Jawahar Lal Khanna vs Union Of India And Ors.
1990 Latest Caselaw 89 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking quotient of the detention order dated May 22, 1989, passed by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') with a view to preventing the petitioner from engaging in transporting and concealing smuggled goods and a declaration dated June 1, 1989, issued under Section 9(1) of the Cofeposa Act by respondent No. 3.

(2) Counsel for the petitioner has urged various grounds in support of the petition but it is not necessary to refer to all those grounds as this petition is liable to succeed on a very short ground.

(3) Counsel for the petitioner has urged that the petitioner admittedly was in judicial custody at the time the impugned orders have been made and no application for bail had been moved on behalf of the petitioner and thus, there appears no compelling reasons for the authorities to have passed the impugned orders.

(4) In the grounds of detention after narrating the facts the detaining authority has recorded that he was aware that the petitioner was in judicial custody and no bail application has been moved but he mentioned that nothing prevented the petitioner to file bail application and for getting released on bail. In the grounds of detention, no material has been referred to from which the subjective satisfaction could be reached that the petitioner is likely to be released on bail in the near future.

(5) After considering the various judgments dealing with this point the Supreme Court in the latest case of Dharmendra Suganchand Chelawat v. Union of India & Others, , has laid down as follows : "THE decisions referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

(6) It is, hence, clear that the grounds of detention must show the cogent material from which the detaining authority could be satisfied that a particular detenu, who is in judicial custody, is likely to be released from custody in the near future. In the present case, except for ipse dixit of the detaining authority that there is- every possibility of the petitioner moving bail application and getting released on bail, there is no material referred at all in the grounds. of..detention from. which such satisfaction could be reached... As laid down by the Supreme Court in the aforesaid judgment, the expression "compelling reasons" comprises of now two -aspects, firstly that there must be cogent material before the detaining authority to show that detenu is likely to be released from custody in the near future, and secondly, taking into account the nature of the antecedent activities of the detenu, it is likely that after his re! ease from custody he would indulge in prejudicial activities. The first pre-requisite of the "compelling reasons" indicated by the Supreme Court is not complied with in the present case. In view of the above, I hold that the impugned orders stand vitiated.

(7) I allow the writ petition, make the rule absolute and quash the impugned orders and direct that the petitioner be released from Jail, if not required to be detained in any other case.