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TMI Blog2000 (8) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... i) of the ground of detention which we have already quoted hereinbefore. Thus, on the facts of this case section 5A has no application in the present case. - WRIT PETITION NO. 45 OF 2000 - - - Dated:- 1-8-2000 - A.P. MISRA AND N. SANTOSH HEGDE, JJ. B. Kumar, T.L.V. Iyer, R. Mohan K.K. Mani, Hemant Sharma, P. Parmeswaran, V.G. Pragasam for the Appearing Parties. JUDGMENT Misra, J. The petitioner-detenu challenges the detention order dated 23-12-1999 passed by the State of Tamil Nadu under section 3(1)( i ) and ( ii ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( COFEPOSA ). The challenge is based on number of grounds though the learned counsel for the petitioner confined his submissions mainly on one ground which we shall be referring later. 2. The short facts are, the Customs Officers of Directorate of Revenue Intelligence on 2-6-1999 intercepted two passengers by name N. Prabhakaran and Mohd. Ibrahim Abbas at Anna International Air Port, Chennai as they were about to board a flight to Singapore. On a search of both the persons foreign currencies and travelling cheques of large amount were recovered from both of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case was taken up earlier, in reply to this stand taken by the petitioner in ground No. 9(2) a reply was made by the respondent No. 1 (Central Government) in para 3(2) of its counter affidavit which averred the following : "(2) Para 9(2) : With regard to the contentions in this para, it is submitted that there has not any suppression of material before the Detaining Authority as alleged. The retractions made by Prabhakaran and Mohammed Ibrahim Abbas in their bail applications were placed before the detaining authority and orders of detention were passed against them on 19-7-1999. The bail petitions dated 27-11-1999 and retraction dated 30-11-1999 of the detenu were also placed before the detaining authority. Therefore the allegation that materials have been suppressed and not placed before the Detaining Authority is incorrect. Hence the satisfaction is not vitiated." Since this reply was vague, this Court on 2-5-2000 directed the Central Government to file a short affidavit clarifying, whether the retraction statements made by both the co-detenu, at the time of passing of the detention order against the present detenu, were placed or not by the sponsoring authority before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the detaining authority, which in this case was an application of the co-accused and his statement made in the bail application alleging his false implication was not placed before the detaining authority. It is held that the order of detention is invalid and illegal. This Court approved the following finding recorded by the High Court to the same effect : ". . . The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decisions of this Court in the case of Asha Devi v. K. Shivraj and S. Gurdip Singh v. Union of India. " 7. In M. Ahamedkutty v. Union of India [1990] (2) SCC 1, this Court was considering the detention of a detenu also under the COFEPOSA Act, 1974. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision." (p. 485) 10. The learned senior counsel for the State Mr. R. Mohan submits, all the relevant materials were placed before the detaining authority but mere non-placement of the retractions of the said two co-accused would not have any effect on the validity of the detention order. This is because since the detaining authority both for the petitioner and the said two co-accused being the same and while passing the detention order against the said two co-accused, the said retractions were placed before him thus he was aware of the same. Thus, it is submitted its non-placement would not prejudice the subjective satisfaction of the detaining authority. Secondly notwithstanding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case, the fact are different. In the counter affidavit it is clearly stated that the bail application and the order refusing bail were not there before the sponsoring authority. Therefore, they were not placed before the detaining authority. The grounds do not disclose that the detaining authority had relied already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail. This itself shows that these documents were not before the authority. Therefore it cannot be said that the documents referred to and relied upon in the grounds were not supplied to the detenu. . . .It is not necessary to refer to in detail various decisions of this Court wherein it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied. . . . It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under article 22(5) of the Constitution. We may of course add that whether it has also formed the material for arriving at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, affects the subjective satisfaction of the detaining authority. The non-supply of any relevant documents to the detenu effects his right to make his representation hence is violative of article 22(5) of the Constitution of India. But for the present, we are in this case considering a stage earlier, i.e., what should and what should not be placed before the sponsoring authority and consequentially on the facts of the present case the non-placement of the retraction does or does it not effect the subjective satisfaction of the detaining authority. Hence, the said two decisions, on the facts of this case under consideration are not relevant. 15. Next reliance is in the case of Rajappa Neelakantan v. State of T.N. [2000] (2) SCALE 642. This case refers to the non-placement of a document which was relevant in the proceeding of another detenu. In that case what was not placed was the records of the proceedings of the co-detenu who was the co-traveller. The submission was, had those records being placed, the detaining authority would have come to a different conclusion. The Court held : "We cannot appreciate the said contention for two reasons. First is that the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only there is reference of the two co-accused persons but the confessional statements of both the said two co-accused were exhaustively recorded in the grounds of detention. We are quoting hereunder the part of the confessional statement made by both of the said two co-accused which formed part of the grounds of detention which reveals for itself, whether it was referred casually or as a narration of fact. The confessional statement as recorded of one of the co-accused Thiru Prabakaran is : "Thiru Prabakaran in his voluntary statement dated 3-6-1999 inter alia stated that during the course of his job at Selection Air Travels, Chennai he came into contact with Thiru Saravanan; that Thiru Saravanan used to send persons often to Singapore and at times he himself used to visit Singapore; that about back Thiru Saravanan enquired whether he could go to Singapore and whether he was habituated in taking capsules; that on enquiry by him Thiru Saravanan informed that foreign currency would be made into small capsule form and covered with condom which he had to be taken to Singapore by swallowing the same and handed over to the person named by Thiru Saravanan and for which Thiru Saravana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ig Fanta bottles and capsules containing foreign currency and taught him to swallow the said capsules; that as he was hesitant, Thiru Saravanan encouraged him saying that as he was well built, he could swallow the capsules; that Thiru Saravanan also informed that Thiru Prabakaran of Kurinji Travels also was to go with him and asked him to give 50 capsules to Thiru Prabakaran for him to swallow; that Thiru Saravanan also further informed him that he was having a pair of chappals and asked him to give them to Thiru Prabakaran and ask him to wear; that Thiru Saravanan asked him to immediately fetch Thiru Prabakaran in an auto, swallow the capsules and reach the airport in time and gave money for expenses, that Thiru Saravanan also informed him that at Singapore Airport a person would identity both of them by their pants and shirts and to whom both of them have to hand over the capsules and the chappals containing foreign currency; that the officers showed him a photo album saying that the said album belong to the family of Smt. Renuka of Triplicane and that he identified Thiru P. Saravanan in two of the photographs and signed on them and informed that he did not know Thiru Saravanan s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion also. As held in Rajappa Neelakantan s case ( supra ), the placement of document of other co-accused may prejudices the case of the petitioner. In the first place the same should not have been placed, but if placed, the confessional statement and the retraction, both constituting a composite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of re-producing the details of the confessional statement of another co-accused in the present case ? If the sponsoring authority would not have placed this then possibly no legal grievance could have been made by the detenu. But once the sponsoring authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on his own opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention; ( b )the Government or officers making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds." 22. This stipulates when detention order is based on two or more grounds then such order of detention shall be deemed to have been made separately. Thus such detention order shall not be deemed to be invalid on the ground that one of such grounds is vague, non-existent, not relevant or not proximately connected. 23. Reliance is placed on Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala 1985 (Suppl.) SCC 144. This was a case where retraction of confession made by the detenue not referred to in the grounds of detention. This court in view of section 5A held that detention order should not vitiate on the ground of non-application of mind if subjective satisfaction arrived at on the basis of other independent objective factors enumerated in the grounds. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President, Land Acquisition Tribunal (2) SCC 625 (P. 633). This Court held : "Mr. Dalveer Bhandari relying on section 5A of the Act urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extraneous materials were placed before the detaining authority since those alleged extraneous materials have no bearing on the validity of this impugned order which can be sustained on the material set out in the grounds of detention itself. Placing reliance on decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala [1985] Suppl. SCC 144 wherein it has been observed that the grounds under Article 22(5) of the Constitution do not mean mere factual inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenue from acting in any manner prejudicial to the maintenance of public order. We are unable to see any force in the above submission. What section 5A provides is that where there are two or more grounds covering various a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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