Advisory Board, as well as to the Detaining Authority. Therefore, the failure and non-supply of legible copies of all RUDs despite of a request and representation made by the Detenus for the supply of the same, renders the order of detention illegal and bad in law; and vitiates the subjective satisfaction arrived at by the Detaining Authority. Thus, it is concluded that the Detaining Authority gravely erred in relying upon illegible documents which is equivalent to non-placement of RUDs by the act of omitting them from due consideration which consequently vitiates the subjective satisfaction arrived at by the detaining authority. Resultantly, the impugned detention order stands invalidated. Whether the argument premised on Section 5A of the COFEPOSA Act by the official Respondents has the effect of saving the detention order? - HELD THAT - It is settled law and not in dispute that under section 3 of COFEPOSA it is only the detaining authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after himself perusing each and every document and material placed before it. It is also not in dispute that the subjective satisfaction of the detaining authority itself is to be arrived at after perusing all the relevant documents and material. This is a constitutionally provided condition precedent for passing a valid order of Detention - there are considerable force in the contention that had the Detaining Authority himself perused the RUDs for arriving at its subjective satisfaction and formulation of grounds, it would have been alive to the fact that various RUDs placed before it were illegible. Thus, in cases where orders of detention fail on the ground that the subjective satisfaction of the Detaining Authority is vitiated owing to non-application of mind; the protection afforded qua severability of grounds stipulated under the provision of 5A of the COFEPOSA Act, are neither attracted nor available, in law. Petition allowed - decided in favour of the detenus and against the respondents.

Summary

Issues Involved:
1. Non-supply of certain Relied Upon Documents (RUDs) and supply of illegible RUDs.
2. Subjective satisfaction of the Detaining Authority.
3. Application of Section 5A of the COFEPOSA Act.

Detailed Analysis:

Issue 1: Non-supply of certain RUDs and supply of illegible RUDs
The court observed that several RUDs, both supplied to the detenus and on record with the Detaining Authority, were illegible. This non-supply of legible copies of RUDs violated the constitutional rights of the detenus. The court cited previous judgments, including *Mohd. Nashruddin v. Union of India & Ors.*, which emphasized that the failure to provide legible copies of relevant documents renders the detention order illegal and vitiates the subjective satisfaction of the Detaining Authority. The court also referenced *Mrs. Tsering Dolkar vs. Administrator, Union Territory Of Delhi & Others*, which held that the test is not one of prejudice but one of strict compliance with the provisions of the Act.

Issue 2: Subjective satisfaction of the Detaining Authority
The court found that the Detaining Authority had relied extensively on the statements of the detenus and co-detenus, which were retracted. The retractions were not adequately considered by the Detaining Authority, and the rebuttals by the Department of Revenue were only provided two days before the detention orders were passed. The court highlighted that the subjective satisfaction of the Detaining Authority was vitiated due to the reliance on illegible documents and the failure to consider the retractions. The court cited *A Sowkath Ali vs. Union of India & Others* and *P. Sarvanan vs. State of T.N. and Others*, which emphasized the importance of placing all relevant documents before the Detaining Authority.

Issue 3: Application of Section 5A of the COFEPOSA Act
The court rejected the argument that Section 5A, which deals with the severability of grounds, could save the detention order. The court noted that the grounds of detention were not severable in this case due to the non-application of mind by the Detaining Authority. The court referenced *Praduman Singh v. Union of India & Ors.*, which held that if the condition precedent for issuing a detention order is not satisfied, the order cannot be saved by Section 5A. The court concluded that the subjective satisfaction of the Detaining Authority was vitiated, making the detention orders invalid.

Conclusion:
The court allowed the writ petitions, quashing the detention orders and directing the immediate release of the detenus unless required in connection with any other case. The court emphasized the importance of providing legible copies of all relevant documents to ensure the detenus can make an effective representation, thereby upholding their constitutional rights.