TMI Blog1987 (3) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 6 and the proceeding initiated under Section 7 of the SAFEMA. We accordingly dismiss the appeal. - 682 of 1986 - - - Dated:- 2-3-1987 - V. Khalid and G.L. Oza, JJ. Criminal Appeal No., decided on 2-3-1987 [Judgment per : Khalid, J.]. - The Union of India has brought this appeal by special leave against the Judgment of a full Bench of the Bombay High Court quashing the notice under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, hereinafter referred to as SAFEMA. It is necessary to set out the brief facts to appreciate the questions involved in this appeal. 2. Manoharlal Narang, the respondent in this appeal and Ramlal Narang are brothers. An order of detention was passed on 19th December, 1974, under Section 3(1) of the COFEPOSA Act against Ramlal Narang. This order was challenged before the Delhi High Court, in Writ Petition No. 10/75 and the High Court quashed the order of detention by its order dated 30th April, 1975. An appeal was filed against that order before this Court by the Union of India. Though an application for stay was moved, this Court declined to grant stay but passed an order on the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some time, we indicated to the learned counsel for the respondent, that we were inclined to direct this appeal to be posted along with the appeal pending before the Constitution Bench but were still willing to hear the matter if he could sustain the Judgment under appeal, on grounds other than the one referred to the Constitution Bench. He was willing to do so and he argued the case on the other grounds raised by him. We will now proceed to consider those other grounds and see whether the Judgment could be sustained or whether it has to be reversed. 5. The facts and the relevant dates have been stated above. A few more facts are necessary. An order of detention under COFEPOSA was issued against the present respondent on 31st January, 1975. At that time he was in England. He was brought to India on some express understanding given to the Government of the United Kingdom. His order of detention was challenged before the Bombay High Court being Writ Petition No. 2752/75, and the High Court quashed that order of detention as per order dated 8th July, 1980. The appeal filed against that order before this Court was dismissed on 4th November, 1980. 6. The notice under challenge in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply its mind to the order passed by this Court on 1st May, 1975, in the special leave petition against the decision of the Delhi High Court which quashed the detention of Ramlal. The appellants before us sought a stay of the order passed by the Delhi High Court. This Court declined the request but passed the following order :- We grant Special Leave on usual terms. The petitioner appellant should have gone to the High Court first for a certificate. In view of the arguments heard, we give special leave in this matter as a very special case, and this is not to be treated as precedent in future. We are unable to grant any stay. We impose a condition on Ramlal Narang, Detenue pending the disposal of the appeal in this Court that he will report to the police station in whose jurisdiction he reside either at Bombay or at Delhi, once every day at 10 A.M. or at 5 P.M. and whenever he will leave for Delhi, he will inform the police as to when he is leaving and when he will arrive at Delhi, similarly when he will leave for Bombay, he will inform the police as to when he is leaving for Bombay and when he will arrive at Bombay. Certified copy of the judgment impugned shall be filed as soon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the following observations : ....... At any rate it is submitted that the contents pertain to the proceedings in the High Court and the Supreme Court and the detention law does not contemplate that the detaining authority is required to take into account the different court proceedings whether independent proceedings, under the law not initiated, conducted, managed or looked after by the detaining authority. [It is well known that the different Ministries of the Government carry out different types of work in different ways and the detaining is not required under the law to take no ice of work of the Ministries or Court proceedings. The Court proceedings and adjudication proceedings are initiated and conducted by different authorities which are not required under the law to submit their reports or communicate their actions to the detaining authority. The detaining authority, in turn, is not required under the law to carry out the process of collection of any material about any Court proceeding or proceedings before other authorities for the purpose of issuance of a detention, order. The content of the paragraph refers to such proceedings which are not required to be collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this important document amounts to non-application of mind on the part of the detaining authority rendering the detention order invalid. 13. In Ashadevi v. K. Shivraj - 1979(1) S.C.C 222, this Court had occassion to consider the plea whether an order of detention would be vitiated if relevant or vital facts, essential to the formation of subjective satisfaction, were kept away from the consideration of the detaining authority. This is how this Court dealt with this aspect : It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk. Nizamuddin Vs. State of Bengal the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite of request, neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate on December 14, 1977, and (iii) that the confessional statements were squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody; the first two had a bearing on the question whether the confessional statements had been extorted under duress from detenu or not, while the third obviously was in relation to the confessional statements which formed the main foundation of the impugned order and as such were vital facts having a bearing on the main issue before the detaining authority. 16. Ultimately the order of detention was quashed because the retracted confessional statement of the detenue was not placed before the detaining authority who passed the detention order on the detenue s confessional statements. This Court observed : it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar to one of the grounds on which Shamsi was detained, the transaction being one and the same, as also the incident on which the two orders of detention are based. That is why the opinion of the Advisory Board in Shamsi s case becomes relevant in the petitioner s case. The failure of the State Government to place before the detaining authority in the instant case, the opinion which the Advisory Board had recorded in favour of a detenu who was detained partly on a ground relating to the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant, if not binding. In other words, the detaining authority did not, because it could not, apply its mind to a circumstance which, reasonably, could have affected its decision whether or not to pass an order of detention against the petitioner. 18. This Court observed further the scope of the consideration of the relevant materials in the following words : 8.......... But the question for consideration is not whether the detaining authority would have been justified in passing the order of detention against the petitioner, even after being apprised of the opinion of the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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