PITAMBER CHIBBA TANDEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, a detenu under COFEPOSA, has challenged the order of detention dated 16th October, 1984, wherein it is stated that the detenu has been abetting smuggling of goods and in the grounds it is shown that the Ibrahimbhai Billimoria and one Soma Lala were smuggling goods and, the detenu was abetting them. The present detenu was earlier detained by the order dated 26th June, 1984. However, that order of detention was revoked by an order dated 16tui October, 1984 as the detaining authority had not taken into account the bail applications tiled by S/Shri lbrahimbhai Billimoria, Somabhai Lalabhai Patel, Pitamber Chhiba Tandel, Ramejh Bhikhubhai Patel, Dayanand Chhipka Machhi and Ganda Mitha Tandel as they were inadvertantly not furnished by the sponsoring authority. Simultaneously on the same day, the impunged order for fresh detention was passed.

(2.) On 10th October, 1984 the earlier detention of the detenu was challenged in Special Criminal Application No. 540/84 and it was heard with Special Criminal Application No. 496/84 and 491/84 in respect of the detentions of Ibrahimbhai Billimoria and Soma LalaT The detentions of these two detenus were quashed and set aside by the judgments and orders of 10th October 1984 passed by this High Court.

(3.) On 16th October, 1984 when the detaining authority proceeded to pass the fresh order of detention, he has not taken into account the facts and circumstances that the other two detenus alleged to be the principal smugglers had been released by the orders of the High Court. In ground (ii) of para 9 of the petition the petitioner has submitted that the fresh order of detention suffers from non-application of mind because the fact that the other two persons in the same smuggling activity were ordered to be released by the High Court. It is also alleged that these facts were known to the sponsoring authority and the Special Criminal Application No. 540/84 of the present detenu was heard along with these applications. The High Court had held that the identity of Soma Lala had not been established. All these facts and judgments of the High Court were highly relevant and material and yet they were not taken into account by the detaining authority before arriving at his satisfaction. In the affidavit-in-reply the detaining authority has merely denied that contention and the averments regarding non-application of mind and it is submitted that the release of Soma Lala or Ibrahimbhai Billimoria cannot held the case of the petitioner on the ground that the tendency of the present petitioner in abetting smuggling was not dependent on their activity of smuggling. Thus there is no denial of the fact that the facts and circumstances of release of these two detenus were not taken into consideration by the detaining authority. In tile case of Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and others,1 a similar question had arisen and the Supreme Court had quashed the order of detention on the ground that the detaining authority had failed to apply its mind to the highly relevant circumstance that the ground for detention in the case of other detenu involved in the same activity was not found sufficient for detention by the Advisory Board and that material was not placed before the detaining authority. In the present case also the other two detenus were released and they were alleged to be the principal smugglers. This fact was highly relevant for the detaining authority to consider while arriving at his satisfaction and since they were not considered and in fact they were not placed before the detaining authority, his satisfaction regarding the present detention cannot be sustained and must be quashed and set aside.