2009 (5) TMI 117 - HC - Customs

Detention orders - Held that - As we have not embarked upon an examination of the detaining authority s satisfaction with regard to prejudicial activities because we find that this ground itself, i.e., of imminent likelihood of the petitioner being released on bail, is sufficient to decide the present petition. Since we have come to the conclusion that there was no material before the detaining authority on the basis of which she could have arrived at the satisfaction that there was imminent likelihood of the petitioner being released on bail, the detention order is liable to be set aside. It is so set aside. The petitioner is entitled to be released provided he is not required in any other case. The writ petition stands allowed to this extent.

Issues Involved:
1. Validity of the detention order under COFEPOSA.
2. Likelihood of the petitioner being released on bail.
3. Likelihood of the petitioner indulging in prejudicial activities upon release.
4. Compliance with legal precedents and principles regarding detention orders.

Detailed Analysis:

1. Validity of the Detention Order Under COFEPOSA:
The petitioner, aged about 65 years, was detained on 29-7-2008 under a detention order dated 28-7-2008 issued by the Joint Secretary to the Government of India under Section 3(1) of COFEPOSA. The detention order was based on the recovery of fake Indian currency from the petitioner and a co-accused. The petitioner was already in custody since 26-3-2008 for the same incident. The court noted that the petitioner's residence and office were searched, and nothing incriminating was found. Despite the petitioner's serious medical condition, his bail applications were repeatedly rejected.

2. Likelihood of the Petitioner Being Released on Bail:
The detaining authority justified the detention order on the grounds of the likelihood of the petitioner being released on bail, as stated in paragraph 22 of the grounds of detention. The petitioner's counsel argued that since previous bail applications were rejected, there was no imminent likelihood of release. The respondents contended that under Section 437(6) CrPC, the petitioner could be released on bail if 60 days elapsed from the first date fixed for taking evidence. However, this argument was rejected as the first date for taking evidence was fixed much later on 13-10-2008, which was not in the contemplation of the detaining authority at the time of the detention order.

3. Likelihood of the Petitioner Indulging in Prejudicial Activities Upon Release:
The petitioner's counsel argued that the antecedent activities did not indicate a likelihood of indulging in prejudicial activities if released. The respondents relied on Supreme Court decisions, asserting that even a single incident could justify preventive detention if it indicated future prejudicial activities. However, the court found that the detaining authority's satisfaction was not supported by material evidence and was merely based on assumptions.

4. Compliance with Legal Precedents and Principles Regarding Detention Orders:
The court referred to several Supreme Court decisions, including Surya Prakash Sharma, Rajesh Gulati, T.V. Sravanan, and Ramesh Yadav, which established that for a detention order to be valid against a person already in custody, there must be compelling reasons showing the likelihood of release and future prejudicial activities. The court found that the detaining authority's satisfaction regarding the imminent likelihood of release was not based on any material evidence and was merely ipse dixit.

Conclusion:
The court concluded that there was no material before the detaining authority to justify the satisfaction that there was an imminent likelihood of the petitioner being released on bail. Consequently, the detention order was set aside, and the petitioner was ordered to be released, provided he was not required in any other case. The writ petition was allowed to this extent, with no order as to costs.

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