2016 (3) TMI 1213 - SC - Customs

Validity of preventive detention order in respect of the husband of the appellant who was already in jail - Held that - reliance placed in the case of Rekha Versus State of T. Nadu TR. SEC. TO Govt. & Anr 2011 (5) SCC 244 , where it was held that only in those cases where there is a real possibility of release of a person on bail who is already in custody, action can be taken for detention of such a person by passing orders of preventive detention under COFEPOSA Act. Otherwise, there is no occasion and justification to pass such an order - the detention order cannot be sustained - appeal allowed - decided in favor of petitioner.

Summary

Issues:
1. Validity of the detention order under COFEPOSA Act when the detainee was already in jail.
2. Justification for passing preventive detention orders when no bail application is pending.

Issue 1: Validity of the detention order under COFEPOSA Act when the detainee was already in jail:
The case involved a detention order passed under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against the husband of the appellant while he was already in jail. The appellant challenged the detention order through a writ petition after it was executed on her husband. The High Court dismissed the writ petition, leading to the appeal in the Supreme Court. The appellant argued that since her husband was already in custody without any bail application pending, there was no basis for the detention order. The Supreme Court referred to various judgments, including 'Rekha v. State of Tamil Nadu,' which emphasized that preventive detention orders can only be justified when there is a real possibility of the person being released on bail. The Court reiterated that in the absence of a pending bail application, there is no legal basis for preventive detention. Therefore, the Supreme Court allowed the appeal, set aside the High Court's order, and quashed the detention order dated 06.10.2003.

Issue 2: Justification for passing preventive detention orders when no bail application is pending:
The appellant's counsel argued that without a pending bail application, there was no apprehension or justification for the detaining authority to pass a preventive detention order against the appellant's husband who was already in jail. The Supreme Court, relying on the principle laid down in 'Rekha v. State of Tamil Nadu,' highlighted that the possibility of release on bail is a crucial factor in justifying preventive detention. The Court emphasized that unless there is a realistic chance of the person being granted bail, passing a detention order is unwarranted. The judgment underscored that the mere fact of being in custody without a bail application does not warrant preventive detention. Therefore, the detention order in this case was deemed invalid, and the appeal was allowed, leading to the quashing of the detention order dated 06.10.2003.

Separate Judgments:
The Supreme Court, comprising Mr. A.K. Sikri and Mr. R.K. Agrawal, JJ, delivered a comprehensive judgment addressing the issues raised regarding the validity of preventive detention orders when the detainee is already in custody and the necessity for a pending bail application to justify such orders. The Court's decision was based on established legal principles and precedents, ultimately leading to the quashing of the detention order in question.