TMI Blog2002 (1) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively to the petition. 2. A perusal of the grounds of detention (Annexure-B) would show that on the basis of prior intelligence, officers of the Directorate of Revenue Intelligence (D.R.1) intercepted the detenu at the reception - counter of Hotel Highway - Inn, Vishal Hall, Vishal Shopping Centre, Andheri Kurla Road, Andheri (E) Mumbai-400069, at around 16.50 p.m. on 17-6-2001. The detenu was found in possession of one green coloured Air bag, one corrugated carion of pampers and one carton of LG Multi video system. On interrogation, he stated that he had received three packages from one Mohammed Ghouse staying at 103, in the said hotel. The officers proceeded to room No. 103 of the said hotel along with the detenu and the three packages carried by him. Mohammed Ghouse was there and he confirmed that he had given three packages to the detenu. On further enquiry, Mohammed Ghouse stated that he was given these three packages by one person Babubhai and was told to check in at the said hotel, where a person would come and collect these three packages from him. Apart from these three packages, the officers also found one more green coloured Air bag in the room which Mohammed Ghou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu has been apprised of his right of making a representation to the various authorities. 3. We have heard learned counsel for the parties. Although in this writ petition, Ms. A.M.Z. Ansari, learned counsel for the petitioner has pleaded a large number of grounds numbered as ground Nos. 5(1) to 5(xi) but, since in our view, this petition deserves to succeed on ground No. 5(vii) alone, we are not adverting to the other grounds of challenge raised in the petition. We now propose considering ground No. 5(vii). Ground No. 5(vii) in short is as under : After the alleged Indian currency was recovered from the detenu, the D.R.I. Officers arrested him on 18-6-2001. On 11-7-2001, the detenu and co-accused were granted bail in the sum of ₹ 1,00,000/- but, since the detenu could not furnish bail of the said amount, an application was preferred for reduction of the bail amount which was reduced to ₹ 75,000/-. On 5-10-2001. The D.R.I, made a written complaint to the Commissioner of Police, at Andheri and thereafter, same day i.e. 5-10-2001, a case under Section 489(B)(C) read with Section 120B, Indian Penal Code was registered against the detenu. Copies of the aforesaid c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai wherein the said ground has been replied to and heard learned counsel for the parties. We make no bones in observing that since in our judgment, there is merit in ground No. 5(vii), this petition must succeed. 6. A perusal of Annexures-B, D and E respectively annexed to the petition, namely the grounds of detention, complaint dated 5-10-2001 and the FIR registered on the basis of complaint dated 5-10-2001 would show that the gravemen of the allegations contained in all three of them are same. Earlier, we have referred to in some detail the averments contained in the grounds of detention. We have seen that from the possession of the detenu, currency to the tune of ₹ 16,80,000/- was recovered. We do not want to burden our judgment by reiterating the details. A perusal of Annexures D and E would show that exactly the same details pertaining to the recovery of currency which are contained in the grounds of detention are contained in them. The difference is on the basis of the averments contained in the grounds of detention, a case under Section 112 of the Customs Act, 162 was registered against the detenu but, on the basis of the averments contained in the FIR (Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reate a false defence. Venkatachaliah, J. speaking for the Supreme Court did not rule out this possibility but, observed thus : 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. The detaining authority might very well have come to the same conclusion after considering this material but, in the facts of the case the omission to consider the material assumes materiality. (Emphasis supplied) In Ahmed Nisar's case supra, as would be manifest from para 29 the two letters which were relevant were not placed. 8. In each of the aforesaid four cases, the Supreme Court took the view that on account of non-placement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Which way the mind of the detaining authority would have worked is something which is beyond our conjecture, it is a matter which is in the realm of the subjective satisfaction of the detaining authority. But, at the cost of repetition, we would like to point out that Annexures D and E were vital documents which were likely to influence the subjective satisfaction of the detaining authority either way and that being so, in view of the four decisions of the Supreme Court, referred to above, their non-placement before the detaining authority has vitiated the detention order on the vice of non-application of mind. And since they were vital documents and their copies were not furnished to the detenu, the detenu's fundamental right to make an effective representation at the earliest opportunity, guaranteed to him under Article 22(5) of the Constitution of India was also impaired. 11. For the aforesaid reasons, we allow this writ petition; quash and set aside the impugned detention order; direct that the detenu - Javed Abdul Aziz Shaikh alias Javed Munniruddin Shaikh be released forthwith unless wanted in some other case; and make the rule absolute. Petition allowed - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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