Bhupinder Singh vs Union Of India
1995 Latest Caselaw 942 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) The petitioner,Shri Bhupinder Singh is challenging the order of preventive detention dated 19.7.95 and served on him on 24.7.95. It was passed by the Central Government under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter called COFEPOSA).

(2) The brief facts as set out in the grounds of detention are as follows:

(A)Information was received on 18.4.95 that the petitioner, Bhupinder Singh was having business at 142, Mcd Market, Karol Bagh New Delhi. Petitioner was selling foreign exchange to one Navneet Bhatia, resident of WZ-11, Rattan Park, New Delhi and the latter was carrying huge amounts on his person. On 18.4.95, Navneet Bhatia was intercepted and search of his person revealed Us $ 30,000 and search of his car revealed Indian currency of Rs. 18,00,000 and these were seized. Search of the premises of Navneet Bhatia revealed Us $ 15,151, D.M. 2200, Saudi Riyals 2600.00 , H.K. $ 500, Japanese Yen 5000 and Thai Bhat 2690 and Indian Currency of Rs. 6,80,000 and documents. Search of shop of petitioner revealed Us $ 6517, Saudi Riyals 500, Italian Lira 4 lakhs, Thai Bhat 2250, Dm 2690.00 and Indian currency of Rs. 1,45,000. Statements were recorded from Navneet Bhatia on 18.4.95 and 19:4.95. Among other things, Navneet Bhatia stated: "THAT on 16.4.93, Harjinder Singh asked him (navneet) to take Us $ 10,000 from you; that accordingly he talked with you at your telephone No. 5713622 and went to your shop and took up $ 10,000 from you; that in lieu of this, he (Navneet) paid you Rs. 3.40 lakhs; that on that day (i.e. 18.4.95) also, he talked with you on phone and that between 3.30 Pm to 3.45 Pm, he gave Rs. 9 lakhs to you and some balance amount was to be given to you afterwards;"

NAVNEETBhatia's statement shows that he was purchasing the foreign exchange from petitioner and others and handing over the same to one Harjinder Singh of Singapore. On this occasion, he was caught before he could pass on the foreign currency to the said Harjinder Singh.

(B)The grounds of detention further state as follows: They refer to the petitioner being summoned to the Enforcement Department on 18.4.95 and to petitioner's statement dated 18.4.95 admitting that he deals in sale/purchase of foreign currency, that various persons came to his shop to sell Us $, that on 18.4.95, when his shop was searched the foreign currency Us $ 6517, Saudi Riyals 500, Thai Bhat 2250.00 , Dm 2690.00 , and Italian lira 4 lakhs and Indian Rs. 1.45 lakhs were seized. On 18.4.95, he had purchased Us $ at 33.80 to Rs. 34.00 from 3 or 4 persons. They were to be sold at Rs. 34.50 on that evening. Petitioner also gave the rate of purchase/sale of other foreign currency. Harjinder Singh of Singapore had introduced Navneet Bhatia to petitioner and told petitioner to collect foreign exchange give it to Navneet Bhatia in lieu of Indian Rupees. The petitioner is supposed to have sold Us $ 10,000 at Rs. 34.00 to Navneet on 16.4.95, and another $ 30,000 on 18.4.95 and recover Rs. 9 lakhs, that out of these $ 30,000 petitioner had purchased part from Jolly, part from Mantu and from others.

(C)Navneet Bhatia's brother, Deepak Bhatia also gave a statement on 18.4.95 slating that his brother Navneet told him that Rs. 9 lakhs were to be given to petitioner alter collecting $ 30,000 from petitioner, that Navneet had gone to petitioner, paid Rs. 9 lakhs and got $ 30,000 and was intercepted at that time. They recovered $ 30,000 from Navneet and Rs. 18 lakhs from Navneet's car.

(D)Reference is made to statement of Bitto & Jolly. Jolly stated he knew petitioner but denied sale of currency to petitioner but Jolly told customers to go to petitioner for sale of foreign currency as "petitioner was known in the market for sale or purchase of foreign currency.

(E)It is stated that Navneet Bhatia was arrested on 19.4.95 and ultimately released on bail on 21.6.95 subject to conditions. Petitioner was arrested on 19.4.95 and released on bail by the Addl. Sessions Court subject to certain conditions, after earlier applications were rejected by the ACMM. The petitioner appeared on 26.6.95 in the office of the Enforcement directorate and submitted his passport along with his statement. Petitioner was issued notice on 10.7.95 for his appearance in the office of the Enforcement Directorate, Delhi, by the Enforcement Officer. It is stated (in para 19) that the detaining authority has taken into consideration all petitions and material and is satisfied that the said allegations arc devoid of any merit. In para 20, it is stated that the petitioner is under bail hut that the detaining authority is satisfied that unless petitioner is detained, he is likely to continue to engage in activities violating Cofeposa and hence it is necessary to detain the petitioner.

(3) In the writ petition, and before us, petitioner has raised various contentions. Firstly, it was contended that the petitioner was released on bail by the Criminal Court because the prosecution was not able to file the challan within the period prescribed by statute and hence the detention was for an extraneous and improper purpose. Secondly, the petitioner was obeying the conditions imposed in the bail order, that petitioner was on bail from 19.6.1995 to 24.7.95 and that during that period, there was no material to say that petitioner indulged in prejudicial activity; that the petitioner's case was mixed up with the case against others and this was bad; that reliance was placed on alleged confession of petitioner dated 18.4.95 but retraction made on his first appearance in Court on 19.4.95 had not been considered; that confession was obtained during period of unlawful custody; petitioner was in fact arrested on 17.4.95 and not on 19.4.95 as alleged by the respondents and was not produced before the Magistrate till 19.4.95 and confessional statement obtained during that period was bad; that no Indian currency was recovered from petitioner from the alleged sale by him of Us $ 30,000; that petitioner would not be investing in and dealing in Us dollars in more than one million rupees to make a paltry profit of Rs. 20,000; that in the wake of the new liberalisation process; there was no need to detain the petitioner for alleged sale of dollars; that Gurbachan Singh's statement was ignored etc.

(4) The following points arise for consideration:

(1)Whether because the petitioner was released on bail by the Criminal Court as the prosecution was not able to file the challan in proper time, the order of preventive detention could be said to be for extraneous or improper purpose?

(2)Whether the fact that though petitioner was on bail, he was obeying the conditions imposed in the bail order was relevant and if so, whether it was considered by the detaining authority and an order of preventive detention was not called for?

(3)Whether if there was no prejudicial action by the petitioner between the date of grant of bail 19.6.95 and to date of service of detention order 24.7.95, the petitioner could not be detained under COFEPOSA?

(4)Whether the petitioner was detained illegally on 17.4.95 and not on 19.4.95 and if so, the Confession dated 18.4.95 was inadmissible?

(5)While the detaining authority has not taken into consideration the fact that at the earliest point of time on 19.4.95, the detenu retracted from him so called confession and on that ground the detention order could not have been passed under COFEPOSA?

(6)Whether the detention order could be based on the confession which was retracted at the earliest point of time.

(7)Whether there were other facts not considered which would make the detention order bad?

(5) Point 1 It was argued that the petitioner was released by the Criminal Court as the prosecution was not able to file the challan in proper time and hence the detention order must be deemed to have been passed for extraneous or improper purpose.

(6) It is in this context necessary to refer to certain principles laid down by the Supreme Court. In Sasti Choudhury vs. State of West Bengal it has been laid down that the fact that a particular act of the detenu which provides the Jeason for the making of the detention order constitutes an offence under the Penal Code would not prevent the detaining authority from passing the order of detention instead of proceeding against him in a Court of Law. The detaining authority might well feel that there was not sufficient evidence admissible under the Evidence Act for securing a conviction but that the activities of the person ordered to be detained were of such a nature as to justify the order of detention. "The Court quoted Mohd. Salim Khan vs. C.C. Bose to the effect that "the mere fact that a detenu was discharged by a Magistrate ' in a criminal case relating to an incident by a Magistrate, it could not be said that the detention order on the basis of that incident was incompetent nor could it be inferred that it was without basis or malafide". Mohd. Salim Khan's case was followed in Sri Ramayan Harijan vs. State of West Bengal which was also a case of discharge. This aspect was elaborated by Krishna Iyer, J. in Golam Hussain vs. Police Commissioner,, Calcutta where it was held that 'merely because the grounds of detention have been the subject matter of criminal cases which have ended in discharge, it cannot be said that the order of detention is mala fide. The basic imperative of proof beyond reasonable doubt does not apply to 'subjective satisfaction' component. But there "may be cases where a Court has held the criminal case to be false and a detaining authority with that judicial pronouncement may not reasonably claim to be satisfied about prospective prejudicial activities based on what a Court has found to be baseless". A Constitution Bench of the Supreme Court in Haradhan Saha vs. State of West Bengal said that 'the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution." It was again said in Babulal vs. State of West Bengal that discharge by a criminal Court in regard to same crime was no bar to detention. In Suresh Mahato vs. District Magistrate, Burdwan , Bhagwati, J. (as he then was) observed that while the factum of pendency of a criminal case is to be placed before the detaining authority, the position was different in case of discharge. If the criminal cases were dropped and the person was discharged before the making of the order of detention, then it Cannot be said to be a material fact which ought to have been placed before the detaining authority. In a case which arose under Cofeposa in Shiv Ratan Makim vs. Union of India,, Bhagwati, C.J. observed that 'even if a criminal prosecution fails and an order of detention is made, it would not invalidate the order of detention because the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the latter, the order of detention would not be bad merely because the criminal prosecution has failed. If the failure of the criminal prosecution can be no bar to the making of an order of detention, a fortiori, the mere fact that a criminal prosecution can be initiated, cannot operate as a bar against the making of an order of detention. If an order of detention is made only in order to by pass a criminal prosecution which may be irksome because of inconvenience of proving guilt in a Court of Law, it would certainly be an abuse of the power of preventive detention and the order of detention would be bad. But if the object of making the order of detention is to prevent the commission in future of activities injurious to the community, it would be a perfectly legitimate exercise of power to make the order of detention." In the same case, it was held that where the detenu was caught in the act of smuggling gold and the circumstances in which the gold was being smuggled as also the facts set out in the written statement of the detenu clearly indicated that the detenu was engaged in the activity of smuggling gold and if that be so, it could not be said that the order of detention was passed by authority with a view to subverting, supplanting or substituting the criminal law of the land. The order of detention was passed plainly and indubitably with a view to preventing the detenu from continuing the activity of smuggling and it was therefore a perfectly valid order of detention". In Suraj Pal Sahu vs. State of Maharasthra , a three Judge Bench reviewed the entire case law relating to persons under detention in a criminal case and ultimately held if the person is in detention or is under trial and his conviction is unlikely but his conduct comes within the mischief of the Act, then the. authority is entitled to take a rational view of the matter. The grounds must be there. The decision must be bona fide". "The fact that a man is not in jail per se would not be determinative of the factor that an order of preventive detention could not be passed against him. The fact that a man was found not guilty in a criminal trial would not also be determinative of the factors alleged therein. All these factors must be objectively considered and if there are causal connections and if bona fide belief was found, then there was nothing to prevent serving an order of preventive detention even against a person who was in jail custody if there is imminent possibility of his being released and set at liberty if the detaining authority is duly satisfied".

(7) In the light of the consistent view taken by the Supreme Court as above stated and if even an order of discharge would not come in the way of passing an order of detention or even if after acquittal or dropping of the criminal case, an order of preventive detention can be passed on the basis of subjective satisfaction arrived at and after considering past conduct and after referring to the written statement made under Section 40 Fera by the detenu, we fail to see how, merely because the challan was not filed within the stipulated time or was filed belatedly resulting in grant of bail it could be said that the detention order was bad. If the order shows that it was intended to 'prevent' prejudicial conduct in the future and if the subjective satisfaction was based on the past conduct, which is proximate and also on the Section 108 statement under Customs Act or Section 40 statement of Fera, then it is not possible to quash the detention order as being mala fide or as being for extraneous or improper purposes. Point I is accordingly decided against the petitioner.

(8) Points 2 It was argued that though the petitioner was on bail he was complying with the conditions in the bail and hence the detention order was bad.

(9) For deciding this question, we shall again refer to certain principles laid down by the Supreme Court in the context of a person already on conditional bail. We wish to proceed chronologically.

(10) In Ashim Kumar vs. State of West Bengal it was laid down by the Supreme Court that the mere fact that the police at first arrested the petitioner but later on enlarged him on bail and initiated steps to prosecute him under the Code of Criminal Procedure and had even lodged Fir would be no bar against the detaining authority issuing an order of preventive detention if, at the time of passing such an order, he was satisfied that it was necessary to do so on grounds permissible to him under the statute. Where, however, the concerned person was actually in jail custody at the time when an order of detention was passed against him and was not likely to be released for a fair length of time, it would be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in prejudicial activities.

(11) Harnek Singh vs. State of Punjab (AIR 1982 Sc 1682) is relied upon for the petitioner. There 'the petitioner was detained under Cofeposa by order dated 4.11.80 and a case under Sections 307,411,414 Indian Penal Code was registered against him on 27.2.80 and these offences also formed part of the detention order. During the criminal proceedings, the detenu was on bail and was appearing in the Court on every hearing, right from 2.1.81 till he was detained on 10.7.81 pursuant to the order of preventive detention. The Supreme Court held that "offences which are said to have been committed by the detenu as far back as on 27th February, 1980 could hardly form a ground for his detention on a date as late as 10.7.1981, the gap between the two being well nigh a year and a half. No explanation at all was offered as to why action under Cofeposa was not taken at the earliest possible time after the date of alleged commission of offence. The incidents were therefore state as they had no real connection with the detention. No reason was also given as to why he was not detained from 2.1.81 till 10.7.81, though detention order was passed on 4.11.80.

(12) It will be noticed that Harnek's Singh's case is not an authority for the proposition that detention order will be bad if detenu was complying with conditions of bail. The date of grant of bail is not clear from the facts set out but it was stated in the judgment that the detention order was passed on 4.11.80, that as per bail order, detenu was appearing in criminal Court, from 2.1.81 till 10.7.81, the date of actual arrest pursuant to detention order dated 4.11.80. The test applied was whether the alleged offences dated 27.2.80 were proximate to the actual detention on 10.7.81, pursuant to the detention order dated 4.11.80. It was also held that it was clear that the nexus had snapped because he was not arrested during the lime he was attending the criminal Court. Hence Harnek Singh's case cannot help the petitioner.

(13) The decision in Vijay Narain Singh vs. State of Bihar is distinguishable. It was there no doubt mentioned by Venkataramaih, J. (as he then was) that when a person is enlarged on bail by a competent criminal Court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the Criminal Court". In that case, the facts were that the detention order was passed on 16.8.93 under Section 12(2) of the Bihar Control of Crimes. Act, 1981. Section 2(d) of the Act described 'Anti-Social Element' as a person who 'habitually committed certain offences. The detaining authority had relied upon (1) an incident of 15.4.75, (2) another of 17/18.6.1982 and (3) another of 20.4.83 in regard to which a criminal case under Section 302 Indian Penal Code etc. was pending and in the last case, bail was granted on 8.8.83. Petitioner was detained under the order dated 16.8.93 even before the petitioner could furnish bail arid secure release. It was held that the first incident was remote. The detaining authority had not stated how the criminal case filed in regard to the second incident terminated. The incidents were not of same kind. So far as the third incident was concerned, it was far remote from the incident of 1975 - by 8 years - and could not lead to the inference that petitioner was 'habitual offender". It is in that context it was observed that when a person was on bail, the detaining authority must take care before passing the detention order. In fact, in Suraj Pal Sahu vs. State of Maharasthra , a three Judge Bench distinguished this case on the ground that it turned upon the special words 'habitual' offender used in the Bihar stastute. Therefore Vijay Narayan Singh's case cannot help the petitioner. It only says that if a person was on bail, the detaining authority should take more care.

(14) In Tushar Govindji Shah vs. Union of India the detention was under Cofeposa and there was recovery of a large quantity of hashish of Pakistani origin. The detenu obtained an order of anticipatory bail in 0ctober,1983 by the High Court of Punjab & Haryana and it was extended up to 13.1.84, and detention order was passed on 23.3.84 by the State of Maharasthra. It was argued that the officers of the Department were present in the High Court at Chandigarh when the application for bail was moved. The Supreme Court held that there was no satisfactory material to hold that, at any rate, the detaining authority at Bombay, was aware of the detenu having moved an application for anticipatory bail at Chandigarh. The goods were recovered on 15.10.83 and petitioner was absconding from 15.10.83. Such lack of coordination between the customs authorities and the detaining authority was also referred to by the Supreme Court in M. Ahmed Kutty vs. Union of India

(15) Anant Sakharam Rout vs. State of Maharasthra was a case where the detenu was enlarged on bail and the detaining authority was not made aware of it and the same was not considered by the detaining authority and it was held to be a case of non-application of mind.

(16) Union of India vs. Manoharlal Narang was relied upon by the petitioner's counsel. Though the facts are rather complicated, we shall analyze them. In that case, the writ petition was filed by the respondent for quashing proceedings dated 29.10.83 under Smugglers and Foreign Exchange Manipulators (Forfeiture of Preoperty) Act (13 of 1976) (In short SAFEMA). Earlier, the detention order dated 31.1.75 against respondent issued under Cofeposa was quashed by the Bombay High Court on 8.7.80 and appeal by Union of India was dismissed by Supreme Court on 4.11.80. But the basis of the Safema proceedings against the respondent was the pendency of a preventive detention order dated 1.7.75 against the respondents' brother (See Section 2,3(e) of SAFEMA). That was in fact a second order against the resondent's brother. In the writ petition questioning the Safema proceedings the respondent contended that his own detention dated 31.1.75 was quashed by the Bombay High Court and that the second detention order passed against his brother on 1.7.75 was bad because an earlier order passed by the Supreme Court on 1.5.75 ( in an Special Leave Petition arising out of the first detention order against respondent's brother) permitting movement of respondent's brother was not placed before the detaining authority on 1.7.75 when it passed the second detention order on 1.7.75 against the respondents' brother. It was also pointed out by the respondent that the respondents' brother was meticulously complying with the conditions imposed by the Supreme Court by the time the second detention order was passed against the respondents' brother. In the counter, the Union of India took the stand that the detaining authority when it passed the said second detention order on 1.7.75 in the case of the respondents' brother, it was not necessary for. it to consider the order of the Supreme Court dated 1.5.75. This attitude of the Union of India was criticised by the Supreme Court and it was held (Para 11) (p. 1475) as follows: "IF the detaining authority had considered the order of this Court, one cannot state with definiteness which way his subjective satisfaction would have reacted. This -order could have persuaded the detaining authority to desist from passing the order of detention since this Court had allowed freedom of movement. Detention is only a preventive Act. This Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed. It may also be that the detaining authority after considering the order of this Court carefully could still feel, that an order of detention is necessary with reference to other materials which outweight the effect of this Court's order. In all these cases, non-application of mind on a vital and relevant material need not necessarily lead to the conclusion that application of mind on such materials would always be in favor of the detenu. Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other, as to what effect relevant material could have, on the authority that decides the detention. In. our view the absence of consideration of this important document amounts to non-application of mind on the part of the detaining authority rendering the detention order invalild."

(17) It will be noticed that the Supreme Court in the above para held that it was necessary for the detaining authority to consider the movement order passed by the Supreme Court on 1.5.75 before passing the second detention order dated 1.7.75 in the case of the respondents' brother and therefore the detention order dated 1.7.75 was bad. The result was that firstly the detention order dated 31.1.75 against the respondent was itself quashed earlier and as the second detention order dated 1.7.75 in the case of respondents' brother was bad because of the above reasons, the Safema proceedings dated 29.10.83 against the respondent based on the second detention order of his brother, was also bad.

(18) Reliance was placed by the petitioners' counsel on the word 'outweigh' used in the paragraph extracted above. It was argued that the ground of detention must expressly state that the bail order and the fact that the same was being meticulously followed by the detenu was considered by the detaining authority. It was argued that the grounds must also expressly say that the facts in favor of the detention "outweighed" the effect of the circumstances relating to the bail order. In our view, it is not necessary that the word 'out weigh' need be used in the grounds of detention. The Supreme Court did not lay down any such broad proposition. If on are adding of the grounds of detention it was clear that the detaining authority kept in mind that the detenu was under bail and that he was observing the conditions of the bail, and if still, the detaining authority, after a reference to the past conduct, or on a reference to the Section 108 statement and other relevant facts, came to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting prejudicially against the interests of the country, it was sufFicient. What was required was, in fact, application of mind and awareness of the above two facts; namely, the order of bail and that detenu was observing the conditions of bail. If the grounds of detention showed that these facts were kept in mind and still the subjective satisfaction was arrived at on a consideration of past conduct, the written statement and other relevant facts, the detention order would not be bad merely because it had not expressely mentioned that various facts 'out weighed' the two facts referred to above.

(19) In Haridas Amarchand Shah vs. K.L. Verma (1989 Sc 497), it was held that the application for bail and the order varying the conditions of bail were not vital or material documents as to the need for detention. It was a case under the National Security Act, 1980 and the detention was for preventing the petitioner from indulging in Hawala business" making various payments to various persons in this country on receiving instructions from abroad i.e. Dubai. The bail order directed the detenu to appear before the office of the Enforcement Directorate every day between 11 Am to 2 PM. This order was varied staling that the detenu should attend "as and when required".

(20) The following sentence occurring in the above judgment is important for the purpose of the present case before us: "THE condition imposed by the Magistrate has no relation to the activities carried on by the detenu and as such the High Court, after considering all the circumstances held that the order varying the condition of bail was not a relevant document and failure to produce the document before the detaining authority before arriving at subjective satisfaction, had not vitiated the order. We agree with the same."

(21) In fact, a condition that detenu should attend the Enforcement office twice in a month would not still preclude violation of Fera at one's shop.

(22) In M. Ahmed Kutty vs. Union of India (1990(2) Scc 1) the above case was distinguished. There the detenu was arrested on 31.1.88 and on 12.2.88 was granted conditional bail order that he would report to Supdt. (intelligence) Air Customs on every Wednesday and not change his residence. It was a case of smuggling gold. The detention order was passed on 25.6.88 but copies of the bail application and bail order were not furnished to the detenu. It was held that the bail application and bail order were furnished to the detaining authority and therefore it was not possible to contend that the said authority did not consider the same. The grounds refer to the bail order. The bail application contained the retraction that petitioner was falsely implicated. The bail application and bail order were vital .documents. If they were not considered the detention would be bad. If they were considered but copies were not granted to the detenu, then Article 22(5) would be violated as detenu could not, without them, make an effective representation.

(23) Three more cases remain. In M. Mohd. Sulthan vs. Joint Secretary an order granting bail was passed on 6.10.89 subject to conditions. The petitioner was released on 16.10..89 pursuant to bail order. On 30.10.81 petitioner applied for relaxation of conditions and relaxation was ordered on 31.10.89. The detention order was passed on 12.12.89 and the Supreme Court followed Haridas Amarchand Shah's case and held that the application for relaxation and the order thereon were not vital documents and non-consideration of the said documents by the detaining authority did not matter. Ahmed Kutty's case 1990 (2) Scc I was held distinguishable inasmuch as the bail application and bail order were considered by the detaining authority.

(24) In Alocium Femandex vs. Union of India , the grounds of detention stated that though High Court had granted conditional bail to detenu and that the- same was not availed by him but that instead he moved application for modification of conditions and. the same was rejected. When a plea of non-application of mind by the detaining authority was raised, it was held that there was no substance in the plea that there was absence of material before the detaining authority in regard to the likelihood of detenu's release on bail.

(25) In Noor Salmon Makani vs. Union of India , while dealing with validity of declaration under Section 9, it was observed that detention order was passed when detenu was in jail on the ground of likelihood of release. Later, detenu was released on bail. It was held that this did not involve any change. On the other hand, release on bail was a stronger ground to say that the conditions imposed showed that detenue could move freely in the vast area in the city and this was not a vital document.

(26) Bearing the above principles in mind, we shall examine the facts of the case. We have already referred to the contents of the grounds of detention. In particular, we shall refer to the bail order and the manner of compliance with it as contained in the grounds. The grounds refer in the first bail application and to its dismissal on 1.5.95, to the second bail application dated 4.5.95 of the detenu, extension of judicial remand, etc. till 27.6.95 and to the order of the Addl. Sessions Judge, New Delhi, dated 19.6.95 granting bail subject to conditions. Para 11 of the grounds read: "THE learned Additional Sessions Judge, New Delhi, vide his order dated 19.6.95 granted bail to you subject to certain conditions."

(27) Item 10 in the list of documents relied upon by the detaining authority in the grounds refers to this order of bail (see p. 77 of paper book) passed by the Additional Sessions Judge on 19.6.95. It will be noticed that the bail order is dated 19.6.95 and the grounds of detention are dated 19.7.95. The bail order says that the petitioner shall surrender his passport to the Enforcement Directorate, that he will not leave India without permission of the Acmm, that he will not go out of Delhi without permission of the Acmm, and he shall appear before the Investigation Officer, Enforcement Directorate on the 2nd and 4th Monday for 2 months. Therefore, it cannot be said that the bail order was not kept in mind.

(28) The next question is whether the detaining authority kept in mind the manner of compliance of the conditions laid down in the bail order. Item 16 of the list of documents appended to the grounds is a notice by the Assistant Enforcement Officer to the detenu, Bhupinder Singh and it reads as follows(p. 130 of the paper book):

"AS per orders dated 19.6.95 of the Hon'ble Addl. Sessions Judge you, Sh. Bhupinder Singh son of Sh. (late) Sant Singh, resident of B-2/44, Paschim Vihar, New Delhi is requested to report to the undersigned every second and fourth Monday of the month for two months from the date of order of Hon'ble Additional Sessions Judge, Patiala House, New Delhi.

AS such you are requested to report to undersigned on 10.07.95,14.07.95, 14.08.95 at Ii AM.. The undersigned is issuing this notice as per orders dated 10.7.95.

DT.10.7.95

Deepak chauhan

ASSTT.ENF.OFFICER."

(29) On the left side, there is an endorsement to the effect that the detenu appeared on 10.7.95 and that he is to appear again on 24.7.95. Now the detention order was passed on 19.7.95.

(30) The grounds of detention, in para 14, refer to the above fact as follows: "As per orders of the Court, you appeared on 26.6.95 in the office of the Enforcement Directorate and submitted your expired passport along with your statement."

(31) What do these averments in the grounds of detention dated 19.7.95 indicate '

(32) In our view, the grounds do show that the detaining authority was clearly aware of the fact that a bail order was passed on 19.6.95 by the Additional Sessions Judge on 19.6.95 subject to certain conditions (para Ii of grounds extracted above) and that the detenu attended the office of the Enforcement Directorate as directed therein. Item Ii of the list of documents "relied" and supplied to the detenu contains the conditional bail order and item 16 to the notice dated 10.7.95 of the Officer that detenu has v appeared on 10.7.95 and agreed to appear on 24.7.95. Thus not only was the detaining authority aware of the bail order and its conditions, but it knew that the detenu was appearing as directed therein. Before the next date of appearance i.e. 24.7.95, the detention order and the grounds of detention were issued on 19.7.95. There was therefore awareness that the detenu was complying with the bail order. In spite of it, after referring to the past conduct and the confessional statement and various other facts, the detaining authority concluded in para 20 that the detenu had violated provisions of Fera and that the said violations have affected the foreign exchange resources of the country adversely. Then it said again: "I am aware you are on bail at present. I am satisfied that unless detained you are likely to continue to engage in aforesaid prejudicial activities in future also and therefore 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 in future from acting in any manner prejudicial to the augmentation of the country's foreign exchange resources"

(33) It also said: "I am also satisfied that the nexus between the date of incident and passing of this detention order as well as the object of your detention has been maintained."

(34) In our view, the above inference regarding future 'prevention' of violations of Fera was arrived at on a consideration of the entire facts, as set out in the grounds, and it was also stated that the incidents were proximate to the detention order. It is therefore clear that the grounds satisfy the principles earlier referred to. We have already stated that it is not necessary to say that the various adverse facts 'out weigh' the fact of grant' of bail and the observance of the bail conditions. In substance, the grounds say so.

(35) In Panna vs. A.S. Samra it was held that if the detaining authority stated on oath that he had gone through all the documents placed before him, there was no reason to reject the statement of the detaining authority. Apart from what is stated 'in the grounds the counter para 12,17 also states that the order has been passed after perusing the entire material.

(36) We therefore reject the contentions and hold Point 2 against the petitioner.

(37) Points The point raised here is that after the date of release on bail and before the detention order, there was no untoward incident and this aspect was not considered by the detaining authority.

(38) In the present case, the detention order refers to the compliance of the bail conditions by the detenu. It does not refer to any fresh incidents but says the past conduct and other material was sufficient to pass the impugned order. The petitioner stated (in ground K) that there was no further material which was gathered after the petitioner was granted bail, no challan was filed within 60 days and even by the date of first presence before Magistrate. In reply, it is stated in the counter: "FOR reply to para K, it is submitted that the petitioner was released on bail by the learned trial Court as the challan was not filed by the Enforcement within time. However, it is submitted that there was overwhelming documentary evidence and material before the detaining authority, before passing the detention order against the petitioner".

(39) Now, the Supreme Court has stated in a large number of cases that it is permissible to issue an order of detention on the basis of past conduct of the detenu provided it is proximate. It is not necessary that between the date of the bail order and the detention order, there must be fresh facts. We do not want to refer to all those cases. Suffice it to refer to Hawabi Sayed Arif Sayed Hanif vs. L. Hmingliana wherein it was stated that the inference regarding future conduct can be drawn from antecedent activities of the detenu. All that is necessary is that they must be proximate to the detention order. Therefore, merely because there were no incidents between the bail order dated 19.6.95 and the detention order dated 19.7.95, if events before 19.6.95 but proximate to 19.7.95 are relied, the detention order cannot be said to be vitiated.

(40) In Ram Surya Mhatre vs. R:D. Tyagi(AIR.. .. .. Sc ... ) it was held that in the context of an allegation of absence of fresh facts, the statement in the counter regarding past conduct could be sufficient. The Supreme Court observed: "THElearned counsel further contended that the appellant was released on bail on February 11,1991 and the order of detention was passed on April 26,1991. In between, there is no untoward act committed by the detenu creating any disturbance of the public order and the factor was not taken into account by the detaining authority. Consequently, the order of detention was passed mechanically without applying the mind by the detaining authority. In the counter affidavit filed by the detaining authority, it is clearly stated that the detaining authority had kept this fact in view and that it was stated that the appellant was likely to indulge in similar acts in the near future. This is also a factor which was taken into account by the detaining authority in passing the detention order."

(41) We have already said that it is not necessary to say in the grounds that the past conduct and other events 'outweigh' the factum of compliance with bail order. Point 3 is held against the petitioner.

(42) Point 4 The submission is that the petitioner was arrested by the Fera authorities on 17.4.95 and not on 19.4.95 as shown in the records and if that be so, the statement recorded under Section 40 of the Fera dated 18.4.95 and continued on 19.4.95 is il- legal as the same was obtained beyond 24 hours from the time of arrest and without production of petitioner before a Magistrate.Jt is argued that such a plea was taken by the petitioner in his First retraction on 19.4.95 before the Magistrate and in the counter Filed thereto, the department did not specifically deny the said allegation.

(43) This submission requires close scrutiny of facts. We have on record a Panchnama dated 18.4.95 (p.44 of paper-book) showing that shop of petitioner in Karol Bagh was searched between 7 Pm and 10.15PM on 18.4.95. The Panchnama bears signature of petitioner under dated 18.4.95. We then have a summons under Section 40 of Fera (page 60 of paper book) requiring the petitioner to attend the office of the Enforcement Officer at Lok Nayak Bhawan, Khan Market, New Delhi at 10.30 Pm on 18.4.95. This summons also bears the signature of petitioner under dated 18.4.95. Then we have the statement of petitioner (p.111) dated 18.4.95 and 19.4.95. The arrest Memo. dated 19.4.95 (p. 78 of paper book) under Section 35 of the Fera shows 'arrest' at 3 Pm on 19.4.95 and is signed by petitioner. It records that the officer has reason to believe that petitioner has contravened Section 8(1), 8(2) of Fera and petitioner was arrested and informed of the grounds of arrest. Petitioner was produced before Magistrate on 19.4.95.

(44) In the retraction of petitioner (p. 19 of paper book) before the Magistrate on 19.4.95, petitioner merely stated that he was 'picked up' by some persons of Fera Department on 17.4.95 from his shop No. 142, Mcd Market, Karol Bagh, they took him to a secret place, they threatened him and beat and tortured him and made him write to their dictation. What is important to note here is that the petitioner did not say in his retraction dated 19.4.95 before the Magistrate that he was "arrested" by the officers on 17.4.95. The plea has been taken for the First time in the writ petition that on 19.4.95 the petitioner told the Court that he was "arrested"on 17.4.95. This plea is not acceptable because there are two clear admissions on record made by the petitioner that he was "arrested" on 19.4.95. On 20.4.95, petitioner Filed an application before the Magistrate for supply of copies of seizure memo. and arrest memo. He there admitted: "THAT the applicant/accused was arrested on 19.4.95 and was remanded to judicial custody."

(45) Again in another application dated 4.5.95 before the Magistrate seeking bail, it is admitted: "ACCUSED is in custody since 19.4.95."

IN the face of these two admissions dated 20.4.95 and 4.5.95 and in the absence of an allegation of 'arrest' on 17.4.95 in the retraction dated 19.4.95, the plea raised in the writ petition that the arrest started on 17.4.95 and hence the confessional statement dated 18.4.95 and 19.4.95 was bad as being beyond 24 hours from time of "arrest" cannot be accepted. In fact, the Supreme Court has held in Poolpondi vs. Supdt., Central Excise that at the stage of giving statement under Section 108 of the Customs Act (or Section 40 of FERA), the person is not to be treated as under arrest. Arrest requires a separate order of satisfaction of violation of law and the need for detention to be passed under Section 106 of Customs Act (or Section 35 of FERA).

(46) Hence the contention that petitioner was "arrested" on 17.4.95 is contrary to his own admissions. Point 4 is held against the petitioner.

(47) Points Contention is that the confession is considered and that though retraction was considered, it was not noticed that the retraction was at the earliest opportunity on 19.4.95 when petitioner was produced before the Magistrate and in that retraction petitioner has alleged coercion.

(48) Para 11 of the grounds mentions that petitioner was arrested under Section 35 of Fera on 19.4.95 and that petitioner was produced before Magistrate on 19.4.95 and on 19.4.95 petitioner retracted that allegations in retraction were denied in the reply dated 1.5.95. If so much is contained in the grounds, it will be difficult to accept that the detaming authority had not noticed that the retraction was made on the same day of arrest and soon after production before the Magistrate. Hence this contention is rejected.

(49) Point 6 We cannot also accept the contention that detention cannot be made on the basis of retracted confession. In fact, the detention is not based solely on the confession. The facts and inferences from facts arc drawn from the search and seizure and the host of other facts mentioned in the grounds. Some of the facts are according to the detaining authority, corroborated by the statements of those from whom petitioner purchased the dollars or those to whom he sold. It will be difficult to accept this contention that the detention is based only on the confession. Point 6 is held against the petitioner.

(50) Point 7 The fact that no Indian currency was recovered from the petitioner, or that a person would not be dealing in dollors worth millions for making a profit of Rs. 20,000 or that Harjinder Singh to whom petitioner is supposed to have sold belonged to Singapore do not by themselves lead to any conclusion that detention order is bad. The order is based on a host of facts as set out therein and referred to earlier and we cannot go into the sufficiency of the facts on which the subjective satisfaction is based (K. Aruna Kuman vs. Govt. of A.P. is held against the petitioner.

(51) The criminal writ petition is accordingly dismissed.