Judgment:
H.C. Goel, J.
(1) By this application under Article 226 of the Constitution of India challenge is made to the detention of the petitioner as per the detention order dated 8-3-1986 passed by Shri K.L. Verma, Joint Secretary to Govt. of India, Ministry of Finance, Department of Revenue, Respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (for short 'the Act'). The detention order was passed by the detaining authority with a view to prevent the petitioner from abetting the smuggling of goods. The petitioner was working as an Assistant in the Ministry of Finance. It is alleged in the grounds of detention that certain goods consigned in the name of M/s. Charu International Pvt. Ltd., New Delhi and meant for one Sunil V. Desai a co-detenu of the petitioner and got cleared by another co-detenu Sanjeev Malhotra on behalf of said Sunil V. Desai. It is further alleged that the petitioner had gone to Singapore some time in June, 1987 and on his return Sunil V.Desai received him at Bombay Airport and he looked after the petitioner during his one day's stay at Bombay. The petitioner as a token of the same promised help to Desai in case of need at New Delhi. Further allegations are that the petitioner on the suggestion of S.K. Nayyer, a co-detenu had suggested to Sunil V. Desai the name of one Sanjeev Malhotra another co-defend for service as a cleaning agent. S.K.. Nayyer had spoken to the Assistant Collector, Customs and to the appraiser. As such the goods after being appraised were ordered to be released after proper adjudication on payment of redemption fine and custom duty. The further allegation is that the redemption duty and the custom duty amounting to Rs. 59,3541- was deposited by a son of the petitioner detenu after obtaining the money from Sunil V. Desai. According to the detaining authority in this manner the petitioner had abetted the smuggling of goods in India.
(2) The detention of the petitioner is challenged on a number of grounds. I will however only deal with one ground on which alone the detention of The petitioner deserves to be quashed. The contention raised on behalf of the petitioner is that as per the allegations made in the grounds of detention the petitioner used his official influence for getting the contraband goods Cleared through customs authority. According to the petitioner he was suspended from service on 17th December, 1987 vide orders passed by the Ministry of Finance, copies of which are annexures P-7 and P-8. It is submitted that this suspension order of the petitioner was a material document which ought to have been placed by the sponsoring authority before the detaining authority but that it was not placed before the latter. It is submitted that had the fact of the suspension of the petitioner from his service on 17th December, 1987 been brought to the notice of the detaining authority and had the copies of the said two documents relating to his suspension been placed before the detaining authority, the detaining authority may not have passed the order of detention. It is contended that thus the non-furnishing of the said information and the non-placement of the said two documents by the sponsoring authority before the detaining authority caused a serious prejudice to the petitioner and the subjective satisfaction of the detaining authority stood vitiated and the order of detention and the continued detention of the petitioner deserves to be struck down on this ground.
(3) Shri K.L. Verma, respondent No. 2 in his counter affidavit in reply to ground D of the Grounds of the writ petition stated that the allegations as made in the ground D were incorrect and were not admitted. It is further stated that all the documents as relied upon were duly placed before thedetainingauthority,andthatinthe ground D it is not stated as to which material documents that could have been affected the forming of the subjective satisfaction one way or the other of the detaining authority were suppressed from him. The petitioner in para D of the grounds has specifically stated that he was suspended from service on 17th December, 1987 vide orders passed by the Ministry of Finance, copies, of which were attached as annexures P-7 and P-8. These were the two material documents which were not placed by the sponsoring authority before the detaining authority. In the face of such clear and categorical averments in ground D of the grounds Of petition, it is too much on the part of the respondent No. 2 to say in the relevant part of his counter affidavit that the petitioner has not stated in the relevant para as to which document he was referring to. It is obvious that the averment made in para Dot the affidavit of Mr. Verma is wholly absurd, to say the least.and it has to betaken that the :said two documents were not placed before him by the sponsoring authority. It may also be stated here that Mr. Rajinder Dutt, learned counsel appearing for the respondents did not dispute that position. It only shows the highly irresponsible manner in which the affidavit was furnished by respondent No. 2 as a counter to the writ petition of the petitioner. Now as per the allegations as made in the grounds of detention, the petitioner is alleged to have abused his official position as an Assistant in the Ministry of Finance and it is because of that official position of his that the petitioner is alleged to have abetted the alleged act of getting the contraband goods cleared form the custom authorities and the order of detention was passed with a view to prevent the petitioner from further indulging in a suchlike activity, namely, that of abetting the smuggling of goods by influencing some officials of the customs department. Thus, the, fact of the petitioner's having been suspended from service on 17th December , 1987 i.e. about six months prior to the passing of the order of detention on 8th .March, 1988, was to my mind, certainly a relevant and material fact that the sponsoring authority ought to have placed before the detaining authority, and the copy of the order of suspension of the petitioner (Ann. P-7) dated 17th December, 1987, ought to have been placed before the detaining authority. Annexure P-8 is a copy of the order of the Central Government, which is also dated 17th December, 1987 by which the petitioner was sanctioned subsistence allowance. I am unable to find any merit in the submission of Mr. Rajinder Dutt, learned counsel for the respondent that the said fact and document i.e. the copy of the order of suspension of the petitioner was not a material fact and document respectively which must necessarily have been placed before the detaining authority. The entire relevant material appearing on the issue involved in the case of the detenu which may influence the mind of the detaining authority one way or the other has got to be placed by the sponsoring authority before the detaining authority. It is then for the detaining authority to consider that material for formation of its opinion one way or the other. The sponsoring authority however cannot prejudge the matter and assume to itself thereof of the detaining authority and exclude from the consideration of the detaining authority any relevant material having bearing on the issue. The non-placing of the material fact and/or document before .the detaining authority will vitiate his subjective satisfaction.
(4) At this stage it would be useful to refer to some decisions which throw light on the point at issue. In the case of Ashadevi v. K. Shivraj and another, Air 1979 Sc 447, the passing of detention order was based on the alleged confessional statements of the detenu before the customs officer, Those statements were subsequently retracted by the detenu at the first available opportunity while he was in judicial custody, The retraction of the confessional statement was however not .placed before the detaining authority. On this fact the Supreme Court held that the question whether the confessional statements recorded earlier were voluntary statements or were statements which were obtained from the detenu under duress or whether the-subsequent retraction of those statements by the detenu was in the nature of an after thought, were primarily for the detaining authority to consider before deciding to issue the detention order, but since the said vital fact of retraction which could have influenced the mind of the detaining authority one way or the other was not placed before the detaining authority, there was non-application of mind to the most material and factual facts in reaching the requisite satisfaction of the detaining authority; thereby rendering the detention order illegal and invalid.
(5) In Abdul Rehman v. Union of India & Ors., 1988(2) Crimes 537, it was found that the detenu had been granted bail by the High Court. This fact was duly brought to the notice of the detaining authority by the sponsoring authority. .However the exact bail order was not brought to the notice of the detaining authority. One of the .conditions for allowing the bail was that the detenu was to surrender his passport to the Court before he was given bail. The other condition of bail was that the detenu was directed to meet the Investigating Officer of the case once every day for one month and thereafter twice a. week until further orders of the Court. The detenu was also required to provide to the Investigating Officer the address where he was residing within the jurisdiction of the Court. It Was also provided that one of the five sureties to be furnished by the detenu had to. be a resident of the same city, namely, Barasad. A Division Bench of this. Court held that the sponsoring authority should have brought the fact not only that the detenu had been released on bail, it was necessary for the sponsoring authority to bring the said conditions of allowing bail to the detenu to the notice of the detaining authority. It was observed that had the said condition of bail been brought it to the notice of the detaining authority, one could not say with definiteness as to which way the detaining authority would have reacted in those circumstances. Under the circumstance, the detention of the detenu was quashed.
(6) A decision of the Division Bench of the Bombay High Court in the case Zohra Bai v. The Additional Secretary (Home), Ministry of Home Affairs, Govt. of Maharashtra & Ors, 1984 Crl.L.J. 1859 is a direct authority dealing with the question of non-placement of a copy of the order of the suspension of the detenu. In that case the order of detention was passed against the detenu under Section 3(1) of the Act, with a view to prevent him from smuggling goods. The detenu was an Air Customs Officer at the relevant time. It was alleged against him that he had tried to influence his subordinates to .clear a carton containing smuggled goods. Departmental proceedings were initiated against him and he was suspended from service. The order of suspension of the detenu however, was not placed before the detaining authority. It was held that the order of suspension of the detenu was of vital importance because what weighed on the mind of the detaining authority vyas the status of the detenu and his capacity to influence his subordinates in clearing the smuggled goods in future. The detention of the detenu Was quashed for the sponsoring authority not placing a copy of the order of suspension of the detenu before the detaining authority. These authorities clearly support my above said view.
(7) I accordingly allow the petition, quash the order of detention of the detenu and his continued detention and direct that the petitioner be set at liberty forthwith, if not required to be detained under any other lawful Order.