Mohd. Razak And Mohd. Sadiq vs Mahendra Prasad And Anr.
1991 Latest Caselaw 462 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 on19.12.1991 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 1&74 (hereinafter referred to as the Act) be quashed.

(2) The brief facts relevant for the decision are as follows : 'the Customs Officers of Indira Gandhi International Airport New Delhi on arrival of the flight Al-30i from Bangkok rummaged the aircraft and live torn pieces of cash purchase voucher for purchase of 48 pieces of gold of 10 tolas each at Hongkong were recovered from the garbage of the toilet of the said aircraft. The petitioner was apprehended. On checking the person and baggage of the petitioner the Customs Authorities did not recover any contraband goods.On further search 24 gold biscuits of 10 tolas of each were recovered from the hollow steel pipe of seat no 42k occupied by the petitioner.The petitioner was interrogated and his statement was recordedimmediately. The petitioner was arrested on 10.12.1990 and produced before the Additional Chief Metropolitan Magistrate within 24hours as required under the law and was remanded to judicial custody till 21.12.1990 on the application moved by the Enforcement Department. The judicial remand was extended up to 3.1.1991 and. further extended to 17.1.1991 and once again extended to 30.1.1991. The petitioner however continued to be in judicial custody till the order of detention was passed on 19.2.1991.

(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 influenced the mind of the detaining authority while passing the detention order was not supplied. It was submitted that the respondent did not supply to the petitioner the order of the Court dated 22.1.1991 whereby his two bail applications dt. 17.12.1990 and 22.1.1990 were rejected though the somewhere considered by the detaining authority while passing the order of detention.

(4) It was submitted by the learned Counsel for the petitioner that the petitioner was judicial custody on the date the detention order was passed and the detaining authority did not satisfy itself on question whether the continued detention of the petitioner was necessary and particularly whether detention of the petitioner under the Act was necessary since petitioner's applications were rejected and he continued to be in custody.

(5) COUNTER-AFFIDAVITE 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.

(6) We find that Along with the order of detention a list of documents was also furnished to the petitioner. At S. No. 14 to 19 various applications for extension of judicial remand and bail applications and Court's order thereon have been mentioned. Thus, there is no merit in the contention that the order passed by the Court on the bail application was not furnished because at S. No.19 the application for bail in the Court of the Additional District & Sessions Judge filed by the petitioner on 22,1.1991 and Court's order passed thereon is specifically mentioned.

(7) However, we 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 was in custody and there was no material before the detaining authority to arrive at a conclusion that the petitioner was likely to be released in the near future. 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. New Delhi who remanded you to judicial custody till 21.12 1990, which has been further extended.From the foregoing facts and circumstances of the case and the statement etc. recorded in this connection, as mentioned herein-above, I have Do hesitation in arriving at the conclusion that you have knowingly engaged yourself in smuggling goods into' India. I am aware that you are in judicial custody. However, the possibility of filing bail application afresh and getting yourself enlarged on bail cannot be ruled out. Once you are enlarged on bail, keeping in view your role as well s your antecedents as mentioned in the grounds ofdetention. I apprehended that unless prevented, you are likely to continue your prejudicial activities. Although adjudication proceedings'under the Customs Act, 1962 are likely to be initiated against you and prosecution proceedings have already been initiated against you in the matter I am satisfied that it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from smugglinggoods.

(8) Now 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 and all his bail applications were rejected. 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 detenlion. The expression "compelling reason" in the context of making an order for detention of a person already in custody in plies 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 lively that after his release from custody be would indulge in prejudicial activities arid it is necessary to detain him in order to prevent him from engaging in such activities. 9. Admittedly in the present case all the bail applications filed by the petitioner were 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. The Supreme Court in M. Ahamed kutiy v. Union of India & Another, Jt 1990 (1) Sc 143 has heldthat: "IF the apprehension of the detaining authority was true, the bail application bad to be opposed and in case bail was granted, challenge against the order in the higher forum bad to be raised.Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

(9) Thus, unless there is some material to show that the accused was likely to be released on bail in the near future a detention order cannot bepassed. In the present case, the bail applications filed by the petitioner were rejected and no other application was pending. Thus, the possibility of the petitioner being released on bail in the near future was quite remote. Since 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, the detention order cannot be sustained.

(10) In the circumstances, we make the Rule absolute and quash the detention order dated' 19.2.1991 and direct that the petitioner be released forthwith if not required in any other case,