TMI Blog2021 (10) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... hority is altogether a different matter. It is not disputed that Ext. P9 was not placed before and considered by the detaining authority. The detention order will be vitiated on the ground of non-application of mind if a piece of evidence that is relevant, though not binding, had not been considered at all. If a fact or material that 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 would, in turn, invalidate the detention order. Though we are conscious of the fact that the period of detention would come to an end in a couple of days, since it is our constitutionally entrusted duty to safeguard the rule of law, more so, in a matter involving personal liberty which is sacrosanct and protected under Article 21 of the Constitution of India, we have no choice but to hold the detention to be bad in the eye of law. The order of detention impugned is quashed - Petition allowed. - WP(CRL.) NO. 152 OF 2021 - - - Dated:- 8-10-2021 - HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR THE HONOURABLE MR. JUSTICE MOHAMMED NIAS C.P. Petitioner: By Advs. Geo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (Crl. 102 of 2021 5. The detenue Sarith P.S. was arrested in O.R No.7/2020 registered by the Customs on 6-7-2020. He was granted bail by the ACJM (EO), Ernakulam by order dated 17-09-2020 which could not be executed for non-compliance of the conditions imposed. He was arrested by the NIA on 16-7-2020 in RC 2/2020 registered under the Unlawful Activities Prevention Act, 1967 (for short UAPA ). OR 13/2020 was registered by Customs on the allegation of smuggling of dollars in which the detenue was arrested on 18-11-2020. He was also arrested in S.C. 610/2020 registered by the Enforcement Directorate under the provisions of the Prevention of Money - Laundering Act, 2002 and his arrest was recorded on 22-7-2021. The bail application filed by the detenue in this case was pending consideration when the order of detention was passed. As stated earlier, the detention order was passed on 19-11-2020 and the same was executed on 24-11-2020. He was served with grounds of detention and relied upon documents on 25-11-2020 and on the opinion of the Advisory Board, the detention order was confirmed by order dated 11-2-2021. The detenue had made a representation to the detaining Authority as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner Sri. George Jacob raised the following contentions: i) Though two cases were registered by the National Investigating Agency and the Enforcement Directorate as above mentioned, no documents pertaining to the said cases were supplied to the detenue inspite of the details of the cases being referred and relied upon in the grounds for detention and the non-supply has prevented the detenue from submitting an effective representation and thus there is an infraction of Article 22(5) of the Constitution of India. He cites the following judgments for the said proposition. Waheeda Ashraf and Others v. Union of India and Others (2021 KHC 303), Ummu Saleema v. B.B.Gujarat and Another [1981 KHC 636 : 1981 (3) SCC 317], Radhakrishnan Prabhakaran v. State of T.N. and others (2000 KHC 1427), State of Tamil Nadu. v. Abdullah Kadher Batcha and Another (2009 KHC 4268), Syed Farooq Mohammad v. Union of India and Another (1990 KHC 860), State of Punjab and Others v. Jagdev Singh Talwandi (1984 KHC 594) and J.Abdul Hakeem v. State of T.N. and Others (2005 KHC 1362). ii) Inspite of a specific request to supply copies of the documents pertaining to the two cases registered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following submissions:- (i) The detenue's application for bail was rejected by the Special Court for NIA on 10.08.2020 and this fact was never brought to the notice of the Detaining Authority by the Sponsoring Authority. In any event the bail order by the Special Court for NIA cases dated 10.08.2020 was a vital fact which should have been taken into account while passing the detention order on 09.10.2020 as it has a direct bearing on the question to detain or not. (ii) The learned counsel also argues that there was a delay in considering the representations and that the refusal to consider the application even for a temporary release in view of the pandemic and the health condition of the detenue also make the continued detention illegal. He also submits that the detenue has not retracted to the statements made under Section 108 of the Customs Act, and it was her statement which helped the Investigating Agency to unearth the entire smuggling activities and her role was very minimal compared to the other accused persons. Learned counsel argued that by Ext.P9 order of the Special Court for NIA cases, there was no chance at all for the detenue to be released, and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India [(1985) 4 SCC 361]. Summing up, he submits that there can be no straitjacket formula for reaching the subjective satisfaction, and each case has to be dealt with on the basis of the facts and circumstances. 14. The learned counsel appearing for the Central Government submits that they had duly considered the representations and applied their mind before they rejected the representation. They also maintain the stand that the detention orders are necessary in order to prevent prejudicial activities in future. According to him, the documents and materials along with the individual role of the detenues clearly show their continued propensity and inclination to indulge in acts of smuggling by forming a racket which detrimentally affect the economic security of the country. He has also made available the files which dealt with the consideration of the representations submitted by the detenues. We have also perused the files of the proceedings of the Advisory Board. 15. Sri. George Jacob, the learned counsel appearing for the detenue in W.P. (Crl.)No. 102/2021 while relying on the judgments regarding non-supply of documents submits that the documents sought for in those t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incident and which formed the basis of detention was held to be a material circumstance which ought to have been placed before the Detaining Authority in that case. It is pertinent to note that in that case detention was ordered on the basis of the solitary incident of theft committed by the detenue therein with respect to which a criminal case was also registered. In contrast, we find that the cases registered against the detenue in the instant case are totally independent from each other and are registered under different enactments wherein, the mandate, scope of enquiry and the ultimate conclusions under those statutes are all distinct and separate. It cannot be assumed that the developments in each of the cases so registered should be within the knowledge of the other agency or that the documents pertaining to the investigation of one need to be in the possession of the other agency. Though there can be sharing of information and materials, we cannot hold that every information and material is required to be shared by all the agencies. It is also to be noticed that investigation in O.R. 13/2020 pertained to the smuggling of a different commodity i.e. foreign currency, and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and therefore, there is a need to issue a Detention Order against you under the COFEPOSA Act, 1974 with a view to prevent you from smuggling of gold in future. 20. This, according to us it is perfectly in consonance with the principles laid down by the Hon'ble Supreme Court in Ankit Ashok Jalan (supra) wherein almost all the previous judgments on the point were noticed. The detaining authority in the instant case was alive to the fact that the detenue was already in judicial custody and also felt that there were compelling reasons justifying the detention, despite the fact that the detenue was in judicial custody. The decisions relied on by the learned counsel are clearly distinguishable being governed and qualified by the particular facts of those cases. It is trite that even a single significant detail may alter the entire aspect obtaining in a case. None of the judgments cited by the learned counsel for the petitioner persuade us to hold otherwise. We, therefore, feel the said contention has also to be rejected and we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial that 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 would, in turn, invalidate the detention order. We quite see that the detaining authority might very well have come to the same conclusion even after considering Ext. P9, but in the facts of the case, the omission to consider the same is fatal. We also find that the above material could have significantly affected the decision of the detaining authority on the issue of whether the detenue who was already in custody was likely to be enlarged on bail. As observed by the Supreme Court in the decisions referred above, the detaining authority has to bear in mind that orders of preventive detention have to be passed only in circumstances where the ordinary criminal laws are not effective in detaining the accused. In the instant case, the rejection of the bail application by the Special Court considering the UAPA case, together with the fact that no fresh bail application had been filed by the detenue till the date of the detention order ought to have engaged the attention of the detaining authority, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h its judicial pronouncements created various legal bul-works 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 safeguards 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 law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenue must be set at liberty, however wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty in order to prevent a smuggler from securing his release from detention, because whatever is the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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