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2019 (11) TMI 1088 - SC - Indian LawsRelease of detenue on bail - Smuggling of Gold - COFEPOSA Act - High Court has set aside the respective orders of detention and released the detenus, namely, Ashok Kumar Jalan and Amit Jalan under the provisions of COFEPOSA - HELD THAT - The orders of detention are set aside by the High Court mainly, inter alia, on the ground that there was 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 and also on the ground that non-placement of the relevant material in the form of Anand s retraction petition and its non-consideration by the Detaining Authority, also vitiates the detention orders. Therefore, it is evident that 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. A Constitution Bench of this Court in the case of RAMESHWAR SHAW VERSUS DISTRICT MAGISTRATE BURDWAN 1963 (9) TMI 55 - SUPREME COURT has observed and held that the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. It is further observed that therefore the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. The High Court has committed a grave error in quashing and setting aside the detention orders and interfering with the subjective satisfaction of the Detaining Authority - The detenus, i.e., Ashok Kumar Jalan and Amit Jalan shall be taken into custody forthwith by the Detaining Authority - SLP dismissed.
Issues Involved:
1. Validity of Detention Orders 2. Imminent Possibility of Release on Bail 3. Non-consideration of Retraction Petition 4. Constitutionality of Section 13 of COFEPOSA Act Detailed Analysis: 1. Validity of Detention Orders: The Supreme Court examined the validity of the detention orders passed against the detenus under the COFEPOSA Act. The High Court had quashed the detention orders on the grounds that the Detaining Authority failed to consider the imminent possibility of the detenus being granted bail and did not consider the retraction petition of a co-accused, Anand. 2. Imminent Possibility of Release on Bail: The Supreme Court noted that the Detaining Authority was aware that the detenus were in judicial custody and recorded that there was an "immediate possibility of their release from judicial custody" and that they were likely to continue their prejudicial activities if released. The Court emphasized that the Detaining Authority must be satisfied that the detenu is likely to be released on bail and would continue indulging in prejudicial activities upon release. The Court cited several precedents, including *Union of India v. Dimple Happy Dhakad* and *Kamarunnisa v. Union of India*, affirming that detention orders can be validly passed against persons in custody if there is a real possibility of their release and a likelihood of indulging in prejudicial activities. The Court found that the High Court erred in setting aside the detention orders based on the Detaining Authority's failure to consider the imminent possibility of bail. The Supreme Court highlighted that the detenus were granted bail on the same day the High Court quashed the detention orders, validating the Detaining Authority's apprehension. 3. Non-consideration of Retraction Petition: The Supreme Court addressed the issue of the non-consideration of Anand's retraction petition by the Detaining Authority. It was argued that the retraction petition was not placed before the Detaining Authority and thus not considered. The Court found that the petition was forwarded only to the Chief Metropolitan Magistrate, Calcutta, and not to the Sponsoring or Detaining Authorities. The Detaining Authority received a copy of the retraction petition only after the detention orders were passed. Therefore, the Court concluded that there was no occasion for the Detaining Authority to consider the retraction petition at the time of passing the detention orders. The Court cited *Raverdy Marc Germain Jules v. State of Maharashtra* to support the view that non-consideration of such a petition does not necessarily vitiate the detention orders. 4. Constitutionality of Section 13 of COFEPOSA Act: The petitioners sought a declaration that the disjunctive 'or' in Section 13 of the COFEPOSA Act should be read as 'and' to ensure that only actions done in good faith are protected. However, no arguments were advanced during the hearing to support this plea. The Supreme Court dismissed the writ petitions, finding no merit in them, especially in light of its judgment on the detention orders. Conclusion: The Supreme Court allowed the appeal by the Detaining Authority, quashed the High Court's judgment, and restored the detention orders. The detenus were ordered to be taken into custody forthwith. The writ petitions challenging the constitutionality of Section 13 of the COFEPOSA Act were dismissed.
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