The Supreme Court ruled that the “Subjective Satisfaction” of Detaining Authority itself is to be Arrived at after perusing all relevant documents and material produced.
The writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973, has been instituted on behalf of Ravi Chandra Mishra, praying for a direction in the nature of certiorari for quashing of the detention order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against the petitioner/detenu; and for further directions that the detenu be set at liberty forthwith.
At the outset, the court noted that vide common judgment, in the case titled Zakir Khan vs. Union of India & Ors., the Court quashed and set aside detention orders issued against the co-detenus therein.
Advocate Shubhankar Jha, appearing for the detenu, vehemently assailed the order of detention whilst submitting that the non-supply of relied upon documents has jeopardized the only right available to the detenu i.e. the right of making an effective representation.
Kirtiman Singh, Central Government Standing Counsel, appearing for the official respondents, submitted that the detention order was passed by the detaining authority under Section 3 (1) of the COFEPOSA only after arriving at his subjective satisfaction based on relevant and sufficient material.
The division bench of Justice Siddharth Mridul and Justice Amit Sharma observed that, in cases where the order of detention fails on the ground that the “subjective satisfaction” of the detaining authority is vitiated, owing to non-application of mind; the protection afforded qua severability of grounds stipulated under the provision of 5A of the COFEPOSA Act, are neither attracted nor available, in law.
The bench said that it is well settled and not in dispute that under the provisions of Section 3 of COFEPOSA, it is only the detaining authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after perusing each and every document and material placed before it.
It further added that the “subjective satisfaction” of the detaining authority itself is to be arrived at after perusing all the relevant documents and material produced. This is a constitutionally provided condition precedent for passing a valid order of detention.
The bench found considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its “subjective satisfaction” and formulation of grounds, it would have been alive to the fact that many of the RUDs placed before it were wholly illegible.
The court quashed and set aside the detention order passed against the detenu.
Case title: Ravi Chandra Mishra v/s Union of India and Ors.
Citation: W.P.(CRL) 874/2022