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2021 (10) TMI 545 - Customs
Detention of detenue - Smuggling of goods/abetting the smuggling of goods - seizure of gold weighing 30244.90 grams - presence of evidences or not - non-application of mind - HELD THAT:- Having gone through Ext.P9 order, in a case about which the detaining authority was fully aware that the non-placing and non-consideration of the same assumes significance. The order was passed on 10-082021, whereas the order of detention in the instant case is almost two months later on 9-10-2020. We cannot but hold that Ext. P9 was vital and relevant material, that had a bearing on the question to detain or not, and non-consideration of the said material vitiates the detention for non-application of mind. What weight Ext.P9 would carry if it was within the knowledge of the detaining authority is altogether a different matter. It is not disputed that Ext. P9 was not placed before and considered by the detaining authority. The detention order will be vitiated on the ground of non-application of mind if a piece of evidence that is relevant, though not binding, had not been considered at all. If a fact or material that 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 would, in turn, invalidate the detention order.
Though we are conscious of the fact that the period of detention would come to an end in a couple of days, since it is our constitutionally entrusted duty to safeguard the rule of law, more so, in a matter involving personal liberty which is sacrosanct and protected under Article 21 of the Constitution of India, we have no choice but to hold the detention to be bad in the eye of law.
The order of detention impugned is quashed - Petition allowed.