TMI Blog1983 (4) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... nlarged on bail. The detailed reasons for the passing of the aforesaid order are given hereunder. (2) Briefly stated, the relevant facts are that the two petitioners are of Indian origin but hold Nepalese passports. According to them they are permanent residents of Nepal. On 4th May, 1982 both of them arrived by Pan am flight from Hongkong at 3.20 A.M. (3) According to the respondents, the petitioners Shri Ram Goyal and Sita Ram Jodhani collected their baggage and reported at counter Nos. 4 and 7 respectively in the red channel of the International Arrival Hall, Delhi Airport. Both of them were cleared by the Customs Officer and were allowed to go. At the exit gate, however, they were intercepted by the Preventive and Intelligence sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the charges be framed on 28th June, 1982. The charges were framed against Sita Ram Jodhani on that date. (7) On 3rd July, 1982 orders were passed against the petitioners under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') by the Administrator of the union territory of Delhi. The orders which were passed were identical in the case of both the petitioners. It was stated in the orders that they were passed with a view to preventing him from smuggling goods viz. gold bars into India . Thereafter the petitioners were also served with the grounds of detention which carried with it 16 documents as per the lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile relying upon Smt. Hemlata Kantilal Shah v. State of Maharashtra and another, 1982CriLJ150 and Mrs. Saraswati Seshagiri v. State of Kerala and another, AIR1982SC1165 , that prosecution is not relevant to the passing of an order under Section 3 of the Gatepost Act. He submitted that as the pendency of prosecution was not relevant, Therefore, it must follow that the pre-charge evidence, which was recorded, which is a follow up action of the launching of the prosecution, is also not relevant and nor is the order on charge relevant. (11) In our opinion there is no merit in the submission of the respondents. Neither the decision in Hemlata's case nor in the case of Saraswathi Seshagiri (supra) can be of any assistance to Mr. Bagai. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case. (12) It was submitted by Mr. Bagai that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power -of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order. (13) In our opinion the pre-charge evidence, the bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Addl. Sessions Judge and the third one in this Court. Each one of these bail applications was dismissed. In 'our view the fact that the petitioners were facing prosecution and that they had not been released on bail was of vital importance in the present case. If this fact was brought to the notice of the Administrator he might have come to the conclusion that, at this stage, it was not necessary for any preventive action to be taken and might not have passed the impugned order under the Cofeposa Act. The non-consideration of this fact is clearly fatal to the case of the respondents. On this ground alone the writ petitions had to be allowed. (14) It was then sought to be contended by Mr. Bagai that whether an order of det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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