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2012 (10) TMI 505 - SC - CustomsSmuggling - vessel was carrying High Speed Diesel (HSD) from Muscat & Captain was not holding any legal documents for import of the said diesel oil into India - S.L.P. against detention order on non-application of mind - Held that - It is true that though the detenu was granted bail on 12.04.2005, for the reasons best known to him, he did not avail such benefit and continued to be in jail on the date of the detention, i.e., 03.05.2005. It is true that this aspect has not been mentioned in the detention order, however, on the other hand, it is not in dispute that the grounds of detention which forms part of the Detention Order dated 03.05.2005 clearly mention the details about the bail order dated 12.04.2005 and non-availing of the same on the date of detention order, i.e., 03.05.2005. As the Detaining Authority was aware of the grant of bail and clearly stated the same in the grounds of detention, the contra arguments made by the appellant rejected. The Detaining Authority was conscious that the detenu was having the order of bail in his hand, it is presumed that at any moment, it would be possible for him to come out and indulge in prejudicial activities of all relevant aspects and passed the impugned order of detention in order to prevent the appellant from abetting the smuggling of goods in future. It is the subjective satisfaction of the Detaining Authority whether the order of detention is to be invoked or not. Keeping the writ petition pending after hearing the parties and compelling the detenu to wait for 5 months to know the result of his petition, cannot be accepted. We request all the High Courts to give priority for the disposal of the matters relating to personal liberty of a citizen, particularly, when the detention period is for one year or less than a year and, more so, after hearing the parties, the decision must be known to the affected party without unreasonable delay.
Issues Involved:
1. Compelling necessity to detain the appellant under COFEPOSA Act while he was already in jail. 2. Non-application of mind by the Detaining Authority. 3. Reliance on retraction statements of co-accused without considering their confessional statements. 4. Applicability of res judicata to the present appeal. 5. Delay in the High Court's judgment affecting the personal liberty of the appellant. Detailed Analysis: 1. Compelling Necessity to Detain the Appellant Under COFEPOSA Act While He Was Already in Jail: The appellant contended that since he was in jail on the date of the detention order (03.05.2005), there was no compelling necessity to detain him under the COFEPOSA Act. The Court referred to the decision in *Rekha vs. State of Tamil Nadu Through Secretary to Government and Anr.*, emphasizing that preventive detention should be used with great circumspection. However, it was noted that although the appellant was granted bail on 12.04.2005, he did not avail it and remained in jail. The Court held that the Detaining Authority was aware of the bail order and the appellant's potential release, which justified the detention order to prevent future prejudicial activities. 2. Non-application of Mind by the Detaining Authority: The appellant argued that the Detaining Authority failed to consider that he was in custody on the date of the detention order, indicating non-application of mind. The Court acknowledged that while the detention order did not explicitly mention the appellant's custody status, the grounds of detention did reference the bail order and the appellant's non-availment of bail. The Court concluded that the Detaining Authority was conscious of all relevant aspects and passed the detention order to prevent future smuggling activities. 3. Reliance on Retraction Statements of Co-accused Without Considering Their Confessional Statements: The appellant contended that the Detaining Authority relied on the retraction statements of co-accused without considering their confessional statements, which vitiated the detention order. The Court observed that paragraph 10 of the grounds of detention merely referenced the retraction statements for procedural completeness and did not rely on them substantively. The Court reiterated that all relevant documents must be placed before the Detaining Authority, but in this case, the retraction statements were not relied upon for the detention decision. Hence, this contention was rejected. 4. Applicability of Res Judicata to the Present Appeal: The respondents argued that the appellant was barred from filing the present appeal due to the dismissal of a previous writ petition by the Supreme Court. The Court referred to *Kirit Kumar Chaman Lal Kundaliya vs. Union of India & Ors.*, which held that the doctrine of res judicata does not apply to cases involving personal liberty under Article 32 of the Constitution. The Court emphasized that the issue of personal liberty allows for separate and independent jurisdiction under Articles 226 and 32. Therefore, the objection of res judicata was rejected. 5. Delay in the High Court's Judgment Affecting the Personal Liberty of the Appellant: The appellant highlighted that the High Court reserved its judgment for nearly five months, which delayed the resolution of his petition. The Supreme Court expressed concern over this delay, emphasizing that matters affecting personal liberty should be prioritized and decided expeditiously. The Court requested all High Courts to ensure timely decisions in cases involving personal liberty, particularly when the detention period is limited. Conclusion: After considering all the contentions, the Supreme Court found no merit in the appellant's arguments. The detention order was upheld, and the appeal was dismissed. The Court also reminded High Courts to expedite decisions in cases affecting personal liberty to avoid unreasonable delays.
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