TMI Blog1991 (12) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, the Arab Dhow found with the crew members and heavy metal blocks appeared to be of silver, being regarded by the Coast Guards as the one which had entered into the Indian territorial waters to carry out smuggling activity, is said to have been brought to Mangalore Port along with its crew members and metal blocks (silver) by the early hours of 22-2-1992 and handed over to the Customs Authority stationed there. Officers of the Customs Authority along with the Coast Guards and Panchas appear to have then entered upon the Arab Dhow and drawn up a mahazar as to the persons found in the Arab Dhow and the heavy metal blocks of silver found in it and the manner in which the Arab Dhow entered the Indian customs waters and came to be apprehended by the Coast Guards of the Coast Guard Ship. The Customs Officers appear to have subsequently recorded the crew members' statements which disclosed their previous smuggling activities. The crew members the petitioners having been arrested thereafter by the Customs Authority on 23-2-1991, have come to be produced before the Court of II Additional Chief Judicial Magistrate, Mangalore, and remanded to judicial custody by that Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction required under sub-section (1) of S. 3 of the COFEPOSA Act, i.e., without arriving at the pre-requisite satisfaction required to be arrived at by application of its mind to the relevant materials, on which such satisfaction had to be based, if merits our acceptance, no option will be left to us except to quash the impugned detention orders and the declarations, as vitiated by illegality. As it is felt by us on consideration of the pleadings in the writ petitions and on perusal of the material documents including the office file of the detaining Authority pertaining to the cases produced before us, in the light of the arguments addressed by learned Counsel for the petitioners as also the detaining Authority and the sponsoring Authority, that the said contention of learned Counsel for the petitioners merits our acceptance, we shall proceed to examine that contention after adverting to the legal principles governing the satisfaction to be arrived at by a detaining Authority in making an order of detention against a person under a preventive detention law and reviewability of such satisfaction by Courts. 4. The case of State of Bombay v. Atma Ram is a leading decision of a six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J., pointed out in State of Madras v. V. G. Row, that preventive detention is largely precautionary and based on suspicion and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday, 1917 AC 260 namely, that the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji, AIR 1943 FC 75 : (1944 (45) Cri LJ 341) at p. 92 is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'improper purpose', that is, a purpose not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be found in the famous words of Lord Halsbury in Sharpe v. Wakefield, 1891 AC 173 at p. 179 : ....... when it is said that something is to be done within the discretion of the authorities ..... that something is to be done according to the rules of reason and justice, not according to private opinion .... according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular. So far as this ground is concerned, the Courts in the United States have gone much further than the Courts in England or in this country. The United States Courts are prepared to review administrative findings which are not supported by substantial evidence, that is by such relevant findings as a reasonable man may accept adequate to support a conclusion. But in England and in India, the Courts stop-short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. If , to use the words of Lord Greene, M.R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 - words which have found approval of the House of Lords i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there can be no such thing as unreviewable discretion. Law has reached its finest moments , said justice Douglas, When it has freed man from the unlimited discretion of some ruler, some ...... official, some bureaucrat ...... Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other inventions. United States v. Wunderlich, (1951) 342 US 98. And this is much more so in a case where personal liberty is involved. That is why the Courts have devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds. 6. Krishna Murari Aggarwala v. The Union of India, is a decision where the Supreme Court having held that the subjective satisfaction of the detaining authority in making a detention order under the Maintenance of Internal Security Act, 1971, is a sine qua non for the exercise of power of detention, has pointed out that such power by the detaining authority has got to be exercised properly and discretely and not in a casual or cavalier manner. It was a case where a detention order made under section 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to preventing him from acting in any manner prejudicial to - (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India : it is necessary so to do, make an order directing that such person be detained. This power can also be exercised by the officers mentioned in sub-section (2), and in the instant case we are concerned with the District Magistrate. The words make an order directing that such person be detained clearly postulate three conditions - (i) that the order must be made by the authority mentioned in Section 3; (ii) the order must be duly signed by the said authority; and (iii) that only one authority and one authority alone can pass such order of detention. The statute does not contemplate a sort of composite or a joint order passed by several authorities. In the instant case the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rget that the power of preventive detention is a draconian power justified only in the interest of public security only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The Courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has, therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the Courts have always zealously tried to uphold and enforce these safeguards. Thus Court has also through its judicial pronouncements created various legal bulwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case at the time of making the impugned detention order, has weighed with it as the sole vitiating ground for quashing that detention order, obviously for the reason that in making the impugned detention order, the detaining authority had not arrived at the pre-requisite subjective satisfaction on the basis of which such detention order had to be necessarily made. The order of the Supreme Court, which is short, since illustrates how even a possible non-application of the mind of the detaining authority in making a detention order under the COFEPOSA Act vitiates such order, it is reproduced : The appellant was intercepted by the Officers of the Directorate of Revenue Intelligence on the evening of 12-6-1985 and a large quantity of alleged contraband gold was recovered from him. He was interrogated on 13-6-1985, almost the whole day, and thereafter at 6 p.m. he was formally arrested under section 104 of the Customs Act. The same night a detention order was made by the Joint Secretary to the Government of India, Finance Department. Shri Jethmalani's contention before us is that the detaining authority could not have possibly applied his mind to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate for remand to judicial custody. When the bail application was pending decision by the Additional Chief Metropolitan Magistrate, a detention order under the COFEPOSA Act in respect of that person was made on 12-12-1988. For satisfying the High Court that the office hours between 12.00 noon and the time of the closing of the office on 12-12-1988 was sufficient for the detaining authority to go through the annexures and 40 documents running to 137 foolscap closely typed pages, grounds were urged on behalf of the detaining authority as to the application of its mind in making the detention order after its subjective satisfaction. Dealing with the matter with reference to the annexures and the documents, which, it was pointed out by the learned Counsel for the detenu, had to be perused, the Court has stated thus : He pointed out that the annexures and 40 documents running to 137 foolscap closely typed pages could not have been purused by the first respondent in order to come to a subjective satisfaction before passing the impugned order of detention. There is no indication as to in what part of the daly, the detention order was passed. Evidently, it must have been passed dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be formulated thus : (1) 'Satisfaction' arrived at by the detaining authority in having made the detention order must have been a pre-requisite satisfaction. (2) Satisfaction arrived at by the detaining authority on the basis of materials must have been such which a reasonable person could have possibility arrived at on the basis of the same material. (3) Satisfaction arrived at by the detaining authority in having made the detention order must have been grounded on materials of rationally probative value. (4) Materials on the basis of which satisfaction was arrived at by the detaining authority to detain a person, must have been such as which a human being could say that there was rational nexus or connection between the materials and the person to be detained for preventing him from indulging in prejudicial activity. (5) Satisfaction of the detaining authority on materials which constitute the foundation for exercise of its power of detention not being susceptible for objective determination intended to be judged by subjective standards, could be subjective satisfaction itself inasmuch as the satisfaction which could be arrived at, ought to be founded on m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority when it was under a disability recognised under law to apply its mind; (h) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one made due to the application of a wrong test or misconstruction of a statute; (i) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one arrived at by the detaining authority without due regard to matters required to be taken into account by the statute in reaching such satisfaction; and (j) Where the subjective satisfaction arrived at by the detaining authority in making the detention order is challenged as the one which could not at all have been arrived at by any reasonable person in the facts and circumstances of the case. 14. Sub-section (1) of Section 3 of the COFEPOSA Act, under which the orders of detention impugned in these writ petitions are made, empowers one or the other authority mentioned therein to make a detention order envisaged there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents addressed by learned Counsel appearing on either side. 16. The averments in the writ petition, W.P. No. 48/1991, relating to the challenge to the satisfaction of the detaining authority arrived at in making the impugned detention order without application of its mind, found in Paragraph 4 thereof being similar to the averments in other writ petitions as well, the same are reproduced for the purpose of examination of the challenge under consideration : 4 (i) .................................... The impugned order of detention was issued on 7-3-1991 before the said bail application had been decided and before any orders could be passed on it either granting or refusing the bail. In the premises, the petitioner says and submits and it is enjoined upon the 3rd respondent to disclose to this Hon'ble Court as to on what date the proposal was received for the detention of the petitioner and the other co-detenus and whether all the documents, the copies of which have been furnished to the petitioner, were received along with the proposal and if not, which documents were received along with the proposal and which documents were received thereafter and if so on what date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the detaining authority and the impugned order of detention on that count be held to have been rendered mala fide and ab initio null and void. (ii) The petitioner further says and submits that assuming that the detaining authority, who weilded the statutory authority had himself scanned all the documents and the material; it is enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the detaining authority had formulated the ground of detention by considering some of the documents from amongst the said total of sixteen documents; it is enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether after the receipt of the rest of the documents, if any, were so received at a later date; the detaining authority had rescinded the draft grounds earlier formulated; and had reformulated the grounds by taking into account the said rest of the documents if so received at a later date together with the documents earlier received. 17. The said averments in the writ petition are traversed in the counter-affidavit filed in the writ petition by Sri. N. A. Muthanna, Commissioner and Secretary to Government of Karnataka, Home D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide, and ab initio null and void, is denied as false and baseless. The detaining authority will place before this Hon'ble Court the entire original records relating to the order of detention for its kind perusal. The averments to the contrary in paras 4(i) and 4(ii) of the writ petition are denied as not tenable. Re. Para 4(1) : It is respectfully submitted that I, as the Commissioner and Secretary to Government, Home Department, exercised the statutory power on behalf of the State Government. I have gone through the records, applied my mind and arrived at a subjective satisfaction before passing the detention order. 18. As could be seen from the facts, to which Sri. N. A. Muthanna, Commissioner and Secretary to Government, Home Department, has sworn, it is Sri N. A. Muthanna who has, acting as the detaining authority for the Karnataka State Government (respondent 3), made the impugned detention orders respecting the petitioners, after arriving at the pre-requisite subjective satisfaction required under sub-section (1) of Section 3 of the COFEPOSA Act, by application of his own mind to the materials placed before him by the sponsoring authority. Though there was an atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners is true and if he had, in fact, effected certain corrections in the draft grounds of detention as claimed, we would be left with no option except to uphold the detention orders finding, inter alia, that the prerequisite subjective satisfaction needed in law for making the detention orders had been duly arrived at by the detaining authority. 20. On the other hand, if we are to find, on the basis of the information which becomes available from the original records of the detaining authority volunteered to be produced before us on behalf of the detaining authority, as stated in the counter-affidavit, and in fact produced before us, that the categorical statement made in the counter-affidavit by Sri Muthanna, Commissioner and Secretary to Government, Home Department, as the detaining authority, relating to the application of his mind for arriving at the prerequisite subjective satisfaction for making the detention orders, is not true and acceptable and in fact the original records if make it apparent that the Commissioner and Secretary to Government, Home Department, could not have possibly applied his mind in arriving at the prerequisite subjective satisfaction required for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st all of them. However, nothing in the order-sheet at Paragraph 15 thereof shows that the file may be referred to the Department of Law and Parliamentary Affairs for scrutiny of the proposal in the first instance. That noting running to more than two full scape closely typed pages, indicates that considerable time must have been taken during early office hours of 7-3-1991 to have prepared it. The Section Officer of the Cell has, thereafter, on the same day, put up a note in the order-sheet to the effect that the notings in the order-sheet may be perused and approved; detention order and grounds of detention may be referred to the Department of Law and Parliamentary Affairs for scrutiny and remarks in the matter. When the file has come to the Under Secretary of the COFEPOSA Cell of the Home Department, a noting is made at paragraph 17 thereof, thus : Since the proposal is required to be approved and orders are required to be approved on or before 8-3-91 as the accused are likely to be enlarged from bail, the file may be moved to the Secretary, Law Department, through the Home Commissioner with a request to return the file before 7-3-91. Entries in the order-sheet disclose t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for the signature of the Home Commissioner, which is initialled by the Under Secretary, COFEPOSA Cell, and dated as 7-3-1991. Then, on 7-3-1991 itself, the Home Commissioner has initialled the order-sheet with date 7-3-1991. Further, on the same day, that is, 7-3-1991, detention orders are directed to be issued by the Under Secretary to Government, Home Department, COFEPOSA Cell, and consequently, issued on that very day (7-3-1991). 21. The said notings and the movement of the file in the Secretariat of the Karnataka Government shows that the file had been put up to the Home Commissioner for the first time obviously towards the end of pre-lunch office hours of 7-3-1991, after the making of elaborate notings thereon by the COFEPOSA Cell and the Under Secretary in regard to the proposed detention of the petitioners. But, he has not then scrutinised the papers relating to the proposed detention orders required to be made by him, since he has ordered for their immediate scrutiny by the Law Department of the State Government's Secretariat. As seen from the noting of the Under Secretary, Law Department, he appears to have gone through the draft grounds of detention and draft de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPOSA Act by applying his mind and consider the matter with reference to the notings found in the order-sheet, we cannot but hold that the Commissioner and Secretary to Government, Home Department, acting for respondent-3, by initialling the proposal for detention of the petitioners with the endorsement 'appd.' has merely approved the opinion of the Law Department furnished in the matter without going through the materials, on the basis of which his satisfaction under the COFEPOSA Act had to be founded. In any event, having regard to the shortness of time at the fag end of the office hours on 7-3-1991 available for him to apply his mind to the proposal and the urgency shown by the sponsoring authority in the matter of getting the detention orders made by the State Government, we find that the detaining Authority could not have possibly applied his mind at all in arriving at the pre-requisite subjective satisfaction needed under sub-section (1) of Section 3 of the COFEPOSA Act for making such detention orders. 22. Thus, when the detention orders impugned in the writ petitions directing detention of the petitioners are made by the detaining Authority under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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