Crl. W.P. No.58 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. W.P. No.58 of 2014 Date of decision:
28. 3-2014 Sat Pal Jain and another … Petitioners versus Joint Secretary to the Govt. of India, (Detaining Authority) and another … Respondents 1) Whether the judgment should be reported in the Digest ?.. Yes Present: Mr. Vikram K. Chaudhri, Sr. Advocate, with Ms. Ishu Goyal, Advocate, for the petitioners Mr. Anmol Rattan Sidhu, Sr. Advocate, Asstt. Solicitor General of India, with Mr. S.S. Sandhu and Mr. Sunish Bindlish, Advocates, for the respondent-UOI. Mr. Jai Narain, DAG Haryana. ... M. JEYAPAUL, J:
1. In the instant writ petition filed under Article 226 of the Constitution of India, the petitioners, namely, Sat Pal Jain and Bimal Kumar Jain, who are brothers had initially sought for quashing of the unexecuted orders of detention bearing F. No.673/09/2010-CUS.VIII dated 2nd June, 2010 and F. No.673/10/2010-CUS.VIII dated 2nd June, 2010 (Annexure P-17) (Colly) passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, COFEPOSA Act) by the 1st respondent. However, vide order dated 28.2.2014, this Court rejected Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 2 the prayer for interfering with the orders of detention even before its execution as not maintainable and misconceived. Petitioners were compelled to surrender to the detention order to show their bona-fides. Only after surrender to the detention orders, was the main petition taken up for its consideration on merits.
2. The facts leading to the filing of the instant petition are that upon receipt of an information by the Directorate of Enforcement, New Delhi, an organized Syndicate headed by Naresh Kumar Jain was continuously and actively involved in illegal foreign trade transactions in lieu of payment and receipt of Indian Currency unauthorizedly through wide Hawala network, searches were conducted under the provisions of Section 37 of FEMA1999read with Section 132 of the Income Tax Act,1961 at various places and as a result thereof, Indian currency, foreign currency and certain documents and articles were recovered and seized in the months of September and November, 2009. It was alleged that said Naresh Kumar Jain was a person who stayed in Dubai from 1995 till May, 2009. He came to India from Dubai without any valid documents. In Dubai, he was engaged in the arrangement and transfer of foreign exchange to various exporters/persons and vice-versa from Dubai and other countries. At the same time, he also controlled financial transactions, Hawala receipts/payments in India through a number of companies and his relatives based in Dubai and other countries. In these transactions, the export invoices were manipulated under a plan and design for constant mixing of licit and illicit financial transactions in India to give a genuine basis to the unauthorized transfer of foreign exchange through banking channels. Even after his return to India in May 2009, he continued to engage in the same Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 3 business which he was doing during his stay at Dubai including arranging foreign exchange for Indian parties. Manoj Garg, Puran Chand Sharma and the petitioners, namely, Bimal Jain and Sat Pal Jain were other members of syndicate actively associated with Naresh Kumar Jain and assisted him in carrying out his illegal activities in/from India. On several such accusations, respective orders of detention were passed on 2.6.2010 against Naresh Kumar Jan, Manoj Garg, Puran Chand Sharma and the present petitioners, namely, Bimal Jain and Sat Pal Jain. The grounds of detention issued qua Naresh Kumar Jain were placed on record with the petition.
3. In so far as the petitioners are concerned, when this petition was filed, detention orders were yet to be executed. Petitioners had earlier approached Hon'ble Supreme Court by way of respective writ petitions under Article 32 of the Constitution of India wherein initially, execution of the detention was stayed. However, the writ petitions were dismissed as withdrawn on 1.10.2013. Petitioners had thereafter approached this Court for quashing the impugned orders of detention at pre-execution stage. The said writ petitions were dismissed by a Co-ordinate Bench vide order dated 21.12.2013. Petitioners, however, had not surrendered and instead they have filed the present petition on the same facts and grounds.
4. Petitioners also filed a miscellaneous application, namely, CRM- W-49 of 2014 in the present petition duly supported by an affidavit wherein it has been pleaded that respondent no.1 even attempted to execute the orders of detention at their residence in village Pabana Hasanpur in District Karnal on 3.2.2014. Documents such as electricity bills have been appended from the year 2011 to 2014 to show that the petitioners are residents of village Pabana Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 4 Hasanpur in District Karnal. It is also asserted in the said application filed by the petitioners that they have their bank account Nos. 96552200009627 and 96552200009631 respectively at Syndicate bank in village Pabana Hasanpur in District Karnal. The said application was allowed by this Court on 25.2.2014. Further, in this writ petition, reliance has been placed by the petitioners on the earlier order of detention passed against the petitioner's brother Naresh Kumar Jain (co-detenu in the instant case as well) on 6.9.1995 by the then Detaining Authority-respondent No.1 under Section 3(1) of the COFEPOSA Act. In the order dated 20.2.2003 passed by this Court disposing of a writ petition filed by the petitioner's father Abhey Ram Jain challenging the said order of detention dated 6.9.1995, this Court had observed that in view of lapse of time, the Government might pass a fresh order, if required. Thereafter, vide order dated 13.7.2007 (Annexure P-2) passed by the Hon'ble Supreme Court, the Special Leave Petition filed by the Detaining Authority assailing the said order of this Court was dismissed. The writ petition bearing CRWP143of 2003 whereby the said order of detention dated 6.9.1995 was assailed before this Court and the copy of the Special Leave Petition (Criminal) 3986 of 2003 whereby the Detaining Authority had challenged the order dated 20.2.2003 passed by this Court before the Hon'ble Supreme court have also been brought on record. The proceedings in Criminal Writ Petition No.143 of 2003 (supra) filed before this Court impugning the order of detention dated 6.9.1995 passed by the then Detaining Authority-Joint Secretary COFEPOSA, shows that in the said case also, detenu Naresh Kumar Jain was sought to be detained in Delhi and the writ petition was filed in this Court ascertaining that the entire family of the petitioner therein (father of detenu Naresh Kumar Jain) were permanent Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 5 residents of village Pabana Hasanpur in District Karnal and reliance was placed on a Panchayat certificate dated 9.2.2003 annexed as Annexure P-10 with the said writ petition. It is further submitted that in the SLP filed by the Detaining Authority before the Hon'ble Supreme Court assailing the order dated 20.2.2003 passed by this Court, no plea whatsoever relating to lack of territorial jurisdiction of this Court was ever raised. Therefore, it is urged that in the peculiar facts of the case, this Court has territorial jurisdiction to protect fundamental rights of the present petitioners.
5. The respondents had opposed this petition on the ground of territorial jurisdiction of this Court with the support of several judgments and also on maintainability thereof on the basis of a Full Bench judgment. It was submited that the instant petition on the same facts and grounds without the petitioners surrendering to the order of detention in the light of the earlier dismissal of the writ petitions under Article 226 as well as under Article 32 of the Constitution of India, is totally misconceived. An affidavit was also filed by the respondent-Detaining Authority. It is submitted by producing documents that the petitioners are residents of Delhi and working for gain in Delhi. Reliance is placed on Section 5(a) of the COFEPOSA Act to show that every person against whom a detention order is made shall be liable to be detained in such place as the appropriate Government may by special or general order specify. It is further submitted that filing of second writ petition on the same facts and grounds and then seeking detention at Karnal raise questions upon bona-fide of the petitioners who have not come before this Court with clean hands. It is submitted that the petitioners are abusing the process of the Court and their intention is just to avoid submitting to the Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 6 detention order by filing one petition after the other before he Hon'ble Supreme Court as well as before this Court. It is also submitted that entertaining the instant writ petition would defeat the very intent behind passing of the impugned detention orders. It is also further submitted that having failed to secure any relief either before the Hon'ble Supreme Court or before this Court earlier, the filing of the present writ petition is misconceived and deserves dismissal.
6. I found strong merit in the objections regarding issue of maintainability of challenge at pre-execution stage in the light of the Full Bench judgment of this Court cited by the respondents to buttress their objection to the maintainability of the challenge at pre-execution stage after dismissal of the petitions under Articles 226 and 32 of the Constitution of India earlier. Since the Hon'ble Suprme Court as well as this Court had earlier refused to exercise jurisdiction to quash the impugned orders at pre-execution stage, this Court was also not inclined to entertain the challenge to the detention orders at pre-execution stage. The prayer for considering the validity of the impugned detention orders at pre-execution stage, therefore, was held not maintainable and thus rejected as such vide order dated 28.2.2014.
7. I found considerable prima-facie force in the argument of the respondents that filing of second writ petition on the same facts and grounds and then seeking detention at Karnal can also be with an intention to just avoid submitting to the detention order by filing one writ petition after the other before the hon'ble Supreme Court as well as before this Court, which would also defeat the purpose of the detention orders. I, therefore, found it necessary to direct the petitioners to first surrender to the detention orders before Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 7 considering the instant writ petition any further on merits.
8. Article 226(2) of the Constitution of India as well as various judgments were relied upon by both sides on the issue of territorial jurisdiction. This issue was left open to be finally determined after the surrender of the petitioners to the impugned detention orders. Further, Section 4 of the COFEPOSA Act reads as under:- "4. Execution of detention orders, - A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure,1973 (2 of 1974)."
9. Thus, in the peculiar facts and circumstances of the instant case, there was no legal impediment in serving the detention orders in Karnal where the petitioners themselves are claiming to have property and residence within the jurisdiction of this Court. On the issue whether the petitioners can be detained in any jail in Karnal instead of at Delhi, a judgment of the Constitutional Bench of the Hon'ble Supreme Cout in A.K.Roy v, Union of India and another, 1982 (1) SCC271 which reads as follows,throws much light:-
"4. ... ... Laws of preventive detention cannot, by the backdoor, introduce procedural measures of a punitive kind Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of country and the community. It is neither fair nor just that a detenu should have to suffer detentin in 'such place' as the Government may specify ....... . Besides keeping a person in Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 8 detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food ..... ... .... Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention."
10. There is no dispute to the fact that the close relative of the petitioners are residing in Karnal. There is no dispute to the fact that the petitioners have residence in Delhi as well as in Haryana as disclosed in the petition itself. No prejudice would be caused to preventive purpose of detention orders, even if the place of detention is Karnal. On 28.2.2014, the following order was passed :- “ (a) Issue notice returnable by 06.03.2014. Dasti service is permitted. (b) The petitioners are directed to surrender before the Senior Superintendent of Police/Superintendent of Police, Karnal, on 04.03.2014 at 11 AM. ( c) The Senior Superintendent of Police/Superintendent of Police, Karnal, shall in co-ordination with the detaining authority ensure that on or before 04.03.2014 the order of detention, grounds of detention and other documents relied upon by the detaining authority are made available to be served on 04.03.2014 upon both the detenues on their surrender; (d) The Senior Superintendent of Police/Superintendent of Police, Karnal, is directed to preventively detain the petitioners in jail Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 9 which is located nearest to Karnal till further orders. The petitioners will be entitled to have facilities as mentioned in the judgment of the Constitution Bench of the Apex Court in A.K.Roy (supra) such as home food, medicines, clothes etc. ( e) In case the petitioners fail to surrender as directed, this petition will be liable to be dismissed with a heavy cost. In case of petitioners surrendering to the order of detention as directed, the petition will be taken up for further consideration on post- execution basis. This court may in such event consider the grounds urged including the feasibility of scrutinising as to whether the vital and material documents as claimed in the Writ Petition have been placed before the detaining authority and/or considered by it and also as to whether non placement or non- consideration thereof would vitiate the subjective satisfaction of the Detaining Authority. (f) The registry is directed to list the main matter on 06.03.2014.”. 11. Accordingly, on 4.3.2014, the petitioners surrendered and were taken in custody and lodged in jail in the territorial jurisdiction of this Court.
12. On 6.3.2014, as per directions of this Court passed on 28.2.2014, the criminal writ petition was taken up for further consideration on post- execution basis. It was already clarified that the Court might consider the above grounds urged including feasibility of scrutinizing as to whether vital and material documents as claimed in the petition were placed before the Detaining Authority and considered by it and in case of non-placement and Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 10 non-consideration, the effect thereof on the subjective satisfaction of the Detaining Authority.
13. The impugned detention orders and grounds of detention along with documents and list thereof were produced in Court on behalf of the petitioners. A perusal of the grounds of detention does show common accusation forming the basis of the detention orders passed against both the petitioners.
14. The only ground of challenge passed on behalf of the petitioners is non-placement before the Detaining Authority of vital documents having a bearing on the subjective satisfaction, non-consideration and non-advertence thereto in the grounds of detention by the Detaining Authority. Amongst various such documents which are claimed by the petitioners as vital and not placed, I find that the following documents were not at all adverted to in the grounds of detention: (i) Various complaints made in October, 2009 by the petitioners against the Sponsoring Authority, namely, Enforcement Directorate including those made before - a) Station House Officer, Police Station Ashok Vihar, New Delhi, dated 5.10.2009 alleging highhanded manhandling of the petitioner Satpal Jain by the officer of the Sponsoring Authority; (b) Letter to the Human Rights Commission dated 9.10.2009 levelling further allegations against the officer of the Sponsoring Authority including threat of detaining him under the COFEPOSA; Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 11 ( c) Ministry of Finance through its Secretary etc. dated 21.10.2009 which levels further allegations against the officer of the Sponsoring Authority including illegal financial demands; (d) The Court of Additional Chief Metropolitan Magistrate, Rohini District Courts, Delhi, being a private complaint dated 9.11.2009 under Section 200 of the Code of Criminal Procedure seeking initiation of criminal prosecution against the officer of the Enforcement Directorate, Satbir Rathi. (ii) FIR bearing No.443 dated 25.9.2009 lodged under Sections 186 and 353 read with Section 34 of the Indian Penal Code at Police Station Ashok Vihar, Delhi, at the instance of the said officer Shri Satbir Rathi against the petitioner Bimal Jain and the anticipatory bail order granted by the Additional Sessions Judge.
15. Respondents could not show from the grounds of detention any consideration of these documents. The above documents would go to show that there were serious complaints and counter complaints between the petitioners and the officials of the Sponsoring Authority.
16. The respondent-Detaining Authority did not, however, admit non- placement of the documents and through its counsel sought time to file a compendius reply. The approach of the Detaining Authority in not coming up with any counter affidavit despite a clear order passed by this Court shows its casualness. However, one more opportunity was given to them in the interest of justice not only to file the counter affidavit but also to argue the main case Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 12 itself.
17. Learned senior counsel for the petitioners invited the attention of this Court to the prayer for bail and submitted that excellent prima-facie case demonstrated before this Court may be considered for grant of bail. I found prima-facie merit in the case of the petitioners. I also considered the observations contained in paragraph 49 of the judgment of the Constitution Bench of the Hon'ble Supreme Court in Kamleshkunar Ishwardas Patel v. Union of India and others JT19953) SC639= (1995) 4 SCC51and the power to grant bail in preventive detention matters which has been recognized by the Honble Supreme Court in Alka Subhash Gadia 1992 Supp. (1) SCC496 In Tahira Begum (1982) 3 SCC374 bail was in fact granted in preventive detention matter as reply was not filed in one week time granted by the Hon'ble Supreme Court. I thoroughly went through the grounds of detention. I noticed that it is possible to presume that each of these documents would have contributed to the final subjective satisfaction one way or the other. What would have been the position if the Detaining Authority was apprised of each of these documents is not for me to make a retrospective judgment at this distance of time. As the above vital documents which have a direct bearing on the subjective satisfaction of the Detaining Authority in issuing the detention order do not find any mention in the grounds of detention or in the list of documents which admittedly mentions the entire documents referred and relied upon by the Detaining Authority, I found no hesitation to hold prima-facie that the said vital documents were not placed before the Detaining Authority for consideration before arriving at subjective satisfaction. In view of the prima-facie ground urged by he learned senior counsel Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 13 appearing for the petitioners, pending final hearing of the matter, the prayer for grant of bail till the next date of hearing was allowed vide order dated 6.3.2014. Bail was granted subject to the conditions that both the petitioners shall execute separate personal bonds for a sum of Rs.50,000/- each before the Jail Superintendent who shall bind the respective petitioners to report daily between 10 AM to 10.30 AM in the office of the Superinendent of Police, Karnal till 18.3.2014 and both the petitioners shall remain present without fail in the court by the net date of hearing on 19.3.2014 at 10 AM. Accordingly, the matter was posted for final hearing to 19.3.2014.
18. On 19.3.2014, petitioners appeared. Learned counsel for the Detaining Authority again sought time to file reply without opposing the continuation of the interim relief. Thus, the interim order was continued and the matter was posted for filing reply and arguments on 22.3.2014.
19. On 22.3.2014, petitioners again appeared. A prayer was made on behalf of the Detaining Authority to first give a decision solely on the issue of maintainability and territorial jurisdiction before entering into the merits of the case. This Court expressed its unwillingness to entertain piece-meal arguments and immediately thereafter, a counter affidavit affirmed by Mrs. Harmeet S. Singh, Joint Secretary, COFEPOSA, New Delhi, was tendered across the Bar on behalf of the Detaining Authority. Both sides were then heard at length on the issue of maintainability and on merits of the case.
20. In support of his arguments, learned senior counsel for the petitioners placed on record two compilations of the Precedents and Government instructions dated 25.8.2005 in COFEPOSA matters and emphasized on the validity of the documents not placed, considered Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 14 and adverted to in the grounds of detention and malice in such inaction.
21. Learned senior counsel appearing for the respondent-Detaining Authority relying upon the judgments relied upon earlier on the aspect of territorial jurisdiction, maintainability of second petition and doctrine of precedence. It was urged that the present writ petition being a second writ petition is barred by res judicata and High Court Rules. It is an utter abuse of the process of the court. This Court does not have territorial jurisdiction in the matter. The petition assails earlier judgment dated 21.12.2013 of the Single Judge before another Single Judge in the same matter. In short reply/affidavit dated 24.2.2014, catena of judgments were cited to show that entertaining of the petition was barred by the doctrine of precedence. It would suffice to rely upon – (i) Tribhuven Dass Purshottam Dass v. Rati Lal Modi Lal Patel AIR1968SC372and (ii) S.I.Roop Lal v. Lt. Govrnor, AIR20001) SC594 In respect of the interim order dated 28.2.2014 of this Court, it was urged that although there was no impediment in serving the detention orders in Karnal in view of Section 4 of the COFEPOSA Act, 1974, however, power to regulate place and condition of detention vested with the Government under Section 5 (a) of the said Act. The observation in A.K.Roy's case(supra) would not entitle the detenus to choose their place of detention. Petitioners were ordinarily residing and working for gain in Delhi. It was submitted that if the petition is dismissed, petitioners may be directed to be detained at Delhi. In respect of interim order dated 6.3.2014, it was urged that the respondents failed to place before the Court the provisions of Section 12(6) of the COFEPOSA Act, 1974. The intent behind the observations concerning the grant of bail in Alka Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 15 Subhash Gadia's case(supra) was not satisfied in the instant case. In Tahira Begum's case(supra), bail was granted in preventive detention matter as reply was not filed in one week's time so granted by the Hon'ble Supreme Court. However, in the present case, petitioners were not under detention for a long time. There is a provision for approaching the Advisory Board. Various complaints etc. made by the petitioners and the complaint made by the officers of the Sponsoring Authority do not have any bearing on the formation of subjective satisfaction. The grounds show necessity to detain the detenus. An alternative remedy of Advisory Board was not yet exhausted. The writ petition is filed with an intention to defeat the purpose of the Act. The allegations in these complaints were also available for perusal in their representation made to the Departnent which were placed, considered and formed part of relied upon documents. The factum of alleged FIR and other allegations was considered in the other documents placed before the Detaining Authority. He placed reliance upon certain vital documents relied upon by the Detaining Authority and supplied to the petitioners upon service of the grounds of detention which were – (i)letter dated 21.10.2009 of Bimal Kumar Jain to the Assistant Director, Directorate of Enforcement, i.e. Sponsoring Authority; (ii) letter dated 10.11.2009 of Bimal Kumar Jain to the Assistant Director, Directorate of Enforcement, i.e. Sponsoring Authority; (iii) letter dated 25.9.2009 of Satpal Jain addressed to the Assistant Director, Directorate of Enforcement, i.e. Sponsoring Authority; and Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 16 (iv) Rebuttal letter dated 14.10.2009 by the Sponsoring Authority to Satpal Jain. On the basis of these documents, it was submitted that the Detaining Authority was made aware of the allegations and apprehensions of the petitioners by placing above vital documents and rebuttal to the same. Consequently, it was argued that the other documents referred to by the petitioners were not vital documents and the consideration of those documents was not relevant. By relying upon Vinod K. Chawla v. Union of India (2006)7 SCC337 it was argued by him that the law does not require that every document must necessarily be placed before the Detaining Authority. He submitted that the grounds of detention disclose necessity to detain the petitioners and hence, the impugned detention orders are required to be upheld and the petitioners are required to be directed to be detained at Delhi. It was prayed on behalf of the Detaining Authority that the petition may be dismissed as the same was neither maintainable in law nor on facts.
22. I have heard all the parties at length. I have also carefully perused the records placed before me. I find that the following issues are to be determined for deciding the petition: (i) Whether there exists any bar in considering the grounds of challenge urged by the petitioners in the light of the dismissal of earlier petition by this Court. (ii) Whether no part of cause of action has arisen in the jurisdiction of this Court to consider the challenge to the impugned detention orders. (iii) Whether there is merit in respondent's contention that the petition was not required to be considered even after the detention of the Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 17 petitioners, in view of the available alternative remedy before the Advisory Board. (iv) Whether the respondents are right in claiming that the documents not placed were such irrelevant documents which had no bearing on the issue of preventive detention and non-placement and non-consideration thereof was inconsequential. (v) Whether the impugned detention orders are sustainble in the eyes of law.
23. The findings in the earlier rejection by this Court were in the context of examining the challenge to the detention orders at pre-execution stage. Even in the instant petition, challenge to the impugned detention orders was not considered at pre-execution stage and the petitioners were compelled to surrender to the detention orders. Since the detention orders stand executed as of now, there cannot, therefore, exist any bar in considering the merits of the grounds of challenge urged by the petitioners. The final consideration of the grounds urged is only after execution of the detention orders. Respondents could not show any binding precedent where the Courts have refused to consider the challenge of a detenu in a writ petition despite the execution of the detention order merely because challenge was unsuccessful at pre- execution stage. Even otherwise, the main ground of non-placement, non- consideration and non-advertence to vital documents was not decided earlier on merits in the absence of requisite grounds and documents relied upon. This Court cannot permit the Authorities to take shelter under such technical pleas in the matter of a writ petition in a preventive detention matter. The Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 18 authorities relied upon by the respondents in Tribhuvan Dass Purshottam Dass(supra) and and Roop Lal (supra) are not applicable in the peculiar facts of the instant case where the present consideration of the petition is only after service of the detention orders and grounds of detention and after outright rejection of the prayer for considering challenge to the detention order at pre- execution stage, in view of the decision already taken by the Co-ordinate Bench, by compelling the petitioners to surrender to the detention orders.
24. On the 2nd issue concerning territorial jurisdiction, it is seen that the petitioners have also a residence in Karnal in the State of Haryana. Their father resides in Karnal. Their birth place, as evident from their passports, is also Karnal. It is not denied that the attempt to serve the detention order was made at Karnal. The Detaining Authority deputed its representative for the purpose of service of detention order and grounds upon the petitioners in the jurisdiction of this Court and thereupon, the detention orders and grounds were served upon them in the jurisdiction of this Court, albeit after the orders of this Court. The petitioners were thus detained in the jurisdiction of this Court. Therefore, I hold that merely because the respondents have doubts on the bona-fides of the petitioners in invoking jurisdiction of this Cout, it cannot be said that no part of cause of action has arisen in the jurisdiction of this Court, to consider the challenge to the detention orders, muchless after its execution in the jurisdiction of this Court by compelling the petitioners to surrender to the respective detention orders. Respondents could not show any precedent where jurisdiction was held as lacking despite such part of cause of action arising in the jurisdiction of the High Court. Moreover, there is a long line of decisions rendered by various High Courts substantiating that these facts Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 19 would constitute part of cause of action that has arisen in the territorial jurisdiction of this Court. In Umed Mal v. Union of India 1998 Crl. L.J.
3465 (Rajasthan High Court-Full Bench), it was held:
"21. Applying the above tests, we cannot escape the conclusion that the factual detention of a person at a particular place would supply cause of action for challenging the detention order. .... ..... If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if not in law, we have to reject the narrow construction put on the concept of partial cause of action by the Division Bench in Sewa Ram's case (supra) and accept a liberal, pragmatic and practical construction which would be in consonance with the letter and spirit of Art.226(2) of the Constitution.
23. We are of the opinion that service of the detention order and taking of the detenue in custody in execution of such an order within the territories of the State of Rajasthan shall supply part of cause of action for challenging the detention order.
24. We therefore hold that in this case, because of the service and execution of the detention order within the territories of the State of Rajasthan, this Court will have territorial jurisdiction to entertain the petition ......”. 17. In Ramchand Santumal Bhatia vs. Tarun Roy, 1988 CRI.L.J.
641, it has been held by the Bombay High Court that:
“5. ....To sum up, Ulhasnagar being the place where the detenu Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 20 was taken into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this Court...”. 18. In Nazima Begum vs. Joint Secretary, 1993 CRI.L.J.
1336, it has been held by the Madras High Court that:
“9. .....In the instant case, the effect of the order, namely, the detention order which is the subject matter of the writ petition, was served on the detenu only at Calcutta where he was detained and as such the Calcutta High Court alone has got jurisdiction. Even the order of rejection was served on the detenu at Calcutta and only a copy of the rejection order was served on by the petitioner (wife of the detenu) at Madras.”. 22. In C.Natesan vs. State of T.N. And others, 1999 CriLJ1382 it has been held by the Madras High Court that:- “In cases of preventive detention, orders of detention are passed some times by an authority outside the State and it is executed within the State where the detenu is residing. Many a case on the validity of these detentions are challenged before this Court and this Court has always entertained those cases and disposed of them one way or the other. Therefore, when the personal liberty of a citizen is sought to be infringed pursuant to an order passed elsewhere, it is always open to the person concerned to move the Court within whose jurisdiction his personal liberty is sought to be infringed, for necessary reliefs.”
. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 21 In B. Shareefa Ummer vs. Joint Secretary to the Govt. of India, 1998 CRI.L.J.
185, it has been held by the Division Bench of Kerala High Court that:
“11. ....So far as the present case is concerned, the order of detention was served on the detenu in Kerala. He was arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential facts which form part of the cause of action. Hence, we hold that this Court has got jurisdiction and hence the Original Petition is maintainable in this Court.”
. In Kamala Sarkar vs. State of Bihar, 2002 CRI.L.J.
1414, it has been held by the Division Bench of Calcutta High Court that:
“22. In P.Subramani v. State of Karnataka reported in 1990 Cri.L.J.
1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (AIR1985SC1289 (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petitioner is concerned and, therefore, a considerably part of the cause of action took place in the State of Tamil Nadu, conferring jurisdiction upon this Court. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 22 23. Yet again in Smt. Manjulaben vs. C.T.A. Pillay reported in 1976 Cri.L.J.
889, Desai, J.
(as His Lordship then was) speaking for the Division Bench of Gujarat High Court held that 'as initial detention of detenu which was at Baroda is continued, the same furnishes a part of cause of action to the detenus which arises within the jurisdiction of this Court'. So taking into consideration the provision of Article 226(1A) read with provision of Article 19, Clauses (d) and (e) for the purpose of coming at conclusion that in relation to deprivation of liberty of the detenu having taken place within the territorial jurisdiction of the said Court, a part of cause of action was held to have arisen within the said jurisdiction.
24. Having regard to the fact that in the instant case the detenu is still detained in Siliguri Special Jail which is within the jurisdiction of this Court and in the event the said detention is held to be illegal, a writ of habeas corpus may have to be issued; pursuant whereto, the detenu may be released, we are of the opinion, that a part of the cause of action has arisen within the jurisdiction of this Court and as such the writ application is maintainable.”
. In Reena Ranka vs. Union of India, 1991 CrI.L.J.
3195, it has been held by the Division Bench of Andhra Pradesh High Court that:
“17. ..... and that the unjust rejection of the representation without assigning any reasons whatsoever and communicated to the petitioner at Hyderabad amounted to deprivation of a valuable right under Art.21 of the Constitution of India. This Court has, Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 23 therefore, undoubted jurisdiction to entertain the Writ Petition as part of cause of action arose at Hyderabad.”
. In D.N.Anand vs. Union of India, Ministry of Finance,1993(2) RCR(Criminal) 104, this Court having considered the fact that one of the residential addresses of the detenu although disputed by the Detaining Authority was within the jurisdiction of this Court held that the petition challenging the detention order issued in Delhi was maintainable. It has been observed therein in paragraph 15 as under:-
“15. ... ... The authorities had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the petitioner within the jurisdiction of this Court ... ...”
.. In S.P.Goyal vs. Union of India, 2003(1) RCR (Criminal) 83, after considering, inter alia, the said judgement in D.N.Anand's case (supra), this Court held as follows:-
“13. ...... The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would certainly have the jurisdiction to entertain and decide the present writ petition.”
. In the case of Tejinder Singh Makkar, v. State off Punjab and others, Crl. Writ Petition No.912 of 2007, this Court relying upon Section 4 of the COFEPOSA Act, 1974, judgment in D.N. Anand's case(supra) , Trilok Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 24 Nath Mittal, 1994(1) RCR (Crl) 247 and Mrs. Arvind Shergill v. Union of India, 1999(4) RCR(Crl.) 781, observed as follows:- “ Moreover, if the contention of the learned ocunsel for repsondent nois. 2 and 3 is accepted, then it implies that a person, whose life and liberty is threatened by passing an order elsewhere in the country, will have to forego his liberty and right to approach the Court for a threatened violation except at the Court which has jurisdiction over the authority passing such an order. I am afraid, this interpretation can never be granted. A person, whose fundamental right to life and liberty is threatened, has every right to approach the Court where any such authority, in the garb of an order of detention, seeks to curtail such life and liberty. Therefore, the contention that this Court has no jurisdiction to entertain this petition is negated.”
. The petition, however, was dismissed on merits by the same judgment but in LPA there-against, reported in 2009(4) RCR(Crl.) 465, the detention order was quashed by the Division Bench of this Court and thus, territorial jurisdiction was also upheld.
13. In Avinash Kumar Sharma v. Union of India, 1998 Cril.J.
356 (P & H) which is relied upon by the respondents, although the petition was dismissed, however, service of detention order was construed as part of cause of action. It was held thus: Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 25
“25. After going through all the judgments cited by both the parties, I find that by mere arrest of the detenu in Punjab, when the detention order has been passed at Mumbai, the detention order and grounds of detention were also served in the State of Maharashtra and his prejudicial activities also concerned with that State, no cause of action even in part arose within the jurisdiction of this Court. ... ...”. 25. In the face of above consistent view, I find no merit in the objection of the respondents. Learned counsel for the Detaining Authority relied upon unreported decision dated 11.10.2012 of the Allahabad High Court in Crl. Writ Petition No.14978 of 2012 wherein the said High Court refused to entertain a petition despite there being residence of the petitioner in its jurisdiction. It is seen from the said judgment that firstly service of detention order was not effected in that case in the jurisdiction of the said High Court and more importantly, it was a second petition on the very same set of facts at pre-execution stage which was barred under Rule 7 of the Allahabad High Court Rules, 1952. Thus, the said judgment is not applicable to the facts of the instant case. Therefore, the objection regarding lack of any part of cause of action within the territorial jurisdiction of this Court stands rejected.
26. Vide order dated 27.5.2008, the Delhi High Court (DB) in Charan Singh v. Union of India, LPA No.9 of 1993, passed an order directing the appellant therein to surrender to the detention order which was unexecuted since 1991 and refrained the Detaining Authority to take any coercive steps against the appellant for a period of 10 days thereafter so as to enable the Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 26 appellant to take recourse to appropriate remedies. Special Leave Petition (Criminal) No.5157/5158 of 2008 filed thereagainst by the Union of India was heard and dismissed by the Hon'ble Supreme Court vide order dated 28.7.2008. In the instant case, the detention orders were directed to be executed and the petitioners were taken into custody. Only after ensuring that the petitioners have surrendered and the orders of detention were served upon them, the petition was taken up for consideration on merits.
27. Moreover, when this Court declined to set aside the orders of detention before its execution and directed the petitioners to surrender, they could have preferred a fresh petition or could have sought consideration of the instant petition but after their surrender. Since the petitioners chose the later course, this Court was obliged to consider merits of the petition as post- detention petition albeit after their surrender. It is settled law that if any petition has not matured initially, the Court can await its maturity for its consideration thereafter. No right was conferred upon the Detaining Authority to absolve itself from the obligation to satisfy this Court regarding validity of the detention orders issued by it. In Ummu Sabeena v. State of Kerala, (2011) 10 SCC781 the Hon'ble Supreme Court held that in dealing with writs of habeas corpus, mere technical objections raised by the Detaining Authority concerning pleadings cannot be entertained. It observed as follows:-
“13. ... ... But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the habeas corpus petition is concerned, we are constrained to observe that in dealing with writs of habeas corpus, such technical objections cannot be entertained by this Court.”
. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 27 Further, in Smt. Icchu Devi Choraria v. Union of India, (1980) 4 SCC531 the Hon'ble Supreme Court held in paragraph 4 that in a writ of habeas corpus, strict rules of pleadings are not to be followed. It would be no argument for the Detaining Authority to say that a particular ground was not taken in the petition. The Court is bound to satisfy itself that all safe-guards provided by law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Again in Abdul Nasar Adam Ismail through Abdul Basheer Adam Ismail v. The State of Maharashtra and others, (2013)4 SCC435 the Hon'ble Supreme Court observed as follows:-
“5. So far as the second point urged by the counsel viz. that there is no independent consideration of the representation by the detaining authority is concerned, we must mention that this point was not raised in the petition nor urged before the High Court. It is not even raised in the present appeal. Ordinarily, we would not have allowed the counsel to raise any point in this court, which was not urged before the High Court. However, we are mindful of the decision of this Court in Mohinuddin @ Moin Master v. District Magistrate, Beed and others, 1987(2) RCR(Criminal) 338:
1987. 4) SCC58where this Court has held that the habeas corpus petition cannot be dismissed on the ground of imperfect pleadings. We have, therefore, allowed learned counsel to canvass this point. ...”
. Thus, neither the technical objection nor any alleged imperfect pleadings can Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 28 deter the Court from considering a challenge to a preventive detention order, that too when the detention order has been executed.
28. The third issue is already settled by the judgments of the Hon'ble Supreme Court. I do not find any merit in the respondents' contention that the writ petition was not required to be considered even after the detention of the petitioners in view of the alternative remedy available before the Advisory Board. In Prabhu Dyal Deorah v. The Distict Magistrate, Kamrup, (1974)1 SCC103 while rejecting similar contentions, the Hon'ble Supreme Court was pleased to observe as follows:-
“16. .... .... We do not think that because the representations of the petitioners are pending consideration before the Advisory Board and the Advisory Board would also go into the question of the vagueness of the grounds communicated to them, this Court should not exercise its jurisdiction under Article 32. In other words, we cannot agree with the proposition that because the Advisory Board was seized of the matter when the writ petitions were filed and would also consider the contention of the petitioners in their representations that the grounds were vague, we should not interfere with the orders of detention on the score that one of the grounds communicated to the petitioners was vague.”
. This view was again followed in Piyush Kanti Lal Mehta v. Commissioner of Police, Ahmedabad City, 1989 Supp(1) SCC322wherein the Hon'ble Supreme Court observed as follows:- “ 6. At this stage, it may be stated that the representation of Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 29 the petitioner is pending before the Advisory Board. The question that has been raised on behalf of the respondents is whether in view of the pendency of the representation before the Advisory Board, the writ petition is maintainable under Article 32 of the Constitution. The question need not detain us long for it has already been decided by this Court in Prabhu Dayal Dearah v. District Magistrate, Kamrup. ... ...
7. In the above observation, this Court has specifically laid down that even though a representation is pending before the Advisory Board, the writ petition under Article 32 of the Constitution is maintainable before this Court. In the circumstances, we may proceed to dispose of the writ petition on merits.”
. Despite the settled position of law, raising such an objection may reflect that the purpose of the detention is punitive rather than preventive. There is no doubt that the Advisory Board would have even wider jurisdiction than this Court; however, I find no merit in the submissions made on behalf of the Detaining Authority that the petition may not be considered unless alternative remedy before the Advisory Board is exhausted by the detenus. In the above circumstances, I am proceeding to dispose of the writ petition on merits.
29. It would be relevant to refer to the contents of some of the documents referred to hereinafter on which there is no dispute that the same were not placed and the only contention urged by the respondents is that they were not material documents and had no bearing on subjective satisfaction. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 30 30. Annexure P-4 is a copy of the FIR No.443 dared 25.9.2009 registered by Satbir Singh, Assistant Director (Sponsoring Authority) against Bimal Jain and his associates under Sections 186/353/34 of the Indian Penal Code at Police Station Ashok Vihar, New Delhi. The Assistant Director alleges in the FIR that Bimal Jain and his associates tried to manhandle him after search operations when he was with other officers of his Enforcement Directorate and obstructed him from returning to his office and also tried to threaten him with dire consequences. My attention was drawn to letters dated 10.11.2009 and 21.10.2009 of Bimal Jain addressed to the Assistant Director wherein while seeking permission to bring an Advocate during investigation. , he has referred to one FIR and has alleged that the contents of the FIR were false. My attention also was drawn to letter dated 25.9.2009 of Satpal Jain to the Assistant Director. It is seen that the said FIR dated 25.9.2009 filed by Shri Satbir Singh, Assistant Director/Sponsoring Authority, alleges that Bimal Jain and his associates tried to manhandle this officer of the Enforcement. However, this letter which is also dated 25.9.2009 alleges that Satpal Jain was beaten up by Shri Satbir Singh and even police was called by Satpal Jain and a criminal complaint was lodged. The contents of the FIR are thus at complete variance with the contents of the letter dated 25.9.2009 of Satpal Jain. Moreover, I find that this FIR registered under Sections 186/353/34 of the Indian Penal Code finds a reference in the grounds of detention in para 31, however, the name of the complainant is shown as Satpal Rathi instead of Satbir Singh. This FIR and the proceedings emanating therefrom including order dated 9.10.2009 of District Judge granting anticipatory bail to Bimal Jain (Annexure P-13) were not placed before the Detaining Authority. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 31 31, Annexure P-9 is a complaint dated 9.10.2009 made to Human Rights Commission, New Delhi, by Satpal Jain against the Assistant Director, Enforcement Directorate, New Delhi (Sponsoring Authority). This document contains the following averments: “ Some officials of the Enforcement Directorate left the said premises. Shri Satbir Rathi, Asstt. Director and two other officials were remained in the said premises started abusing and physical manhandling with me. They also started illegal demand, I was mercilessly beaten by Shri Satbir Singh Rathi. My son Shri Tarun Jain called the police on 100 number at about 1.10 a.m. on 25.9.2009 and I and my son was forced by Shri Satbir Rathi and other officials to record the statement with police that the compromise has been made and thereafter, police left the said premises. Shri Satbir Rathi had misused his official position and openly stated that he is such a high ranking officer of the Enforcement Directorate and having ample powers and no body can question him about their acts. He has also threatened unless their demand fulfilled, he will create troubles for the family members and they will be detained under the provision of COFEPOSA Act,1974.”. 32. Annexure P-12 is a communication dated 5.11.2009 issued by the National Human Rights Commission, New Delhi, to the Secretary, Ministry of Finance and also to the Commissioner of Police wherein the aforesaid Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 32 complaint dated 9.10.2009 was transmitted to the Authority concerned for such action as deemed appropriate.
33. Annexure P-10 is a complaint dated 21.10.2009 to the Ministry of Finance through its Secretary wherein it has been recorded as follows:- “ 5. That during the course of conducting all end raids, no incriminating material was recovered which may have appeared to have apparently enraged the said official and those officialos forming the said raiding party.
7. That illegal efforts were then made by the raiding party led by the accused persons herein and the applicant was pressurized to append his signaturesa to blank papers and formats and despite opposition from him and he was forced to sign those papers while the applicant seriously apprehends that those could be misused by the agency officials against him. 11.That since then, the applicant had been meeting various police officials in the said Police Station, Pitampura, Delhi, but nothing was done in the matter and the police officials had blatantly refused even to investigate the matter muchless take any action against Shri Satbir Rathi on the mundane plea that he is a Government officer.
13. That since the prosecution of the said officials, namely, Shri Satbir Rathi, working as Asstt. Director in the Enforcement Directorate, Delhi Zonal Office falling under your control cannot be effected without first obtaining the permission required under Section 197 Cr.PO.C. Hence this request for Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 33 according such permission to the applicant within the stipulated period of time provided under the law.”. 34. Further, Annexure P-11 is a criminal complaint dated 11.9.2009 filed in the court of Additional Chief Metropolitan Magistrate, Rohini District Courts, New Delhi, by the petitioner Satpal Jain against Shri Satbir Rathi, officer of the Sponsoring Authority wherein the following prayer was made: “ It is, therefore, requested that an immediate investigation be kindly ordered in the matter to bring to book the cognizable offences committed by the accused and the First Information Report be registered against the accused and those unnamed persons whose identity and addresses can be provided by the accused persons on being confronted and they be punished in a deterrent manner for offences punishable under Sections 166/167/323/327/333/340/341/342/343/350 of the Indian Penal Code in accordance with law.”. 35. After a careful perusal of the contents of these documents and the court proceedings which were not placed before the Detaining Authority as against the contents of the documents referred on behalf of the Union of India during the course of arguments, I am of the firm opinion that firstly, the said documents which were not placed were relevant and vital documents having a direct bearing on the subjective satisfaction and secondly, the contents of the documents are not the same as that are contained in letters dated 21.10.2009 nand 10.11.2009 of Bimal Jain for seeking permission to bring his Advocate during the course of investigation or letter dated 25.9.2009 of Satpal Jain Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 34 requesting to discharge the summons.
36. Since these three letters were placed by the Sponsoring Authority before the Detaining Authority as vital documents, there cannot be any plausible explanation as to why the above-referred detailed complaints/court proceedings were withheld from perusal of the Detaining Authority.
37. It is seen that the grounds of detention are also silent as to how repeated requests of Bimal Jain to permit an Advocate during the investigation/interrogation were dealt with. Though the request letters also refer to FIR No.443 of 2009 lodged by the officer of the Sponsoring Authority against the petitioners. If the Detaining Authority had herself perused the said letters, she ought to have called upon the Sponsoring Authority to produce the FIR and further proceedings thereunder.
38. Moreover, the Sponsoring Authority was also bound to place on record FIR No.443 of 2009 along with proceedings connecting thereto for consideration of the Detaining Authority.
39. In my view, each of these documents is such a vital document which would have a bearing on the subjective satisfaction of the Detaining Authority. It is true, as observed by the Hon'ble Supreme Court, in Vinod K. Chawla's case(supra), that each and every document need not be placed before the Detaining Authority but vital and relevant documents which have a bearing on the subjective satisfaction ought to have been placed before the Detaining Authority by the Sponsoring Authority. These documents of the petitioners as well as of the Sponsoring Authority go to the root of the matter. Whether upon consideration of these documents, if placed, the Detaining Authority could have suspected the proposal for invoking draconian measures of Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 35 preventive detention as a tool to settle aggravated personal vengeance and as punitive measures with least resistance or would have still issued the detention order, is not for me to judge. As already observed earlier, what would have been the position if the Detaining Authority was apprised of each of these documents is not for me to make a retrospective judgment at this distance of time. It is beyond doubt that the above vital documents were having a direct bearing on the subjective satisfaction of the Detaining Authority. Those vital documents were undisputedly not placed before the Detaining Authority for her consideration. I have no option but to hold that non-placement of the said vital documents before the Detaining Authority for her consideration before arriving at subjective satisfaction is fatal to the detention orders, which is vitiated on account of non-application of mind on these relevant documents. This view of mine is based upon the following precedents binding upon me: (a) In Ayya alias Ayub v. State of U.P. 1989(1) RCR (Criminal) 384, it has been observed as follows:-
“12. ... ... What weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 36 detaining-authority might very well have come to the same conclusion after considering this material, but in the facts of the case the omission to consider the material assumes materiality.”
. (b) In Union of India v. Ranu Bhandari, 2008(17) SCC348 the Hon'ble Supreme Court held thus:-
“26. We have indicated hereinbefore that the consistent view expressed by this Court in matters relating to preventive detention is that while issuing an order of detention, the detaining authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public.
33. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the detaining authority, there was sufficient ground for the detenu to question such omission.”
. ( c ) In Deepak Bajaj v. State of Maharashtra, 2008(16) SCC14 it was held as follows:-
“17. In Frances Coralie Mullin v. W.C. Khambra, (SCC p.279, para 5) this Court observed:
“5. ... ... No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired.”
. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 37 35.In Union of India v. Manoharlal Narang, this Court deprecated the contention that the detaining authority is not required to collect all materials about any court proceedings etc. from different ministries or departments for the purpose of issuance of a detention order. The Court observed that non- consideration of a relevant material will certainly invalidate the detention order. We respectfully agree with the above view, and reiterate it.
36. In A. Sowkati Ali v. Union of India, this Court observed that if the detaining authority has relied on a confessional statement then the retraction of that confession should also have been placed before the detaining authority and should have been considered by it, and failure to do so would invalidate the detention order.”
. (d) In Rajinder Arora v. Union of India, 2006(2) RCR (Crl.) 752(SC), the Hon'ble Supreme Court was pleased to hold as follows:- “ 22. Admittedly, furthermore, the status report called for from the Customs Department has not been taken into consideration by the competent authorities.
23. A Division Bench of this Court in K.S.Nagamuthu v. State of Tamil Nadu and others, 2006(1) Apex Criminal 73:
2006. 1) RCR (Criminal) 380:
2005. 9) SCALE534 struck down an order of detention on the ground that the relevant material had been withheld from the detaining authority; which in that case was a Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 38 letter of the detenu retracting from confession made by him.”
. ( e) In P. Sarvanan v. State of Tamil Nadu, 2001(10) SCC212 the Hon'ble Supreme Court has held thus:
“7. ... ... It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the petitioner on 7.11.1999 can safely be relied on. What would have been the position if the detaining authority was apprised of the fact that Sowkath Ali had retracted his confession, is not for us to make a retrospective judgment at this distance of time.”. 40. In arriving at this conclusion, I have also considered the submission of learned counsel for the Union of India who urged that the Detaining Authority had chosen to issue the order of detention to preventively detain the petitioners despite the aforesaid complaints against the officers of the Sponsoring Authority to various Authorities and Court or the grant of anticipatory bail in police complaint filed against the petitioners by the officers of the Sponsoring Authority. He submitted that the documents placed were sufficient for arriving at subjective satisfaction. I hold that his submission has no merit. The question is not whether the documents placed were sufficient but whether the documents not placed were such vital documents which could have any bearing on subjective satisfaction. In Sita Ram Somani v. State of Rajasthan, (1986)2 SCC86 similar contention of Union of India though accepted by the High Court, was not found tenable by the Hon'ble Supreme Court and it was observed as follows:- Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 39 “ 4. ... ... From what has been stated in the counter filed by the Union of India and the two counters filed by the State of Rajasthan, it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the Screening Committee in the first instance, but that is immaterial. It was the detaining authority that, had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA Act. That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material. Unfortunately, the High Court viewed it as a question of jurisdiction that is to say, the High Court thought that the detaining authority had jurisdiction to make the order of detention despite the retraction by the accused of his earlier confessional statement and the pendency of the criminal case against the appelllant in which bail had been granted subject to conditions. No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did not, the appellant would be entitled to be released.”
. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 40 41. I was also not impressed by the argument that all these documents were not addressed to the Sponsoring Authority and thus, not required to be placed before the Detaining Authority. In Smt. Elsy George v. Union of India and others, 2002 Cril.J.540, a Division Bench of the Bombay High Court quashed and set aside the detention order issued under the COFEPOSA Act for non-placement by the Sponsoring Authority (DRI) of an FIR registered independently by the Central Bureau of Investigation. It was observed thus:
“18. Before we proceed to the operative part of this judgment, we would like to make some observations on the averments contained in the second affidavit dated 19.9.2001 filed by the detaining authority. It is, the detaining authority has made himself bold to say that:- “If the argument of the petitioner that fililng of FIR by the CBI is a vital document is accepted then, in that case all documents relating to cases if registered by different law enforcement agencies under different relevant enactments are to be considered by the Detaining Authority while issuing a detention order under the COFEPOSA Act. This will neither be in tune with the provisions of the COFEPOSA Act nor will it be justified since such documents will be completely extraneous material for the purpose of deriving subjective satisfaction as envisaged under the said Act.”
. We have no compunction in observing that the said observations are occasioned by an ignorance on the part of the detaining Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 41 authority of the knowledge of law of preventive detention. We are afraid that if documents relating to cases registered by different law enforcement agencies under different relevant enactments are vital documents which may have a bearing on the subjective satisfaction of the detaining authority, they would have to be forwarded to the detaining authority by the sponsoring authority and the failure to do so would vitiate the detention order. In our view, there is no provision in the COFEPOSA Act, which makes it impermissible to do so and the said documents far from being completely extraneous for the purposes of arriving at subjective satisfaction under the said Act would be whgolly relevant in arriving at it and influencing it. It should be borne in mind that eternal vigilance is the price which the law expects from the detaining and sponsoring authorities if they want detention orders to be affirmed by this Court under Article 226 of the Constitution of India. In their laxity lies the liberty of the detenu.”
. On the basis of the said document, Government instructions were then issued on 25.8.2005 emphasizing on the safeguards and requirements to be observed while sponsoring proposals for preventive detention defined under the COFEPOSA Act mainly for ensuring that the materials forwarded to the Detaining Authority must be complied with in all respects. The judgment in Smt. Elsy George's case(supra) was extensively relied upon in these instructions which have stipulated that while sponsoring proposals for preventive detention materials/documents forwarded to the Detaining Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 42 Authority must be complete in all respects and in particular, attention should be paid to all vital documents which must be placed for consideration before the Detaining Authority. All the Sponsoring Authorities were further cautioned that failure to do so may result in serious lapse which may prove fatal to the detention order.
42. If despite the above settled position of law and the instructions, the Sponsoring Authority shows laxity in placing vital documents for consideration of the Detaining Authority, irrespective of whether such non- placement is inadvertent or otherwise, this Court would be bound to set the detenu at liberty by setting aside the detention order. It is settled law that in preventive detention matters, the lapses of the Authorities cannot be condoned.
43. I also find another fatal infirmity in the detention orders. There cannot be any criminal prosecution under FEMA in the absence of any statutory provision for the same. Although consideration of the possibility of adjudication proceedings is reflected in the grounds of detention, however, consideration of the possibility of criminal prosecution of the petitioners under other ordinary laws of land is not even reflected in the grounds of detention. This infirmity alone is sufficient to vitiate the detention orders as held in Rekha v. State of Tamil Nadu, (2011)5 SCC244and Munagala Yadamma v. State of Andhra pradesh, (2012)2 SCC386 wherein it was held by the Hon'ble Supreme Court that if the offences alleged are of a nature which can be dealt with under the ordinary laws of the land taking recourse to the preventive detention as a substitute for the ordinary punitive law would be contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution of India. Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 43 44. The Sponsoring Authority as well as the Detaining Authority had failed to take requisite care that was required to sustain the preventive detention orders to keep the petitioners in detention without trial. This absolute casualness, laxity and lack of eternal vigilance would vitiate the impugned detention orders. It is settled law that in the laxity of the Authorities lies the liberty of the detenu. In Icchu Devi Choraria (supra), it was held as follows:- “ 3. ... ... This Court has also through its judicial pronouncements created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safe-guards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, howsoever wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 44 case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention.”. 45. While setting aside the impugned orders of detention, I find it necessary to quote the following extract from the judgment of the Constitution Bench of the Hon'ble Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India and others, JT19953) SC639
“49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 45 these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Claues (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this court while rejecting a similar submission: May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenues.
50. We have, therefore, no hesitation in rejecting this contention.”. 46. Before concluding the judgment, I find it appropriate to observe that in the instant case, the detention orders were issued by Shri Rasheda Hussain, Joint Secretary, COFEPOSA, as the Detaining Authority, however, the counter affidavit has been filed by Mrs. Harmeet S. Singh, Joint Secretary, Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. W.P. No.58 of 2014 46 COFEPOSA, without any explanation for the same. When the petition alleges mala-fides, normally the affidavit in a challenge to a preventive detention order shall be filed by the same officer who was subjectively satisfied to issue the orders of detention. Such laxity in dealing with the preventive detention matters is strongly deprecated.
47. In the result, the prayer for quashing of the impugned orders of detention Nos. bearing F. No.673/09/2010-CUS.VIII dated 2nd June, 2010 and F. No.673/10/2010-CUS.VIII dated 2nd June, 2010, which were executed upon the petitioners, is allowed and the impugned detention orders against the petitioners are quashed and set aside. Petitioners who are present in Court are, thus, set at liberty and released forthwith from the custody of the Court. March 28, 2014 ( M. JEYAPAUL ) JS JUDGE Singh Jagjit 2014.03.28 15:28 I attest to the accuracy and integrity of this document High Court, Chandigarh