2022 (11) TMI 221 - HC - Customs

Validity of detention order - supply of illegible RUDs - subjective satisfaction of the detaining authority is vitiated or not - whether the present detenu is similarly placed as the detenus in the Zakir 2022 (5) TMI 89 - DELHI HIGH COURT case so as to attract the ground of parity? - HELD THAT - In view of the admitted position by the official respondents and the above extracted decision of this court, the RUDs supplied to the detenu, as well as, relied upon by the Detaining Authority in arriving at its subjective satisfaction were admittedly illegible, therefore, grossly violating the constitutional right of making an effective representation, guaranteed to the detenu under Articles 14,21 and 22(5) of the Constitution of India. 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 detenu 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. It is well settled and not in dispute that under the provisions of 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 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 produced - It is also an admitted position that many of the RUDs placed before the detaining authority were illegible/dim/blank pages. There are considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its subjective satisfaction and formulation of grounds, it would have been alive to the fact that many of the RUDs placed before it were wholly illegible. Whether the detenu in the present case is similarly placed with the detenu in the case of Zakir 2022 (5) TMI 89 - DELHI HIGH COURT ? - HELD THAT - In view of the admitted position by the sponsoring authority, as well as, the detaining authority, we find force in the argument that the present detenu is similarly placed as the detenus in the case of Zakir and would consequently, attract the ground of parity. Petition allowed.

Summary

Issues Involved:
1. Whether the supply of illegible Relied Upon Documents (RUDs) vitiates the subjective satisfaction of the detaining authority, thereby rendering the detention order invalid.
2. Whether Section 5A of the COFEPOSA Act can save the detention order from invalidation if the first issue is answered affirmatively.
3. Whether the present detenu is similarly placed as the detenus in the Zakir Khan case, thereby attracting the ground of parity.

Issue-wise Detailed Analysis:

Issue 1: Whether the supply of illegible RUDs vitiates the subjective satisfaction of the detaining authority, thereby rendering the detention order invalid.

The court observed that the detenu was supplied with illegible RUDs, which were also relied upon by the detaining authority. This non-supply of legible copies of vital documents infringed upon the detenu's constitutional right to make an effective representation, as guaranteed under Articles 14, 21, and 22(5) of the Constitution of India. The court referenced several precedents, including *Mohd. Nashruddin v. Union of India* and *Dharmistha Bhagat v. State of Karnataka*, to emphasize that the non-supply of legible documents renders the detention order illegal and vitiates the subjective satisfaction of the detaining authority. The court concluded that the illegibility of the RUDs amounted to non-placement of vital facts before the detaining authority, thereby vitiating its subjective satisfaction due to non-application of mind.

Issue 2: Whether Section 5A of the COFEPOSA Act can save the detention order from invalidation if the first issue is answered affirmatively.

The court held that Section 5A of the COFEPOSA Act, which allows for the severability of grounds in a detention order, does not apply in cases where the subjective satisfaction of the detaining authority is vitiated due to non-application of mind. Since the detaining authority's subjective satisfaction was based on illegible RUDs, the protection afforded by Section 5A was neither attracted nor available. The court emphasized that the decision-making process of the detaining authority must involve a careful perusal of all relevant documents, which was not possible in this case due to the illegibility of the RUDs.

Issue 3: Whether the present detenu is similarly placed as the detenus in the Zakir Khan case, thereby attracting the ground of parity.

The court noted that the present case arose from the same investigation as the Zakir Khan case, and the RUDs supplied to the detenu were the same as those supplied in the Zakir Khan case. The detenu was implicated due to his alleged involvement in the same smuggling activities as Zakir Khan and Sanjeev Kumar Yadav. Given that the court had previously quashed the detention orders in the Zakir Khan case due to the illegibility of the RUDs, the present detenu was similarly placed and deserved the same relief on the ground of parity.

Conclusion:

The court quashed the detention order dated 28.12.2021 against the detenu, holding that the supply of illegible RUDs vitiated the subjective satisfaction of the detaining authority, rendering the detention order invalid. The court also held that Section 5A of the COFEPOSA Act could not save the detention order in this case and that the detenu was similarly placed as the detenus in the Zakir Khan case, thereby attracting the ground of parity. The detenu was ordered to be set at liberty forthwith unless required in connection with any other case.