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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 ..... as 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. - CRIMINAL APPEAL NO. 866 OF 2008 - - - Dated:- 12-10-2012 - P. SATHASIVAM AND RANJAN GOGOI, JJ. For Appellant(s) Mr. K.K. Mani,Adv., Mr. Abhishek Krishna,Adv., Mr. Prakash Kumar Singh,Adv. For Respondent(s) Mr. B. Krishna Prasad,Adv., Ms. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel to the Indian Coast and to deliver the consignment to one Bobby-the detenu in India. On the same day, the statement of Sayyed Hussain Madar @ Chand was also recorded wherein he, inter alia, stated that he was to purchase the said Diesel Oil brought by Bobby in India and sell the same. (c) During the course of follow-up action of the said seizure of the vessel, the officers of the DRI, Mumbai seized about 5.127 MTs of previously smuggled diesel oil stored in two barges at Reti Bunder, Belapur and arrested Chand, Captain Fouad Ahmed Al Manie, Shaikh Ahmedali, Murugan Murugeshan and Sadiq Anwar under Section 104 of the Customs Act, 1962 on 23.12.2004 and were produced before the Addl. CMM, Esplanade, Mumbai on 24.12.2004 and were later released on bail on 09.02.2005. However, subsequently, all of them retracted their statements. On 04.03.2005, residential premises of the appellant-Bobby were searched and finally he was traced on 14.03.2005. On the same day, he moved an anticipatory bail application in the Sessions Court, Mumbai which was rejected on 24.03.2005. On 24.03.2005, the statement of Bobby was recorded under Section 108 of the Customs Act, 1962. On the basis of his stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly adhered to by the Detaining Authority; and (iii) all the points raised by the learned counsel for the appellant before this Court had already been considered and negatived by the High Court, hence, there is no ground for interference. 6) We have carefully considered the rival contentions, perused the detention order, grounds of detention and all the connected materials. 7) At the foremost, Mr. K.K. Mani, learned counsel for the appellant pressed into service the decision of this Court in Rekha vs. State of Tamil Nadu Through Secretary to Government and Anr., (2011) 5 SCC 244. He very much relied on paragraph 29 of the said decision which reads as under: "29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of detention was necessary for putting him back in jail. He also contented that the service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under Section 3(2) of the National Security Act, 1980. While considering the said claim, this Court, in paragraph 7, held as under: "7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised........" 10) It is clear that if a person concerned is in custody and there is no imminent possibility of his being released, the rule is that the power of preventive detention should not be exercised. In the case on hand, it is not in dispute that on 12.04.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the said persons or the Advocate's on the rebuttal filed by DRI." It is equally true that there is no reference to confessional statement of the co-accused. As rightly pointed out by the learned counsel for respondent Nos. 1 2 that what the Detaining Authority has stated in paragraph 10, extracted above, is only mere reference or narration of fact for completion of the proceedings. In other words, we are satisfied that it is not relied upon statement/document as claimed by the learned counsel for the appellant. No doubt, by drawing our attention to the decision in A. Sowkath Ali vs. Union of India Ors., (2000) 7 SCC 148, Mr. K.K. Mani, learned counsel for the appellant contended that both the confessional and retraction statements ought to have been placed and furnished to the appellant. In the said decision, this Court has held that the confessional statement and the retraction statement both constituting a composite relevant fact should have been placed. It was further held that if any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the Detaining Authority. Therefore, it was held that non-placement of the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there has been a violation of Article 22(5) of the Constitution, then it has no discretion in the matter but is bound to grant the relief to the detenu by setting aside the order of detention. The doctrine of res judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution. In a recent decision in the case of Santosh Anand v. Union of India, (1981) 2 SCC 420 this Court has pointed out that the concept of liberty has now been widened by Maneka Gandhi case (1978) 1 SCC 248 where Article 21 as construed by this Court has added new dimensions to the various features and concepts of liberty as enshrined in Articles 21 and 22 of the Constitution. For these reasons, therefore, we overruled the preliminary objection taken by the respondents." In view of the same and in the light of the additional grounds raised and also of the fact that the issue relates to personal liberty of a citizen, we reject the objection of the respondents and hold that the present appeal cannot be dismissed on the grounds of res judicata. 14) Before winding up, it is our d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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