Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Passing of detention order in case of person already in judicial custody – Subjective satisfaction of the Detaining Authority– One ‘A’ carrying 8 Kgs. of gold of foreign origin valued at Rs.2.71 crores approx. intercepted by the Directorate of Revenue Intelligence, Kolkata Zonal Unit – He indicated that he was engaged by the detenus – Detenus apprehended – Bail rejected– Remanded to judicial custody– Detention orders passed by the Detaining Authority– Writ petition filed by the respondent challenging the detention orders against his father and brother (detenus)– High Court quashed and set aside the detention orders – In appeal by both the parties and writ petitions filed by various writ petitioners, held: Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future – Detention orders show the application of mind by the Detaining Authority – Detenus were granted bail by the Court on the very date the orders of detention were quashed by the High Court, therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified – Further, when the detention orders were passed by the Detaining Authority, neither the Sponsoring Authority nor even the Detaining Authority was aware of any retraction petition of ‘A’ – No occasion and/or reason for the Detaining Authority to consider his retraction statement – Thus, it cannot be said that on nonconsideration of A’s retraction petition, the detention orders were vitiated – High Court erred in interfering with the subjective satisfaction of the Detaining Authority – Impugned judgment set aside – Detention orders of the respective detenus restored – Detenus be taken into custody forthwith by the Detaining Authority – In view of the judgment in Criminal Appeal arising from SLP (Criminal) No. 7010/2019, no merit found in the present writ petitions – Customs Act, 1962 – s.104, 108 – Constitution of India – Arts.22(5), 32.
Disposing of the matters, the Court
HELD: 1.1 The Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future. Even if a person is in judicial custody, he can be detained under the relevant provisions of the concerned Act, like COFEPOSA etc. However, there must be a proper application of mind and the Detaining Authority must have been subjectively satisfied on considering the relevant material that there is a reason to believe that there is a real possibility of detenus being released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities. In the recent decision, Supreme Court in Dimple Happy Dhakad observed and held (i) that the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody; (ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority that the detenu is already in custody 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. The detention orders show the application of mind by the Detaining Authority based on the material available on record, facts and circumstances of the case, nature of activities and propensity of the detenus indulging in such activities. Therefore, in the facts and circumstances of the case, the High Court has erred in setting aside the detention orders on the ground stated hereinabove, namely, that 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. [Paras 8.1, 8.2] [187-D-H; 188-A-C]
Rameshwar Shaw v. District Magistrate AIR 1964 SC
334 : [1964] SCR 921 – followed.
Union of India and another v. Dimple Happy Dhakad 2019 AIR 3428 ; Noor Salman Makani v. Union of India (1994) 1 SCC 381 ; N. Meera Rani v. Government of T.N. (1989) 4 SCC 418 : [1989] 3 SCR 901 – relied on.
Merugu Satyanarayana v. State of A.P. (1982) 3 SCC
301 : [1983] 1 SCR 635 ; State of Gujarat v. Sunil Fulchand Shah (1988) 1 SCC 600 : [1988] 2 SCR
903 ; Vijay Kumar v. Union of India (1988) 2 SCC 57 ; Abdul Sathar Ibrahim Manik v. Union of India (1992)
1 SCC 1 : [1991] 1 Suppl. SCR 435 ; Baby Devassy Chully v. Union of India (2013) 4 SCC 531 : [2012] 9 SCR 515 ; Raverdy Marc Germain Jules v. State of Maharashtra (1982) 3 SCC 135 ; Prakash Chandra Mehta v. Commissioner and Secretary., Government of Kerala (1985) Suppl. SCC 144 : [1985] SCR 697 ; Madan Lal Anand v. Union of India (1990) 1 SCC 81 : [1989] 1 Suppl. SCR 733 ; V.C. Mohan v. Union of India (2002) 3 SCC 451 : [2002] 2 SCR 144 ; Deepak Bajaj v. State of Maharashtra (2008) 16 SCC 14 : [2008] 15 SCR 1062 ; Rushikesh Tanaji Bhoite v. State of Maharashtra (2012) 2 SCC 72 : [2012] 2 SCR
640 ; A. Sowkath Ali v. Union of India (2000) 7 SCC
148 : [2000] 2 Suppl. SCR 48 ; P. Saravanan v. State of T.N. (2001) 10 SCC 212 ; Huidrom Konungjao Singh v. State of Manipur (2012) 7 SCC 181 : [2012] 5 SCR 1173 ; Union of India v. Paul Manickam (2003) 8 SCC
342 : [2003] 4 Suppl. SCR 618 Dharmendra
Suganchand Chelawat v. Union of India (1990) 1 SCC
746 ; Veeramani v. State of T.N. (1994) 2 SCC 337 : [1993] 3 Suppl. SCR 796 – referred to.
1.2 The detenus were granted bail by the Court on the very date the orders of detention were quashed by the High Court, i.e., on 2.8.2019. Therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified. Therefore, the High Court has fallen in error in quashing and setting aside the detention orders on the ground that 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. It appears that Memo No. 9920/AB-I dated 31.08.2019 of Jail Authority, prisoner’s (Shri ‘A’) petition dated 22.6.2019 was forwarded to the Chief Metropolitan Magistrate, Calcutta only. It appears that the said petition was not forwarded to any other concerned including the Sponsoring Authority or Detaining Authority. It also appears from the material on record that as per letter Memo No. 9899/AB-I dated 30.08.2019 of Jail Authority, a copy of the prisoner’s petition of Shri ‘A’ dated 22.6.2019 was forwarded on 22.6.2019 itself to the Chief Metropolitan Magistrate, Calcutta. The same was received by the office of the Chief Metropolitan Magistrate, Calcutta on 24.6.2019. It appears that Shri ‘A’ and the detenus herein were produced before the Chief Metropolitan Magistrate, Calcutta from judicial custody on 2.7.2019 and during the course of hearing, it had come to the notice of prosecution that a retraction petition was filed by Shri ‘A’. Therefore, and accordingly, a request was made before the Chief Metropolitan Magistrate, Calcutta for supply a copy of the same and accordingly the Chief Metropolitan Magistrate ordered advocate of Shri ‘A’ 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 ‘A’ dated 22.6.2019 on 15.07.2019. 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 Magistrate. Therefore, the handwritten order does not inspire any confidence and therefore no reliance can be placed upon the handwritten order on the order sheet of the trial Court dated 24.06.2019. Under the circumstances, it appears that when the detention orders were passed by the Detaining Authority, neither the Sponsoring Authority nor even the Detaining Authority was aware of any retraction petition of Shri ‘A’. Under the circumstances, there was no occasion and/or reason for the Detaining Authority to consider the retraction statement of Shri ‘A’. Under the circumstances, it cannot be said that on non-consideration of the ‘A’s’ retraction petition, the detention orders were vitiated. The High Court committed grave error in quashing and setting aside the detention orders and interfering with the subjective satisfaction of the Detaining Authority. Consequently, the appeal preferred by the Detaining Authority, i.e., Civil Appeal arising from Special Leave Petition (Criminal) No. 7010 of 2019 is allowed, the impugned judgment and order passed by the High Court quashing and setting aside the detention orders is hereby quashed and set aside and the detention orders of the respective detenus are hereby restored. The detenus, shall be taken into custody forthwith by the Detaining Authority. Accordingly, the special leave petition preferred by the respondent, i.e., Special Leave Petition (Criminal) No. 7013/2019 stands dismissed. [Paras 9-11] [191-C-H; 192-A-H; 193-A]
1.3 Writ Petition (Criminal) Nos. 204, 206 & 209/2019 In view of the judgment rendered in Criminal Appeal arising from Special Leave Petition (Criminal) No. 7010/2019, no merits found in the present writ petitions and they are accordingly dismissed. [Para 11]
T.V. Sravanan v. State (2006) 2 SCC 664 ; Rekha v. State of T.N. (2011) 5 SCC 244 : [2011] 4 SCR 740 – held inapplicable.
Kamarunnisa v. Union of India (1991) 1 SCC 128 : [1990]
1 Suppl. SCR 457 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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