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TMI Blog2016 (6) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... nt facts which have given rise to the filing of the present writ petition. 4. As per the petition, during July 1993 detenue joined the Indian Navy as a Sailor and got promoted at various sensitive and important posts during the service and finally he retired as a Petty Officer in the year 2008. During his service there had been no adverse remarks and he received various certificates of his high performance. Thereafter, on 29.10.2008, detenue soon after his retirement from Indian Navy was selected and he joined Intelligence Bureau (IB). 5. As per the petition, the detenue was subsequently posted to Goa Airport as Assistant Central Intelligence Officer (ACIO-II) in the immigration department under the supervision of Intelligence Bureau. Further, detenue got promoted to the post of ACIO-I in the month of June, 2014. 6. On 07.07.2014 while the detenue was on duty as Wing In-charge in the immigration department, it was reported that an incident of arrest of four persons had taken place on the allegation of smuggling of gold by the Customs Department. Out of four persons, three of them were passengers of Flight No.QR522 of Qutar Airways which arrived from Doha and one person was worki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection with the alleged incident of gold smuggling on 7.7.2014 at Goa Airport. The allegations made against the detenue in the show cause notice were that there had been exchange of phone calls between the detenue and one Sh. Javed Mohammad Sheikh who is Assistant Manager of Minar Travels, Goa during the alleged date of incident. The said Minar Travels used to arrange travel facilities like VISA, Tickets, intimation about arrival and departure timings helped in immigration services to their clients being passengers of the chartered flights. Airport entry pass to all the sections had been issued by the competent airport authority to said Javed Mohammad Sheikh for rendering the aforesaid services. Due to the nature of his job Sh. Javed became familiar and friendly with the officials of the airport and used to exchange calls with the officials of the airport. On 7.7.2014 there had been exchange of mobile calls between said Javed and the detenue who was on duty as I.B. officer at the said airport at Goa when the incident of smuggling of gold took place by three passengers who arrived by flight no QR522 from Doha. Though the said exchange of calls between detenue and Sh. Javed was in fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the petitioner that the detaining authority had filed a detailed counter affidavit in the above writ petition. The High Court of Kerala dismissed the above writ petition with the observation that the appropriate stage to file the writ petition was after surrendering. 15. After the dismissal of the WP (Crl).400/2015, the detenue challenged the above order by way of filing a Special Leave Petition before the Supreme Court of India as SLP 10372/2015 and the Supreme Court of India dismissed the above SLP upholding the order in the writ petition filed before the High Court of Kerala. Thereafter, the detenue surrendered before the Goa police, at Vasco-police station, Vasco Goa on 28.12.2015. 16. The detenue is presently detained in Sub Jail, Sada, Goa since 28.12.2015. On 29.12.2015 the officials of the sponsoring authority (Superindendent of Customs) had served the ground of detention and relied upon documents to the detenue. At the time of acknowledging the relied upon documents, the detenue had submitted a written representation, stating that some of the relied upon documents are not legible and also requested the sponsoring authority that, the detenue may be provided with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3 in forwarding the communication and representation of the detenue amounts to violation of the Fundamental Right of the detenue? 18. Mr. Jain submits that the present detention order has been passed in gross violations of the guidelines issued by the detaining authority in matters of preventive detention. Mr. Jain further submits that there has been no subjective satisfaction by the detaining authority and the detention order has been passed for illegal and unlawful purposes. Counsel submits that the detenue was transferred on 28.11.2014 to SIB, Bhubaneswar, Orissa and by a subsequent order dated 10.12.2014, the detenue was relieved from his post at the Airport w.e.f. 15.12.2014. This transfer order was passed on the basis of a request sent by the sponsoring authority. Counsel has also contended that that there has been a long and ordinary delay in passing the impugned detention order. It is contended that the basic principle of passing the detention order is to nab the concerned person and break the live link of the detenue detained with the illegal activities and to prevent him from indulging in illegal activities from the date of the incident. Mr. Jain contends that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is a serious lapse on the part of the sponsoring authority in not placing the relevant records/documents before the detaining authority. It is submitted that the Supreme Court in the case of Ashadevi wife of Copal Ghermal Mehta (Detenu) v. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat and Anr., reported at [1979] 1 SCC 222 held that "If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal." 22. Mr. Jain submits that the sponsoring authority did not place before the sponsoring authority the communications by which the detenue stood transferred to SIB, Bhubaneswar, Orissa. 23. Mr. Jain submits that the sponsoring authority has miserably failed to produce the above said letters before the detaining authority. If the same were placed before the detaining authority the detaining authority might have been influenced by the said letters and the outcome of the proposal so placed before the detaining author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority were fully aware of the whereabouts of the detenu but admittedly no efforts were made to send the detention order at Bhuwaneshwar for its execution. No efforts were made to ensure execution of the detention order therefore the live link from the date of incident is snapped and renders the detention order invalid. It is also pointed out that the detention order was not executed till the surrendering of the detenu on 28.12.2015. The above long and unexplained delay in executing the above detention order vitiates the order and the purpose of passing the detention order itself was vitiated, by the inordinate delay in execution of the detention order. Therefore, the subjective satisfaction is invalid. 28. Mr. Jain points out that as per Annexure 23, the detention order was passed on 31.03.2015 and the master copy thereof reached the sponsoring authority on 02.04.2015 itself. Thereafter the sponsoring authority sent all the documents for execution to the executing authority on 05.05.2015, i.e., after more than one month of the passing of the detention order. That the above act of the sponsoring authority shows the lack of seriousness and the casual approach on the part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liaisoning with the Executing authority i.e. the officers working under the Director General of Police, Govt. of Goa, which is also duly manifested in the following office records: - 9. 01.06.2015 It has been recorded vide file noting dated 01.06.2015; 1) The ASI Crime Branch has contacted the undersigned asking for the present address as well as place of posting of Shri Gireesh Advalalath Meethal, then Immigration Inspector. 2) I contacted the office of the Chief Immigration Officer to get these details, who after two days or persuasion gave me a phone No. 06742391671 said to be pertaining to the Estt. Section SIB, Bhubaneshwar Orissa. On contacted, they refused to divulge these particulars unless a formal request is made, they did not even share their office address. 3) In view of above, a letter to Commissioner (Immigration) New Delhi is placed opposite for signatures please. 10. 01.06.2015 Joint Commissioner of Customs Goa has sent a letter to the "The Commissioner (Immigration) East Block VIII, Level-5, Sector-I R. K. Puram, New Delhi" informing that : - 1) Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Goa, Panaji within 7 days of the publication of this order in the Official Gazette. The said order has been published in the official gazette on 30.06.2015. 15. 03.07.2015 Customs Department at Goa received a letter No.7/C-4/2015(278)-3537 dated 25.06.2015 from the Assistant Director Intelligence Bureau (Ministry of Home Affairs) Government of India communicating the present (of Bhubaneshwar) and permanent residential address (of Kerala) of the said PD, but his office address was still not communicated. 16. 07.07.2015 The 4th and 5th being Saturday and Sunday the said addresses were communicated to the Goa Police vide this office letter of even Number dated 07.07.2015. 17. 13.07.2015 In pursuance of the said order dated 29.06.2015, the said notice has been published in following newspapers : 1) The Navhind Times Goa edition (English) dated 13.07.2015 2) The Times of India Goa edition (English) dated 13.07.2015 3) The Times of India Calicut, Kerala edition (English) dated 13.07.2015 4) The Nav Bharat Times, Bhubaneshwar, Odissa edition (English) dated 13.07.2015 31. Relying on the aforesaid chart wherein date wise explanation has been given, learned counsel for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertained by detaining authority as regards the likelihood of future activities of the petitioner being prejudicial under the COFEPOSA Act were neither real nor genuine and therefore the impugned order is nothing but a punitive. This inordinate delay and unreasonable delay in executing the detention order has vitiated the subjective satisfaction of the detaining authority. 5. ...... 6. The Detaining Authority vide its supplementary affidavit has corrected the mistake in its earlier affidavit to the effect that the petitioner might have appeared in different case. It is now admitted position that the petitioner appeared before the Metropolitan Magistrate in the very same case arising out of his arrest pursuant to the action initiated by the Enforcement Directorate, Chennai on 17.3.1998/18.3.1998. In view of the above averments and the reply thereto filed on behalf of the Detaining Authority the question that falls for our consideration in this Writ Petition is as to whether the subjective satisfaction of the detaining authority is vitiated by reason of inaction on its part to execute the detaining order after a lapse of period of 40 days. 7. ..... 8. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 14.3.1996. The petitioner came to be detained on 7.8.1997. The contention raised by Mr. Mani is that there was undue delay in execution of the order and that clearly indicates that there was no genuine satisfaction on the part of the detaining authority regarding the necessity of immediate detention of the petitioner in order to prevent him from committing and continuing to commit the prejudicial activity alleged against him. In reply to this contention raised by the petitioner what the detention order could not be executed immediately as the petitioner was absconding. ..... No material has been produced on the basis of which it can b said that the police authorities had made reasonable efforts to locate the petitioner and apprehended him and yet they were not successful in finding hin out. There is also no material to show that the detaining authority had made any serious attempts during this whole period of delay to find out if the detention order was executed or not. Thus, the delay in execution of the detention order remains unexplained. The reasonable delay in executing the order creates a serious doubt regarding the genuiness of the detaining authority as regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of detention. Mr. Justice Bhagwati, as the learned Chief Justice then was, speaking for the Court observed at page 595 of the report that it will be reasonable to assume that if the Distt. Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after invoking of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. It is, however, not the law that whenever there is some delay in arresting the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. In this case, from the facts and the circumstances set out hereinbefore we find no reasonable or acceptable explanation for the delay. In a situation of communal tension prompt action is imperative. It is, therefore, not possible for this Court to be satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. Applying the law laid down to the facts of the present case, it may be kept in mind that the petitioner at the time of the incident was posted at Goa Airport as Assistant Central Intelligence Officer(ACIO-I) in the Immigration Department under the supervision of Intelligence Bureau. On 07.07.2014, he was on duty as Wing In-charge in the Immigration Department. It is also not in dispute and as per the Annexure-23, the sponsoring authority sent two communications both dated 23.12.2014 to Director, Dabolim Airport and also to Commissioner (Immigration), New Delhi respectively wherein the Airport Authorities were instructed not to permit the detenu to enetr the Dabolim Airport. In the second letter of even date the Commissioner (Immigration) was requested to immediately remove the detenu from his duties at the Airport. Thereafter, as per records it is quite evident from Annexure-15 that the sponsoring authority was intimated on 09.01.2015 by the Immigration Department that the detenu has been transferred to SIB Bhubaneswar by a written communication. 39. The fact that the respondents were aware that the detenue stood transferred to SIB, Bhubaneswar is also evident from para 25 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the detention order issued against the detenue (Gireesh A.M.) had been forwarded to the District Police Chief, Kozikhode (Rural), Vatakara, Kerala, on 20.6.2015 with the request to take necessary action at their end as per the order. 45. It may be noted that this exercise was futile and an eye wash as even in the record of the detaining authority the detenue stood transferred to Bhubaneswar and all steps taken to serve this detention order to the detenue at a place where he was not posted shows complete nonapplication of mind. Knowing fully well that he was working for gain at Bhubaneswar and sending any communication at the address at Kerala was a mere formality and a futile exercise. 46. The law in this regard is well-settled. After the passing of the detention order, the detaining authority must ensure that the order of detention is served upon the detenue at the earliest opportunity available unless and until respondents are able to give a satisfactory explanation for the reasons of non-execution of the detention order. 47. In this case, although an explanation is sought to be given but the explanation cannot be accepted as firstly the detenue is a Government servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for respondents no.1 and 2, submits that this ground urged by the petitioner is not available to the petitioner as at the time when his statement was recorded under Section 108 of the Customs Act, the CCTV footage was shown to the detenue, which stands duly acknowledged by him in the statements and he did not dispute either the authenticity of the CCTV footage or his presence at the place where the CCTV footage was being shot. Mr.Ahluwalia further submits that the petitioner has failed to show any prejudice having been caused to him and also that CDs were provided to him along with the show cause notice at the pre-detention stage and, thus, the petitioner was well aware about the contents of the CCTV footage. 52. Mr.Ahluwalia submits that reference was made to the Advisory Board on 21.01.2015 and simultaneously a representation was made by the detenue to the detaining authority, which had been sent to the Advisory Board in view of the judgment in the case of Golam Biswa v. Union of India (UOI) & Ors., [Crl.A.No.829/2015]. 53. Additionally, Mr.Ahluwalia has submitted that the detenue had made a representation of more than 100 pages, which apparently has been printed in the jail an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained, has to be harmoniously construed with the obligation cast on it to forward a pending representation to the Advisory Board as has been consistently held Jayanarayan Sukul (supra) and K.M. Abdulla Kunhi and B.L. Abdul Khader (supra)." 55. The submission of learned counsel for the respondents is without any force. In the absence of any evidence, this submission of the learned counsel for respondents no.1 and 2 cannot be entertained as there is no material placed before us to show that the detenue had access to any electronic device on which CDs could have been watched. 56. Moreover, Mr.Jain has pointed out that CD player was provided to a code tenue to enable him to watch the contents of the CDs but the codetenue had declined to accept such an offer. 57. It is a settled law when clause (5) of Article 22 and sub-section 3 of Section 3 of COFEPOSA Act provide that the grounds of detention should be communicated to the detenue within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenue. If there are any documents, statements or other material relied upon in the grounds of detention, they mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detaining authority while formulating the terms of detention and non-supply of each and every document does not provide a ground for setting aside the detention order. The detenue, therefore, has a right to be supplied with material documents, on which reliance is placed and not a document referred to in the order, which is not relied upon for forming the opinion or made the basis of passing of the detention order. In case an audio file is heard prior to the passing of the detention order by the detenue is not reason enough to supply the CD or the player to enable him to hear or know the same. The audio/video files are primary evidence and are documents as defined in Section 3 of the Evidence Act. 59. In the case of Icchu Devi Choriria v. Union of India & Ors., reported at (1980) 4 SCC 531, more particularly para 6, it was held as under: "6. We must therefore now proceed to examine whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub-section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue. Clause (5) of Article 22 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds restaurant, Kamla Nagar. (iii) The forensic experts have not confirmed that the detenue could be heard in the incriminating and inculpatory conversation in audio file 2. (iv) Voice samples of the detenue and Chandan Kumar Jain do not form part of the relied-upon documents. Without examining the voice samples, the detaining authority should not have passed the detention order. (v) Detenue has not been supplied the audio file/CD relied upon by the detaining authority. Inspite of written request of the detenue, the audio file has not been made available and played. (vi) The detention order is bad for the detaining authority's subjective satisfaction is vitiated and erroneous factually. Further, the detaining authority has failed to notice that violation of provisions of the Act i.e. the Customs Act, is a bailable offence. (vii) There has been violation of Section 3 of COFEPOSA and Article 22 (5) of the Constitution of India, as the respondents have failed to supply page nos. 102 to 111 and pages 158 to 279 of the relied-upon documents. Similarly, page No.83 and internal page Nos. 16 to 19 and 46 to 55 have not been supplied. ...... 16. On the second issue, we agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning authority for reaching the satisfaction have to be supplied. In J. Abdul Hakeem v. State of Tamil Nadu (2005) 7 SCC 70, the Supreme Court referred to several earlier judgments and has held that the detenue has a right to receive documents taken into consideration by the detaining authority while formulating the terms of detention and non-supply of each and every document does not provide a ground for setting aside the detention order. The detenue, therefore, has a right to be supplied with material documents, on which reliance is placed and not a document referred to in the order, which is not relied upon for forming the opinion or made the basis of passing of the detention order. The crux of the matter lies in whether the detenue's right in making the representation against the order of detention is hampered with. The last sentence, it is apparent to us, is the principle or test to be applied. The answer could vary from case to case, and accordingly, the final outcome. 18. The detenue, as apparent from the above, had asked for the audio recording of conversation allegedly between him and Chandan Kumar Jain, as he wanted to hear the said conversation for making effective rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order, the detaining authority, for formation of opinion, had heard the two files to reach and form her conclusion that the detenue was one of the two persons in the said conversation. It is submitted that the assertion that the audio file and voice sample were not the primary evidence is wrong and incorrect. The audio files should have been provided. 21. We have referred to the said contentions on behalf of the detenue only to highlight the submission made that failure to supply the audio file of the conversation, in the facts of the present case, would cause prejudice and mere supply of the free translation was not sufficient for making weighty and effective representation. We find merit in the said contention in the facts of the present case. The detenue should have been supplied the audio file No.2 in order to make an effective representation. This was possibly the most patent, crucial and decisive material and evidence against the detenue. He had the right to meet and challenge this evidence. That right and chance should not have been denied. This would be contrary to equity and law. The detenue has right to show and support his contention that there was tampering and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, care and guardedness has to be exercised to rule out possibility of any kind of tampering, alterations, etc. Standard of proof about its authenticity and accuracy has to be more stringent as compared to documentary evidence. In Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, (2010) 4 SCC 329, the Supreme Court while dealing with an election petition has referred to the following case law on the subject:- "24. In Yusufalli Esmail Nagree v. State of Maharashtra, this Court observed that since the tape-records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The court must be satisfied, beyond reasonable doubt that the record has not been tampered with. 25. In R. v. Maqsud Ali, it was said (QB p. 701 D-E) that it would be "wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded [are] properly identified.... Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of the Evidence Act. (5) The recorded cassette must be carefully sealed and kept in a safe or official custody (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances." The above said decision also refers to R.V. Stevenson (1971) 1 Al ER 678, wherein it has been observed:- "... Just as in the case of photographs in a criminal trial, the original unretouched negatives have to be retained in strict custody so in my view should original tape recordings. However one looks at it, whether, as counsel for the Crown argues, all the prosecution have to do on this issue is to establish a prima facie case, or whether, as counsel for the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473." (emphasis supplied) 26. We have referred to these decisions which relate to contempt, election, civil or criminal proceedings, for the reasons that they set out and explain the importance of voice identification and prudence and caution which has to be exercised when electronic recording is the substratum of a case or a finding. We are not suggesting that the same principles would apply and have to be followed when the detaining authorities pass an order of preventive detention. The standards and requirements are different and would vary according to the facts. However, these judgments lucidly bring out the importance of voice identification, source and authenticity of electronic evidence, even when free translation is relied upon. It is not a substitute and does not negate the significance and importance of the audio or video recording." 61. In the case of Smt.Dharmista Bhagat v. State of Karnataka And Anr., reported at 1989 (Supp) (2) SCC 155, more particularly in paras 5 to 7, it was held as under: "5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the non supply of legible copy of this vital document i.e. Panchnama dated February 12, 1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa Versus State of Maharashtra has observed that : (SCC p.710) "The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention, as has been held by this Court in the two cases cited by counsel. The detenu is, therefore, entitled to be released. He is accordingly directed to be released forthwith." 6. In Bhupinder Singh v. Union of India and Ors. the detenu made a complaint before the Advisory Board that the copies of the documents which were supplied to him along with the grounds of detention were not legible and he placed before the Advisory Board a copy of representation said to have been made by him for supply of legible copies of the documents. The legible copies of the documents were, however, supplied to the detenu after the detention order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Apex Court reads as under: "The principal submission made by Miss Rani Jethamalani, learned Counsel for the petitioner, in this application for the issue of writ of habeas corpus is that copies of material documents referred to in the grounds of detention were not supplied to the detenu and he was thus prevented from making an effective representation. The documents about which the complaint is made are the Panchnama dated 151-80 said to have been recorded at the time of the seizure of the silver and the statement said to have been made by the detenu in the enquiry under Section 108 of the Customs Act on 15-1-80. Miss Jethamalani relied upon the decisions of this Court in Icchu Devi v. Union of India (1980) AIR 1980 and Smt. Shalini Soni v. Union of India (1980) AIR 1981 No counter has been filed on behalf at the State of Maharashtra, but Shri O.P. Rana, learned Counsel for the State of Maharashtra urged that the copies of the documents were not supplied to the detenu as the detenu was already aware of the contents of the documents. That is hardly an answer to the submission made on behalf of the detenu. The detenu was entitled to be supplied with copies of all materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned hereinabove, I have no hesitation in arriving at the conclusion that Shri Satya Prakash Bahl @ S.P. Bahl had engaged himself in the procurement, storage and abetting in the export from India of narcotic drugs. 25.While passing the detention order under the Prevention of IIicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,1 have relied upon the documents mentioned in the enclosed list." (7) In the list of documents supplied along with the grounds of detrition, the audio cassette was not included nor supplied with the grounds of detention. The conversation mentioned in the first paragraph has apparently been extracted or paraphrased from some audio cassette recording. This conversation is apparently suggestive of some clandestine deal between the petitioner and Hazi Khan and possibly connecting the petitioner with the seizure of the narcotic drug in Russia and Netherlands. In that case the audio cassette is very relevant material to show the complicity of the petitioner and this material should have been supplied to the petitioner alongwith the grounds of detention. However, this was not done. After receipt of the detention order, the petitioner on 2.3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India & Ors., ; Mehdi Mohd. Zowli v. State of Maharashtra, , and Kirti Kumar v. Union ofIndia, . (12) If material or vital facts which would have bearing on the issue and influence the mind of the Detaining Authority one way or the other are withheld or suppressed by the Sponsoring Authority or ignored and not considered by the Detaining Authority before issuing the detention order, it would vitiate its subjective satisfaction rendering the detention order illegal. [D.S. Duggal v. The Police Commissioner & Another,] (13) As noticed earlier the audio cassette was a very material circumstance/material. It ought to have been taken into consideration by the Detaining Authority. If the stand taken in the counter affidavit is correct and the audio cassette was not relied upon and considered by the Detaining Authority, this itself would vitiate the subjective satisfaction and render the order illegal." 65. It has been repeatedly held by the Supreme Court of India that the relied upon documents must be supplied to a detenue. To say that at the time of recording of the statement under Section 108 of the Customs Act and at the stage when a show cause notice was issued to the det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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