TMI Blog1990 (4) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... e recovered from the cavities of the car meant for fitting speakers in the rear portion of the car. The occupants did not give any explanation for the possession of gold biscuits. On personal search of Mahesh, a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar. The premises of these two peoples were searched and a receipt of token tax in respect of the car was recovered. Mahesh Kumar admitted that he was visiting Dubai frequently to bring consumer goods and gold ornaments for being sold in the local market. One Avtar Singh who was engaged in smuggling of foreign gold biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commission. He also gave some more details about Avtar Singh. Similarly Vijay Kumar also made a statement. From these statements it is also revealed that petitioner herein Sanjeev Kumar Aggarwal had made arrangements for selling the gold biscuits. The residential premises of the petitioner was searched and he was taken into custody. The officers of the Directorate of Revenue Intelligence questioned the petitioner and he gave a statement. On the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessitating making of an order of detention. In the course of the judgment it is noted that the detaining authority also was not aware that application for bail filed on behalf of the detenu was rejected by the designated Court and, therefore, there was no application of mind. 5. In Binod Singh v. District Magistrate, Dhanbad , it is laid down If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. 6. In Vijay Kumar v. State of Jammu and Kashmir , the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail. But in the case before us the detaining authority has noted in the grounds that the petitioner along with other two accused have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amesh Yadav v. District Magistrate, Etah , wherein it is observed: 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. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. But as already held in the instant case the detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods. Therefore the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail. At this stage it is useful to refer to another important decision rendered by the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan , wherein the detention order was served while the detenu was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudicial to the security of the State or to the maintenance of the public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, 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 he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position. In one of the latest judgments of this Court in Shri Dharmendra Suganchand Chelawat v. Union of India , once again all the authoritative pronouncements including that of the Constitution Bench in Rameshwar Shaw's case are referred to and the Bench which consisted of three Judges observed thus (para 19 of AIR): The decisions referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich they are made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw case for the obvious reason that all subsequent decisions were by benches comprised of lesser number of judges. We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw's case. As a matter of fact, in Shri Dharmendra Suganchand Chelawat's case there is a reference to Smt. Shashi Aggarwal's case , and Ramesh Yadav's case and a Bench of two Judges following the decision of the Constitution Bench in Rameshwar Shaw's case , laid down the above principles which we have already referred to. Therefore we see no force in the submission. 13. The next submission of the learned Counsel is that the detaining authority has not applied his mind properly in rejecting the representation made by the detenu. It is submitted that in Annexure X-3, an application be sent by Vijay Kumar, the co-detenu, it is clearly mentioned that his statement was recorded under torture and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
