B.N. Kirpal, J.
(1) -BY a formal order dated 28th April, 1983, Criminal Writ Petitions Nos. 37 and 38 of 1983, filed by Shri Ram Goyal and Sita Ram Jodhani were allowed and the orders of detention dated 3rd July, 1982 issued against them were quashed. The petitioners were ordered to be set at liberty, unless they were required to be in detention under any other valid law or order or if a prosecution was pending against them in which they had been arrested but had not been enlarged on bail. The detailed reasons for the passing of the aforesaid order are given hercunder.
(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 Panam 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 staff of the Customs. It is alleged by the respondents that the petitioners were asked, in the presence of independent witnesses, if they were carrying any gold or any other contraband. The petitioners replied in the negative. The baggage of the petitioners was thereafter searched and this resulted in the recovery of 13 gold bars from the baggage of Shri Ram Goyal and 13 gold bars and 3 gold strips from the baggage of Sita Ram Jodhani.
(4) The petitioners were then arrested. On that very day complaint was filed by the Customs Authorities, after obtaining the sanction of the Collector of Customs for prosecution under Section 135 of the Customs Act, 1962. The petitioners were produced before the Additional Chief Metropolitan Magistrate, New Delhi and they were remanded to judicial custody.
(5) Thereafter the Additional Chief Metropolitan Magistrate ordered the recording of the pre-charge evidence. As regards Shri Ram Goyal, recharge evidence in connection with his case commenced on 21st May, 1982 and concluded on 26th June, 1982. Thereafter on 26th July, 1982 the A.C.M.M. passed an order on charge. The contentions raised on behalf of the petitioner were not accepted. Thereafter on 30th July, 1982 charges were framed against the petitioner.
(6) As regards the case of Sita Ram Jodhani, the pre-charge evidence against him also commenced on 21st May, 1982 but the said evidence concluded on 8th June, 1982. On 26th June, 1982 the A.C.M.M. passed the order on charge and directed 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 list annexed to the said grounds of detention. The documents, which were annexed to the grounds of detention, inter alia, included the alleged confessional statements of the petitioners and other incriminating documents which were stated to have been relied upon by the detaining authority at the time of arriving at the satisfaction that it was necessary to detain the petitioners under Section 3 of the Gafeposa Act. The photo copies of the said documents were also furnished to the petitioners. The perusal of the detention order shows that the main reason for passing the impugned orders was the incident which had taken place when the petitioners were apprehended at Palam Airport while carrying gold into India.
(8) After the petitioners had unsuccessfully represented to the Advisory Board, they filed the present writ petitions. The challenge in the writ petitions is to the validity of the orders of detention.
(9) Before us the main ground which was urged by Mr. Sibal, the learned counsel for the petitioners, was that certain relevant material was not considered by the detaining authority. According to the learned counsel it was necessary for the Administrator to have considered the following three documents:-
(1) Bail applications which were filed; (2) The pre-charge evidence which was recorded; and (3) The order on charge which was passed in the case of Sita Ram jodhani on 28th June, 1982.
(10) Mr. Bagai, the learned counsel for the respondents, however, contended, while 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 Gafeposa Act. He submitted that as the pendency of prosecution was not relevant, thereforee, 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 is true that in both these cases the Supreme Court held that the possibility of a prosecution or the absence of it was not an absolute bar to the passing of an order of preventive detention. That, however, is not the point here. The point in issue in the present case is-that when, prior to the passing of the detention order, prosecution has been launched then whether the proceedings, which had taken place in that prosecution, can be regarded as relevant for the purposes of deciding as to whether detention order should be passed or not. In our opinion there can be no two views about it. The pendency of prosecution is one of the most relevant circumstance which the detaining authority must consider. When it considers the same, it may be that the detaining authority may come to the conclusion that it is not necessary, in view of the pendency of such a prosecution, to take any action by way of preventive detention. In order to enable him to make up his mind all the relevant circumstances must be taken into consideration by the detaining authority. What are the relevant circumstances must vary from case to case. In Sk. Nizamuddin v. State of West Bengal, : 1975CriLJ12 the Supreme Court had held that the pendency of the prosecution was a relevant circumstance. At page 2354 it was observed as follows ;
'This is rather unfortunate. We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention 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 what were the relevant circumstances was for the Administrator to consider. It is true that, at the time when the order is to be passed, it is for the Administrator to consider as to what are the relevant circumstances, and then to form his opinion thereon. But once an order of detention is challenged in a Court then the Court certainly has the jurisdiction to go into the question and to decide as 'to whether all the relevant circumstances have been considered by the Administrator or not. In certain cases it may also be open to the Court to go into the question whether irrelevant circumstances have been considered or not. If, for instance, an order of detention is passed wholly on irrelevant circumstances then surely the Court would have the jurisdiction to quash such an order, because such an order passed by not taking into consideration any relevant circumstance would show a complete non-application of mind. At this stage, reference may usefully be made to the case of Ashadevi v. K. Shivraj, : 1979CriLJ203 . After referring to the earlier observations of the Supreme Court in the case of Nizamuddin (supra) and also in 'the case of Sureeh Mahato v. District Magistrate, Burdwan, : 1975CriLJ607 , it was observed by the Supreme Court as follows :-
'The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the 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 bail applications and the order on charge were all relevant circumstances which should have been taken into consideration by the Administrator. The case of the accused/petitioners was contained in the bail applications and also in the order on charge wherein the contentions of counsel for Sita Ram Jodhani were noticed. The order on charge in the case of Sita Ram Jodhani could also be relevant in the case of Shri Ram Goyal. After all, as is evident from the detention order, the case of the respondents appears to be that both of these petitioners had acted jointly. If the version of the petitioners, regarding the incident which had taken place at Palarn Airport, had been taken into consideration by the Administrator it is possible that he might have come to the conclusion that no case had been made out for taking action under the Cofeposa Act. Similarly, the pro-charge evidence should also have been placed before the Administrator. On going through the pre-charge evidence he could, possibly, have come to the conclusion that the evidence was not of such a nature which could possibly justify any preventive action being taken against the petitioners. The most material documents, which have not been considered by the Administrator, were the orders which were passed on the bail applications filed by the petitioners. It is an admitted case of the parties that three bail applications were filed by the petitioners. The first bail application was filed before the Magistrate, the second one 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 detention should be passed or not required the subjective satisfaction of the Administrator and that the Court ought not to go into this satisfaction. There can be no quarrel with the proposition that the detention order, which is passed, requires the subjective satisfaction of the detaining authority which cannot be questioned by the Court, but if the detaining authority does not consider relevant circumstances, or considers wholly irrelevant circumstances, then such a subjective satisfaction would be vitiated. In quashing such an order the Court does not sit in judgment over the correctness of the subjective satisfaction. If relevant material was taken into consideration then, of course, the Court would have no jurisdiction to come to the conclusion that, on the material as placed before the detaining authority, an order of detention under the Gafeposa Act ought not to be passed. In the present case that question does not arise. Here admittedly some material was not taken into consideration. In our view the said material was very relevant and ought to have been considered by the detaining authority before passing the impugned order. This being so, the order of detention had to be quashed.
(15) It was for the aforesaid reasons that the writ petitions filed by the petitioners were allowed by us.