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TMI Blog2008 (2) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... Jail, Tihar, New Delhi. Inasmuch as the Petitioner had been arrested on 29.10.2007 he would have been statutorily entitled to be enlarged on bail under Section 167(2) of the Code of Criminal Procedure, 1973 (Cr. PC) on the expiry of sixty days of his arrest since the maximum punishment awardable to him does not exceed seven years [Reference can usefully be made to Raj Kumar Aggarwal v. Director General, Central Excise 2008 (229) ELT 350 (Del)]. Therefore, the date of the Detention Order, that is, 27.12.2007 assumes obvious importance and significance. It has not been contested that but for the impugned Detention Order Shri B.K. Goyal would not have remained incarcerated for offences within the present contemplation. Suffice it to mention that in paragraph B(ii) of the Counter Affidavit of the Respondents it has been asseverated that "the fact that the detenu was granted bail under Section 167(2) of Cr. P.C. as mentioned by the petitioner was not in the knowledge of the Detaining Authority. It is denied that the detention order has been used as a device to scuttle the release of the detenu on bail as alleged.... The Detaining Authority has further shown her awareness and mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction is a danger to the democratic way of life. The large number of habeas corpus petitions and the more or less stereotyped grounds of detention and inaction by way of prosecution, induce us to voice this deeper concern. Moreover, a criminal should not get away with it as an unconvicted detenu if the rule of law is a live force" (see Bhut Nath Mete v. State of W.B. 1974 CriLJ 690 ). The other dimension repeatedly emphasised by the Apex Court is that the draconian power of preventive detention can be resorted to only upon a strict adherence and compliance of procedural law. In Rajesh Gulati v. Govt. of NCT of Delhi 2002 CriLJ 4299 their Lordships clarified that "preventive detention must be meticulously followed with substantively and procedurally by the detaining authority. The object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3(1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 26.4.2004 and 14.5.2004 from Sanjay Gandhi Transport Nagar and Village Badli, Delhi; that you were examined on 26.8.2004 and were subsequently arrested for offences punishable under the provisions of Customs Act, 1962; that you were also detained under COFEPOSA Act on 20.02.2006 for your involvement in that case. However, the Detention Order was set aside by the Hon'ble Delhi High Court vide judgment dated 07.08.2006. The prosecution case against you was filed by DRI, New Delhi under the Customs Act, 1962 and the trial is in progress. 36. Taking into consideration the foregoing facts and materials on record, I am reasonably satisfied that your activity amounts to smuggling as defined in Section 2(39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 via Section 2(e) thereof since your acts and omissions have rendered the goods involved liable to confiscation under Section 111 of the Customs Act, 1962. Considering the nature and gravity of the offence, your role therein and the deliberate planned manner in which you have engaged yourself in the aforesaid prejudicial activity as well as your detention under the COFEPOSA Act, 1974 in the past, all of which ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that if the previous Detention Order has been quashed on remediable technicalities, fresh Detention Order based on the previous "cause of action" would be permissible. 7. We shall deliberate upon the second question first. In Chhagan Bhagwan Kahar v. N.L. Kalna 1989 CriLJ 1145 one of the contentions was that "the present detaining authority took into consideration the previous grounds of detention also to establish that the petitioner was engaged in bootlegging activities since long". Their Lordships opined that "even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the court strikes down an earlier order by issuing rule it nullifies the entire order". The Court drew support from their previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake it malafide if it is shown that the discharge was because witnesses were afraid to give evidence against the Detenu. The seeming divergence between the ratio of these cases and of Chhagan Bhagwan Kahar, Jahangirkhan Fazalkhan Pathan and Ibrahim Bachu Bafan on the other have to be reconciled. For our purposes, we are bound by the latter and second string, which are also later in time. 8. We shall now cogitate upon the first question i.e. that reference to the previous Detention Order was only by way of narration of relevant facts. We reiterate our view that if this narration is missing it may be indicative of the failure of the Detaining Authority to consider all relevant facts. It would, however, be impermissible for the Detaining Authority to disregard the annulment, and rely on the issuance of the Detention Order to buttress a fresh order. We are also unable to accept the sagacious argument of learned ASG to the effect that mention of the previous Detention Order was only intended to complete the factual matrix. The Counter Affidavit which is a reiteration of the Grounds of Detention is to the effect that the Detaining Authority rightly placed reliance on the quashing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Detaining Authority in passing a Detention Order. This could only have been explained and elucidated by Ms. Rashida Hussain. Government servants are entitled to avail of and enjoy their leave entitlement, but where the Court is to pronounce upon the legitimacy of a Preventive Detention Order, in other words where the personal liberty of a citizen has been curtailed, it would become necessary for the Counter Affidavit to be filed by the Detaining Authority, namely, Ms. Rashida Hussain herself. In Shaik Hanif's case their Lordships found the Explanation that the District Magistrate had been transferred from that District, to be "far from satisfactory". 11. It is in these circumstances that we had put it to learned ASG that the Respondents should consider the expediency of revoking the Detention Order by exercising the powers available under Section 11 of the COFEPOSA Act. It has already been discussed above that recourse to such a revocation would palpably enable the Respondents to pass a fresh Detention Order by removing errors in the assailed one. The learned ASG has replied by saying that since the matter is sub judice, it may not be appropriate to charter this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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