TMI Blog2019 (9) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. - W.P.(CRL) 1840/2019, CRL.M.A.13331/2019 And CRL.M.(BAIL) 1186/2019 - - - Dated:- 2-8-2019 - HON'BLE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions Section 104 of the said Act. (v) Thereafter the detenus were produced before the court of Judicial Magistrate on 12.06.2019. (vi) Vide order dated 12.06.2019 in Misc.67/2019, the learned CMM, Kolkata rejected the prayer of bail made on behalf of the detenus and remanded them to judicial custody till 18.06.2019. However, in view of the contention made on behalf of the detenus in relation to their illegal detention by the office of DRI on 10.06.2019, as aforestated, the learned CMM directed the office of the Cyber Police Station, Kolkata to obtain the relevant CCTV footage of the Food Court at Quest Mall, Kolkata. (vii) The detenus remand to custody has been extended from time to time up to date. (viii) Whilst the detenus were in custody, as aforestated, the detention orders impugned in the present petition were rendered by the Detaining Authority on 01.07.2019. (ix) The impugned detention orders were served on both the detenus on 02.07.2019, and the relied upon documents (for short RUD ) with the list of documents were served upon them on 04.07.2019. (x) In the case of bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh Secretary and Another reported as (2006) 2 SCC 664. (ii) Rekha vs. State of Tamil Nadu Through Secretary to Government and Another reported as (2011) 5 SCC 244. (iii) Navpreet Kaur Chadha vs. UOI Another reported as (2013) 2 DLT (Cri) 795. (iv) Sandhya Jain vs. Union of India Another reported as (2017) 3 DLT (Cri) 555 5. On the other hand, Ms. Maninder Acharya, learned Additional Solicitor General appearing on behalf of Union of India would raise a preliminary objection to the effect that, the present habeas corpus should not be considered at this stage, since the detenus representations thereagainst are pending consideration before the Advisory Board, which is empowered by law to consider the validity thereof. 6. By inviting our attention to the paragraph Nos.1 to 9 of the detention order, it would also be urged by Ms. Maninder Acharya, learned ASG that, there was cogent material before the Detaining Authority to arrive at the subjective satisfaction that the detenus were likely to be released from judicial custody and that there was likelihood of their continuing to indulge in the prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued against you i.e. Shri Ashok Kumar Jalan alias Pappu and you were detained on 13.06.2002. Subsequently the said detention order was revoked by Central Government vide Order dated 21.08.2002 on the basis of opinion of the COFEPOSA Advisory Board. 2. In view of the facts, circumstances, findings corroborative evidence and your role in the whole operation, I am satisfied that you i.e. Shri Ashok Kumar Jalan are a key person and mastermind of a syndicate and ably assisted by your nephew Shri Amit Jalan involved in smuggling of gold and foreign currency. You along with your associates, are in the habit of repeatedly smuggling goods into India from abroad without declaring the same before the Customs Authorities and paying applicable duty which amounts smuggling in terms of Section 2 of the Customs Act, 1962. The underlying common threat is your propensity to smuggle goods for making illicit profit and putting the National economy into danger which needs to be curbed and you need to be prevented from indulging in such activities further. 3. I am satisfied that you i.e. Shri Ashok Kumar Jalan have indulged in activities amounting to smuggling in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, punitive in nature and independent of the preventive detention provided under the COFEPOSA Act, 1974. However, considering your i.e. Shri Ashok Kumar Jalan high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilized by detention under the COFEPOSA Act, 1974 with a view to prevent you from smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods in future. 7. I am aware that you i.e. Shri Ashok Kumar Jalan are in Judicial custody at present at Presidency Correctional Home, Alipore, Kolkata. However, there is an immediate possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and therefore there is a need to issue a Detention Order against you under the COFEPOSA Act, 1974 with a view to prevent you from smuggling of gold and foreign currency in future. 9. A perusal of the above extracted grounds of detention and in particular paragraph 7 thereof, clearly reflects that, it is completely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution Bench decision in Haradhan Saha v. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] wherein it has been observed: (SCC p. 209, para 34): 34. where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may 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 activities which would jeopardise the security of the State or public order. 9. On the other hand, Mr Altaf Ahmed, learned Senior Counsel appearing for the State of Tamil Nadu, has relied on the judgments of this Court in A. Geetha v. State of T.N. [(2006) 7 SCC 603 : (2006) 3 SCC (Cri) 324] and Ibrahim Nazeer v. State of T.N. [(2006) 6 SCC 64 : (2006) 3 SCC (Cri) 17] wherein it has been held that even if no bail application of the petitioner is pending but if in similar cases bail has been granted, then this is a good ground for the subjective satisfaction of the detaining authority to pass the detention order. 10. In our opinion, if details ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4) 4. May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus. 12. A similar view was also expressed by a Division Bench of the Supreme Court in T.V. Sravanan (supra) in paragraphs 6,7,8,9,12,13 and 14. The same are extracted hereinbelow:- 6. Before us the same submission was advanced as was advanced before the High Court. However, Shri K.T.S. Tulsi, learned Senior Counsel appearing for the appellant, in addition to the aforesaid submission, advanced a second submission that in the facts and circumstances of the case, as is evident from the record itself as well as the order of deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. 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. 8. The principle was further elucidated in Binod Singh v. District Magistrate, Dhanbad [(1986) 4 SCC 416 : 1986 SCC (Cri) 490] in the following words: (SCC pp. 420-21, para 7) 7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. 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 detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed on 15-12-2004 i.e. merely 12 days after the dismissal of the bail application by the High Court. There is nothing on record to show that the appellant had made any preparation for filing a bail application, or that another bail application had actually been filed by him which was likely to come up for hearing in due course. 13. A somewhat similar reasoning was adopted by the detaining authority in Rajesh Gulati v. Govt. of NCT of Delhi [(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] . This Court noticing the facts of the case observed: (SCC pp. 133-34, para 13) 13. In this case, the detaining authority's satisfaction consisted of two parts-one: that the appellant was likely to be released on bail and two: that after he was so released the appellant would indulge in smuggling activities. The detaining authority noted that the appellant was in custody when the order of detention was passed. But the detaining authority said that bail is normally granted in such cases . When in fact the five applications filed by the appellant for bail ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Happy Dhakad (supra), relied upon on behalf of the Detaining Authority, does not come to their aid, inasmuch as, it was clearly expressed by the Hon ble Supreme Court in that case as well that the satisfaction of the Detaining Authority, that the detenu may be released on bail, cannot be the mere ipse dixit of the Detaining Authority, and that the Guideline No.24 (Part-A of Don s) of the Hand Book on Compilation of Instructions on COFEPOSA Matters clearly stipulates that, when the detenu is in judicial custody, the Detaining Authority has to record in the grounds of detention its awareness thereof and then indicate the reasons for the satisfaction that there is imminent possibility of his release from the custody. 16. Insofar as, the 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 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, Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Hon ble Supreme Court in Rekha (supra) and T.V. Sravanan (supra), inasmuch as, there is a clear lapse and failure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while recording its subjective satisfaction and passing the detention orders. The same are, therefore, unsustainable and liable to be set aside and quashed. We also hold that, the nonplacement of the relevant material, in the form of Anand s retraction petition and its non-consideration by the Detaining Authority, also vitiates the detention order, in terms of the decision of the Hon ble Supreme Court in Deepak Bajaj vs. State of Maharashtra and Another reported as (2008) 16 SCC 14 and in particular paragraph 31 thereof, wherein it is observed as under:- 31. Most of the retractions were made to DRI, and it belongs to the same department as the sponsoring authority, who is the Additional Director, Revenue Intelligence. Hence, it was the duty of DRI to have communicated these retractions of the alleged witnesses to the sponsoring authority, as well as the detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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