TMI Blog2010 (1) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... also made to set aside the impugned order of detention dated 26.02.2010 seeking a direction to the respondents to release the detenu from the detention. 2. The facts and the circumstances which led to the passing of the detention order may now be taken note of. 3. On 06.10.2009, the officers of the Enforcement Directorate searched the residential/business premises of the detenu and recovered a sum of Rs.1.31 Crores. The explanation of the detenu was that this money actually belongs to his partnership firm M/s. Venkatesh Properties and was meant for making investment in the real estate. It is alleged in the petition that the various summons were served and coercive tactics were used for obtaining false confessions. The detenu had retracted those confessions on the very next date, pleading that they were taken under coercive circumstances. 4. Within few days thereafter, he also filed the Writ Petition No. 23558 of 2009 on 16.11.2009 in the Madras High Court in which the detenu had given the details of atrocities/illegalities allegedly committed by the officers of the Enforcement Directorate. He had also prayed for permitting presence of a lawyer at a visible distance during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the earliest opportunity. (a) The detaining authority did not take into consideration relevant material, i.e., the counter affidavit filed by the sponsoring authority admitting that investigation was at initial stage. (b) In the alternative to point (i) above, as like the counter affidavit, the grounds of detention does not reflect the consideration of the writ petition with affidavit of the detenu, the counter affidavit of the sponsoring authority and the interim stay order in favour of the detenu. (c) In the event, the detaining authority did apply her mind to the said documents, it was incumbent upon her to provide a copy of the same to the detenu pari passu the grounds of detention. Failure to supply such relevant documents is a violation of constitutional imperatives mandated by both the facets of Article 22(5) of the Constitution of India. (iii) The detaining authority has neither considered nor supplied certain relevant documents, i.e., the transcript/data contained in the laptop, the pen drive and the hard disc, though claimed as incriminating by the sponsoring authority. (iv) Section 3(d) appears to have been invoked by merely copying the proposal or draft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Section 3(d) of FEMA. However, since the draft grounds alleged violation of this provision, possibly by error, the curious part is that the same error has been reproduced by the actual grounds of detention. It is argued that this reproduction of an erroneous consideration clearly shows that the person drafting the grounds relied heavily on the draft grounds formulated by the sponsoring authority. A perusal of the chart showing existence of identical errors, identical averments, identical chronology of alleged facts, identical subjective satisfaction, identical spelling mistakes, and identical/verbatim language of the final conclusions and information meant for detenu regarding his right to make representation etc. proves the contention of the petitioner that the draft grounds prepared by the officer of the Sponsoring authority were bodily adapted. Predicated on the aforesaid peculiarities in the chart, the stand of the respondent as shown from file notings that the Draft Grounds of detention though prepared by the officer of the Sponsoring Authority, but were not forwarded to the Detaining Authority, is unacceptable. What is shown in the records is not the real state o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter, the Central Screening Committee approved the proposal. Thereafter, note dated 17.12.2009 was prepared by the Under Secretary (COFEPOSA) requesting the Joint Secretary (C), i.e., the detaining authority to kindly see for further directions . Along with this note, certain documents are also enclosed. However these documents do not include drafts grounds of detention prepared by the Enforcement Directorate. It is on this basis that the learned counsel for the respondent contended that though draft grounds were prepared by the sponsoring authority, perhaps in over- enthusiasm, but those approved grounds were not sent to the detaining authority. 9. One would tend to get such an impression in the first blush. However, a little deeper and further scrutiny of the matter would manifest that those draft grounds were very much available with the detaining authority. We will advert to this aspect a little later. Before that, another important aspect needs to be pointed out at this stage to complete the narration of events. 10. When the matter was put up before the JS(C), i.e., the detaining authority for further directions, she wrote following remarks on the note sheet on 21.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Attached hereto is another detention order passed by the same detaining authority, Ms. Rashida Hussein, where the last few paragraphs are completely different. This shows that the detention order has been substantially copied from the draft grounds of detention. 2. The fact that the draft grounds of detention were available to the person drafting the detention order is apparent from the similarities between the two documents. The differences are not pertinent since it is the similarities which clearly establish that the draft grounds were placed before the detaining authority (or her subordinates_ who drafted the detention order. Some of the telling similarities which establishes that y the detention order was a cut and paste job is apparent from the following examples. The address on the top of 1st page ends the word Janpath in both the documents. Whereas on the 1st page in the address, Janpath Bhavan is typed in both the documents, in para 26 of the grounds and para 19 of the Draft grounds it is spelt as Janpath Bhawan, with w‟ instead of v‟. There are six nos of (*) marks i.e. (******) below the address in both the documents. The peculiar man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing - Rajeev Para 4.4 starting with you further stated that, on 1.10.2009,.... And ending with ........S/Shri Hifuzur Rehman and Salim Abdul Charoliya. Pg 8- Spelling - Rajeev 12. Para 5.1 to 7 That the mobile Para 7 to 9 You no.9841573000............hande further explained d over the said Ten rupee to that the mobile no. the offices. Para 6 -Spelling-Rajiv 9841573000.....han ded over the said Ten rupee note to them. corresponding para 8-Spelling- Rajiv 14 Para 9: Statement of Uttam Chand Spelling-M/S Venkateshwara Homes 9P) Ltd. Para 11: Statement of Uttam Chand Spelling M/s Venkateshwara Homes (p) Ltd. 15 Para 10: Mohammed Sulaiman, ending with mobile no. 9952985800 connection (sim card). Spelling-M/s Venkateswara Homes Ltd. Address: Janpath Bhavan on 1st page and Janpath Bhawan in para 19 Para 12: Mohammed Sulaiman, ending with mobile no. 99529858000 connection (sim card). Spelling M/S Venkateswara Homes (p) Ltd. Address: Janpath Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process the proposal. At that stage, obviously, the matter is not considered by the detaining authority by applying her own independent mind to the material produced before her and to arrive at a conclusion whether detention order would be justified or not. However, overenthusiastic Under Secretary there after started doing the exercise of preparing grounds of detention in consultation with officers of Enforcement Directorate, Chennai. The matter was placed before the detaining authority only after grounds of detention were prepared and detaining authority approved the final detention order. This would show that even before there was any application of mind by the detaining authority and even before she looked into material and decided as to whether detention order was required or not subordinate officer drafted the grounds of detention. Things would have be different if direction was given by the detaining authority to the Under Secretary to prepare the detention order after she had decided, on going through the relevant material, that it was a fit case for passing the detention order. 16. Thus, from whatever angle the matter is looked into, it is clear that authorities procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing of the detention order. He is certainly entitled to take the assistance, from his lower functionaries for accomplishing this task but their input will be limited only to place the entire material before the detaining authority and they should not involve themselves in decision making process about the recording of satisfaction. That is entirely within the domain of the detaining authority. What has been done in the case in hand is somewhat disturbing because even before the detaining authority considered the matter and applied its mind to the material placed before him and recorded his satisfaction about making the detention order, the lower functionaries had actually put up a draft of detention order for the approval/vetting by the detaining authority which implies that the lower functionaries presumed that the detaining authority is going to pass the detention order in all eventualities/probabilities. Such a procedure or practice of putting up draft orders for approval/vetting by the competent authorities/senior functionaries can perhaps be justified in the routine discharge of administrative functions and duties in various Ministries and Departments of the Governments whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not mean that no order of detention could be passed even if there was proper justification for passing such an order on the basis of investigation already carried out. This Court is not going into the merits of the detention order, as that is the subjective satisfaction of the detaining authority. Moreover, the averments in the counter affidavit are in the context that writ petition be not entertained at that stage and stay order be vacated so that the respondents could investigate the matters further. 20. Insofar as contention (b) is concerned, noting in the file indicates that on 09.02.2010 factum of filing the writ petition by the detenu in the Madras High Court was recorded and the matter was placed before the detaining authority. The detaining authority looked into this issue. It is thus clear that the pendency of petition in the High Court of Madras and the stay order granted in the petition was not only brought to the notice of the detaining authority. In the writ petition, the petitioner had alleged the so-called illegalities and atrocities meted out to him. This factum was brought to the notice of the detaining authority even in the form of retracting statement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the detention order which deprives a person of his liberty. It affects the fundamental rights of a citizen, freedom of movement and pursuit of normal life and liberty. Because of this reason, the Apex Court has emphasized time and again that no absolute immunity can be claimed by the respondents as to the decision arrived and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. (See Chowdarapu Raghunandan Vs. State of Tamil Nadu and Ors.,2002 (3) SCC 754). For the same reason, the Courts have taken the view that while passing such orders, there had to be strict compliance of procedure, as detention orders deprives a person of his liberty without trial. It would be apt to extract the observation of the Supreme Court has taken the following view in the case of Deepak Bajaj Vs. State of Maharashtra Anr. [AIR 2009 SCC 628]: 18. It must be remembered that every person has a fundamental right of liberty vide Article 21 of the Constitution. Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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