1991 (10) TMI 303 - SC - FEMA

Whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody? Held that - Sections 111 and 113 of the Customs Act provide for confiscation of improperly imported goods and exported goods respectively. The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non-existent. We see no force in this submission. The potentialities of the detenu as gathered from his act of smuggling that form basis for detention. It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling. It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him. In the result this Writ Petition is also dismissed.

Issues Involved:
1. Validity of detention order for a person already in custody.
2. Awareness and material necessity for detention.
3. Suppression of relevant material and non-application of mind.
4. Non-supply of bail application and order refusing bail.
5. Subjective satisfaction of the detaining authority.
6. Compelling necessity for detention despite custody.
7. Potentialities of the detenu and antecedents.

Analysis of the Judgment:

1. Validity of Detention Order for a Person Already in Custody:
Issue: Whether a detention order can be validly passed against a person who is already in custody.
Judgment: A detention order can validly be passed even in the case of a person who is already in custody. It must appear from the grounds that the authority was aware that the detenu was already in custody. If there is a possibility of his being released and he is likely to indulge in prejudicial activity upon release, then that would be a compelling necessity to pass the detention order. The order cannot be quashed merely because the proper course for the authority was to oppose the bail.

2. Awareness and Material Necessity for Detention:
Issue: Whether the detaining authority was aware of the detenu's custody and whether there was enough material necessitating the detention.
Judgment: The detaining authority must show awareness that the detenu is in custody and provide enough material justifying the detention. In this case, the detaining authority noted the likelihood of the detenu being released on bail and continuing smuggling activities, which was deemed a compelling necessity for detention.

3. Suppression of Relevant Material and Non-Application of Mind:
Issue: Whether the non-placement of bail application and the order refusing bail before the detaining authority amounts to suppression of relevant material and non-application of mind.
Judgment: The non-placement of the bail application and the order refusing bail before the detaining authority does not amount to suppression of relevant material as long as the detaining authority was aware of the detenu's custody. The question of non-application of mind does not arise in such circumstances.

4. Non-Supply of Bail Application and Order Refusing Bail:
Issue: Whether the non-supply of the bail application and the order refusing bail affects the detenu's right to make an effective representation under Article 22(5) of the Constitution.
Judgment: The non-supply of the bail application and the order refusing bail does not affect the detenu's right to make an effective representation when it is clear that the authority has not relied or referred to the same. Failure to supply these documents will not cause any prejudice to the detenu in making an effective representation if the detaining authority has merely referred to them in the narration of events and not relied upon them.

5. Subjective Satisfaction of the Detaining Authority:
Issue: Whether the subjective satisfaction of the detaining authority was validly arrived at.
Judgment: It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned. In this case, the detaining authority was satisfied that there was a likelihood of the detenu being released on bail and continuing smuggling activities, which justified the detention.

6. Compelling Necessity for Detention Despite Custody:
Issue: Whether there was a compelling necessity for detention despite the detenu being in custody.
Judgment: The detaining authority noted that the remand period was about to expire and there was a likelihood of the detenu being released on bail. The authority was satisfied that there was a compelling necessity to pass the detention order to prevent the detenu from continuing smuggling activities.

7. Potentialities of the Detenu and Antecedents:
Issue: Whether a solitary incident without antecedents can justify detention.
Judgment: Even a solitary incident may speak volumes about the potentialities of the detenu. The detaining authority can derive satisfaction from a single incident if it manifests the potentialities of the detenu in smuggling activities. The absence of antecedents does not necessarily invalidate the detention order.

Conclusion:
The Supreme Court dismissed the writ petitions, upholding the detention orders. The Court found that the detaining authority had validly considered the likelihood of the detenu's release and potential for continuing prejudicial activities. The non-supply of the bail application and order refusing bail did not prejudice the detenu's right to make an effective representation, as these documents were neither relied upon nor referred to by the detaining authority. The subjective satisfaction of the detaining authority was deemed valid, and the compelling necessity for detention was established based on the materials presented.

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