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TMI Blog2012 (10) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... or 21st December, 2004 and the said diesel oil would be smuggled into India. The officers of the DRI, Mumbai, therefore, kept surveillance in that area and on 21.12.2004, the officers spotted the said vessel. They noticed two self propelled barges and two dumb barges each towed by a tow boat were around the said vessel. They also noticed that pipes were attached from the said vessel to the barges and oil was being pumped into the barges from the vessel. The officers of the DRI boarded the said vessel and took control of the same. The vessel and barges were found to be of Mumbai coast within the Indian territorial waters. When the officers made enquiry with the Captain of the vessel - Fouad Ahmed Al Manie, he informed that the vessel was carrying High Speed Diesel (HSD) from Muscat. The Captain was not holding any legal documents for import of the said diesel oil into India. The Captain informed the officers that he has already discharged around 250 MTs of oil from the vessel into three barges before they boarded the vessel. The officers, therefore, brought the said vessel and barges to the P and V Anchorage of Port Trust, Mumbai. Two independent panchas were brought and detailed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition No. 1500 of 2005 before the Bombay High Court. The High Court, finding no substance in the writ petition, by impugned judgment dated 16.03.2006, dismissed the same. (e) Aggrieved by the said judgment, the appellant has filed this appeal by way of special leave before this Court. On 09.05.2008, leave was granted. 3) Heard Mr. K.K. Mani, learned counsel for the appellant, Mr. K. Swami, learned counsel for respondent Nos. 1 & 2 and Ms. Asha Gopalan Nair, learned counsel for Respondent No.4-State. 4) Mr. K.K. Mani, learned counsel for the appellant, after taking us through the detention order dated 03.05.2005 and the grounds of detention as well as the impugned order of the High Court dismissing the writ petition raised the following contentions: (i) inasmuch as on the date of passing of the detention order, i.e., 03.05.2005, the appellant was in jail, in that event there is no compelling necessity to detain him under the provisions of the COFEPOSA Act ; (ii) the Detaining Authority failed to take note of relevant aspect, i.e., the detenu was in custody, hence, the Detention Order is liable to be quashed on the ground of non-application of mind; and (iii) the Detain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned for a particular period of time or not. In the impugned grounds of detention, the Detaining Authority has narrated all the reasons for passing the detention order detaining the appellant with a view to prevent him from abetting the smuggling of goods in future. 9) With regard to non-application of mind, Mr. K.K. Mani, learned counsel for the appellant pointed out that on the date of passing of the detention order, i.e., 03.05.2005, the detenu was in prison though he was granted bail on 12.04.2005, he had not availed the same and continued in prison on the date of order. According to him, this aspect was not reflected in the detention order which, according to him, vitiates the detention on the principle of non-application of mind. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove circumstances and of the fact that the Detaining Authority was aware of the grant of bail and clearly stated the same in the grounds of detention, we reject the contra arguments made by the learned counsel for the appellant. On the other hand, we hold that the Detaining Authority was conscious 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. 11) For the same reason, the other contention, namely, that no compelling necessity to pass the order of detention is to be rejected. As a matter of fact, learned counsel for the Detaining Authority took us through various grounds/details/materials adverted to in the impugned order and we are satisfied that it cannot be claimed that there was no compelling necessity to pass the order of detention. We have already pointed out that it is the subjective satisfaction of the Detaining Authority whether the order of detention is to be invoked or not. Accordingly, we reject the above contention also. 12) The next contention, namely, the Detaining Authority relied on the retraction statement of co-accused without looking into their confession, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, it is not in dispute that the appellant-detenu was supplied even the retraction statement referred to in paragraph 10 along with the grounds of detention. In such circumstance, this contention is also rejected. 13) Learned counsel appearing for respondent Nos. 1 & 2 has brought to our notice that on earlier occasion, i.e., 27.02.2006, the present appellant challenged the very same detention order by way of filing a writ petition being W.P.(Crl.) No. D-5620 of 2006 under Article 32 of the Constitution before this Court. By order dated 06.03.2006, this Court dismissed the said petition, hence, according to the learned counsel for the respondents, the appellant is debarred from filing the present appeal against the dismissal of the writ petition by the High Court of Bombay. Similar issue was considered by this Court relating to filing of Habeas Corpus petition under Article 32 of the Constitution of India in Kirit Kumar Chaman Lal Kundaliya vs. Union of India & Ors. (1981) 2 SCC 436 wherein this Court held in paragraph 10 as under: "10. ...................The doctrine of finality of judgment or the principles of res judicata are founded on the basic principle that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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