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TMI Blog1991 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. [452 B] 2.2 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) of the Constitution, when it is clear that the authority has not relied or referred to the same. [452-C] 2.3 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 in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 453 C] 4.2 Failure to supply the bail applications and the orders refusing bail did not in any manner prejudice the detenus from making representations particularly when they were fully aware of the contents of the applications made by them and also the refusal orders. However, when they are not referred to or relied upon, the non supply does not affect the detention. [453 C-D] 5.1 Even a solitary incident may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling. [p. 443 D-E] 5.2 The potentialities of the detenu as gathered from his act of smuggling form basis for detention. It is difficult to comprehend precisely the manner in which a detenu with certain potentialities may likely to indulge in the activities of smuggling. It is for the detaining aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention alongwith the list of documents annexed thereto were served in time. The petitioner made a representation and it was rejected. It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized, there was no compelling necessity for such a detention. It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted. The next main and important submission is that the copies of the bail application filed by him and the order refusing bail, which are relevant documents, were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non application of mind and the petitioner also is denied a reasonable opportunity under Article 22(5) of the Constitution of India. We see no force in the first submission namely that there was no compelling necessity for passing the detention Order. It is true that when the detention order was passed on 7.11.1990 the detenu was in jail and his bail application also was rejected and his passport also was seized. But t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order. Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons. Learned counsel also relied on the judgment of this Court in Abdul Razak Abdul Wahab Sheikh v.S.N. Sinha, Commissioner of Police, Ahmedabad and Another [1989] 2 SCC 222. That was a case of public order and after referring to some of the earlier decisions including the decision of the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan, [1964] 4 SCR 921, this Court considered the contention i.e. since the detenu was in custody at the time of service of the order of detention there was no material to disclose necessitating the detention. It was held thus: "On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench 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 act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between March 14 to April 13, 1988 etc. without specifically denying those statements. In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibilities that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfaction by the detaining authority in making the order of detention in question." (emphasis supplied) From the above passages it can be seen that this Court categorically held that a person in custody can be detained. There must be awareness in the mind of the detaining authority that the detenu is in custody and that there should be cogent and relevant material showing that there is a compelling necessity to detain him. Since that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was in judicial custody and possibility of his release on bail in the near future cannot be ruled out. It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has been rejected and the only inference that can be drawn is that these relevant documents were suppressed and not placed before the detaining authority. In the counter-affidavit filed by the second respondent, State of Kerala, it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner's name the copies of the bail application and the order refusing bail were not made available to the Department and therefore they were not placed before the authority. From these averments, one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, [1981] 2 SCC 427, Kirti Kumar Chatnan Lal Kundalia v. Union of India [1981] 2 SCC 436, and Ana Carolina D'Souza v Union of India 1198x1 Supp. SCC 53 (1) At this juncture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds, need not be supplied. In Mst. L.M.S. Ummu Saleema v. Shri B.B. Gujaral and another, [1981] 3 SCC 317 after referring to some of the earlier decisions of this Court, it was held thus: "It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 circumstance would vitiate his detention and make it void ab initio." (emphasis supplied). It is further observed in this case that: "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5)of the Constitution of India rendering the continued detention of the detenu illegal and entitling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 orders refusing thereon are made, the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal. No authority has been placed before us which goes to the extent of holding that a mere non-supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Article 22(5)." (emphasis supplied). In Syed Farooq Mohammed v. Union of India and Another, JT [1990] 3SC 102 this Court considered precisely the same question and it was observed thus: "The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the detaining authority were not supplied to the petitioner and as such his right of making effective representation guaranteed under Article 22(5) of the Constitution of India has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a person in custody. The Constitution Bench in Rameshwar Shaw's case held thus: "....... Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bonafide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. XXX XXXX XXX Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case." Following the above principles, another Bench of three Judges of this Court in N. Meera Rani v. Government of Tamil Nadu and Another, [1989] 4 SCC 418 after reviewing the various other decisions, it was observed that "A review of the above decisions reaffirms the position which was settled by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties 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 of detention can validly be passed against a person in custody under any circumstances. Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. We have already, in the instant case, referred to the grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground." In a very recent judgment of this Court in Kamarunnissa etc.. v. Union of India and Another., AIR 1991 SC 1640 all the above mentioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under: "From the catena of decisions ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the Air Customs Officer, Trivandrum. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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