NANATTIL ABOOBACKER Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution of India for quashing the detention order dated February 25, 1987 of the petitioner passed by the Commissioner and Secretary, Home Department, State of Kerala, and for directing the respondents to forthwith s;t the petitioner at liberty. On April 29, 1986 two persons namely, Thuluvan Mohamed Kutty and Poozhithara Mammukutty were intercepted by the Trivandrum Airport Customs. Both arrived there from Dubai by an Air India flight. On search of their baggage it was revealed that they were carrying 18 and 16 gold biscuits of foreign origin of 10 tolas each respectively which were concealed by them in their suit cases. It is also alleged that certain incriminating documents were also seized from these two persons. The statements of both of them were recorded there by the Customs Officer. They both are alleged to have stated that the biscuits were to be handed over to Nanattil Aboobacker alias Aboobacker, Hazi, the petitioner. Both these persons were taken into custody. They were, however, later released on bail. Apprehending his arrest by the Officers of the Custom Department the petitioner bad moved an application for anticipatory bail and he was ordered to be released on anticipatory bail on his furnishing a bond in the sum of Rs. 10,000.00 with two sureties each in the like amount by the order of the Sessions Judge, Calicut dated May 13,1986. On June 29, 1986 the house of the petitioner was searched by the Customs Officer but no contraband goods or incriminating document was seized. On that very day summons under S. 108 of the Customs Act were also served by the Customs Officer on the petitioner directing him to appear before him on July 4, 1986. It is, however, alleged that the petitioner did not appear on that day and evaded the service of the subsequent summons dated July 14, 1986. On October 23, 1986 and October 24, 1986 two show cause notices under S. 124 of the Customs Act were also issued to the petitioner. The petitioner sent a reply dated-November 17, 1986 to both these notices. After the completion of the investigation the names of the petitioner and some others were proposed by the Collector, Customs, to the detaining authority. From the material placed before the detaining authority he formed the opinion that the petitioner had abetted the smuggling of gold by the said two persons namely, Thuluvan Mohamed Kutty and Poozhithara Mammukutty. He accordingly passed the order of detention under Ss. 3(1)(ii) and 3(l)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act'). While the petitioner was in jail he was served with the grounds of detention dated February 25, 1987. He was also given a list of documents as relied upon by the detaining authority. On June 5,1987 while the petitioner was in jail he was served with the declaration under S. 9(1) of the Act. The petitioner thereafter on June 16. 1987 made a representation to the detaining authority and to the Central Government wherein he requested for the revocation of the order of detention. On July 5, 1987 the petitioner recieved a communication whereby he was informed by the Under Secretary to the Government of India that his representation had been rejected by the Central Government. He was also informed about the same on July 15, 1987 by another communication dated July 10, 1987 from the Commissioner and Secretary (Home) of the State of Kerala. The petitioner was then informed on July 16, 1987 by the Commissioner and Secretary (Home), State of Kerala, that his detention was confirmed under S. 10 of the Act for a period of two eears from the date of his detention i.e. May 4.1987. On October 20, 1987 the petitioner made a representation to the President of India through his advocate wherein he requested for revocation of the detention order and declaration under S. 9(1) of the Act. Not having heard anything from the President of India about the same, the petitioner thereafter filed this writ petition to this Court on October 28,1987.

(2.) The order of detention and the continued detention of the petitioner has been challenged on a number of grounds as taken in the writ petition. This petition can, however, be disposed of on the single main contention raised by Mr. Harjinder Singh, learned counsel for the petitioner. It was contended by Mr. Harjinder Singh that two show cause notices dated October 23, 1986 and October 24, 1986 were admittedly issued to the petitioner and to said Poozhithara Mammukutty by Shri Rajindra Prakash, Deputy Collector of Customs under S. 124 of the Customs Act. The petitioner also admittedly submitted his reply 'dated November 17,1986 in the adjudication proceedings that were taken under the Customs Act. These documents i.e. the copies of the show cause notices and that of the reply of the petitioner thereto were admittedly not placed by the sponsoring authority before the detaining authority i.e. respondent No 2. It was next submitted that the sponsoring authority also did not produce before the detaining authority copies of the bail applications that were moved by said Poozhithara Mammukutty and G.K. Umer and K.P. Aboobacker. It is contended that these documents were material documents. The statement of the petitioner was never recorded by the Customs Authorities under S. 108 of the Customs Act and the petitioner had given his version in his reply dated November 17, 1986 to the said two show cause notices. In the bail application Poozhithara Mammukutty and the said other connected persons namely, G K. Umer and K.P. Aboobacker had retracted their purported statements under S. 108 of the Customs Act. According to Mr. Harjinder Singh these documents were material documents which ought to have been placed before the detaining authority. By not placing these documents before the detaining authority there was suppression of vital and material facts from the detaining authority and that vitiated the order of detention, as also the order passed by respondent No. 3 under S. 9(1) of the Act.

(3.) Now, these documents were admittedly not placed before the detaining authority till the detaining authority passed the order of detention of the petitioner. On behalf of respondents No. 2 and 4 and affidavit of Shri P. Viswanath Nair, Additional Secretary (Home), Government Kerala, has been filed. In the corresponding para of the counter affidavit of Mr. Nair it is stated that since the cases of Poozhithara Mammukutty and Thuluvan Mohamed Kutty were dealt with separately for actions under the Customs Act, the two show cause notices were issued to Nanatill Aboobacker, but it was felt that there was no need to club the action taken under the Customs Act with the action to be taken under COFEPOSA Act and for that reason the reply of the petitioner to the show cause notice was not placed before the detaining authority. It is further stated in the counter affidavit that the very fact that the petitioner had purposely evaded giving a statement on opportunities afforded to him earlier weakened the evidentiary value of his reply to the show cause notices. The learned counsel for the two set of respondents reiterated this very explanation in reply to the said submissions of Mr. Harjinder Singh. Now it is a settled law that it is the bounden duty of the sponsoring authority to place all relevant material before the detaining authority, for and against the person proposed to be detained. It is not within the province of the sponsoring authority to pick and choose and to decide as to which of the concerned documents should be placed before the detaining authority and which others should not be so placed before him. In this case the statement of the petitioner was not recorded by the customs authorities. The petitioner had submitted a detailed reply to the show cause notices, a copy of which is Annexure'E' to the writ petition. In this reply the petitioner had denied his connection with the two persons and had further given details showing his complete innocence in the matter. The explanation of respondent No. 3 that in his opinion the reply to the show cause notices as submitted by the petitioner was not necessary to be placed before the detaining authority is obviously meaningless as it was not within the province of the sponsoring authority to decide if a particular document (the reply of the petitioner in the present case) was or was not a material document that should be placed before the detaining authority. Even otherwise this explanation of Shri Nair viz. that it was not necessary to place the reply of the petitioner before the detaining authority simply because that partained to separate proceedings under the Customs Act has no merit at all. It is obvious that the adjudication proceedings taken against the petitioner and Poozhithara Mammukutty and Thuluvan Mohamed Kutty were intimately connected with the action proposed to be taken against the petitioner under the COFEPOSA Act. The transaction namely, that of the recovery of gold biscuits from said Poozhithara Mammukutty and Thuluvan Mohamed Kutty on April 29, 1986 at Trivandrum Airport was the main circumstance which gave rise to the proceedings under the two Acts against the present petitioner, as also against Poozhithara Mammukutty and Thuluvan Mohamed Kutty. Some of the evidence collected by the Customs Authorities in the cases against these persons under the Cussoms Act was obviously not only relevant, but was material for consideration of the detaining authority. I am of the clear view that the reply of the petitioner dated Nov. 17, 1986 to the said two show cause notices was a very relevant document that ought to have been placed before the detaining authority. I need not deal with the submission of Mr. Harjinder Singh regarding the other material viz. the said bail applications which were also not placed before the detaining authority. It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the petitioner under the Act. The reply of the petitioner, or a copy thereof, which was a relevant document, not having been placed before the detaining authority there is a clear non-application of mind by the detaining authority to the entire relevant material. In the circumstances it has to be held that the subjective satisfaction of the detaining authority was vitiated in view of the fact that the relevant material was not placed before it by the sponsoring authority. I am fortified in this view of mine by two recent decisions of the Supreme Court. The Supreme Court in Khurjibhai Dhanjibhai Patel v. State of Gujarat & Ors. (Cr. Appeal No. 332/84, decided on Appril 16, 1985), a copy of which was placed by Mr. Harjinder Singh on the record of the case, had the occasion to deal with the same kind of document, namely reply to the show cause notice issued by the sponsoring authority in the adjudication proceedings against the detenu and it was held that the reply to the show cause notice was certainly the most relevant material which ought to have been placed before the detaining authority. As that was not placed before the detaining authority by the sponsoring authority the Supreme Court held that the subjective satisfaction of the detaining authority was vitiated. The detention of the detenu was quashed. In the case Sita Ram Somany v. State of Rajasthan and others, AIR 1986 S.C. 1072, it was found that the sponsoring authority had not placed two bail applications which were filed by the detenu before the detaining authority. In these bail applications the detenu had retracted from his confessional statement and had denied any recovery of gold or foreign currency from his premises. In the writ petition filed for setting aside the order of detention the stand taken by the detaining authority was that they were not relevant documents. These bail applications were considered to be a relevant material. It was held that the detaining authority had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA Act and that the relevant material, however, not having been placed before the detaining authority the detention order was quashed. In conclusion, in view of what has been said above I accept the writ petition and set aside the order of detention of the petitioner. The petitioner is directed to be set at liberty forthwith if not required by any other lawful order.