Ishaq Yaqoob Sayaedna vs Mahendra Prasad And Anr.
1991 Latest Caselaw 461 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This petition under Articles 226 and 227 of the Constitution of India read with Section 482 Cr.PC has been filed seeking a writ of habeas corpus and praying that the order of detention passed on 17.1.1991 by the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the Act) the quashed.

(2) The brief facts relevant for the decision be as follows : The petitioner arrived from Bangkok by Air India Flight no. 301 at the Indira Gandhi International Airport, New Delhi on 9.12.1990. The Customs Officers of Indira Gandhi International Airport, New Delhi on arrival of the flight rummaged the aircraft and recovered five torn pieces of cash purchase voucher for purchase of 48 pieces of gold of 10 tolas each at Hongkong. The torn pieces of That Airways Boarding Card issued in favor of the petitioner on Thai Airways was also recovered from the garbage of the toilet of the said aircraft. After scrutinising the torn pieces of the purchase vouchers, boarding card and passenger manifest, the petitioner was noticed occupying Seat No. 43K enroute to Bombay. The petitioner was apprehended. On checking the person and baggage of the petitioner the Customs Authorities did not recover any contraband goods, however when the seat occupied by the petitioner was searched, 24 biscuits of 10 tolas each foreign marked metal wrapped with adhesive tapes and thread from inside the hollow pipe under the seat were recovered. The petitioner was interrogated and his statement was recorded immediately. Another passenger who had travelled on the same air-craft who had occupied seat No. 42K was also apprehended and an empty seat bearing no. 46K was also searched and 24 biscuits of yellow metal wrapped in a similar manner were also recovered from the hollow pipe under the said seat. The petitioner was immediately arrested and produced before a magistrate within 24 hours as required under the law and was remanded to judicial custody on the same date. The petitioner moved an application for bail on 17 12.1990 to which a reply was filed by the respondent. The petitioner however continued to be in judicial custody till the order of detention was passed by the respondent on 17.1.1991.

(3) The petitioner has inter alia challenged this order of detention on the ground that relevant material which should have been supplied to him and which had influenced the mind of the detaining authority while passing the detention order was not supplied.

(4) It was submitted by the learned counsel for the petitioner that the petitioner was in judicial custody on the date the detention order was passed and though the application for bail and the reply filed by the respondent was furnished to the petitioner, the order passed by the Court refusing bail was not furnished to him. It was further submitted that the detention order was passed without application of mind inasmuch as the detaining authority did not satisfy itself on the question whether the continued detention of the petitioner was necessary and particularly whether detention of the petitioner under the Act was required though the petitioner was already in custody on the date the order was passed.

(5) COUNTER-AFFIDAVIT has been filed by the respondent in reply to the writ petition. It is submitted in the counter-affidavit that the detention order was passed after arriving at subjective satisfaction on the basis of the material on record which was also furnished to the detenu and all these documents were legible.

(6) We find that Along with the order of detention a list of documents was also furnished to the petitioner. At S. Nos. 16, 17 and 18 application for extension of judicial remand dt. 21.12.1990 and Courts order thereon, reply to bail application dt. 20.12.1990 and application for bail dt. 17.12.1990 have been mentioned. The detention order was however passed on 17.1.1991. Learned Counsel for the respondent produced before us the record to show that the application for bail filed by the petitioner was impliedly rejected by the judicial magistrate on 21.12.1990 because the application for extension of judicial remand tiled by the respondent was allowed. It was, therefore, submitted that no separate order refusing bail was passed by the judicial magistrate and, therefore, there was no question of supplying the order rejecting the bail to the petitioner We however find that the record does not indicate how the petitioner continued in judicial custody after 3.1.1991. Judicial remand was extended on the application filed by the respondent for extension of judicial remand on 21.12.1990 up to 3.1.1991. Admittedly, the petitioner was in custody on the day the detention order was passed i.e. on 17.1.91. Thus, the bail application filed by the petitioner was considered and rejected even thereafter or the petitioner continued in judicial custody on a further request made by the respondent even after 3.1.91. Thus there must have been some material before the detaining authority which showed the detention of the petitioner in custody after 3 1.91. The respondent has not produced the orders passed by the Additional Chief Metropolitan Magistrate after 21.12.90. Thus, either the respondent had considered that material while passing the detention order or it was not considered at all. If the material was considered, non-supply of it to the petitioner vitiates the detention order and if that material had not been considered it would amount to non-application of mind. Learned Counsel for the respondent submitted that all the material was considered by the detaining authority. If that was so, if there was any material which weighed with the detaining authority while passing the detention order on 17.1 .91 even while the petitioner was in custody that material ought to have been supplied to the petitioner. Not having supplied that material to the petitioner, the detention order cannot be sustained.

(7) We also find great force in the contention of the learned Counsel for the petitioner on the other question that detention order was passed without application of mind because on the date the order was passed the petitioner wag in custody. In the order of detention, it has been stated as under : "YOU were arrested on 10.12.90 under Section 104 of the Customs Act, 1962 and were produced before the Acmm, Patiala House, New Delhi on 10.12.90 who remanded you to judicial custody till 21.12.90 which has been further extended. I have also gone through your bail application and the court's order thereon. I am aware that you are in judicial custody. However, nothing prevents you to file a bail application afresh for getting yourself enlarged on bail. Once you are enlarged on bail, keeping in view your role in this case as well as your antecedents as mentioned in the grounds of detention. I apprehend that you may again continue your prejudicial activities."

There is nothing on record to indicate that the petitioner was likely to be enlarged on bail particularly because the judicial remand of the petitioner was extended time and again on the application filed by the respondent itself. In fact, as observed hereinabove, there is nothing on record to show why and how the petitioner was continued in custody after 3.1.91. The Supreme Court has repeatedly held that only if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time detention order can be made while the accused is in custody in anticipation to operate on his release. The Supreme Court in Dharmendra Suganchand Chelawat and Another v. Union of India & Others, has observed 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 reason" 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.

(8) Admittedly in the present case the petitioner's ball application was dismissed and he was continuously in judicial custody because the respondent itself had asked for extension of the remand. No doubt the petitioner could file a fresh bail application, at any time. However, the grounds of detention in the present case do not disclose any cogent material which would indicate that the petitioner was likely to be released on bail in the near future.

(9) In the circumstances, we find it difficult to sustain the order of detention dated 17.1.1991. We make the Rule absolute and quash the detention order dated 17.1,1991 and direct that the petitioner be released forthwith if not required in any other case.