Sandhya Jain v. Union of India and Ors. - (High Court of Delhi) (31 May 2017)

Subjective satisfaction of Detaining Authority and consequent detention order vitiated as it was based on possibility of Petitioner's husband applying for bail again

MANU/DE/1568/2017

Criminal

In present writ petition, challenge is to order of detention passed by Joint Secretary to Government of India against husband of Petitioner directing his detention under Section 3(1) of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). Assailing detention order, Petitioner contends that, vital and material documents which were necessary for arriving at subjective satisfaction were not placed before detaining authority and also not supplied to Narender Kumar Jain thus, seriously prejudicing him as he could not make a proper and effective representation in absence of documents

Since, Detaining Authority relied upon voluntary statements of carriers as noted in orders in original which were placed before detaining authority and legible copies of orders in original have been supplied to Petitioner's husband, subjective satisfaction of Detaining Authority and detention order cannot be held to be vitiated on this ground.

Original file shows that, after preparation of grounds of detention and based thereon Detaining Authority passed detention order on 10th October, 2016. Contention that, grounds of detention were ante dated was rejected on perusal of original file. Further, there is no presumption that, official duty is not performed on Saturdays and Sundays. Hence, contention of learned counsel for Petitioner that, grounds of detention were ante dated is rejected.

Detaining Authority has not noted that, there is any imminent possibility of Petitioner being granted bail except that, it noted that earlier also, when interim bail was granted on medical grounds, it did not deter Petitioner's husband from continuing his prejudicial activities. Satisfaction of Detaining Authority is on propensity of committing prejudicial activity and not imminent possibility of grant of bail.

Satisfaction of authority is not based on fact that, co-accused has been granted bail or that there is parity in role of co-accused who has been granted bail and Petitioner's husband. Satisfaction is in respect of propensity to continue to indulge in prejudicial activity and that there was a possibility of applying for bail again. No satisfaction was arrived at, that there was an imminent possibility of grant of bail to Petitioner's husband either because co-accused was granted bail or that in such like cases bail is granted or that he was earlier granted bail.

Satisfaction of Detaining Authority was based on fact that, there was a possibility of Petitioner's husband applying for bail again and not that there was an imminent likelihood of Petitioner's husband being released on bail, subjective satisfaction of Detaining Authority and consequent detention order dated 10th October, 2016 are vitiated. Detention order set aside.

Tags : DETENTION SUBJECTIVE SATISFACTION VALIDITY