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Bombay High CourtIndian Cases

Smt. Elsy George vs Union Of India (Uoi) And Ors. on 19 October 2001

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Bombay High Court
Smt. Elsy George vs Union Of India (Uoi) And Ors. on 19 October, 2001
Equivalent citations: 2002CRILJ540
Author: Vishnu Sahai
Bench: Vishnu Sahai, Rajiv S. Mohite
JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes herself as wife of the detenu Nedumpurambil Poulose George has impugned the order dated 16-11-2000 passed by the second respondent Mr. Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing, New Delhi detaining the detenu under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (As amended), hereinafter also referred as the COFEPOSA Act.

The detention order along with the grounds of detention, which are also dated 16-11-2000, was served on the detenu on 18-11-2000 and their true copies are annexed as Annexures A and B respectively to this writ petition.

2. The prejudicial activities of the detenu which prompted the second respondent (hereinafter also referred to as the detaining authority) to pass the impugned order are contained in the grounds of detention. (Annexure B).

In short, they are as under:–

An intelligence was received to the effect that M/s. Quality Apparel Exporters (P) Ltd. and M/s. Quality Exporters, both Mumbai based firms were indulging in export of rags declaring them to be ladies garments with the sinister object of defrauding the Government by way of claiming duty draw back. The intelligence further revealed that about five consignments were likely to be exported on 31-5-2000 and the aforesaid firms had been indulging in the said malpractice in the past and over 150 consignments were shifted from Air Cargo Complex, Sahar, during January, 2000 to May, 2000 and the said firms obtained the duty draw back fradulently which ran into crores of rupees.
In pursuance of the said intellegence, three consignments of cargo declared to be ladies skirts were noticed in the shed, Air Cargo Complex, Sahar in respect of which the “Let Shipment” orders were given after the goods were examined and these goods were being palletized for air lifting by a Chartered Sudan Air Ways Flight arriving at Bombay at 10.00 hours on 1-6-2000.
The details of the shipping bills were as under:–
S. No. Shipping Bill Exporter Descri. of goods Value of goods
Bill and Date as decl. in S/B in Rs. decl. in SB
1. 4425760 M/s Qlty Apparel Rayon Cotton

dt. 30-5-2000 P/L Woven 1,20,71,250.12
Ladies skirts.

2. 4425761 -do- -do- 1,20,71,249.85
dt. 30-5-2000

3. 4425761 -do- -do- 1,20,71,250.03
dt. 30-52000

4. 4425759 M/s. Qlty Exp. -do- 1,20,71,250.15
dt. 30-5-2000

5. 4425765 -do- -do- 1,20,71,250.19
dt. 30-5-2000

6. 4425762 -do- -do- 1,20,71,249.88
dt. 30-5-2000

7. 4425764 -do- -do- 1,20,71,249.83
dt. 30-5-2000

Total 8,44,98,750.05

Since the goods covered by the aforesaid shipping bills comprised of 700 packages, it was not possible to examine the same at that time and consequently entire lots were drawn from the shipment and segregated in the shed so that a detailed examination could be carried out. On 2-6-2000, Officers of the Rummaging and Intelligence Wing in the presence of independent panch witnesses examined the aforesaid 700 packages and discovered that 695 packages consisting of roughly stitched up rags and wet cloth pieces. The details of their examination were recorded in the panchanama. The export documents pertaining to the above shipments were retrieved from the office on M/s. Cambata Aviations, the handling agents of Sudan Airways which contained duplicate set of invoices.
During the course of investigation, it was revealed that Mr. C.D.N. Singh was the Manging Director of M/s. Quality Apparel Exporters (P) Ltd. and his wife Parimala Singh was the Managing Director of M/s. Quality Exporters which was proprietory concern owned by Parimala Singh wife Mr. C.D.N. Singh. Consequently, summonses were issued to both of them.
From the statement of Mr. C.D.N. Singh recorded on 1-8-2000, it came to light that the detenu used to sign papers for Quality Exporters and he did not remember who had authorised him to do so. .
On 16-6-2000, the detenu stated in his statement that he had joined M/s. Quality Exporters in the year 1976 and continued to work in the said company till 1997 in which year he was shifted by the management to M/s. Quality Exporters. He stated that he used to take instructions from Mr. Aditya Singh (son of the aforesaid Mr. C.D.N. Singh) a director in M/s. Quality Apparel and was looking after the export management as per the verbal instructions of Mr. Aditya Singh. On being shown the export related documents against seven shipping bills dated 30-5-2000, namely 44215759, 4425761, 4425763, 443754, 4425769, 4425767 and 4425764, he admitted that he had signed them.
In his statement dated 23-6-2000, the detenu stated that the signed the documents as per the instructions of Mr. Aditya Singh and he did not have any knowledge that the directors of the said firm were making false exports with a view to make draw back entry and he denied that he had connived with the directors of the firm.
A perusal of the grounds of detention would show that the gravamen of the allegation against the detenu is that after preparing the export documents under the instructions of Mr. Aditya Singh and signing them, he forwarded them to one Dashrathlal Bhagwandas Gupta a co-detenu, clerk in M/s. Freight Wings and Travels Ltd, Customs House Agent of M/s. Quality Apparel Exporters (P) Ltd. and M/s. Quality Exporters.
In para 49 of the grounds of detention, the detaining authority has shown his subjective satisfaction that he was reasonably satisfied that the activities of the detenu amounted to smuggling of goods as defined in Section 2(39) of the Customs Act and as adopted in the COFEPOSA Act through Section 2(e).
In para 50, the detaining authority has recorded his subjective satisfaction that in order to prevent the detenu from indulging in smuggling activities in future, it was imperative to detain him under the COFEPOSA Act.
A perusal of the grounds of detention would also show that the detaining authority has apprised the detenu of his right to make a representation to various authorities.
3. We have heard learned counsel for the parties. Although in this writ petition Mr. Maqsood Khan, learned counsel for the petitioner, has pleaded a large number of grounds numbered as ground Nos. 4(1) to 4(vii) in the petition but, since, in our view, this petition deserve to succeed on ground No, 4(iii), we are not adverting to the other grounds of challenge pleaded in the petition.

Ground No. 4(iii) in substance is as under :

The sponsoring authorities failed to place before the detaining authority a very vital and material document i.e. copy of the FIR lodged by C.B.I. against Mr. C.D.N. Singh, Mr. Randhir Singh, Mr. Aditya Singh and some Customs Officers wherein the detenu is not. named. The said FIR would have indicated to the detaining authority that the real culprits were the employers of the detenu and some customs Officers and the detenu was a poor servant acting under the instructions of his employers. The aforesaid FIR was capable of influencing the subjective satisfaction of the detaining authority one way or the other and its non-placement by the sponsoring authority before the detaining authority has rendered the impugned order null and void and its non-supply to the detenu has violated his fundamental right of making an effective representation under Article 22(5) of the Constitution of India. It has been averred in ground No. 4(iii) that copy of the FIR referred to therein, is annexed as Annexure-E to the petition.
4. Ground No. 4(iii) has been replied to in returns of the detaining authority dated 17-4-2001 and 19-9-2001 and in that of Mr. E.A. Joseph, Assistant Commissioner of Customs, (Preventive) R.& I. New Customs House, Mumbai.

We now propose extracting in substance the reply contained in the said returns.

4A. We begin with the return of the detaining authority dated 17-4-2001.

We find that the reply of the detaining authority is contained in para 3, 4 and 6(iii) of the said return.

In para 3 and 4, the detaining authority has denied that non-placement of the FIR against Mr. C.D.N. Singh and others impaired his subjective satisfaction. He had stated therein that his subjective satisfaction to detain the detenu under the impugned order was based on sufficient material which had been placed before him and which had been served on the detenu. He has also stated therein that on the said material he was subjectively satisfied that in order to prevent the detenu from committing smuggling of goods in future, it was imperative to detain him. He has further mentioned therein that the detention orders have also been issued against three directors of M/s. Quality Apparel (P) Ltd.

In para 4(iii), the detaining authority has also denied that non-placement of the copy of the FIR lodged by the CBI against Mr. C.D.N. Singh, Mr. Aditya Singh and some customs Officers has vitiated his subjective satisfaction. He has averred therein that the investigation conducted by C.B.I. is independent of the material placed before the detaining authority and relied upon by it and the material placed before him was sufficient to enable him to arrive at his subjective satisfaction to detain the detenu. He has also stated that all the documents which were relied upon by him as also the grounds of detention were duly served on the detenu and hence, the latter cannot raise the grievance that his right, to prefer a representation has been impaired.

Finally, he has averred therein that: the detention orders have been issued against the three directors of M/s. Quality Apparel (P) Ltd. the detenu had a long association with the two companies involved in this case; the detenu was a close confident of the directors of the aforesaid company and was looking after the export department and he admittedly signed various documents relating to all the shipping bills, including list of invoices at such lower price.

The thesis of the detaining authority in short is that although the detenu had claimed complete innocence or lack of knowledge he was very much a part of the persons who had been indulging in prejudicial activities of smuggling goods.

4B. We now come to the reply contained in the second return of the detaining authority dated 19-9-2001. In the said return, the detaining authority has repudiated the averments raised in ground No. 4(iii) in terms that the FIR lodged by the CBI was a vital document. He has stated that it was not a vital document and could not have influenced his subjective satisfaction and the same was based on the material placed before him and the said material was sufficient for him to conclude that the detenu was committing smuggling in terms of Section 2(e) of the COFEPOSA Act.

In the said return, the detaining authority has averred that C.B.I. investigates into economic offences from a completely different angle, which has no connection with the concept of smuggling as defined in Section 2(e) of the COFEPOSA Act. He has further averred therein that if the argument of the petitioner that the FIR is a vital document is accepted then, all the documents relating to cases registered by different law enforcement agencies under different relevant enactments would have to be considered by the detaining authority while issuing a detention order under the COFEPOSA Act and this will not be in tune with the provisions of COFEPOSA Act and would be unjustifiable because, such documents would be completely extraneous for the purpose of arriving at the subjective satisfaction as defined under the COFEPOSA Act.

At the end of his affidavit, the detaining authority has averred that the FIR filed by the CBI was neither a vital nor a relevant document for his arrival at the subjective satisfaction reached by him.

4C. We now take up the reply to ground No. 4(iii) contained in the return of Mr. E.A. Joseph, Assistant Commissioner of Customs (Preventive) and R. & I. Mumbai.

In short, it is as under :–

It is denied that the detenu had no role to play in the alleged smuggling activities. He was preparing the necessary export related documents and this leaves no doubt about his being part and parcel of the conspiracy. In his statement recorded under Section 108 of the Customs Act, the detenu had admitted that he used to prepare the second set of invoices thereby declaring different prices on invoice than what was stated in the first set of involve. There was sufficient material to conclude that he was smuggling in terms of Section 2(e) of the COFEPOSA Act r/w Section 2(8)(a) and Sections 111 and 113 of the Customs Act. The FIR Exhibit E has no relevancy for the subjective satisfaction of the detaining authority which is fully justified on the basis of the material which had been placed before the detaining authority. Whatever action the C.B.I. might be taking on the basis of intelligence gathered and the investigation done by them under the Prevention of Corruption Act does not in any manner effect the basis of subjective satisfaction of the detaining authority on which the impugned order is based.
5. We have perused the averments contained in ground No. 4(iii) of the petition, those contained in the two returns of the detaining authority and the return of Mr. E.A. Joseph, Assistant Commissioner of Customs, New Customs House, Mumbai wherein the said ground has been replied to and heard learned counsel for the parties. As observed earlier, we find ground No. 4(iii) to be pregnant with merit.

6. It is well settled that a document which is likely to influence the subjective satisfaction of the detaining authority one way or the other in the matter of issuance of the detention order is a vital document. In our judgment, the FIR lodged by C.B.I. a copy of which is annexed as Annexure E to the petition was a vital document as it was capable of influencing the subjective satisfaction of the detaining authority either way.

7. We now propose giving our reasons as to why the said FIR was a vital document, which could have influenced the subjective satisfaction of the detaining authority either way.

Earlier, we have referred to in some detail the prejudicial acts attributed to the detenu by the detaining authority in the grounds of detention. The gravemen of the averment against the detenu therein is that he prepared the export documents under the instructions of Mr. Aditya Singh and also signed them. We have seen that in his statement dated 16-6-2000, the detenu admitted that as per the verbal instructions of Mr. Aditya Singh, he has signed all the documents pertaining to the export against shipping bill Nos. (1) 4425759 dated 30-5-2000 (2) 4425760 dated 30-5-2000 (3) 4425762 dated 30-5-2000 (4) 4425761 dated 30-5-2000 (5) 4425763 dated 30-5-2000 (6) 4425764 dated 30-5-2000 (7) 4425765 dated 30-5-2000.

7(A). A perusal of the FIR lodged by the CBI (Annexure E) would show that the said FIR was lodged on 21-6-2000 and the averment therein is that Mr. C.D.N. Singh, Mr. Aditya Singh and Mr. Randhir Singh, original accused Nos. 8, 9 and 10 respectively entered into a criminal conspiracy with seven customs Officers namely Mr. R. Manga Babu, Mr. K.R. Tumbare, Mr. R.V. Apparao, Mr. K.B. Suryavanshi, Mr. K.S. Nair, Mr. A.K. Jena and Mr. C.P. Umar, original accused Nos. 1, 2, 3, 4, 5, 6 and 7 respectively and M/s. Nirvan Company, Sharjah and M/s. Freight Wings and Travels Ltd. Mumbai, original accused Nos. 11 and 12 respectively and others to cheat the Government of India by misusing the incentive scheme of export. A perusal of the said FIR would also show that Mr. C.D.N. Singh, Mr. Aditya Singh and Mr. Randhir Singh were owners and partners of M/s. Quality Apparels and M/s. Quality Exporters (P) Ltd. and fradulently exported rags and seris in stitched condition by using forged and fabricated documents showing rayon, ladies skirts and with the connivance of the said customs officers and the two companies referred to above, received a collosal amount of duty draw back. In the said FIR it has been mentioned original accused Nos. 2 and 5 dishonestly passed the consignment under shipping bill Nos. 4425759 and 4425700 original accused No. 6 and accused No. 2 dishonestly passed the consignment for shipping under shipping bill Nos. 4425701 and 4425763; original accused Nos. 3 and 4 dishonestly passed consignment for shipping under shipping bill Nos. 4425762, 4425764; and original accused Nos. 2 and 7 disnonestly passed the consignment for shipping under shipping bill No. 4425765.

7-B. It is pertinent to mention that in the said FIR neither is there any mention of the detenu’s name nor of his involvement nor even is there any whisper of suspicion against him.

7-C. In our judgment since : the seven shipping bills which are said to have been prepared by the detenu as per the grounds of detention were a basis for the detaining authority to detain the detenu vide the impugned order; the said shipping bills are also the core of the FIR lodged by the CBI which shows how different custom Officers, referred to therein dishonestly passed for the shipment of various bills and the said FIR shows that the detenu is neither named therein nor is there even a whisper of suspicion against him, therein, the said FIR was a vital document which was capable of influencing the subjective satisfaction of the detaining authority either way.

8. In our judgment, since the said FIR was a vital document, its copy should have been forwarded by the sponsoring authority to the detaining authority and the latter should have furnished its copy to the detenu so as to enable him to make an effective representation against the detention order. It may be that despite its placement before the detaining authority, the latter may still have passed the impugned order. It may equally be that since in the said FIR there is no reference to the detenu nor even a whisper of suspicion has been raised against him, the detaining authority may not have passed the impugned order. Which way the mind of the detaining authority would have worked is not for us to conjecture because, that was a matter within the realm of his subjective satisfaction.

But, we make no bones in observing that since copy of the said FIR was not placed before the detaining authority nor supplied to the detenu, the detention order would be vitiated both on the vice of non-application of mind of the detaining authority and the detenu’s fundamental right of making a representation guaranteed by Article 22(5) of the Constitution of India being impaired.

9. Mr. R.M. Agarwal, learned counsel for the respondent Nos. 1 and 2 emphatically urged that since the detaining authority has detained the detenu in order to prevent him in future from committing smuggling within the meaning of Section 2(e) of the COFEPOSA Act and in the grounds of detention, there was sufficient material for the detaining authority to conclude that the detenu committed smuggling in terms of Section 2(e) of the COFEPOSA Act, his subjective satisfaction would not have changed even had the FIR lodged by the CBI (Annexure-E to the petition) been placed before him. In fact, Mr. Agarwal went to the extent of urging that the said FIR was an extraneous document.

10. We have reflected over Mr. Agarwal’s submission and regret do not find any merit in it. As mentioned earlier, the said FIR was a relevant and vital piece of material which should have been placed before the detaining authority, which way the subjective satisfaction of the detaining authority would have gone had it been placed before him cannot be judged on the anvil of objective standards; an anvil on which, Mr. Agarwal wants us to Judge. Objective standards would certainly be a correct measure to judge if the satisfaction of the detaining authority was an objective satisfaction. But, they cannot be applied in examining his satisfaction under Section 3(1) of the COFEPOSA Act because, the satisfaction therein is his subjective satisfaction and in a matter resting on subjective satisfaction, it is obligatory for the sponsoring authority to place before the detaining authority every document which may have a bearing on his subjective satisfaction and the failure to do so would vitiate the detention order on the vice of non-application of mind. The rationale for this as observed by us earlier, is that since the satisfaction of the detaining authority is subjective, it cannot be conjectured what impact the document would have had on the mind of the detaining authority had it been placed before him.

11. Turning to the instant case, we find the said FIR to be a relevant piece of evidence because, as mentioned earlier, the details of smuggling and the seven shipping bills (alleged to have been prepared by the detenu) referred to in the grounds of detention, are also the subject matter of the said FIR and figure in it. From the averments contained in the said FIR it is manifest that the detenu is not involved in smuggling; in fact there is not even a whisper of suspicion against him in the said FIR.

As we have observed earlier, it may be that since in the said FIR the involvement of the detenu is not. reflected and there is not even a whisper of suspicion against him, the detaining authority may not have detained him had it been placed before him. On the converse, it. may equally be, as urged by Mr. Agarwal, that since in the grounds of detention, there was sufficient material to show that the detenu was involved in smuggling, in terms of Section 2(e) of the COFEPOSA Act, the detaining authority may still have detained him, after perusing the contents of the said FIR.

As observed by us earlier, since it. was a matter in the realm of the subjective satisfaction of the detaining authority, we cannot conjecture which was it would have gone had the said FIR been placed before him. But, to repeat since the said FIR was a vital piece of evidence and was not placed before the detaining authority any its copy was not supplied to the detenu, the impugned order would be vitiated on the vice of non-application of mind and the detenu’s fundamental right of making a representation at the earliest opportunity guaranteed by Article 22(5) of the Constitution of India being impaired.

12. Before parting with Mr. Agarwal’s submission, we would like to emphasise that subjective satisfaction and objective satisfaction are as distinct and different in connotation, as red and black are and standards to be adopted in determining as to when an order founded on them would be vitiated are equally distinct and different and while dealing with cases resting on them, if this Court becomes oblivious of the inherent distinction between them and acts on the maxim what is good for the goose is also good for the gander and applies the same standards, it would be perpetuating injustice.

13. The Supreme Court in a catena of decisions has held that if a vital piece of evidence which could have influenced the mind of the detaining authority is not placed before it, the detention order would be vitiated on the vice of non-application of mind. The four which most readily come to our mind are :–

(i) AIR 1979 SC 447 : (1979 Cri LJ 203) (Ashadevi v. K. Shivraj);
(ii) (State of U.P. v. Kamal Kishore Saini);
(iii) (Ayya alias Ayub v. State of U.P.);
(iv) (Ahmed Nassar v. State of Tamil Nadu);
13-A. Ashadevi’s case (1979 Cri LJ 203) supra, pertained to a preventive detention under Section 3(1) of the COFEPOSA Act and since the retraction of the confession made by the detenu was not placed before the detaining authority, the impugned detention order was struck down by the Apex Court which In para 6 observed thus :–

6. It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
14. We now come to the case of State of U.P. v. Kamal Kishore Saini (1988 Cri LJ 405) supra.

A perusal of para 7 of the said decision would show that the application of the co-accused as well as the statement made in the bail application filed on behalf of the detenu alleging that they had been falsely implicated in the same case and the police report thereon were not placed before the detaining authority before passing of the order and the averment made in the return of the detaining authority filed in the Hon’ble High Court was that even if the said material had been placed before the detaining authority, he would not have changed his subjective satisfaction.

Rejecting the said submission, the Supreme Court in para 7 observed thus :–

It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Asha Devi v. K. Shivraj and Gurdip Singh v. Union of India, .
15. We now come to the case of Ayya alias Ayub v. State of U.P. (1989 Cri LJ 991).

A perusal of para 13 of the judgment shows that in that said case, the vital document was a telegram. The question was whether the telegram was despatched by Mirajuddin at 12-30 midnight on 18-2-1988 as contended from the side of the petitioner or at 12-30 noon on 19-2-1988 as suggested by the respondents.

Venkatachaliah. J. (as he then was) in para 13 of the judgment did not rule out the possibility of the telegram being sent at, the time contended by the respondents. But, in spite of that, since the said telegram was a vital piece of evidence and was not placed, he struck down the detention order observing thus in the said para:

But, it cannot be disputed that such a telegram was sent. This telegram asserts for whatever it was worth that the petitioner was taken into costody at 8.00 p.m. on 18-2-1988. The contention of Shri Garg is that the non-consideration of this telegram which had a bearing on the complicity or otherwise of the -petitioner in the alleged offence vitiates the detention on non-application of mind. The detaining authority in its affidavit, says :…Deponent is not in a position to say about the facts of the telegram. It might have been given in peshbandi.
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 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.
16. In Ahmed Nassar v. State of Tamil Nadu (2000 Cri LJ 33) supra the vital documents were the two letters which were not placed by the sponsoring authority before the detaining authority and A.P. Misra, J. (as he then was) speaking for the Apex Court concluded in para 29 that non placement of the said letters, which were relevant, vitiated the impugned detention order.

In para 20 of the said judgment, His lordship observed thus:–

Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled: a detention under vitiates if any relevant document, is not placed before the detaining authority which reasonably could affect his decision.
17. Since in our judgment, the FIR filed by the CBI a copy of which has been annexed as Exhibit E to the petition, was a vital document and was not placed by the sponsoring authority before the detaining authority and its copy was not supplied to the detenu, the impugned detention order would stand vitiated on both the facets of Article 22(5) of the Constitution of India. Since a copy of a vital document was not; placed by the sponsoring authority before the detaining authority, the detention order would be vitiated on the vice of non-application of mind and as a copy of the said FIR was not furnished to the detenu, the latter’s fundamental right guaranteed under Article 22(5) of the Constitution of India of making a representation at the earliest opportunity would be vitiated.

17-A. It. should be borne in mind that the right to make a representation, guaranteed to the detenu under Article 22(5) of the Constitution of India, is an effective right and not an illusory right. And when a copy of a vital document is not furnished to the detenu, it ceases to be an effective right and is relegated to an illusory one. The sacrosanct nature of the right can be gauged by the fact that, the framers of the Constitution have made it. a fundamental right.

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 filing of FIR by the CBI is a vital document is accepted then, in that case all documents relating to cases if registered by different law enforcement agencies under different relevant enactments are to be considered by the Detaining Authority while issuing a detention order under the COFEPOSA Act. This will neither be in tune with the provisions of the COFEPOSA Act nor will it be justified since such documents will be completely extraneous material for the purpose of deriving subjective satisfaction as envisaged under the said Act.
We have no compunction in observing that the said observations 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 detention order. In our view, there is no provision in the COFEPOSA Act, which makes it impermissible to do so and the said documents far from being completely extraneous for the purposes of arriving at subjective satisfaction under the said Act would be wholly relevant in arriving at it and influencing it.
It should be borne in mind that eternal vigilance is the price which the law expects from the detaining and sponsoring authorities if they want detention orders to be affirmed by this Court under Article 226 of the Constitution of India. In their laxity lies the liberty of the detenu.
19. We are not oblivious to the fact that the consequence of our judgment would be that a person against whom there is material for smuggling under Section 2(e) of the COFEPOSA Act would go scot free. But, that cannot be helped. A preventive detention order can only be sustained by this Court in its jurisdiction under Article 226 of the Constitution of India if it is in conformity with law. And where it is not, as is the case here, this Court would have no compunction in striking it down. After all bad men are as much entitled to the fundamental right of deprivation of personal liberty in accordance to the procedure established by law (Article 21) as good men are.

20. In the result : we allow this writ petition; quash and set aside the impugned detention order; direct that the detenu Nedumpurambil Poulose George be released forthwith unless wanted in some other case and make the rule absolute.

Issuance of certified copy is expedited.