Criminal Appeal No. 662 of 1986.
From the Judgment and Order dated 24.10.1986 of the Bombay High Court in W.P. 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 6(1) 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 3(1) of the COFEPOSA Act against Ramlal Narang.
This order was challenged before the Delhi High Court, in Writ Petition No. 10/75 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. 399/75 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. 115/75.
The Delhi High Court heard Writ Petition No. 720 of 1975 and dismissed it.
Against that dismissal order Ramlal filed special leave petition No. 9361/82 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. 2790/85.
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. 2752/75, 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 A.M. or at 5 P.M. 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 12(a) 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 3(2)(a) 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.
S.R. Appeal dis missed.


Summary:
Respondent and Ramlal Narang are brothers.
An order of detention passed on 19.12.1974 under section 3(1) of the COFEPOSA against Ramlal Narang was successfully challenged by W.P. 10/75 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 25.6.1975 Emergency was de clared.
On 1.7.1975 a fresh order of detention was passed against Ramlal on the same facts and grounds.
The earlier appeal filed by Union of India against W.P. 10/75 was dis missed in 1977.
Ramlal was detained under the second order of detention.
A writ petition No. 115/75 flied by his rela tive before the Delhi High Court challenging the second detention was dismissed on 25.11.1975.
An appeal was filed by certificate against that order before the Supreme Court as Crl.
Appeal No. 399/75.
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 W.P. No. 720/75 in the Delhi High Court.
Subsequently Crl.
Appeal No. 399/75 was disposed of observing that it would be open to raise all contentions available to him in W.P. 720/75 notwithstanding what is contained in W.P. 115/75.
The Delhi High Court having dismissed W.P. NO.
720/75, Crl.
Appeal No. 2790/85 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 31.1.1975.
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. 2752/75 on 8.7.1980.
The Union appeal against the same was dismissed on 4.11.1980 by the Supreme Court.
A further notice under section 6 of the SAFEMA read with section 2 was issued to the Respondent on 29.10.83 on the basis of the detention order dated 1.7.1975 issued against Ramlal.
A full Bench of the Bombay High Court quashed the said notice resulting in the present Crl.
Appeal No. 662/86 by Union of India.
The appellants plea to have the case tagged on to Crl.
Appeal No. 2790/85 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.