Criminal Appeal No 662 of 1986
From the Judgment and Order dated 24101986 of the Bombay High Court in WP No 743 of 1986
Dr V Gauri Shanker Ms Halida Khatun and Ms A Subhashini for the Appellants
Ram Jethmalani and Herjinder Singh for the Respondent
The Judgment of the Court was delivered by KHALID J
The Union of India has brought this appeal by special leave against the Judgment of a full Bench of the Bombay High Court quashing the notice under Section 61 of the Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act 1976 hereinafter referred to as SAFEMA
It is necessary to set out the brief facts to appreciate the questions involved in this appeal
Manoharlal Narang the respondent in this appeal and Ramlal Narang are brothers
An order of detention was passed on 19th December 1974 under Section 31 of the COFEPOSA Act against Ramlal Narang
This order was challenged before the Delhi High Court in Writ Petition No 1075 and the High Court quashed the order of detention by its order dated 30th April 1975
An appeal was filed against that order before this Court by the Union of India
Though an applica tion for stay was moved this Court declined to grant stay but passed an order on the 1st May 1975 imposing certain condi 457 tions on the movement of Ramlal Narang
On 25th June 1975 Emergency was declared
On 1st July 1975 a fresh order of detention was passed against Ramlal on the same facts and grounds
In the meantime the appeal filed by the Union of India against the order of the Delhi High Court relating to the earlier order of detention was dismissed by this Court in 1977 for want of prosecution
Ramlal was detained under the second order
A relative of his filed Writ Petition No 115 of 1975 in the Delhi High Court challenging this detention
That petition was dismissed on 25th November 1975
An appeal was filed by Certificate against that order before this Court as Appeal No 399 of 1975
In the mean while notices under Section 6  7 of the SAFEMA were issued against Ramlal
These notices were challenged by him by filing Writ Petition No 720 of 1975 in the Delhi High Court
Subsequently this Court took up appeal No 39975 and disposed it of saying that it would be open to the petitioner to raise all contentions available to him in Writ Petition No 720 of 1975 notwithstanding what is contained in the Judgment in Writ Petition No 11575
The Delhi High Court heard Writ Petition No 720 of 1975 and dismissed it
Against that dismissal order Ramlal filed special leave petition No 936182 before this Court
In this special leave petition notice was issued limited only to the ques tion of the competency of the authorities to issue the second detention order on the same facts and grounds
That petition was thereafter admitted and the criminal appeal arising therefrom is criminal Appeal No 2790 of 1985 which has been referred to a Constitution Bench and is pending disposal at present
That learned Counsel for the appellants made a fervent plea before us that since the question of competency of the authorities to issue the second detention order is pending consideration before a Constitution Bench of this Court this appeal also should be directed to be posted along with that appeal
The respondent s counsel met this plea stating that for the purpose of this appeal this question is cov ered by a three Judge Bench decision of this Court in Ibra him Bachu Bafan vs State of Gujarat and Ors and that it was not necessary to direct this appeal to be tagged with Civil Appeal No 279085
After hearing the counsel for some time we indicated to the learned counsel for the respondent that we were inclined to direct this appeal to be posted along with the appeal pending before the Constitution Bench but were still willing to hear the matter if he could sustain the Judgment under appeal on grounds other than the one referred to the Constitution Bench
He was willing to do so and he argued the case 458 on the other grounds raised by him
We will now proceed to consider those other grounds and see whether the Judgment could be sustained or whether it has to be reversed
The facts and the relevant dates have been stated above
A few more facts are necessary
An order of detention under COFEPOSA was issued against the present respondent on 31st January 1975
At that time he was in England
He was brought to India on some express understanding given to the Government of the United Kingdom
His order of detention was challenged before the Bombay High Court being Writ Petition No 275275 and the High Court quashed that order of deten tion as per order dated 8th July 1980
The appeal filed against that order before this Court was dismissed on 4th November 1980
The notice under challenge in this appeal was issued to the respondent under Section 6 of the SAFEMA with the aid of Section 2 of the Act
Section 2 reads as follows 2
Application 1 The provisions of this Act shall apply only to the persons specified in sub section 2
 Sub section 2 relevant for our purpose reads as follows 2 The persons referred to in sub section 1 are the following namely a         b        c every person who is a relative of a person referred to in clause a or clause b d          e         
Explanation 2
states For the purpose of clause c rela tive in relation to a person means            ii brother or sister of the person            459 The learned counsel for the respondent contended that the respondent could challenge the order of detention against his brother to get the notice issued against him under SAFEMA quashed on all the grounds available to him though they were raised by his brother or not
He was not seeking to get the order of detention against his brother quashed for his brother s benefit nor was he doing it on his behalf but he was invoking the jurisdiction of the Court only for his own benefit
While doing so he is not lettered by what happened to his brother s petition or to the grounds raised by him
Nothing held against his brother would according to the learned counsel operate as res judicata against the respondent
The provisions of SAFEMA were being pressed into service because a relative answering the de scription given in Explanation 2 to Sub section 2 of Section 2 of the Act was available
He cannot be prevented from urging all the grounds available to him to get out of the mischief of the notice issued to him under Section 6 of the SAFEMA
We find that this submission is well founded
We hold that in such cases the person against whom action is taken by invoking the Explanation to Sub section 2 re ferred to above is at liberty to raise all grounds avail able to him though such grounds were raised and found against in a proceedings initiated by the relative
The ground that found favour with the Bombay High Court in this case is that the detaining authority did not apply its mind to the order passed by this Court on 1st May 1975 in the special leave petition against the decision of the Delhi High Court which quashed the detention of Ramlal
The appellants before us sought a stay of the order passed by the Delhi High Court
This Court declined the request but passed the following order We grant Special Leave on usual terms
The petitioner appellant should have gone to the High Court first for a certificate
In view of the arguments heard we give special leave in this matter as a very special case and this is not to be treated as precedent in future
We are unable to grant any stay
We impose a condition on Ram Lal Narang Detenu pending the disposal of the appeal in this Court that he will report to the police station in whose jurisdiction he reside either at Bombay or at Delhi once every day at 10 AM or at 5 PM and whenever he will leave for Delhi he will inform the police as to when he is leaving and when he will arrive at Delhi similarly when he will leave for Bombay he will inform the police as to when he is leaving 460 for Bombay and when he will arrive at Bombay
Certified copy of the judgment impugned shall be filed as soon as possible
 It is not disputed that the detenu Ramlal was reporting to the officer in charge of the Bandra Police station Bombay regularly in due compliance with the above order passed by the Supreme Court
We have already adverted to the fact that proceedings against the respondent taken under SAFEMA were abandoned after the order of this Court on 4th November 1980
It is nearly 3 years later on 29th October 1983 that the pro ceedings from which this appeal arises were initiated under Section 6 of SAFEMA on the basis of the detention order dated 1st July 1975 issued against Ramlal
It is necessary to bear in mind that on 1st July 1975 when the order of detention against Ramlal was passed the authori ties had before them the order of this Court extracted above dated 1st May 1975
By this order Ramlal was permit ted to be at large on condition that he will report to the Police Station as mentioned therein
It cannot be disputed that this order of the Supreme Court is a relevant material for the detaining authority to consider when the detention order was passed
From the records it is not seen that the Union of India had specifically put forward a case at any time that this order was not a relevant material or that this order was considered by the detaining authority
The first respondent had specifically raised this contention in paragraph Q  of the grounds of the Writ Petition by an amendment which was allowed by the order of the Division Bench of the Bombay High Court on 29th April 1986
The specific contention raised in ground Q  was that vital and material facts which would have weighed the mind of the detaining authority one way or the other have been sup pressed from him thus vitiating the order of detention dated 1st July 1975 and consequent declaration made under Section 12a of the COFEPOSA
After that reference was made to the order of this Court extracted above accompanied by an assertion that Ramlal was complying meticulously with the orders of the Supreme Court
This specific assertion is met by the appellants in paragraph 53 of the Counter Affida vit filed by Under secretary
Ministry of Finance  which reads as follows With reference to para 24 Q additional ground it is not admitted that any detaining authority as alleged or other wise
461 In paragraph 54 this ground is met more elaborately with the following observations   
At any rate it is submitted that the contents pertain to the proceedings in the High Court and the Supreme Court and the detention law does not contemplate that the detaining authority is required to take into account the different court proceedings wheth er independent proceedings under the law not initiated conducted managed or looked after by the detaining authority It is well known that the different Ministries of the Govern ment carry out different types of work in different ways and the detaining is not re quired under the law to take notice of work of the Ministries or Court proceedings
The Court proceedings and adjudication proceedings are initiated and conducted by different authori ties which are not required under the law to submit their reports or communicate their actions to the detaining authority
The de taining authority in turn is not required under the law to carry out the process of collection of any material about any Court proceeding or proceedings before other author ities for the purpose of issuance of a deten tion order
The contents of the paragraph refers to such proceedings which are not required to be collected by the detaining authority from such authorities or courts  We are not very happy with the manner in which this important contention has been met in the Counter Affidavit
An order of this Court is not an inconsequential matter
It cannot be assumed for a moment that the detaining authority or the sponsoring authority did not know at the time the detention order was passed that this Court had refused stay of the Judgment of the Delhi High Court and that Ramlal was allowed freedom of movement subject to certain conditions
It is to be regretted that the portion extracted above from the Counter Affidavit shown in bracket betrays an atti tude to put it mildly that lacks grace
Be it understood that the braketted portion was made to meet a case that there existed an order of this Court which was a relevant and vital material
We can use stronger language to express our displeasure at the manner in which reference was made indirectly to this Court s order but we desist from doing so
If the sponsoring authority and the detaining authority are to adopt such cavalier attitude towards orders of courts and of this Court in particular their orders will meet with the same fate as the one under review
462 If the detaining authority had considered the order of this Court one cannot state with definiteness which way his subjective satisfaction would have reacted
This order could have persuaded the detaining authority to desist from pass ing the order of detention since this Court had allowed freedom of movement
Detention is only a preventive Act
This Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed
It may also be that the detaining authority after consider ing the order of this Court carefully could still feel that an order of detention is necessary with reference to other materials which outweigh the effect of this Court s order
In all these cases non application of mind on a vital and relevant material need not necessarily lead to the conclu sion that application of mind on such materials would always be in favour of the detenu
Application of mind in such cases is insisted upon to enable the detaining authori ty to consider one way or the other as to what effect a relevant material could have on the authority that decides the detention
In our view the absence of consideration of this important document amounts to non application of mind on the part of the detaining authority rendering the deten tion order invalid
In Ashadevi vs K Shivraj  this Court had occasion to consider the plea whether an order of deten tion would be vitiated if relevant or vital facts essential to the formation of subjective satisfaction were kept away from the consideration of the detaining authority
This is how this Court dealt with this aspect It is well settled that the subjective satis faction requisite on the part of the detaining authority the formation of which is a condi tion precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order
in Sk
Nizamuddin vs State of West Bengal the order of detention was made on September 10 1973 under Section 32a of MISA based on the subjective satisfaction of the District Magis trate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the mainte nance of supplies and services essential to the community and this subjective satisfac tion according to the grounds of detention furnished to the petitioner was founded on a solitary incident of theft of aluminium wire 463 alleged to have been committed by the peti tioner on April 14 1973
In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub Divisional Magistrate Asansol but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged
It appeared clear on record that the history sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case
 Then this Court referred to a decision reported in and extracted the following in support of their view We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate
That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention
It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be de tained no order of detention should be made for the present but the criminal case should be allowed to run its full course and only if it fails to result in conviction then preven tive detention should be resorted to
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate
 The material not placed before the detaining authority is mentioned in paragraph 7 of the Judgment which reads as follows 7
In the instant case admittedly three facts were not communicated to or placed before the detaining authority before it passed the impugned order against the detenu namely i that during interrogation of the detenu in spite of request neither the presence nor the consultation of the Advocate was permitted ii that in spite of intimation to 464 the Advocate in that behalf the detenu was not produced before the Magistrate on December 14 1977 and iii that the confessional state ments were squarely retracted by the detenu on December 22 1977 at the first available opportunity while he was in judicial custody the first two had a beating on the question whether the confessional statements had been extorted under duress from detenu or not while the third obviously was in relation to the confessional statements which formed the main foundation of the impugned order and as such were vital facts having a bearing on the main issue before the detaining authority
 Ultimately the order of detention was quashed because the retracted confessional statement of the detenu was not placed before the detaining authority who passed the deten tion order on the detenu s confessional statements
This Court observed it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention and also to see whether the confessional statements recorded were voluntary statements or were statements obtained from the detenu under duress and also whether the retracted confession was in the nature of an after thought On the facts of this case by way of reiteration we wish to state that the facts that Ramlal was detained that he had undergone substantive period of detention did not weigh with this Court when the above order was passed which clearly indicated that this Court felt that there was no need to detain him further pending appeal
In Mohd Shakeel Wahid Ahmed vs State of Maharashtra and Ors a Constitution Bench of this Court had to deal with a somewhat similar situation
There one of the grounds of detention on which the appellant before this Court was detained was the same as the one on which one Shamsi was detained
The Advisory Board had reported that there was no sufficient cause for Shamsi s detention
A case was pleaded before this Court that the report of the Adviso ry Board to the above effect ought to have been placed before the detaining authority which passed the order of detention against the petitioner before this court in that case
It was contended that if this material had been placed before the detaining authority it may not have passed an order of detention against the petitioner in that case
This court accepted this plea and observed as follows This submission is well founded and must be accepted
It 465 is clear that Shamsi was detained for engaging in a smuggling activity arising out of the same incident and transaction which forms the subject matter of ground 1 in the instant case
The opinion of the Advisory Board that there was no sufficient cause for Shamsi s detention may not have been binding on the detaining authority which ordered the deten tion of the petitioner but it cannot be gainsaid that the fact that the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least relevant circumstance which ought to have been placed before the detaining authority in this case
Since three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court we have to proceed on the basis that the petitioner was detained and could validly be detained on the remaining ground only
That ground is similar to one of the grounds on which Shamsi was detained the transaction being one and the same as also the incident on which the two orders of detention are based
That is why the opinion of the Advisory Board in Shamsi s case becomes relevant in the petitioner s case
The failure of the State Government to place before the detaining authority in the instant case the opinion which the Advisory Board had recorded in favour of a detenu who was de tained partly on a ground relating to the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant if not binding
In other words the detaining authority did not because it could not apply its mind to a circumstance which reasonably could have affected its decision whether or not to pass an order of detention against the petitioner
 This Court observed further the scope of the consideration of the relevant materials in the following words  
But the question for considera tion is not whether the detaining authority would have been justified in passing the order of detention against the petitioner even after being apprised of the opinion of the Advisory Board in Shamsi s case
The question is whether the order of detention was passed in this case after applying the mind to the relevant facts which bear upon the detention of the petitioner
It seems to us plain that the opinion of the Advisory Board in 466 Shamsi s case was at any rate an important consideration which would and ought to have been taken into account by the detaining authority in the instant case
That opportuni ty was denied to it
 The Constitution Bench has in unambiguous terms out lined the scope of the doctrine of the application of mind and the purpose being it in the above observation
In a recent case Sita Ram Somani vs State of Rajasthan and Ors to which one of us was a party it was held that non application of mind about the bail appli cations of the detenu in pending criminal case and his applications to the Collector of Customs informing him that he had retracted his earlier confessional statements not having been placed before the detaining authority the order of detention was held to be vitiated
In another case Criminal Writ Petition No 397 of 1986 in a Judgment given by one of us along with Pathak J as he then was the detention order which was based on three separate incidents was quashed on the ground that the detaining authority did not apply its mind while passing the detention order that the detenu had moved an application for bail in the three pending cases and that he was enlarged on bail on 13 1 1986 14 1 1986 and 15 1 1986
Since the order of detention did not mention that the detenu in these cases was an under trial prisoner that he was arrested in connection with the three cases that applications for bail were pending and that he was released on three successive days in the three cases this Court had to observe that there was a total absence of application of mind on the part of the detaining authority while passing the detention order and quashed the order of detention
Appellants  counsel in this case found it difficult to get over this plea made by the respondent supported by weighty authorities
He could not put forward any persuasive submissions to compel us to disagree with the consistent view taken by this Court in such matters
He acted with propriety in not adopting the argument put forward in the Counter Affidavit that it was not the function of the authorities to go after all proceedings that take place in Courts of Law relating to a detenu
In view of the above conclusions we do not think it necessary to consider the question whether the authorities acted rightly in not considering the representation made by the respondent
It cannot be disputed that provisions of SAFEMA cannot be invoked in cases where 467 there is no valid order of detention
We agree with the High Court that the order of detention is bad on the ground discussed above
Consequently we hold that the High Court was justified in quashing the notice issued under Section 6 and the proceeding initiated under Section 7 of the SAFEMA
We accordingly dismiss the appeal
SR Appeal dis missed


Summary:
Respondent and Ramlal Narang are brothers
An order of detention passed on 19121974 under section 31 of the COFEPOSA against Ramlal Narang was successfully challenged by WP 1075 before the Delhi High Court
An appeal was filed against that order before the Supreme Court by the Union of India
Refusing a stay application the Supreme Court passed an order imposing certain conditions on the movement of Ramlal Narang
On 2561975 Emergency was de clared
On 171975 a fresh order of detention was passed against Ramlal on the same facts and grounds
The earlier appeal filed by Union of India against WP 1075 was dis missed in 1977
Ramlal was detained under the second order of detention
A writ petition No 11575 flied by his rela tive before the Delhi High Court challenging the second detention was dismissed on 25111975
An appeal was filed by certificate against that order before the Supreme Court as Crl
Appeal No 39975
In the meanwhile notices under sections 6 and 7 of the Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act 1976 were issued against Ramlal
These notices were challenged by him by filing WP No 72075 in the Delhi High Court
Subsequently Crl
Appeal No 39975 was disposed of observing that it would be open to raise all contentions available to him in WP 72075 notwithstanding what is contained in WP 11575
The Delhi High Court having dismissed WP NO
72075 Crl
Appeal No 279085 was preferred to the Supreme 455 Court and is now pending before the Constitution Bench on the question of competency of the authorities to issue second detention order on the name grounds and facts
While Respondents Manoharlal was in England an order of detention under COFEPOSA was issued against him on 3111975
He was brought to India on some express under standing given to the Government of the United Kingdom
His order of detention was quashed by the Bombay High Court wile allowing his writ petition No 275275 on 871980
The Union appeal against the same was dismissed on 4111980 by the Supreme Court
A further notice under section 6 of the SAFEMA read with section 2 was issued to the Respondent on 291083 on the basis of the detention order dated 171975 issued against Ramlal
A full Bench of the Bombay High Court quashed the said notice resulting in the present Crl
Appeal No 66286 by Union of India
The appellants plea to have the case tagged on to Crl
Appeal No 279085 pending before the Constitution Bench was opposed by respondent since he could succeed on merits
Dismissing the appeal the Court HELD 1
In this case the provisions of Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act 1976 were being pressed into service because he is a rela tive answering the description given in Explanation 2 to sub section 2 of section 2 was available
Therefore in such cases the person against whom action is taken by invoking the Explanation to Sub section 2 referred to above is at liberty to raise all grounds available to him though such grounds were raised and found against in a proceedings initiated by the relative
459C D 2
An order of the Supreme Court is not an inconsequen tial order
If the detaining authority has considered the order of Supreme Court one cannot state with definiteness which way is subjective satisfaction would have reacted
This order could have persuaded the detaining authority to desist from passing the order of detention since Supreme Court had allowed freedom of movement
Detention is only a preventive Act
The Supreme Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed
It may also be that the detaining authority after considering the order of the Supreme Court carefully could still feel that an order of detention is necessary with reference to other materials which outweigh the effect of Supreme Court s order
In all these cases non application of mind 456 on a vital and relevant material need not necessarily lead to the conclusion that application of mind on such materials would always be in favour of the detenu
Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other as to what effect a relevant material could have on the authority that decides the detention
The absence of consideration of this important document amounts to non application of mind on the part of the detaining authority rendering the detention order invalid
462A D Ibrahim Bachu Bafen vs State of Gujarat  Ors  Ashadevi vs K Shivraj   Mohd Shakeel Wahid Ahmed vs State of Maharashtra  Ors
1983 2 SCC 392 and Sita Ram Somani vs State of Rajasthan  Ors  referred to