TMI Blog1991 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petition is also dismissed. - Writ Petition (Crl.) Nos. 105 & 106 of 1991 - - - Dated:- 8-10-1991 - PANDIAN, S.R. AND REDDY, K. JAYACHANDRA, JJ. JUDGEMENT 1.1 A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody. [451-F] 1.2 When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the .detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court. 2.1 If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v. Union of India Ors., [1990] 1 SCC 480 and SaVed Farooq Mohammad v. Union of India Anr., JT [1990] 3 SC 102, referred to. 3. It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned. [p. 440 E] 4.1 In the instant case, in the counter affidavit it was stated that the period of remand to the judicial custody was to expire the next day after the detention. Therefore, there was every likelihood of the detenu's moving for bail and getting released on bail. These materials showed that the detaining authority was not only aware that the detenus were in jail but also noted the circumstances on the basis of which he was satisfied that they were likely to come out on bail'and continue to indulge in the smuggling activities. [453 B-C] As mentioned in the grounds of detention, there was relevant material on the basis of which the detaining authority was satisfied that there was compelling necessity to pass the detention orders. It, therefore, cannot be said that there were no compelling reasons justifying the detention despite the fact that detenus were already in custody. [443 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. His passport and other documents were also seized. The petitioner's statement was recorded under Section 108 of the Customs Act, 1962 wherein he is alleged to have confessed the guilt. After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days. Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While he was in jail he made an application for granting of bail under Section 437 Cr.P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While the petitioner. was confined in jail an order of detention was passed under Section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 ('COFEPOSA Act') for short) by the Secretary to the Government, Government of Kerala, Home (SS A) Department on 7.11.90 and the same was served on the petitioner on 8.11.90. The grounds of detention alongwith the list of documents annexed thereto were served in time. The petitioner made a representation and it was rejected. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from custody in the near future and the nature of the antecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities. But we may observe that what would be the compelling reasons in the context would depend on the facts of each case. In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase. This itself manifests the expertise of the carrier in smuggling. The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likelihood of his being released on bail and he is likely to indulge in such smuggling activities. It is mentioned in the counter-affidavit that the remand period of the detenu was to expire on 10.11.90 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail. This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order. Having care ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfaction that the detenu, ii released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative." Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases having nothing to do with the maintenance of public order and then held that: "These statements do not disclose any activity after March 14, 1988 or any activity of the time when the detenu was a free person. Considering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu. It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods." The Division Bench finally concluded thus: "It is highlighted in this connection that in the affidavit-inreply filed by respondent 1, the detaining authority, he merely denied the specific averments made in para 3(111) that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments namely bail application and the order refusing bail, which are relevant documents, and had those documents been placed before the detaining authority they might have influenced the mind of the detaining authority one way or the other. Alternatively it is also contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner paripassu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is illegal and violative of Article 22(5) of the Constitution of India. There is no dispute that the detenu moved for bail under Section 437 Cr.P.C. on 29.10.90 before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and by an order dated 2.11.90 the bail application was rejected. The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed,. In support of this plea reliance is placed on the grounds wherein the detaining authority has stated that he was aware that the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning authority. The grounds do not disclose that the detaining authority has relied upon any of these two documents. On the other hand as already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail. This itself shows that these documents were not before the authority. Therefore it cannot be said that the documents referred to and relied upon in the grounds were not supplied to the detenu and the ratio in Ahmedkutty's case, [1990] 2 SCC 1 on this aspect does not apply to the facts in the instant case. It is not necessary to refer to in detail various decisions of this Court wherein it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied. This has been settled by a long line of decisions: Ramachandra A. Kamat v. Union of India [1980] 2 SCC 270, Frances Coralie Mullin v.W.C. Khambra, [19801 2 SCC 275, Ichhu Devi Choraria v. Union of India, [1980] 4 SCC 531, Pritam Nath Hoon v. Union of India, [1980] 4 SCC 525, Tushar Thakker v. Union of India, [1980] 4 SCC 499, Lallubhai Jobibhai Patel v.union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould affect the detention order. The Division Bench made these observations while considering the contention that the order granting bail and the bail application, though referred to, were not relied upon. It is not laid down clearly as a principle that in all cases non consideration of the bail application and the order refusing bail would automatically affect the detention. The relevant observations in this context made by this Court Ahmedkutty's case may be noted: "If in the instant case the bail order on condition of the detenu's reporting to the customs authorities was not considered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. In S. Gurdip Singh v. Union of India, [1981] 1 SCC 419, following Ichhu Devi Choraria v. Union of India, [1980] 4 SCC 531 and Shalini Soni v. Union of India, [1980] 4 SCC 544 it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail order were vital materials". In that view these observations were made. Further that was a case where the detenu was released on bail and was not in custody. This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied. Now we shall consider the other submission regarding the non-supply of the bail application and the order refusing bail to the detenu and its effect. According to the learned counsel these two documents formed relevant material and irrespective of the fact whether they were placed before the detaining authority or not they ought to have been supplied to the detenu and failure to do so has caused prejudice in making an effective representation. We are unable to agree. In Abdul Sattar Abdul Kadar Shaikh v. Union of India and Others [1990] I SCC 480 it is observed thus: "In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon. These documents were not relied upon by the detaining authority. When a request is made by the detenu for supply of these bail applications and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference .that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired. When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu. As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody. These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary. Therefore the law requires that these two tests have to be satisfied, in the case of such detention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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." In Sanjay Kumar Aggarwal v. Union of India and Others [1990] 3 SCC 309 after reviewing all the relevant cases including Chelawat's case, this Court observed as under: "It could thus be seen that no decision of this Court has gone to the extent of holding that no order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court. (3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody. (4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same. (5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order. However, when they are not referred to or relied upon the non supply does not affect the detention. These are all the submissions made by the learned counsel for the petitioner and we do not see any merit in any of them. Accordingly the Writ Petition is dismissed. Writ Petition (Criminal) No. 106 of 1991 In this Writ Petition also the petitioner is a foreign national, being resident of Republic of Maldives. On 25.10.90 he landed at Trivandrum Airport from Male. After customs clearance the petitioner proceeded to Hotel Geeth at Trivandrum and while he was staying there, some officers of Customs came to the room and conducted a search. Nothing was recovered. But the officers took the petitioner by force to the Customs Import Baggage Hall and it is alleged that on examination, 30 gold biscuits of foreign origin were seized from either side of the handle inside the lock system of the blue colour suitcase which is alleged to be of petitioner. The petitioner's passport and other documents were also seized ..... X X X X Extracts X X X X X X X X Extracts X X X X
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