HAZI MENU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY this writ petition in the nature of habeas corpus, Haji Menu has challenged his detention order by the Commissioner and Secretary to the Govt. in the Home Department, Rajasthan, by his order dated 23. 4. 88. In pursuance of the said order, which is Annex. 1 on the record, the petitioner was arrested on 14. 7. 88 and the grounds of detention were served upon him vide Annex. 2. The petitioner made a representation Annex. 4. The representation was, however, rejected by communication dated 16. 8. 88, which is Annex. 5 by the State of Rajasthan and vide Annex. 6 dated 30. 8. 88 by the Central Govt. The detention of the petitioner was confirmed vide order dated 16. 9. 88 Annex. 7 for a period of one year from 14. 7. 88.

(2.) IN this petition, the detention has been challenged on various grounds with which we shall presently deal. However, it may be mentioned that the detention has been ordered on the following five grounds': -. (i) That on 28. 6. 86, 544. 200 kg. of charas was recovered by the police, Jaisalmer and in connection with that recovery, one Kambhira was examined by the police u/s. 161 Cr. P. C. and in that statement Kambhira had stated that the detenu had met him in Pakistan at the house of Kamal Badera in June, 1986 and had requested Kambhira to persuade Sada to deliver 114 kg. of heroin to the detenu. (ii) That on 4. 8. 86, the police, Jaisalmer, had recovered 20. 485 kg. of heroin and in that connection, one Baram Khan S/o Lashkar Khan was examined u/s. 108 of the Central Customs Act and in that statement, he had stated that according to his information, the detenu and one other person was found moving about on camel back near the place from which the recovery had been made. (iii) That again on 2/3. 10. 87, Border Security Force (B. S. F.) had recovered 1158 kg. of charas said to have been smuggled from Pakistan, u/s HO of the Central Customs Act and during the course of enquiry in that matter, one Ahmed s/o Shahmurad Khan had been examined and the said Ahmed had stated that the charas belonged to the present detenu. (iv) On 15. 10. 87, the B. S. F. , Jaisalmer, had again recovered 1985. 240 kg. of charas near Bhuri Bhiti and during the course of enquiry in that matter, Kanda s/o Murid Khan was examined u/s 108 of the Central Customs Act and he stated that the detenu was one of the main partners in the smuggled charas. Similarly, one Miyan s/o Jinda supported the statement of Kanda and stated that the detenu had got the charas smuggled from Pakistan. So also one Rahim Khan in his statement u/s 107 of the Central Customs Act stated that the detenu had got this charas brought from Pakistan through Sadia s/o Jamal; and (v) That apart from these matters, there were two intelligence reports dated 5. 1. 88 and 16. 2. 88 to show that the detenu was engaged in the smuggling, transporting, concealing and keeping smuggled and contraband articles. Of course, the contents or even gist of the said intelligence reports had not been specified in the grounds of detention and it was mentioned that the disclosure of those facts was not thought to be in the public interest.

(3.) REGARDING the first ground of detention, it has been urged by the learned counsel for the petitioner that the petitioner had filed a reply to the show cause notice issued by the Customs Department in respect of this incident but that reply was not placed before the detaining authority. So also the confession and self incriminating statements said to have been made by the detenu before the Customs Department had been retracted and protest had been communicated to the Collector but those retractions and protest were also not place before the detaining authority. Similarly the reply filed by Kambhira to the show cause notice issued to him and on the basis of which, he was exonerated, was also not placed before the detaining authority. Now so far as the first document, namely, the reply filed by the petitioner on 23. 8. 87 to the show cause notice issued by the Customs Department is concerned, it certainly appears to be a relevant document because in that reply, the petitioner must have given facts denying his complicity in the alleged incident and explained the incriminating material against him; therefore, it was certainly a matter to be taken into account by the detaining authority. It may still be that even after considering that document, the detaining authority may have come to the same conclusion to which it had now come; all the same, it cannot be said that this document was not a material and relevant document, which may have affected the subjective satisfaction of the detaining authority and suppression of this material from the detaining authority amounts to vitiating the subjective satisfaction of the detaining authority because it will amount to non~appli-cation of mind to a relevant circumstance or material. In this connection, reference may be made to Ayya vs. State of U. P. (2 ). It had been held by their Lordships of the Supreme Court as follows :- "what weight the contents and assertions in the telegram should carry is an altogether a different matter. It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. "