2019 (9) TMI 433 - HC - Customs

Validity of Detention order - smuggling - Gold of Foreign Origin - confessions obtained under Section 108 of the Customs Act 1962 - HELD THAT - A perusal of grounds of detention and in particular paragraph 7 thereof clearly reflects that it is completely bereft of any material expressed therein for the Detaining Authority to arrive at the conclusion to the effect that there is immediate possibility of your release from judicial custody . Further as is axiomatic from a reading of the same paragraph the Detaining Authority was aware that the detenus were in judicial custody at the Presidency Correctional Home Alipore Kolkata at the time of passing of the impugned order. In the absence of cogent material the statement in the grounds of detention regarding the alleged imminent possibility of the detenus coming out on bail is mere ipse dixit untenable and without any cogent basis and consequently has to be ignored. In our considered view therefore in the absence of reliable material to this effect the detention order is vitiated and cannot be sustained. Co-ordinate Benches of this Court in Navpreet Kaur Chadha 2013 (6) TMI 302 - DELHI HIGH COURT and Sandhya Jain 2017 (6) TMI 35 - DELHI HIGH COURT it is made clear categorical and unequivocal that the settled position of law is that when the detenus are in judicial custody and there is no imminent possibility of their release on bail and even no bail applications are pending the power of preventive detention ought not to be exercised. Threshold objection raised on behalf of the official respondent to the effect that in view of the pendency of the representations before the Advisory Board which has adequate powers to examine the entire material - HELD THAT - The present writ petition ought not to be determined at this stage is concerned the same cannot be countenanced in view of the decision of the Hon ble Supreme Court Piyush Kantilal Mehta vs. Commissioner of Police Ahmedabad City and Another 1988 (12) TMI 339 - SUPREME COURT where it was held that The concerned detenus be released forthwith if not required to be detained in any other case - Petition allowed.

Summary

Issues Involved:
1. Legality of detention orders under COFEPOSA.
2. Validity of detention while detenus are already in judicial custody.
3. Non-consideration of relevant material by the Detaining Authority.
4. Maintainability of habeas corpus petition during pendency of representation before the Advisory Board.

Issue-wise Detailed Analysis:

1. Legality of Detention Orders under COFEPOSA:
The petitioner challenged the detention orders issued under COFEPOSA on the grounds that they were issued mechanically without due application of mind and without any compelling reason. The court found that the orders were based on the mere ipse dixit of the Detaining Authority without any cogent material, making them ex facie illegal. The court emphasized the necessity of reliable material to justify the detention, citing the Supreme Court's decision in *Rekha vs. State of Tamil Nadu* which states that a detention order cannot be sustained on mere ipse dixit.

2. Validity of Detention While Detenus are Already in Judicial Custody:
The court noted that the detenus were in judicial custody at the time of the detention orders and there was no imminent possibility of their release on bail as no bail applications were pending. The court relied on the Supreme Court's rulings in *T.V. Sravanan* and *Rekha*, which held that preventive detention should not be exercised if the detenus are in custody and there is no imminent possibility of their release. The court concluded that the detention orders were vitiated and could not be sustained due to the absence of cogent material indicating the likelihood of the detenus' release.

3. Non-consideration of Relevant Material by the Detaining Authority:
The court found that the Detaining Authority failed to consider the retraction petition of a key individual, Anand, which was a vital document. Instead, a bail application was mistakenly included in the list of relied upon documents (RUD). The court held that this oversight violated the detenus' right to effective representation as guaranteed by the Constitution. The court cited the Supreme Court's decision in *Deepak Bajaj vs. State of Maharashtra*, emphasizing that the failure to place relevant retraction petitions before the Detaining Authority vitiates the detention order.

4. Maintainability of Habeas Corpus Petition During Pendency of Representation Before the Advisory Board:
The respondent argued that the habeas corpus petition should not be considered as the detenus' representations were pending before the Advisory Board. The court rejected this argument, citing the Supreme Court's decision in *Piyush Kantilal Mehta vs. Commissioner of Police*, which held that the pendency of a representation before the Advisory Board does not preclude the court from exercising its jurisdiction under Article 32 of the Constitution. The court proceeded to determine the writ petition on its merits.

Conclusion:
The court set aside and quashed the impugned detention orders dated 01.07.2019, directing the release of the detenus unless required to be detained in any other case. The writ petition was allowed, and the pending applications were disposed of with no order as to costs.