KHANTIJABAI SHABAN ALI PUNJANI Vs. UNION OF INDIA

JUDGEMENT

(1.) BY order dated November 18, 1989 passed in exercise of powers conferred under sub-section (1) of Section 3 of conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974, the Secretary (Preventive Detention) to the Government of maharashtra. Home Department, directed detention of Mrs. Shainaz sultan Ali Punjani with a view to preventing her from smuggling goods. The order of detention was served on December 18, 1989 and the grounds of detention were furnished. The grounds, inter alia, recite that on august 19, 1989, the Customs Officers attached to Air Intelligence Unit intercepted the detenu, her husband and minor children, i. e , son Mazhar sultan Ali and daughters Miss Rima Sultan Punjani and two year old female child at Sahar Airport. The detenu had arrived from Abudhabi and had declared that she was not carrying any gold. The Customs Officers suspected the statement and on search of the detenu, her husband and the minor children recovered 177 foreign marked gold bars of 10 tolas each collectively valued at Rs. 39, 62, 534. 40. The statements of the detenu and the family members were recorded and the statements clearly incriminated all of them in the act of smuggling gold. The detenu was produced before the Court of Additional Chief Metropolitan Magistrate at Explanade, Bombay on August 23, 1989 and was released on bail of rs. 5,00,000. The detenu availed of the bail on September 23, 1989. The detaining authority, on this material, came to the conclusion that the detenu has indulged in smuggled gold and unless detained would continue her activities. The order of detention in challenged by mother-in-law of the detenu by filing the present petition.

(2.) SHRI Karmali, learned counsel appearing on behalf of the detenu, submitted that the order of detention is required to be quashed because the detaining authority has failed to take into consideration the relevant material. The learned counsel urged that bail application on behalf of the detenu was filed before the Chief Metropolitan on August 23, 1989. The application for bail was also made on behalf of the husband of the detenu. The Magistrate while releasing the detenu on bail on September 1, 1989 imposed condition that the detenu should not leave Bombay without permission of the Court. The detenu's husband was released on bail by order dated September 6, 1989 and that order directed that the passports of the detenu and her husband should be retained by the customs authorities. Shri Karmali submits that neither the bail application, nor the order passed by the Magistrate while granting bail to the detenu and her husband were placed before the detaining authority and failure to do so leads to a serious infirmity. There is considerable merit in the submission of the learned counsel. It is now well settled by catena of decisions of this Court that the fact that the detenu applied for bail and the fact that the Magistrate released the detenu on bail on certain conditions are relevant circumstances and must be brought to the notice of the detaining authority. It is thereafter open for the detaining authority to consider whether the order of detention should be passed on the facts and circumstances of the case. In the present case, admittedly, neither the bail applications nor the orders passed thereon were brought to the attention of the detaining authority, but merely bail certificate was placed before the authorities. In these circumstances, the detaining authority could not have examined whether the order of detention is required in spite of the condition imposed by the Magistrate while granting bail. Failure to place before the detaining authority the relevant material is a serious draw back in the order of detention and, therefore, the order is required to be set aside.

(3.) MRS. Desai, learned Puplic prosecutor, submitted that it is open for this Court after perusing the order passed by the Magistrate on bail application to decide whether the order of detention is called for or otherwise. It is impossible to accede to this submission. It is open for this court to objectively determine whether particular circumstance is relevant or not. It is not permissible thereafter to examine whether the order of detention can be sustained even though the relevant material was not taken into consideration. It is always subjective satisfaction of the detaining authority to determine whether power to detain should be exercised after taking into consideration the relevant material. It is not open for this Court to substitute subjective satisfaction when the detaining authority fails to take into consideration the relevant material. In our judgment, the order of detention, in these circumstances, cannot be sustained.