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K.K. SarIn Vs. Meenakshi Datta Ghosh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 29 of 1977
Judge
Reported inILR1978Delhi178
ActsMaintenance of Internal Security Act, 1971 - Sections 3(1); Official Secrets Act, 1923 - Sections 3; Indian Penal Code (IPC), 1860 - Sections 120B
AppellantK.K. Sarin
RespondentMeenakshi Datta Ghosh and anr.
Advocates: V.M. Tarkunde,; C.M. Nayar and; I.D. Ahluwalia, Advs
Cases ReferredRegina v. Governor of Brixton Prison
Excerpt:
maintenance of internal security act (1971) - sections 3(1)(a)(i) & 16a--indian official secrets act, sections 3, 5 & 9--indian penal code, section 120-b--detention of petitioner for preventing him from acting in any manner prejudicial to the maintenance of security of india--legality of.; (1) the order of detention was liable to be quashed, in the instant case, for the reasons that the same was made on dictate from others, the grounds of detention were not formulated by the first respondent but were formulated by someone else and were communicated mechanically without application f mind to the petitioner. furthermore, the grounds of detention lacked in material particulars and the detention was illegal and mala fide. the satisfaction postulated by section 3 of the misa also.....prakash narain, j.(1) the petitioner, k. k. sarin, filed thispetition under article 226 of the constitution of india praying thatinasmuch as he has been illegally detained, a writ in the nature ofhabeas corpus be issued and it be ordered that he be set at liberty.briefly, the contention was that the petitioner was being detained bythe second respondent superintendent, central jail, tihar, newdelhi, by virtue of an illegal and invalid order passed by the firstrespondent, mrs. meenakshi datta ghosh, additional district magistrate (new delhi) delhi, under the maintenance of internal securityact, 1971, hereinafter called the act. it was prayed that the saidorder of detention be quashed and the petitioner be set at liberty.we accepted this petition and directed the release of the petitioner.we.....
Judgment:

Prakash Narain, J.

(1) The petitioner, K. K. Sarin, filed thispetition under Article 226 of the Constitution of India praying thatinasmuch as he has been illegally detained, a writ in the nature ofhabeas corpus be issued and it be ordered that he be set at liberty.Briefly, the contention was that the petitioner was being detained bythe second respondent Superintendent, Central Jail, Tihar, NewDelhi, by virtue of an illegal and invalid order passed by the firstrespondent, Mrs. Meenakshi Datta Ghosh, Additional District Magistrate (New Delhi) Delhi, under the Maintenance of Internal SecurityAct, 1971, hereinafter called the Act. It was prayed that the saidorder of detention be quashed and the petitioner be set at liberty.We accepted this petition and directed the release of the petitioner.We now proceed to record our reasons for our decision.

(2) The petitioner is a citizen of India who was in February, 1977 working as a Director in the Planning Commission. An F.I.R. bearing No. 26 of 1977 was lodged in Police Station, Srinivaspuri, NewDelhi, to the effect that the petitioner had committed the offencepostulated by Sections 3, 5 and 9 of the Indian Official Secrets Actread with Section 120-B of the Indian Penal Code. Accordingly, the petitioner was arrested during the night of 3rd and 4/02/1977. On Febr 15/02/1977 an order of 'deemed suspension' witheffect from 4/02/1977 was passed in respect of the petitionerunder the provisions of Rule 10(2) of the Central Civil Services(Classification, Control & Appeal) Rules, 1965. The petitioner, onarrest, had been produced before a Magistrate and had been remanded to police custody till 17/02/1977. During this period, IT is alleged by the petitioner, he was subjected to continuous and intense interrogation, sometimes the interrogation lasting for asmuchas 12 hours at a stretch. It is alleged that he was denied food andfluids at one stage for 72 hours. It is further alleged that he wassubjected to mental torture, threats and intimidation like his familymembers being arrested and he himself being detained under the Actindefinitely if he refused to make a confessional statement. Thirddegree methods were used for extracting various statements of factsof which, the petitioner says, he had no knowledge. Thoroughlybroken down both physically and mentally and from a sheer senseof survival, the petitioner agreed to make a confessional statementas dictated by the Police. In this condition, it is alleged, the petitioner was brought to Tihar Jail on the evening of 17/02/1977 and kept in a solitary cell till the morning of 19/02/1977. On 18/02/1977, it is alleged, the petitioner was visitedby two plain clothes men from the Police and handed over a prepared statement which he was directed to memorise for being givenas confessional statement before a Metropolitan Magistrate. On 19/02/1977 a confessional statement purported to have beenmade by the petitioner was recorded by Shri D. R. Jain, MetropolitanMagistrate. Thereafter he was brought back and on 20/02/1977 an order of detention under the Act dated 11-2-1977 andmade by the first respondent was served on the petitioner. Thisorder stated that with a view to preventing the petitioner from actingin any manner prejudicial to the maintenance of security of India itwas necessary to make an order directing that he be detained and,therefore, an order to that effect is made in exercise of the powersconferred by sub-clause (i) of clause (a) of sub-section (1) of Section 3 of the Act. The petitioner states that along with the said order ofdetention he was served with a cyclostyled declaration under Section 16A of the Act made by the first respondent. On February, 1977 the petitioner states that he retracted his confession by sending throughthe jail a letter of that date addressed to the Secretary, Planning Commission, New Delhi. Copy of this letter has been produced on therecord by the petitioner and is Annexure P-9. On 21/03/1977the order of detention dated 11/02/1977 was revoked by thefirst respondent. She, however, passed another order of detention in respect of the petitioner on the same day directing that he be detainedwith a view to preventing him from acting in any manner prejudicialto the maintenance of security of India. This order was passed inexercise of powers conferred by sub-clause (i) of clause (a) of subsection (1) of Section 3 of the Act. Inasmuch as Section 16A. ofthe Act had ceased to operate on account of the proclamation ofemergency being revoked by the President of India, grounds of detention dated 21/03/1977 were also served on the petitioner.These grounds were, however, served on 4/04/1977. Thedetention order dated 21/03/1977 was also revoked by the firstrespondent by an order of 21/04/1977. Yet another order ofdetention was, however, passed on 21/04/1977. This order andthe grounds of detention both signed by the first respondent wereserved on the petitioner. Inasmuch as sixty days had elapsed since the-petitioner was arrested in connection with F. I. R. 26 of 1977, PoliceStation Srinivaspuri, a bail application was moved and he was orderedto be enlarged on bail by an Additional Sessions Judge, Delhi. Thebail bond and surety was given and the same was accepted. The orderof the Additional Sessions Judge granting bail was passed on 22/04/1977.

(3) The petitioner's contention was that the successive orders ofdetention as well as the grounds of detention dated 21/03/1977and 21/04/1977 were issued not on the subjective satisfaction of thefirst respondent but under dictate from superior or other authorities.It was further contended that the orders of detention and the groundsof detention were illegal, mala fide and were issued in abuse of thepowers conferred by the Act. The further contention was that the petitioner's detention was not ordered to effectuate the purposescontemplated by the Act but for ulterior motives. The validity of thegrounds of detention and the order of detention was also challengedfor non-compliance with the provisions of the Act and as being vocative of Articles 21 and 22(5) of the Constitution.

(4) Rule nisi was obtained by the petitioner on 8/06/1977. Byway of return both the respondents filed their respective affidavits.The petitioner filed rejoinders to both the counter-affidavits. Therespondents have denied the allegations of the petitioner and havesubmitted that the detention of the petitioner was valid and legal. Thefirst respondent has further submitted in her affidavit that she had passedthe various orders from time to time on full consideration of the reportssubmitted to her by responsible officers and on being satisfied thatthe detention of the petitioner was essential in order to prevent himfrom acting in any manner prejudicial to the activity mentioned in therespective detention orders. She admits that she received a D.O. letter of the Director (IS). Government of India. Ministry of HomeAffairs dated 11/02/1977 and states that she had no reason todisbelieve that letter and after giving earnest thoughts to the allegationsmade in it, she issued the detention order. She filed a copy of theD.O. letter, which is Annexure R-11 to the affidavit. Regarding thefirst detention order of 11/02/1977. the first respondent hasstated in her affidavit: 'As per Section 16A, 6(b) of MISA(Amendment) Ordinance, 1975, it was not necessary to disclose toany person detained under Misa under the provisions of Section 16A(3) the grounds of detention. The petitioner, was, however, servedwith a declaration as required under the provisions of the Act.' Shehas not said anything about the petitioner's contention that Along with the detention order of 11/02/1977 he was served with acyclostyled declaration under Section 16A of the Act. Another notable feature in the affidavit of the first respondent is her averment.

'THE detention orders dated 21-3-1977 were revoked on 21-4-1977on the advice of the Home Department of Delhi Administration. Thedetention orders dated 21-3-1977 were revoked purely on technicalpoint.' She has not explained what was the technical point. In paragraph 170 of the petition the petitioner states :

(A) that the grounds of detention supplied to him were wholly irrelevant to the alleged purpose of the petitioner's detention, namely, the maintenance ofsecurity of India; (b) that the grounds did not indicate how theinformation and confidential documents alleged to have been passedon by the petitioner to the foreign agent were connected with India'ssecurity; (c) that the grounds did not even state that the disclosure ofthe secret information and passing of the confidential documents waslikely to affect India's security; (d) that as to what were the groundsfor holding that the disclosure of secret information and passing ofconfidential documents affected the security of India; or (e) what were those documents. The reply of the first respondent is as follows :-

'IT is denied that the grounds of detention are irrelevant anddetention based on these grounds is illegal. It is also deniedthat it has not been stated in the grounds that the disclosure of the secret information and passing of the confidentialential documents affected the security of the country. Inpara 1 of the grounds of detention, dated 21-4-77 it isclearly mentioned that: 'ON perusal of the record of activities of Shri K. K. Sarin,Director, Planning Commission, New Delhi, I am satisfied that his activities are prejudicial to '.he security ofIndia'.'

This can hardly be regarded as a reply to the contentions. Why wesay this would be apparent from a discussion of the various aspectshereafter. In reply to the allegations in paragraph 17 (D) of the petitionthat the impugned orders were passed without application of mind andthe grounds do not disclose how any or every confidential documentcould affect the security of India or that a document may be secretwithin the meaning of the Official Secrets Act but may not jeopardisethe security of India or that the first respondent failed to consider thatthe petitioner could not in future be expected to indulge in the activitieswhich he allegedly indulged in earlier on account of his being suspendedfrom service, the first respondent has merely made a denial that shehas not passed the orders carelessly and without application of mind.In paragrph 17(F) of the petition the petitioner has mentioned aboutthe retraction of the confession and has alleged that the grounds ofdetention were supplied without any application of mind. In reply thefirst respondent has stated as under :-

'IT is denied that respondent No. 1 acted in a casual and careless manner and that the detention order is mala fide orillegal. The grounds of detention had been furnished to meby the Ministry of Home Affairs, Government of India andby the S.P. C.I.D.(S.B.). Since these were conveyed to meby responsible authorities. I had no reason to disbelievethe grounds of detention.'

It is worth-noting that the first respondent has made no reply withregard to the retraction of the confession. She has not even cared tofind out when she filed the counter-affidavit whether any such retractionexisted and if it did why it was not brought to her notice. In paragraph17(G) of the petition there is an allegation of casual approach and noneupply of material particulars. In her counter affidavit there is no specific denial of this fact nor any assertion that all material facts weredisclosed to the petitioner in the grounds communicated to him. Inparagraph 17(H) of the petition it has been alleged that the successiveorders of detention were passed in order to defeat Section 10 of theAct and prevent the matter being placed before the Advisory Boardwithin 30 days from the date of detention. Respondent No. 1 has deniedthat the order is mala fide and illegal but has not explained the circumstances which led to successive detention orders being passed byrevoking the earlier detention orders. In paragraph 17(1) of the petitionthe petitioner alleged that he was in-charge of prospective planning inthe Planning Commission and he had no access to confidential information and documents. He has further alleged that the documents to whichhe had access were normally made public in a short time from ; theirbeing known to the petitioner. In reply to this allegation the first respondent says: 'As per the grounds of detention furnished to me bythe Ministry of Home Affairs and S.P. CID(SB), the petitioner hadaccess to confidential information. The rest of the para needs no comments'. We need not set out the allegations in the petition and thereplies any further.

(5) As far as the second respondent is concerned he has stated that he held the petitioner in jail under proper and valid orders of detention.He has denied the allegations of solitary confinement or the visit by anybody while the petitioner was in jail.

(6) Learned counsel appearing for the petitioner raised the following contentions:-

I. It is clear from the counter affidavit of the detaining authority Respondent No. 1 that the impugned order was notreally based on her own satisfaction but was made on thedirection of her superior officers. Even the grounds of detention were not drafted by her but were sent to her by theHome Department and were passed on by her to the petitioner.

II. In any case the impugned order was passed by respondent No. 1 without any application of mind, without any senseof responsibility and in a casual manner and was malafide in law because(i)Respondent No. 1 did not ascertain for herself whetherthe documents alleged to be passed on to a foreignagent or agents had any bearing on the security ofIndia;(ii)Respondent No. 1 did not care to inquire whether the petitioner's alleged confession was voluntary and trueand whether it was retracted, although the alleged confession was the sole basis of the order of detention according to the grounds supplied to the petitioner;(iii)Respondent No. 1 did not take into consideration thatthe petitioner having been suspended from service, hadno access to any confidential documents and it was quiteunnecessary to subject him to preventive detention;and(iv). Respondent No. 1 nowhere says in the grounds of detention that the anticipated activities of the petitioner weresuch as to require his preventive detention ; and

III. The impugned order is illegal because its intention and itseffect was to defeat the mandatory provisions of section 10 of the Act which required that the petitioner's case ought tohave been submitted 'to the Advisory Board within 30 daysof his detention. Respondent No. 1 has given no reasonwhy the detention order dated 21-3-1977 (Annexure P-4)was revoked and replaced by another detention order dated21-4-1977 (Annexure P-7, the impugned order), just beforethe lapse of the period of 30 days.

VI. The grounds of detention are wholly irrelevant because theydo not show that the documents alleged to have beenpassed by the petitioner to a foreigner agent or agents hadany bearing on India's security. Even the averment of the petitioner that 'confidential' documents of his department(Department of Planning Commission) used to be published after the lapse of a short period, has not beendenied by Respondent No. 1.

V. The grounds of detention are vague and insufficient foreffective representation as they do not furnish any particulars such as the names of the agents, names of the foreigncountries, the nature and number of documents passed bythe petitioner, the dates and places where they werepassed the amounts for which they were passed etc.'

(7) At this stage we must place on record our appreciation of theattitude of the learned counsel appearing for the respondents. He veryfairly placed the record of the detaining authority before us. We haveperused it. Certain salient features from this record may be noticedbefore we go on to comment upon the contentions put forth on behalfof the petitioner.

(8) Prior to the issue of the detention order dated 11/02/1977 the first respondent admits that she received copy of a letter dated 11/02/1977 written by Shri S. C. Vaish, Director (IS) in theMinistry of Home Affairs, Government of India, New Delhi, to ShriSushil Kumar, then Chief Secretary, Delhi Administration. Indeed, sheherself filed a copy of this letter along with her counter-affidavit.Para 2 of this letter reads as under :-

'PENDING further investigation of Srinivaspuri P.S. Case No. 26dated 26/01/1977 U/s 3 & 9 of the Official SecretsAct read with Section 120-B Indian Penal Code , the following persons involved in this case may be detained under Misa :-

(I)...

(II)...

(III)...

(IV)K. K. Sarin, Director, Planning Commission.

(V)...

For obvious reasons it will not be possible to disclose thegrounds of detention and hence Section 16-A of the Actwill have to be invoked. We may be informed after theaction is taken.'

(9) According to the nothings on the file the first respondent carefully perused the above letter of 11/02/1977 and recorded that shewas satisfied that the activities of the petitioner are prejudicial to themaintenance of security of India and, thereforee, ordered his detention.She has also recorded :-

'I further hold that the detention of the said Shri K. K. Sarinis necessary for dealing effectively with the Emergency proclaimed by the President under Article 352(1) of Constitution of India on 25-6-1975.

Issue detention order and the declaration placed below. . . . .IT is not necessary to disclose to any person detained underMISA under the provision of Sec. 16-A(3) the grounds ofhis detention.'

(10) As noticed earlier, this order of detention was revoked onM 21/03/1977. According to the record shown to us the first respondent has made a noting that as the emergency proclaimed had beenrevoked by the President of India, thereforee Section 16A of the Acthad lapsed. She directed issue of revocation order and release of thedetenu. The following note was also recorded by her:

'HOWEVER, it is still considered necessary to redetain the saidShri K. K. Sarin under the normal provisions of MISAwith a view to preventing him from acting in any mannerprejudicial to the maintenance of security of India. Issuefresh detention order and a copy thereof be sent to DelhiAdministration, Delhi for the approval of the Administrator or as required u/s 3(3) of the MISA.'

(11) Inasmuch as grounds of detention had to be communicatedalong with the order of detention dated 21/03/1977, we find from the file, that grounds of detention had also been drawn up and issued.On a perusal of the grounds of detention we find that they are almosta copy of the grounds of detention which were sent to the DistrictMagistrate, Delhi, for being served on various persons including the petitioner with a communication No. 905/Z dated 22/03/1977signed by Shri K. S. Bajwa, Superintendent of Police, Cid, S.D. Delhi.The letter of 22/03/1977 from the Superintendent of Police, interalia, reads as under :-

'THE following 8 accused persons were arrested in case FIRNo. 26 dated 26-1-77 u/s 3, 4, 5, 9 Ios Acts and 120-B IPC of Police Station S. N. Puri, South District, New Delhi.They were also detained under MISA. Since the emergencyhas been lifted, their previous orders of detention standrevoked automatcally. Their detention under Misa, nshowever, absolutely necessary for the security and defenseof the country. thereforee, detailed notes giving groundsof detention of each (in triplicate) are enclosed herewithtor issue of their detention orders afresh :-. . .'

(12) As noticed earlier, the detention orders dated 21/03/1977 were revoked and fresh detention orders dated 21/04/1977 wereissued. The relevant file in this behalf has a very interesting note on it,recorded by the first respondent. This note reads as under :-

'DETENTION orders under section 3(l)(a)(i) of Misa 1971,were issued against Shri K. K. Sarin, Director, PlanningCommission on 21-3-77 with a view to preventing him fromacting in any manner prejudicial to the maintenance ofsecurity of India. A copy of the said order was also sentto Delhi Administration, Delhi for approval of the Administrator as required u/s 3(3) of the Misa, 1971. The Administrator has not so far approved the said detentionorder.

Shri T. R. Kalia, Deputy Secretary (Home), vide his letter dated20-4-77 has stated that the expression of the word 'maintenance of' in the detention order is not correct. He hasaccordingly requested to issue fresh detentiion orders.Since the detention order dated 21-3-1977 has not beenapproved by the Administrator, Delhi so far, issue therevocation order directing Supdt. Jail to release thedetenu.

However, on consideration of the material before me, suppliedby Superintendent of Police, Cid (SB) it is considerednecessary to redetain the said Shri K. K. Sarin under section 3(l)(a)(i) of Misa with a view to preventing himfrom acting in any manner prejudicial to the security ofIndia. Issue fresh detention order and a copy of the saiddetention order be sent to Delhi Administration, Delhi forthe approval of the Administrator, Delhi as required u/s3(3) of the Misa, 1971.'

The grounds of detention dated 21/04/1977 are an exact copy ofthe grounds of detention supplied in connection with the detentionorder dated 21/03/1977. As noticed earlier, these grounds hadbeen supplied to the respondent by the Superintendent of Police.

(13) In view of what has been noticed by us from the record of the detaining authority produced before us it is not necessary to deal withall the points urged on behalf of the petitioner. In our view the impugned detention order was liable to be quashed for the reasons thatthe same was made on dictate from others, the grounds of detentionwere not formulated by the first respondent but were formulated bysomeone else and were communicated mechanically without applicationof mind to the petitioner. Furthermore, the grounds of detention lackedin material particulars and the detention was illegal and mala fide. Thesatisfaction postulated by Section 3 of the Act also cannot be said tohave been arrived at on consideration of all and full relevant materialand, thereforee, the impugned order was not passed in accordance withthe provisions of the Act or under the Act. [See Smt. Manekben v.U.O.I., 1975(11) Delhi 820.

(14) The law regarding an order passed under the dictate of someone else has already been laid down by us in our judgment in Criminal Writ No. 19 of 1977, Mahabir Prashad v. Shri V. K. Duggaland others, announced on 21/07/1977(2).

(15) The letters of Shri Vaish dated 11/02/1977 andShri K. S. Bajwa, Superintendent of Police, Cid (SB), Delhi. 22/03/1977 have been noticed earlier. We are convinced on a readingof these letters and the notes made by the first respondent on herfile on receipt of these communications that she was acting under thedictate of the Home Ministry and the Superintendent or Police andnot on the application of her own independent judgment. We arenot persuaded to accept a routine averment or assertion in her affidavit that she acted upon her own bona fide satisfaction. Indeed, theonly materials she had on which she could act were the letter ofShri Vaish or the communication of the Superintendent of Police andthese materials cannot be said to be something on which her satisfaction could be formulated or having any probative value. The wholetrend of nothings on the file shows a subordinate officer acting inaccordance with the dictate or wishes of a superior officer.

(16) That the grounds of detention were issued on the dictate ofothers and in a mechanical manner is obvious from the nothings onthe file to which we have already adverted. The first respondent hasherself admitted in her affidavit that the grounds of detention werefurnished to her by the Ministry of Home Affairs and the Superintendent of Police which she communicated to the petitioner. It isworth noting that the grounds of detention as communicatedto the petitioner are verbatim copy of the grounds of detention whichhad been sent by the Superintendent of Police along with his communication of 22/03/1977. The grounds were not formulatedby her as being the grounds of her personal satisfaction. We, thereforee, come to the conclusion that the grounds as communicated werenot the grounds which were the basis of the satisfaction of the firstrespondent but those on which the satisfaction of someone else whohad in turn asked for the detention of the petitioner was based. Thiscompletely vitiates the grounds of detention.

(17) The grounds of detention as communicated to the petitioner lack material particulars. As to what constitutes the 'grounds'which have to be communicated, has been clearly laid down by theSupreme Court in Khudiram Das v. The State of West Bengal andothers, : [1975]2SCR832 . We have had anoccasion to dilate on this aspect in several decisions and one of them is the case of Mahabir Parshad, above referred to. The materialparticulars which are completely missing from the grounds are theparticulars and details of document the disclosure of which allegedlyjeopardised the security of India. As we have observed in MahabirParshad's case supply of sensitive secret documents may be an offenceunder the Official Secrets Act or under the Penal Code but it hasto be shown that the nature of the documents was such which imperilled the security of India. If this is not so, the constitutionalsafeguard of Article 22(5) is jeopardised as also the statutory requirement of Section 8 of the Act. The extent to which the courtsrequire material particulars to be disclosed in the 'grounds' hasbeen very clearly laid down by the Supreme Court in Chaju Ram v.The State of Jammu & Kashmir, : 1971CriLJ281 . The grounds supplied are, thereforee, held to be violativeof Article 22(5) of the Constitution or Section 8 of the Act.

(18) That the detention order is illegal and mala fide must alsobe inferred in the circumstances of the case. The rule laid down bythe Supreme Court in Bhut Nath Mate v. The State of West Bengal, : 1974CriLJ690 is clearly attracted to the factsand circumstances of this case. The trend of nothings in the recordshown to us also brings in a feature where the present case maywell be compared to the circumstances obtaining in Regina v. Governor of Brixton Prison, 1963(2) Q.B.D. 243. Respondent No. 1may have acted innocently and in her view in the discharge of herduties but malice in law has to be inferred from the manner in whichthe various detention orders were issued culminating in the impugneddetention order being issued in April, 1977.19. The impugned detention order and the ground are also vitiated on the ratio of the judgment of a bench of this Court IN a Mrs. Bhagwati Devi, v. Union of India etc. 1975 (2) Delhi 791. Two important aspects which were required to be considered bythe detaining authority before passing the impugned .order of 21/04/1977 were not brought to her notice. These two important factorswere the retraction of the confessional statement alleged to have beenmade by the petitioner and his 'deemed suspension' from Government service. In preventive detention the object of detention is toprevent a person from indulging in the mischief in future in whichhe is alleged to have indulged in in the past. The petitioner beingunder suspension with effect from the date of his arrest and hehaving no access to Government record he could not, perhaps, infuture pass on secret or sensitive documents which could jeopardisethe security of India. However, this aspect had to be consideredbut was not considered. The grounds of detention dated April 21,1977 appear to be based on an alleged confession made by the petitioner before Shri D. R. Jain, Metropolitan Magistrate on FebruaryII, 1977. According to the petitioner this forced confession wasretracted by him on 26/02/1977. As noticed earlier, thefirst respondent is not even aware of the existence of the communig cation dated 26/02/1977. It was relevant material and hadto be considered by the detaining authority. What is the effect ofnot considering the relevant material has been commented upon inMrs. Bhagwati Devi's case. As was observed therein :-

'THE order of detention is also vitiated, in our view, by theomission on the part of the detaining authority to takeinto consideration certain relevant facts. According tothe grounds of detention, the detenues are involved in theincidents mentioned in the grounds only by reason ofthe disclosures alleged to have been made by Maganbhai, Dudhabhai and Mohd. Ali. These disclosures weremade on 26-5-1974. They were arrested on the samedate and they were detained in custody till they wereproduced before the Additional Chief MetropolitanMagistrate, New Delhi, on 28-5-1974. On the date,they filed the bail application in which they alleged that they were tortured and their statements had been obtained from them by coercion. In other words, these persons had retracted their statements at the earliestopportunity. They had made these retractions before aMagistrate in the proceedings instituted against them bythe Customs authorities themselves. The Customs authorities were, thereforee, aware of these retractions made bythese persons. These retractions were, thereforee, relevant facts which ought to have been brought to thenotice of the detaining authority and considered by him.Admittedly, they were not brought to the notice of thedetaining authority nor considered by him at the time ofpassing the detention order. . . . .These retractions wererelevant facts which ought to have been placed beforethe detaining authority for his consideration. Admittedly, they were not placed before him nor were considered by him at the time of passing the detentionorder.'

(19) We may notice one other argument addressed on behalf ofthe respondents before we close. It was urged that the first respondentin making the impugned order of detention relied on: (1) evidencecollected by the Police and disclosed to her during her discussionwith the officers concerned, (2) confessional statement of the petitioner, and (3) information imparted to her by the Home Ministrywith the suggestion that there was enough material against the petitioner which warrants his detention. It is neither said on affidavit by the first respondent nor does her record show thai all thesethree items of material mentioned by the learned counsel were available to the first respondent or formed the basis of her coming to theconclusion which can be regarded as the satisfaction postulated bySection 3 of the Act. Assuming that it is so, the detention is vitiated because all these material particulars are not given in the groundsof detention which violates the constitutional imperative of Article 22(5) of the Constitution and the statutory requirement of Section 8 of the Act in terms of the law laid down in Bhut Nath Mate'scase. We are unable to find as a matter of fact that the first respondent had the record of the police investigation of the allegedoffences for which the petitioner was originally arrested to arrive ather subjective satisfaction, as postulated by Section 3 of the Act the contention, thereforee, has to be rejected.

(20) In view of what we have stated above, the petition is accepted and the rule is made absolute. The impugned detention orderand the grounds of detention dated 21/04/1977 are quashed anda writ in the nature of habeas corpus is issued to the respondentsto set the petitioner at liberty forthwith.


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