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Sat Pal Jain and another Versus Joint Secretary to the Govt. of India, (Detaining Authority) and another

2014 (3) TMI 1098 - PUNJAB AND HARYANA HIGH COURT

Writ of habeas corpus - Detention order - Jurisdiction of Court to entertain the appeal - proceedings under COFEPOSA - non-placement before the Detaining Authority of vital documents having a bearing on the subjective satisfaction, non-consideration and non-advertence thereto in the grounds of detention by the Detaining Authority - Held that: - in the instant petition, challenge to the impugned detention orders was not considered at pre-execution stage and the petitioners were compelled to surre .....

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e was unsuccessful at pre- execution stage. Even otherwise, the main ground of non-placement, non- consideration and non-advertence to vital documents was not decided earlier on merits in the absence of requisite grounds and documents relied upon. This Court cannot permit the Authorities to take shelter under such technical pleas in the matter of a writ petition in a preventive detention matter. - Territorial jurisdiction - Held that: - the petitioners have also a residence in Karnal in the .....

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s Court. The petitioners were thus detained in the jurisdiction of this Court. Therefore, I hold that merely because the respondents have doubts on the bona-fides of the petitioners in invoking jurisdiction of this Cout, it cannot be said that no part of cause of action has arisen in the jurisdiction of this Court, to consider the challenge to the detention orders, muchless after its execution in the jurisdiction of this Court by compelling the petitioners to surrender to the respective detentio .....

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ing of the impugned orders of detention Nos. bearing F. No. 673/09/2010-CUS.VIII dated 2nd June, 2010 and F. No. 673/10/2010-CUS.VIII dated 2nd June, 2010, which were executed upon the petitioners, is allowed and the impugned detention orders against the petitioners are quashed and set aside - petition allowed - decided in favor of petitioner. - Crl. W.P. No. 58 of 2014 - Dated:- 28-3-2014 - M. JEYAPAUL, J. Mr. Vikram K. Chaudhri, Sr. Advocate, with Ms. Ishu Goyal, Advocate, for the petitioner M .....

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No. 673/10/2010-CUS.VIII dated 2nd June, 2010 (Annexure P-17) (Colly) passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, COFEPOSA Act) by the 1st respondent. However, vide order dated 28.2.2014, this Court rejected the prayer for interfering with the orders of detention even before its execution as not maintainable and misconceived. Petitioners were compelled to surrender to the detention order to show their bona-fides. .....

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under the provisions of Section 37 of FEMA 1999 read with Section 132 of the Income Tax Act,1961 at various places and as a result thereof, Indian currency, foreign currency and certain documents and articles were recovered and seized in the months of September and November, 2009. It was alleged that said Naresh Kumar Jain was a person who stayed in Dubai from 1995 till May, 2009. He came to India from Dubai without any valid documents. In Dubai, he was engaged in the arrangement and transfer o .....

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nge through banking channels. Even after his return to India in May 2009, he continued to engage in the same business which he was doing during his stay at Dubai including arranging foreign exchange for Indian parties. Manoj Garg, Puran Chand Sharma and the petitioners, namely, Bimal Jain and Sat Pal Jain were other members of syndicate actively associated with Naresh Kumar Jain and assisted him in carrying out his illegal activities in/from India. On several such accusations, respective orders .....

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itution of India wherein initially, execution of the detention was stayed. However, the writ petitions were dismissed as withdrawn on 1.10.2013. Petitioners had thereafter approached this Court for quashing the impugned orders of detention at pre-execution stage. The said writ petitions were dismissed by a Co-ordinate Bench vide order dated 21.12.2013. Petitioners, however, had not surrendered and instead they have filed the present petition on the same facts and grounds. 4. Petitioners also fil .....

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ation filed by the petitioners that they have their bank account Nos. 96552200009627 and 96552200009631 respectively at Syndicate bank in village Pabana Hasanpur in District Karnal. The said application was allowed by this Court on 25.2.2014. Further, in this writ petition, reliance has been placed by the petitioners on the earlier order of detention passed against the petitioner's brother Naresh Kumar Jain (co-detenu in the instant case as well) on 6.9.1995 by the then Detaining Authority-r .....

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ority assailing the said order of this Court was dismissed. The writ petition bearing CRWP 143 of 2003 whereby the said order of detention dated 6.9.1995 was assailed before this Court and the copy of the Special Leave Petition (Criminal) 3986 of 2003 whereby the Detaining Authority had challenged the order dated 20.2.2003 passed by this Court before the Hon'ble Supreme court have also been brought on record. The proceedings in Criminal Writ Petition No. 143 of 2003 (supra) filed before this .....

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xed as Annexure P-10 with the said writ petition. It is further submitted that in the SLP filed by the Detaining Authority before the Hon'ble Supreme Court assailing the order dated 20.2.2003 passed by this Court, no plea whatsoever relating to lack of territorial jurisdiction of this Court was ever raised. Therefore, it is urged that in the peculiar facts of the case, this Court has territorial jurisdiction to protect fundamental rights of the present petitioners. 5. The respondents had opp .....

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also filed by the respondent-Detaining Authority. It is submitted by producing documents that the petitioners are residents of Delhi and working for gain in Delhi. Reliance is placed on Section 5(a) of the COFEPOSA Act to show that every person against whom a detention order is made shall be liable to be detained in such place as the appropriate Government may by special or general order specify. It is further submitted that filing of second writ petition on the same facts and grounds and then .....

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pugned detention orders. It is also further submitted that having failed to secure any relief either before the Hon'ble Supreme Court or before this Court earlier, the filing of the present writ petition is misconceived and deserves dismissal. 6. I found strong merit in the objections regarding issue of maintainability of challenge at pre-execution stage in the light of the Full Bench judgment of this Court cited by the respondents to buttress their objection to the maintainability of the ch .....

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as held not maintainable and thus rejected as such vide order dated 28.2.2014. 7. I found considerable prima-facie force in the argument of the respondents that filing of second writ petition on the same facts and grounds and then seeking detention at Karnal can also be with an intention to just avoid submitting to the detention order by filing one writ petition after the other before the hon'ble Supreme Court as well as before this Court, which would also defeat the purpose of the detention .....

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nder:- "4. Execution of detention orders, - A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure,1973 (2 of 1974)." 9. Thus, in the peculiar facts and circumstances of the instant case, there was no legal impediment in serving the detention orders in Karnal where the petitioners themselves are claiming to have property and residence within the jurisdiction of this Court. On the issue .....

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cessary in the interest of country and the community. It is neither fair nor just that a detenu should have to suffer detentin in 'such place' as the Government may specify ....... . Besides keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food ..... ... .... Whatever smacks of punishment must be scrupulously avoid .....

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i service is permitted. (b) The petitioners are directed to surrender before the Senior Superintendent of Police/Superintendent of Police, Karnal, on 04.03.2014 at 11 AM. (c) The Senior Superintendent of Police/Superintendent of Police, Karnal, shall in co-ordination with the detaining authority ensure that on or before 04.03.2014 the order of detention, grounds of detention and other documents relied upon by the detaining authority are made available to be served on 04.03.2014 upon both the det .....

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missed with a heavy cost. In case of petitioners surrendering to the order of detention as directed, the petition will be taken up for further consideration on post- execution basis. This court may in such event consider the grounds urged including the feasibility of scrutinising as to whether the vital and material documents as claimed in the Writ Petition have been placed before the detaining authority and/or considered by it and also as to whether non placement or non- consideration thereof w .....

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consider the above grounds urged including feasibility of scrutinizing as to whether vital and material documents as claimed in the petition were placed before the Detaining Authority and considered by it and in case of non-placement and non-consideration, the effect thereof on the subjective satisfaction of the Detaining Authority. 13. The impugned detention orders and grounds of detention along with documents and list thereof were produced in Court on behalf of the petitioners. A perusal of t .....

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t placed, I find that the following documents were not at all adverted to in the grounds of detention: (i) Various complaints made in October, 2009 by the petitioners against the Sponsoring Authority, namely, Enforcement Directorate including those made before - a) Station House Officer, Police Station Ashok Vihar, New Delhi, dated 5.10.2009 alleging highhanded manhandling of the petitioner Satpal Jain by the officer of the Sponsoring Authority; (b) Letter to the Human Rights Commission dated 9. .....

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Procedure seeking initiation of criminal prosecution against the officer of the Enforcement Directorate, Satbir Rathi. (ii) FIR bearing No. 443 dated 25.9.2009 lodged under Sections 186 and 353 read with Section 34 of the Indian Penal Code at Police Station Ashok Vihar, Delhi, at the instance of the said officer Shri Satbir Rathi against the petitioner Bimal Jain and the anticipatory bail order granted by the Additional Sessions Judge. 15. Respondents could not show from the grounds of detentio .....

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s casualness. However, one more opportunity was given to them in the interest of justice not only to file the counter affidavit but also to argue the main case itself. 17. Learned senior counsel for the petitioners invited the attention of this Court to the prayer for bail and submitted that excellent prima-facie case demonstrated before this Court may be considered for grant of bail. I found prima-facie merit in the case of the petitioners. I also considered the observations contained in paragr .....

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eme Court. I thoroughly went through the grounds of detention. I noticed that it is possible to presume that each of these documents would have contributed to the final subjective satisfaction one way or the other. What would have been the position if the Detaining Authority was apprised of each of these documents is not for me to make a retrospective judgment at this distance of time. As the above vital documents which have a direct bearing on the subjective satisfaction of the Detaining Author .....

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ing final hearing of the matter, the prayer for grant of bail till the next date of hearing was allowed vide order dated 6.3.2014. Bail was granted subject to the conditions that both the petitioners shall execute separate personal bonds for a sum of ₹ 50,000/- each before the Jail Superintendent who shall bind the respective petitioners to report daily between 10 AM to 10.30 AM in the office of the Superinendent of Police, Karnal till 18.3.2014 and both the petitioners shall remain presen .....

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of the Detaining Authority to first give a decision solely on the issue of maintainability and territorial jurisdiction before entering into the merits of the case. This Court expressed its unwillingness to entertain piece-meal arguments and immediately thereafter, a counter affidavit affirmed by Mrs. Harmeet S. Singh, Joint Secretary, COFEPOSA, New Delhi, was tendered across the Bar on behalf of the Detaining Authority. Both sides were then heard at length on the issue of maintainability and o .....

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rritorial jurisdiction, maintainability of second petition and doctrine of precedence. It was urged that the present writ petition being a second writ petition is barred by res judicata and High Court Rules. It is an utter abuse of the process of the court. This Court does not have territorial jurisdiction in the matter. The petition assails earlier judgment dated 21.12.2013 of the Single Judge before another Single Judge in the same matter. In short reply/affidavit dated 24.2.2014, catena of ju .....

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e place and condition of detention vested with the Government under Section 5 (a) of the said Act. The observation in A.K.Roy's case(supra) would not entitle the detenus to choose their place of detention. Petitioners were ordinarily residing and working for gain in Delhi. It was submitted that if the petition is dismissed, petitioners may be directed to be detained at Delhi. In respect of interim order dated 6.3.2014, it was urged that the respondents failed to place before the Court the pr .....

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ory Board. Various complaints etc. made by the petitioners and the complaint made by the officers of the Sponsoring Authority do not have any bearing on the formation of subjective satisfaction. The grounds show necessity to detain the detenus. An alternative remedy of Advisory Board was not yet exhausted. The writ petition is filed with an intention to defeat the purpose of the Act. The allegations in these complaints were also available for perusal in their representation made to the Departnen .....

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(ii) letter dated 10.11.2009 of Bimal Kumar Jain to the Assistant Director, Directorate of Enforcement, i.e. Sponsoring Authority; (iii) letter dated 25.9.2009 of Satpal Jain addressed to the Assistant Director, Directorate of Enforcement, i.e. Sponsoring Authority; and (iv) Rebuttal letter dated 14.10.2009 by the Sponsoring Authority to Satpal Jain. On the basis of these documents, it was submitted that the Detaining Authority was made aware of the allegations and apprehensions of the petition .....

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the petitioners and hence, the impugned detention orders are required to be upheld and the petitioners are required to be directed to be detained at Delhi. It was prayed on behalf of the Detaining Authority that the petition may be dismissed as the same was neither maintainable in law nor on facts. 22. I have heard all the parties at length. I have also carefully perused the records placed before me. I find that the following issues are to be determined for deciding the petition: (i) Whether the .....

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the Advisory Board. (iv) Whether the respondents are right in claiming that the documents not placed were such irrelevant documents which had no bearing on the issue of preventive detention and non-placement and non-consideration thereof was inconsequential. (v) Whether the impugned detention orders are sustainble in the eyes of law. 23. The findings in the earlier rejection by this Court were in the context of examining the challenge to the detention orders at pre-execution stage. Even in the .....

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Courts have refused to consider the challenge of a detenu in a writ petition despite the execution of the detention order merely because challenge was unsuccessful at pre- execution stage. Even otherwise, the main ground of non-placement, non- consideration and non-advertence to vital documents was not decided earlier on merits in the absence of requisite grounds and documents relied upon. This Court cannot permit the Authorities to take shelter under such technical pleas in the matter of a wri .....

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Co-ordinate Bench, by compelling the petitioners to surrender to the detention orders. 24. On the 2nd issue concerning territorial jurisdiction, it is seen that the petitioners have also a residence in Karnal in the State of Haryana. Their father resides in Karnal. Their birth place, as evident from their passports, is also Karnal. It is not denied that the attempt to serve the detention order was made at Karnal. The Detaining Authority deputed its representative for the purpose of service of de .....

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the jurisdiction of this Court, to consider the challenge to the detention orders, muchless after its execution in the jurisdiction of this Court by compelling the petitioners to surrender to the respective detention orders. Respondents could not show any precedent where jurisdiction was held as lacking despite such part of cause of action arising in the jurisdiction of the High Court. Moreover, there is a long line of decisions rendered by various High Courts substantiating that these facts wo .....

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ve in practice, if not in law, we have to reject the narrow construction put on the concept of partial cause of action by the Division Bench in Sewa Ram's case (supra) and accept a liberal, pragmatic and practical construction which would be in consonance with the letter and spirit of Art.226(2) of the Constitution. 23. We are of the opinion that service of the detention order and taking of the detenue in custody in execution of such an order within the territories of the State of Rajasthan .....

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n into custody and where she was served with the order and grounds of detention, suffice to attract the jurisdiction of this Court..." 18. In Nazima Begum vs. Joint Secretary, 1993 CRI.L.J. 1336, it has been held by the Madras High Court that: "9. .....In the instant case, the effect of the order, namely, the detention order which is the subject matter of the writ petition, was served on the detenu only at Calcutta where he was detained and as such the Calcutta High Court alone has got .....

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he validity of these detentions are challenged before this Court and this Court has always entertained those cases and disposed of them one way or the other. Therefore, when the personal liberty of a citizen is sought to be infringed pursuant to an order passed elsewhere, it is always open to the person concerned to move the Court within whose jurisdiction his personal liberty is sought to be infringed, for necessary reliefs." In B. Shareefa Ummer vs. Joint Secretary to the Govt. of India, .....

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In Kamala Sarkar vs. State of Bihar, 2002 CRI.L.J. 1414, it has been held by the Division Bench of Calcutta High Court that: "22. In P.Subramani v. State of Karnataka reported in 1990 Cri.L.J. 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (AIR 1985 SC 1289) (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the ratio cannot be imported to a case of detention which is quite different. In .....

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reported in 1976 Cri.L.J. 889, Desai, J. (as His Lordship then was) speaking for the Division Bench of Gujarat High Court held that 'as initial detention of detenu which was at Baroda is continued, the same furnishes a part of cause of action to the detenus which arises within the jurisdiction of this Court'. So taking into consideration the provision of Article 226(1A) read with provision of Article 19, Clauses (d) and (e) for the purpose of coming at conclusion that in relation to depr .....

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e of the opinion, that a part of the cause of action has arisen within the jurisdiction of this Court and as such the writ application is maintainable." In Reena Ranka vs. Union of India, 1991 CrI.L.J. 3195, it has been held by the Division Bench of Andhra Pradesh High Court that: "17. ..... and that the unjust rejection of the representation without assigning any reasons whatsoever and communicated to the petitioner at Hyderabad amounted to deprivation of a valuable right under Art.21 .....

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ntainable. It has been observed therein in paragraph 15 as under:- "15. ... ... The authorities had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the petitioner within the jurisdiction of this Court ... ...". In S.P.Goyal vs. Union of India, 2003(1) RCR (Criminal) 83, after considering, inter alia, the said judgement in D.N.Anand's case (supra), this Court held as follo .....

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Punjab and others, Crl. Writ Petition No. 912 of 2007, this Court relying upon Section 4 of the COFEPOSA Act, 1974, judgment in D.N. Anand's case(supra) , Trilok Nath Mittal, 1994(1) RCR (Crl) 247 and Mrs. Arvind Shergill v. Union of India, 1999(4) RCR(Crl.) 781, observed as follows:- " Moreover, if the contention of the learned ocunsel for repsondent nois. 2 and 3 is accepted, then it implies that a person, whose life and liberty is threatened by passing an order elsewhere in the coun .....

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sdiction to entertain this petition is negated." The petition, however, was dismissed on merits by the same judgment but in LPA there-against, reported in 2009(4) RCR(Crl.) 465, the detention order was quashed by the Division Bench of this Court and thus, territorial jurisdiction was also upheld. 13. In Avinash Kumar Sharma v. Union of India, 1998 Cril.J. 356 (P & H) which is relied upon by the respondents, although the petition was dismissed, however, service of detention order was con .....

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consistent view, I find no merit in the objection of the respondents. Learned counsel for the Detaining Authority relied upon unreported decision dated 11.10.2012 of the Allahabad High Court in Crl. Writ Petition No. 14978 of 2012 wherein the said High Court refused to entertain a petition despite there being residence of the petitioner in its jurisdiction. It is seen from the said judgment that firstly service of detention order was not effected in that case in the jurisdiction of the said Hig .....

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993, passed an order directing the appellant therein to surrender to the detention order which was unexecuted since 1991 and refrained the Detaining Authority to take any coercive steps against the appellant for a period of 10 days thereafter so as to enable the appellant to take recourse to appropriate remedies. Special Leave Petition (Criminal) No. 5157/5158 of 2008 filed thereagainst by the Union of India was heard and dismissed by the Hon'ble Supreme Court vide order dated 28.7.2008. In .....

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e instant petition but after their surrender. Since the petitioners chose the later course, this Court was obliged to consider merits of the petition as post- detention petition albeit after their surrender. It is settled law that if any petition has not matured initially, the Court can await its maturity for its consideration thereafter. No right was conferred upon the Detaining Authority to absolve itself from the obligation to satisfy this Court regarding validity of the detention orders issu .....

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with writs of habeas corpus, such technical objections cannot be entertained by this Court." Further, in Smt. Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531, the Hon'ble Supreme Court held in paragraph 4 that in a writ of habeas corpus, strict rules of pleadings are not to be followed. It would be no argument for the Detaining Authority to say that a particular ground was not taken in the petition. The Court is bound to satisfy itself that all safe-guards provided by law have b .....

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not raised in the petition nor urged before the High Court. It is not even raised in the present appeal. Ordinarily, we would not have allowed the counsel to raise any point in this court, which was not urged before the High Court. However, we are mindful of the decision of this Court in Mohinuddin @ Moin Master v. District Magistrate, Beed and others, 1987(2) RCR(Criminal) 338: 1987(4) SCC 58 where this Court has held that the habeas corpus petition cannot be dismissed on the ground of imperfe .....

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dered even after the detention of the petitioners in view of the alternative remedy available before the Advisory Board. In Prabhu Dyal Deorah v. The Distict Magistrate, Kamrup, (1974)1 SCC 103, while rejecting similar contentions, the Hon'ble Supreme Court was pleased to observe as follows:- "16. .... .... We do not think that because the representations of the petitioners are pending consideration before the Advisory Board and the Advisory Board would also go into the question of the .....

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e." This view was again followed in Piyush Kanti Lal Mehta v. Commissioner of Police, Ahmedabad City, 1989 Supp(1) SCC 322 wherein the Hon'ble Supreme Court observed as follows:- " 6. At this stage, it may be stated that the representation of the petitioner is pending before the Advisory Board. The question that has been raised on behalf of the respondents is whether in view of the pendency of the representation before the Advisory Board, the writ petition is maintainable under Art .....

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e settled position of law, raising such an objection may reflect that the purpose of the detention is punitive rather than preventive. There is no doubt that the Advisory Board would have even wider jurisdiction than this Court; however, I find no merit in the submissions made on behalf of the Detaining Authority that the petition may not be considered unless alternative remedy before the Advisory Board is exhausted by the detenus. In the above circumstances, I am proceeding to dispose of the wr .....

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ns 186/353/34 of the Indian Penal Code at Police Station Ashok Vihar, New Delhi. The Assistant Director alleges in the FIR that Bimal Jain and his associates tried to manhandle him after search operations when he was with other officers of his Enforcement Directorate and obstructed him from returning to his office and also tried to threaten him with dire consequences. My attention was drawn to letters dated 10.11.2009 and 21.10.2009 of Bimal Jain addressed to the Assistant Director wherein while .....

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2009 alleges that Satpal Jain was beaten up by Shri Satbir Singh and even police was called by Satpal Jain and a criminal complaint was lodged. The contents of the FIR are thus at complete variance with the contents of the letter dated 25.9.2009 of Satpal Jain. Moreover, I find that this FIR registered under Sections 186/353/34 of the Indian Penal Code finds a reference in the grounds of detention in para 31, however, the name of the complainant is shown as Satpal Rathi instead of Satbir Singh. .....

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te left the said premises. Shri Satbir Rathi, Asstt. Director and two other officials were remained in the said premises started abusing and physical manhandling with me. They also started illegal demand, I was mercilessly beaten by Shri Satbir Singh Rathi. My son Shri Tarun Jain called the police on 100 number at about 1.10 a.m. on 25.9.2009 and I and my son was forced by Shri Satbir Rathi and other officials to record the statement with police that the compromise has been made and thereafter, .....

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ights Commission, New Delhi, to the Secretary, Ministry of Finance and also to the Commissioner of Police wherein the aforesaid complaint dated 9.10.2009 was transmitted to the Authority concerned for such action as deemed appropriate. 33. Annexure P-10 is a complaint dated 21.10.2009 to the Ministry of Finance through its Secretary wherein it has been recorded as follows:- " 5. That during the course of conducting all end raids, no incriminating material was recovered which may have appear .....

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en meeting various police officials in the said Police Station, Pitampura, Delhi, but nothing was done in the matter and the police officials had blatantly refused even to investigate the matter muchless take any action against Shri Satbir Rathi on the mundane plea that he is a Government officer. 13. That since the prosecution of the said officials, namely, Shri Satbir Rathi, working as Asstt. Director in the Enforcement Directorate, Delhi Zonal Office falling under your control cannot be effec .....

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was made: " It is, therefore, requested that an immediate investigation be kindly ordered in the matter to bring to book the cognizable offences committed by the accused and the First Information Report be registered against the accused and those unnamed persons whose identity and addresses can be provided by the accused persons on being confronted and they be punished in a deterrent manner for offences punishable under Sections 166/167/323/327/333/340/341/342/343/350 of the Indian Penal Co .....

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s are not the same as that are contained in letters dated 21.10.2009 nand 10.11.2009 of Bimal Jain for seeking permission to bring his Advocate during the course of investigation or letter dated 25.9.2009 of Satpal Jain requesting to discharge the summons. 36. Since these three letters were placed by the Sponsoring Authority before the Detaining Authority as vital documents, there cannot be any plausible explanation as to why the above-referred detailed complaints/court proceedings were withheld .....

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d further proceedings thereunder. 38. Moreover, the Sponsoring Authority was also bound to place on record FIR No. 443 of 2009 along with proceedings connecting thereto for consideration of the Detaining Authority. 39. In my view, each of these documents is such a vital document which would have a bearing on the subjective satisfaction of the Detaining Authority. It is true, as observed by the Hon'ble Supreme Court, in Vinod K. Chawla's case(supra), that each and every document need not .....

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settle aggravated personal vengeance and as punitive measures with least resistance or would have still issued the detention order, is not for me to judge. As already observed earlier, what would have been the position if the Detaining Authority was apprised of each of these documents is not for me to make a retrospective judgment at this distance of time. It is beyond doubt that the above vital documents were having a direct bearing on the subjective satisfaction of the Detaining Authority. Th .....

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of U.P. 1989(1) RCR (Criminal) 384, it has been observed as follows:- "12. ... ... 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 .....

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d thus:- "26. We have indicated hereinbefore that the consistent view expressed by this Court in matters relating to preventive detention is that while issuing an order of detention, the detaining authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public. 33. In the instant case, .....

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ired." 35.In Union of India v. Manoharlal Narang, this Court deprecated the contention that the detaining authority is not required to collect all materials about any court proceedings etc. from different ministries or departments for the purpose of issuance of a detention order. The Court observed that non- consideration of a relevant material will certainly invalidate the detention order. We respectfully agree with the above view, and reiterate it. 36. In A. Sowkati Ali v. Union of India, .....

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Customs Department has not been taken into consideration by the competent authorities. 23. A Division Bench of this Court in K.S.Nagamuthu v. State of Tamil Nadu and others, 2006(1) Apex Criminal 73: 2006(1) RCR (Criminal) 380: 2005(9) SCALE 534, struck down an order of detention on the ground that the relevant material had been withheld from the detaining authority; which in that case was a letter of the detenu retracting from confession made by him." ( e) In P. Sarvanan v. State of Tamil .....

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me." 40. In arriving at this conclusion, I have also considered the submission of learned counsel for the Union of India who urged that the Detaining Authority had chosen to issue the order of detention to preventively detain the petitioners despite the aforesaid complaints against the officers of the Sponsoring Authority to various Authorities and Court or the grant of anticipatory bail in police complaint filed against the petitioners by the officers of the Sponsoring Authority. He submit .....

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d it was observed as follows:- " 4. ... ... From what has been stated in the counter filed by the Union of India and the two counters filed by the State of Rajasthan, it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the Screening Committee in the first instance, but that is immaterial. It was the .....

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he accused of his earlier confessional statement and the pendency of the criminal case against the appelllant in which bail had been granted subject to conditions. No one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the appellant. But the question was whether the detaining authority applied its mind to relevant considerations. If it did .....

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dependently by the Central Bureau of Investigation. It was observed thus: "18. Before we proceed to the operative part of this judgment, we would like to make some observations on the averments contained in the second affidavit dated 19.9.2001 filed by the detaining authority. It is, the detaining authority has made himself bold to say that:- "If the argument of the petitioner that fililng of FIR by the CBI is a vital document is accepted then, in that case all documents relating to ca .....

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ons are occasioned by an ignorance on the part of the detaining authority of the knowledge of law of preventive detention. We are afraid that if documents relating to cases registered by different law enforcement agencies under different relevant enactments are vital documents which may have a bearing on the subjective satisfaction of the detaining authority, they would have to be forwarded to the detaining authority by the sponsoring authority and the failure to do so would vitiate the detentio .....

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ticle 226 of the Constitution of India. In their laxity lies the liberty of the detenu." On the basis of the said document, Government instructions were then issued on 25.8.2005 emphasizing on the safeguards and requirements to be observed while sponsoring proposals for preventive detention defined under the COFEPOSA Act mainly for ensuring that the materials forwarded to the Detaining Authority must be complied with in all respects. The judgment in Smt. Elsy George's case(supra) was ex .....

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42. If despite the above settled position of law and the instructions, the Sponsoring Authority shows laxity in placing vital documents for consideration of the Detaining Authority, irrespective of whether such non- placement is inadvertent or otherwise, this Court would be bound to set the detenu at liberty by setting aside the detention order. It is settled law that in preventive detention matters, the lapses of the Authorities cannot be condoned. 43. I also find another fatal infirmity in th .....

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te of Tamil Nadu, (2011)5 SCC 244 and Munagala Yadamma v. State of Andhra pradesh, (2012)2 SCC 386, wherein it was held by the Hon'ble Supreme Court that if the offences alleged are of a nature which can be dealt with under the ordinary laws of the land taking recourse to the preventive detention as a substitute for the ordinary punitive law would be contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution of India. 44. The Sponsoring Authority as well as .....

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reated various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safe-guards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the .....

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law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention." 45. While s .....

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le and are involved in other anti-national activities which are very harmful to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselve .....

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