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TMI Blog2018 (7) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ners 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. - Criminal Writ Petition No. 5370 of 2017 - - - Dated:- 27-4-2018 - S.C. DHARMADHIKARI PRAKASH D. NAIK, JJ. Mrs. Aisha Mohd. Zubair Ansari a/w Ms. Nasreen S.K. Ayubi for the Petitioner. Mrs. Aruna Pai for the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon the detaining authority to disclose to this Court as to on what exact date the proposal for the detention of the detenu was mooted by the sponsoring authorities and on what exact date the same was placed before the Screening Committee and was cleared by the screening committee. The detaining authority should also disclose as to on what exact date the proposal was forwarded by the sponsoring authority to the detaining authority and that as to on what exact date the same was put up before the detaining authority and whether all the documents referred to in the list of documents (annexure 'C'), the copies of which have been furnished to the detenu and which runs into 687 pages were received by the detaining authority along with the proposal and if not, which documents were received alongwith the proposal and which documents received subsequently. It is further submitted that taking into account the paucity of time at the disposal of the detaining authority and the record covering 687 pages which was purported to have been placed before the detaining authority specially when last documents considered by the detaining authority was dated 27.11.2017 and 4.12.2017 and consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of the additional documents at a later date the detaining authority had rescinded the grounds of detention which were earlier formulated and whether the same were reformulated once again by reconsidering the documents already considered along with additional documents received at a later date or dates together at one and the same time. The detaining authority could not have issued the impugned order of detention by considering in piecemeal the documents purported to have been placed before him. 4. The learned Counsel for the Petitioner relied upon the following decisions in support of her submissions; (1) Decision dated 20.12.1985 of Supreme Court in Criminal Appeal No. 878 of 1985, in the case of Shri. Umeshchandra Verma Vs. Union of India. (2) Smt. Kirti Sujit Satam Vs. State of Maharashtra 2008 ALL MR (Cri) 774 (3) Judgment of the Bombay High Court dated 13.08.2008 delivered in Criminal Writ Petition No. 678 of 2008, in the case of Anuj Bajaj Vs. State of Maharashtra. 5. Mrs. Pai, learned Counsel representing Respondent No. 1 and 2 submitted that the grounds of challenge raised by the Petitioner are devoid of merit. The detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Pai relied upon the contents of the affidavit in reply filed by the detaining authority dated 19th February, 2018 and the affidavit in reply filed by Deputy Director, Directorate of Mumbai Intelligence, Mumbai (Sponsoring Authority) dated 20th February, 2018. 7. In pursuant to the filing of affidavit in reply by the Respondents, the Petitioner has submitted the affidavit in rejoinder dated 15th March, 2018 disputing the contents of the reply filed by Respondents. 8. During the course of hearing of this Petition on 12th April, 2018 our attention was invited to the affidavit in reply of the Deputy Director, Directorate of Revenue Intelligence, Mumbai (Zonal Unit) and the statement made in paragraph 4 thereof and on our query, Mrs. Pai learned Counsel representing Respondents sought time to produce the original files which was granted and the Petition was posted for hearing on today. Mrs. Pai has tendered the file which was perused by us. 9. The submission of the learned Counsel for the Petitioner revolves around the fact that documents were forwarded to the detaining authority from time to time till 4th December, 2017 and the order of detention was issued on 7th December, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining authority for issuing order of detention. In this scenario it was incumbent upon the detaining authority to made it clear as to which documents were forwarded to the detaining authority at the earlier point of time and which were forwarded subsequently. The affidavit in reply is apparently silent in that regard. It is difficult to accept that the detaining authority has applied its mind to the documents for issuing order of detention against all the detenus which were issued on the same date i.e. 7th December, 2017. The affidavit in reply tendered by the sponsoring authority further compounds the casual approach and the non-application of mind on the part of the detaining authority. Paragraph 4 of the said affidavit in reply dated 20.02.2018 reads as follows. 4. With reference to Para 4(i) of the petition, I say that on 12.10.2017 the proposal for issuing the order of detention against the detenue along with other codetenue were forwarded by the SIIB, Customs to the Joint Secretory (COFEPOSA). The Screening Committee meeting was held on 16.10.2017, after going through the said proposal it forwarded its minutes of the meeting on 20.10.2017 to SIIB, Customs. It is st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from that the file also indicates that the documents were scanned and emailed to the detaining authority on 07.12.2017. The calculation of the pages of these documents as stated above shows that there were 1054 pages which were forwarded to the detaining authority. In these circumstances 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. 11. In paragraph 6 of the affidavit in reply the detaining authority has denied that the grounds were formulated in piecemeal and in paragraph 2 of the affidavit in reply the dates are set out on which the sponsoring authority has sent 687 pages documents from 01.11.2017 to 04.12.2017. In the reply the detaining authority has not said speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted on 13th June, 1985 at about 6 P.M. The same night the detention order was made by the detaining authority. It was thus contended that the detaining authority could not have applied its mind to the several documents and issued the order on the same day. In the decision of this Court in the case of Smt. Kirti Satam (Supra) this Court by relying upon the decision of the Supreme Court referred to above and the other judgments has observed that the detaining authority had passed the order within 12 hours of receipt of papers. It was not physically possible to peruse 1712 pages within short time and hence, the order was liable to be quashed pm account of non-application of mind. Similar issue was considered in another decision of this Court in the case of Anuj Bajaj (Supra). In this case it was observed that it is difficult to understand as to how detaining authority had taken into consideration documents which were comprising 7419 pages. Even if it is accepted that the authority had 10 days before passing the order, although that is not proved by the record, itself the said period of 10 days was not sufficient for considering several documents. 13. In the case of Maya Satam (Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that once the detaining authority has scrutinized the documents which were placed before her alongwith proposal including the further generated documents and was completely abreast of the contents thereof, it is incomprehensible that such grounds of detention could not have been formulated in two days. In the light of the aforesaid observation the said decision can be distinguished and it will have to be considered that the decision was delivered in the facts of that particular case. It is also apparent that in the affidavit in reply filed by the detaining authority, it was categorically stated that the grounds were formulated contemporaneously while recording the subjective satisfaction about necessity of detention and upon considering all the materials placed before the detaining authority including the further generated documents. The affidavit in reply in the present case is however silent and does not make similar assertion. On the contrary the affidavit creates confusion and shows total non-application of mind as stated hereinabove. It is true that this Court in the aforesaid decision has made reference to the decision in the case of Umeshchandra Verma as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad made assertion in that regard and it was also disclosed that the detaining authority was satisfied with regard to each individual that it was necessary to detain such person the decision thus cannot be made applicable. The other judgment placed into service by the learned Counsel for the Respondents in the case of Zahoor Peshimam Vs. Union of India and Ors. (Supra), also cannot be made applicable in the facts of this case. 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. The Court relied upon the decision in the case of A.K. Gopalan (Supra). It was further observed that it is not as if the entire exercise of shifting and scanning material, drawing the conclusions therefrom and formulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the detaining authority has applied its mind to the documents placed before him and considering the involvement of the detenu and the nature of the crime committed by the detenu, the Court should consider the issue from the commonsense point of view. The commonsense cannot be put in cold storage while considering the constitutional provisions for safeguarding the misuse of powers by authorities. We have thoughtfully considered these submissions and the observations of the Supreme Court in the said decisions. We have noted hereinabove that there is complete non-application of mind on the part of the detaining authority and the approach depicts casual and cavalier manner in which the order of detention has been issued which is compounded by the vague affidavit in reply filed by the detaining authority and the sponsoring authority. The Supreme Court in catena of decisions has made it clear that the powers of preventive detention must be cautiously exercised and the fundamental freedoms guaranteed under the constitution cannot be undermined by adopting casual approach. The detaining authority in the present case has asserted that the documents were not considered in piecemeal man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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