Judgment:
P.K. Bahri, J.
(1) This writ petition is brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking writ of habeas corpus for getting released the petitioner who has been detained vide order dated October 22, 1986, passed by the Commisisoner and Secretary (Home), Government of Kerala, under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA ACT') with a view to preventing him from abating in the smuggling of goods and engaging himself in dealing with smuggled goods. He has also challenged the declaration given under Section 9 of the Cofeposa Act which has the effect of prolonging his detention from one year to two years.
(2) It is the case of the detaining authority that on a complaint being filed by one Mohammed Ali with the Circle Inspector of Police, Civil Supplied Cell, Economic Offices Police Station,. Calicut, a case Crime No.3/86 was registered and the said police by virtue of powers conferred under Section 6 of the Customs Act, 1962, had made recovery of 22 gold biscuits of foreign make each weighing 10 tolas from five persons. After the recoveries were effected, the case was handed over to the Customs Officers for investigation as the police is not empowered to investigate such like cases. During the course of investigation by the Customs authorities, statements of witnesses were recorded and the evidence was collected which depicted that 35 gold biscuits had been smuggled through one Kolappally Hussain from a foreign country for delivering the same to the petitioner. These recoveries were effected on February 18, 1986 and February 24, 1986. The search of the potitioner's house was also effected but nothing was recovered from his house. The orders of detention and the declaration made under the Cofeposa Act are challenged by the petitioner on various grounds but counsel for the petitioner has not pressed other grounds except the grounds covered in paras 5 to 10 and specific grounds Vi and Xiii of para 15. In nutshell the first ground raised by the counsel for the petitioner is that the petitioner had given an application to the authorities demanding copies of a number of documents which could have enabled the petitioner to make an effective representation against the proposed order of detention but the said copies were not supplied by the authorities on the ground that they were not relevant. Annexure 'G' appearing at page 66 in the representation given by the petitioner to the Government of Kerala asking for the supply of copies of the 12 documents enumerated therein. Annexure 'H' is the copy of the reply sent by the Commissioner and Secretary (Home), Government of Kerala, declining to supply copies of such documents on the grounds that they are not relevant and moreover they were not relied upon by the detaining authority. It has been urged by Mr. Herjinder Singh, advocate, on behalf of the detenu that the documents of which copies have been ought had been at least referred to in the grounds of detention. Thus, non-supply of copies of the said documents on being demanded by the detenu has deprived the detenu of his fundamental constitutional right of making an effective representation. It is settled law that under Article 22(5) of the Constitution the detaining authority has to take into consideration and all the material facts and vital documents which could influence the mind of the detaining authority in forming a conclusion as to whether a particular person should be detained or not and in case any material fact or document is not placed before the detaining authority the subjective satisfaction so arrived at in absence of such material and vital documents would result in vitiating the detention order. This is the first facet of the constitutional mandate. The second facet of the constitutional mandate is that a person sought to be detained has to be afforded an earliest opportunity of making a representation. To enable the person sought to be detained to make an effective representation, it is incumbent that the detaining authority should supply to the detenu the grounds of detention which would include the material facts and the documents on which the detention order is based Pari Pasu the grounds of detention. But in case the affected person needs more documents or copies thereof which the said person thinks are relevant and are material to enable him to make an effective representation against the proposed order of detention then such copies of documents ought to be supplied to the said person and if such demand is not met by the authorities the order of detention is liable to be struck down as it would have the effect of not affording an earliest opportunity to the detenu for making a representation. This is the second facet of the constitutional right. In P. Moidu Haji and Another v. Union of India & Others, , it has been observed by a Division Bench of this Court that it is well settled now that failure to furnish copies of documents to the detenu on which reliance has been placed by the detaining authority vitiates the detention. It was further observed that this court in a number of cases has held that copies of documents which have been referred to in the grounds of detention but not relied upon by the detaining authority have to be supplied to the detenu if he seeks copies of the same and on such a request being made by the detenu, it is not for the detaining authority to conclude that the copies of documents sought for were not relevant even for the defense of the detenu as if is for the detenu to consider as to how he can show his innocence from these documents. In the cited case also, a request of the detenu for supply of copies of some of the documents to which casual reference had been made in the grounds of detention was declined and the Division Bench of this court held that the detention order was vitiated as non-supply of such copies had deprived the detenu of his right of making an effective representation against the detention order. This judgment has placed reliance on the ratio in Vinod Kumar v. Administrator, Delhi Union Territory, , which noticed Bombay High Court judgment in Mobd. Hussain v. Secretary, Govt. of Maharashtra, : (1982)84BOMLR379 in which it was held after surveying the whole spectrum of the law on the subject that (a) the copies of all the documents which are relied upon in or which form the basis of the grounds of detention must be supplied to the detenu Along with the grounds of detention (b) the documents which are not relief upon or do not form the basis of the detention order but which are merely referred to casually or incidentally as and by way or narration of facts in the grounds of detention need not be supplied to the detenu; (o) however, even copies of such documents if the detenu requests for the same have to be supplied to him for whether they are relevant to his defense or not, it is for the detenu to decide and not for the detaining authority to judge. Counsel for the Government of Kerala has however, vehemently argued that the documents of which copies have been sought by the petitioner were not at all referred to in the grounds of detention and thus the detaining authority was justified in declining to supply copies of such documents. In the counter affidavit filed by Shri Abraham Philip, Additional Secretary to the Government of Kerala, Home Department, the averment made in respect of this plea of the petitioner is that the documents in respect of which the copies were demanded by the detenu were not relied upon by the detaining authority for making the detention order. It was nowhere averred that these documents have not been referred to in the grounds of detention. The ratio of law as has been deduced from the two rulings of this court is that it is not for the detaining authority to decide whether the documents of which copies are sought, are relevant or not because it is for the detenu to determine whether the said documents would enable him to make an effective defense in his representation.
(3) Now coming to the grounds of detention annexure 'B' page 28 of the paper book, I, find that it is clearly mentioned therein that Circle Inspector of Police Station Calicut, in the course of investigation into Crime No.3l86 had apprehended certain persons from whom the said gold biscuits were recovered. In the application seeking the copies the detenu wanted the copy of the F.I.R. of this Crime No. 3186 to be supplied to him. He wanted first information statement also in that respect. Then he wanted the case diary, movement diary, the general diary, the final report and the statements of the individual recorded under Section 161, log book of the vehicles, statements of seizure mahazar witnesses regarding the alleged recovery of gold biscuits and the warrants of arrest of the five persons concerned and the documents showing the receipt of the complaint and the copy of the complaint, all pertaining to case Crime No. 3186. It is the case of the detaining authority that in the investigation of the case Crime No.3/86 the five persons were apprehended and gold biscuits were recovered. Although it has been averred in the counter affidavit that no investigation was done by the police and after the recoveries had been effected the case was transferred to the Customs Officers for investigation, yet the fact remains that there is a reference to this particular case Crime No.3/86 in the grounds of detention and also to the recoveries effected from different persons. Hence, it cannot be argued that any rationality that the documents to which reference has been made by the detenu in his application seeking copies there is no mention in the grounds of detention. After all recoveries have been effected and seizure memos have been prepared and the recovery memos are attested by certain witnesses and the reference has been made in the grounds of detention to the recovery memos which are attested by the witnesses and the detenu wanted copies of the statements of the said attesting witnesses. So at least it can be inferred from the grounds of detention that there is passing reference to the complaint, basis of the case Crime No.3186 and also to the attesting witnesses of the recovery memos. So. the detenu was within his right to demand the copies of the said documents from the detaining authority and the detaining authority was not justified in law in declining the said request. Thus, the detention order has to be quashed on this short ground.
(4) I may also mention to the second ground raised by the learned counsel for the petitioner which pertains to non-application of mind by the detaining authority before passing the detention order inasmuch as the anticipatory bail application of the petitioner and the order made thereupon by the Sessions Court and the show cause notice issued to the petitioner in adjudication proceedings under the Customs Act and the reply given by the detenu to the said show cause notice were not placed before the detaining authority. I have been shown the record of the case which was perused by the detaining authority before passing the detention order and I find that it has been brought to the notice of the detaining authority that an anticipatory bail had been granted to the detenu. but neither the copy of the ball application nor the bail order by the court have been places before the detaining authority. It is admitted in the counter affidavit that at least the show cause notice and the reply given thereto by the detenu were not placed before the detaining authority before the order of detention was made. In the counter, it has been averred that the show cause notice and the reply given by the detenu in the adjudication proceedings under the Customs Act were not relevant documents to be considered by the detaining authority. This plea taken in the counter affidavit cannot be countenanced. After all in reply to the show cause notice the detenu might have raised certain pleas and might have disclosed certain facts which could have influenced the mind of the detaining authority in forming final conclusion either way whether he should pass or should not pass the order of detention.
(5) Counsel for the petitioner has brought to my notice Criminal Appeal No. 332/84. Khurjibhai Dhanjibhai Patel v. State of Gujarat & Others, decided by the Hon'ble Supreme Court on April 16. 1985(4). It has been observed in this judgment that it cannot be disputed that the show cause notice and the detenu's reply thereforee, particularly the letter, though these documents form part of adjudication proceedings constituted the most relevant material which was essentially to be placed before the detaining authority before issuance of the impugned order. It was further observed in this judgment that reply to the show cause notice cannot be said to be irrelevant material. So, it was held that subjective satisfaction of the detaining authority must be regarded as having vitiated in view of the fact that the relevant material was not placed before by the sponsoring authority. In Criminal Writ No. 193/86, Shri Ulladancheri Moideen v. Union of India & others, decided on November 25, 1986(5), a Division Bench of this Court has observed that the detention order would be vitiated for the failure of the competent authority to consider the bail application and the orders made thereon. In Anant Sakharam Rut v. State of Maharashtra & Another, : 1987CriLJ323 , it was observed that there was clear non-application of mind on the part of the detaining authority in passing defective order without being informed about the fact that the petitioner had been granted bail. In the cited case also, the detaining authority was not apprised about the applications for bail and the bail orders passed on such applications. It is held in Sita Ram Somani v. State of Rajasthan & Others, : 1986CriLJ860 , that non-placement of material like the bail applications and the orders made thereon before the detaining authority vitiates the detention order. In Union of India & Others v. Manoharlal Narang, : 1987(30)ELT37(SC) , the order of the Supreme Court granting interim bail was not placed before the detaining authority and it was held that the detention order is bad as the same had been passed without application of mind. So, on this ground as well, the order of detention is liable to be quashed.
(6) The declaring authority before passing the order under Section 9 also has not taken into consideration the bail applications and the orders made thereupon, the show cause notice and the reply given thereto and thus, the order of declaration is also afflicted with the same vice of non-application of mind. It is mentioned in the order of declaration that the only documents of which copies have been served on the detenu, have been taken into consideration by the declaring authority before passing the detention order. There is no reference in the same to the copies of bail application, the order made by the court granting the bail, the show cause notice and the reply given by the detenu. So, it is evident that the declaring authority did not take into consideration all these vital documents. No counter affidavit has been filed by the declaring authority.
(7) In view of the above discussion, I allow the writ petition and quash the detention order as well as the orders of declaration and direct the release of the petitioner forthwith unless he is required to be detained under any other lawful order.