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TMI Blog2019 (11) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... ring Nos. PD12001/ 34/2019COFEPOSA and PD12001/ 35/2019COFEPOSA dated 1.7.2019, the Union of India through the Detaining Authority has preferred the present appeal. Feeling aggrieved and dissatisfied with the aforesaid impugned judgment and order passed by the High Court, even the detenu has preferred the special leave petition challenging the aforesaid impugned judgment and order, inasmuch as on grounds 'C', 'D', 'E', 'F' and 'G' raised in the main writ petition before the High Court, having not been decided one way or the other, while allowing the writ petition of the original writ petitioner on the first two grounds, i.e., grounds 'A' & 'B'. 2.1 Writ Petition (Criminal) Nos. 204/2019, 206/2019 and 209/2019 have been preferred by the respective writ petitioners under Article 32 of the Constitution of India for an appropriate writ, direction or order declaring that the disjunctive 'or' in Section 13 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') shall be read as 'and' so that only those actions which are actually done in good faith would be protected under the said Section, to enable the respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the COFEPOSA Act, addressed to the Detaining Authority against the impugned detention orders, through the jail authorities. 3.4 That the respondent Ankit Ashok Jalan filed writ petition before the High Court challenging the aforesaid detention orders against his father - Ashok Kumar Jalan and his brother - Amit Jalan (detenus) dated 01.07.2019. It was mainly contended on behalf of the original writ petitioner that despite the detenus already being in judicial custody, the Detaining Authority rendered the detention orders and there being no imminent possibility of their being released on bail nor any material relied upon therein to raise an apprehension that they may be so released in the near future since no bail application was pending, the same are ex facie illegal and without any basis. It was further contended that the relied upon documents have not been perused by the Detaining Authority, inasmuch as, the retraction petition of the said Anand, which is a vital document, has neither been placed before the Detaining Authority nor considered by it in accordance with law, the document purported to be a copy of the 'retraction petition' in respect of the said Anand, placed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2019, decided on 18.07.2019, 2019 SCC OnLine SC 875. It is submitted that despite the categorical finding recorded by the Detaining Authority with regard to the "immediate possibility of the release of the detenus from judicial custody", the High Court has observed that the same is not sufficient compliance in law and has quashed the detentions orders on this sole ground. 5.1 Relying upon para 7 of the detention orders, it is submitted that the Detaining Authority was aware with regard to detenus being in custody and their immediate possibility of the release and their propensity to indulge in prejudicial activities after release. It is submitted that the subjective satisfaction of the Detaining Authority has been clearly recorded with regard to the custody the likelihood of the release and the propensity to indulge in prejudicial activities. It is submitted that even the bail application of Anand was also considered by the Detaining Authority. 5.2 It is further submitted by the learned Additional Solicitor General that the aforesaid consideration on the part of the Detaining Authority is sufficient compliance with the constitutional protections. Reliance is placed upon the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (2013) 4 SCC 531. 5.5 It is further submitted by the learned ASG that the detenus have been released on bail subsequent to the impugned judgment and order of the High Court and therefore the ground of imminent likelihood of release stood proved. It is submitted that admittedly the detenus have been granted bail by the Court on the very date of the order of detention was quashed by the High Court by the impugned judgment and order dated 2.8.2019. It is submitted therefore the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail and regarding the prejudicial activities of the detenus has to be taken as well founded and fortified. It is submitted therefore that the grounds raised by the detenus regarding nonmentioning of imminent likelihood of release does not survive for consideration, as the detenus have been released subsequent to the order of detention as apprehended by the Detaining Authority. It is submitted that as on date if the detention order is quashed, the detenus will be free to indulge in the prejudicial activities as mentioned in the detention order thereby causing serious harm and prejudice to the society in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Detaining Authority before passing the detention orders on 1.7.2019 against the detenus. It is submitted that therefore and even otherwise nonconsideration of the retraction application dated 22.6.2019 of Shri Anand by the Detaining Authority does not vitiate the orders of detention. In support of his above submission, learned ASG has relied upon a decision of this Court in the case of Raverdy Marc Germain Jules v. State of Maharashtra (1982) 3 SCC 135. 5.7 It is further submitted by the learned ASG that even otherwise the contents of the prisoner's petition/retraction petition of Shri Anand dated 22.6.2019 is a mere afterthought. It is submitted that Shri Anand was caught carrying 8Kgs. of foreign origin gold without any supporting documents whatsoever in the presence of the independent witnesses, as per due process and procedure. It is submitted that whatsapp messages exchanged between him and Shri Ashok Jalan and the whatsapp calls made between them provides unclenching evidence about their acquaintance and complicity in the case. It is submitted that hence the prisoner's petition/retraction petition does not prejudice the decision of the Detaining Authority in passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further submitted by the learned Senior Advocate appearing on behalf of the original writ petitioner that though a specific reference has been made by the Detaining Authority regarding the factum of retraction of their statement by the present detenus, however, not a whisper has been made as to the fact of any retraction made by Shri Anand even in his bail application. It is submitted that even if the short denial of statement of bail application of Shri Anand is seen as retraction, the same has never gone into the mind making of the Detaining Authority for arriving at his subjective satisfaction. It is submitted that the Detaining Authority has chosen to make a detailed consideration of the retraction made by the detenus, but it will not show the same consideration to the retraction made by Shri Anand, it was alive and aware regarding the same. 6.3 It is further submitted that as such the retraction statement of Shri Anand has not been supplied by the Detaining Authority to the detenus. It is submitted that as per the relied upon documents, it is stated as "copy of retraction petition in respect of Shri Anand". It is submitted that however the above document is a bail applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial to arrive at the satisfaction regarding the imminent possibility of release on bail, more particularly when the bail application filed by both the detenus was already rejected by the Magistrate and no further bail application of the detenus was pending. 6.8 It is further submitted that indisputably bail application of the detenus was rejected on 12.06.2019. No further bail application was filed or pending before any court. It is submitted therefore the subjective satisfaction of the Detaining Authority that the detenus are likely to be released on bail has been vitiated and therefore the High Court has rightly quashed and set aside the orders of detention on this ground alone. In support, learned counsel has heavily relied upon the decisions of this Court in the cases of Rameshwar Shaw v. District Magistrate AIR 1964 SC 334; Kamaarunnissa (supra); T.V. Sravanan v. State (2006) 2 SCC 664; and Rekha v. State of T.N. (2011) 5 SCC 244. 6.9 Relying upon the decision of this Court in the case of Union of India v. Dimple Happy Dhakad (supra), it is vehemently submitted by the learned counsel appearing on behalf of the respondent that, as held by this Court, the satisfaction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, on the ground that there was 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 and also on the ground that nonplacement of the relevant material in the form of Anand's retraction petition and its nonconsideration by the Detaining Authority, also vitiates the detention orders. 8.1 Now so far as the first ground on which the detention orders have been set aside, namely, 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 imminent possibility of detenus being granted bail while recording its subjective satisfaction and passing the detention orders is concerned, at the outset, it is required to be noted that in paragraph 7, the Detaining Authority observed and stated as under: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority. 8.2 In the case of Noor Salman Makani (supra), a submission was made regarding non-application of mind by the Detaining Authority with regard to the circumstance that the detenu was in jail and a mere bald statement that the possibility that the detenu was likely to be released on bail cannot be ruled out is not enough and it only shows that there was no proper application of mind. This Court did not accept the said submission and has observed that nothing more could have been said by the Detaining Authority in this context. It is required to be noted that in the said decision the apprehension of the Detaining Authority came to be true as the detenu was released on bail. This Court refused to set aside the detention order on the aforesaid ground. It appears that the detenus were waiting for the setting aside of the detention orders on the ground that they are in custody and that there is no real apprehension that the detenus are likely to be released on bail. As discussed earlier, the detention or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears to us, to be the correct legal position." 8.4 Now so far as the reliance placed upon the decisions of this Court in the cases of Rekha (supra) and T.V. Sravanan (supra) by the learned counsel appearing on behalf of the detenus is concerned, at the outset, it is required to be noted that on the facts and circumstances of the case, narrated hereinabove, the aforesaid decisions shall not be of any assistance to the detenus and/or, as such, the same shall not be applicable to the facts of the case on hand. Even in the case of Rekha (supra), the decision of the Constitution Bench of this Court in the case of Rameshwar Shaw (supra) was not placed before the Court for consideration and therefore this Court had no occasion to consider the said decision. It is also required to be noted that even after considering the decision of this Court in the case of Rekha (supra), which has been heavily relied upon by the learned counsel appearing on behalf of the detenus, in the case of Dimpy Happy Dhakad (supra), this Court has observed that even if a person is in judicial custody, he can be put on a preventive detention provided there must be an application of mind by the Detaining Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aspect can be examined by the Court. (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a retraction petition was filed by Shri Anand. Therefore, and accordingly, a request was made before the learned Chief Metropolitan Magistrate, Calcutta for supply a copy of the same and accordingly the learned Chief Metropolitan Magistrate ordered advocate of Shri Anand to serve a copy of the retraction petition vide order dated 2.7.2019. It appears from the material on record that the office of DRI, Calcutta received a copy of the retraction petition of Shri Anand dated 22.6.2019 on 15.07.2019. Much reliance is placed upon the orders sheet of the learned trial Court dated 22.06.2019 in support of the submission on behalf of the detenus that the Sponsoring Authority was aware of the Anand's retraction statement and therefore the Sponsoring Authority ought to have drawn the attention of the Detaining Authority on the wider aspect of Anand's retraction. However, it is required to be noted that there are two orders available on the order sheet of the trial Court. First is the handwritten order and other is a typed order. All other orders are typed orders. The handwritten order does not bear the stamp of the court and/or signature of the learned Magistrate. Therefore, the handwr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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