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TMI Blog2015 (6) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... . Since the petitioner was already in JC, the respondent could not have arrived at its subjective satisfaction when the petitioner was likely to be released on bail, or that there was a possibility of the petitioner absconding and interfering in the investigation being conducted into the activities of the other members of the smuggling syndicate. The bail applications moved by the petitioner had been rejected by the Courts, and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The "imminent possibility" of the petitioner coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. - Decided in favour of appellant. - W.P.(CRL) 1208/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h inordinate delay of seven months from the date of petitioner's arrest, the respondent No.1, i.e. the Union of India (UOI) passed the detention order on 12.12.2012, which was served on the petitioner, while in custody. The petitioner's representation before the Advisory Board was rejected, whereupon the order of detention was confirmed on 05.03.2013. 6. The Grounds of Detention (GoD), which accompanied the detention order recite that specific information was received by the DRI to the effect that the petitioner would arrive from Bangkok on 20.05.2012 and would stay at Room No.105 at Hotel My Inn , and that the petitioner would be carrying FICN on his person or in his baggage. Import of FICN is absolutely prohibited under the Customs Act and is liable for confiscation under Section 111 of the Customs Act. Consequently, officers of the DRI reached hotel My Inn on 20.05.2012 at 1900 hrs. and in the presence of witnesses searched, inter alia, the petitioner's baggage. In one of the belongings of the petitioner, i.e. a cardboard package having printed mark Sony Bravia Model BX 35 32 80.0cm, one Sony LCD TV was found. The said Sony LCD TV was opened from the back, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd that the petitioner was placed under arrest under the provisions of Section 104 of the Customs Act, 1962 on 21.05.2012 at 20:00 hrs. vide Arrest Memo dated 21.05.2012, whereafter the petitioner was offered bail vide order dated 21.05.2012, subject to his furnishing a personal bond in the sum of ₹ 2,00,000/- with two sureties of the like amount. However, the petitioner could not furnish the surety bond. His acquaintances/ relatives did not come forward to furnish the bail bond. 11. Once again, the petitioner was granted bail vide order dated 22.05.2012 passed by the learned ACMM. However, the sureties who furnished the surety did not appear before the Court and consequently, the surety/ personal bond was dismissed by the learned ACMM, Patiala House Courts, New Delhi on 28.05.2012. The Judicial Custody (JC) of the petitioner was extended from time to time from 24.05.2012 up to 17.12.2012. 12. Meanwhile, a reference was made to the CBI vide DRI letter dated 21.05.2012 regarding seizure of the FICN in question. The CBI lodged FIR No.RC 220 2012 E 0014 EOU-VI, EO-II dated 22.05.2012 under Section 120-B read with Sections 489B 489C of the IPC against the petitioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the petitioner is that at the time when the detention order was passed, the petitioner was already in custody, as the petitioner had been denied bail twice over in the CBI case aforesaid. Bail was firstly rejected on 29.06.2012, whereafter the CBI filed chargesheet on 21.08.2012. Even thereafter the second bail application was rejected by the learned ACMM, New Delhi on 22.09.2012. Learned counsel submits that no bail application had been filed by the petitioner thereafter, and none was pending. There was no material before the detaining authority to apprehend that the petitioner may be released on bail when no such application was moved by the petitioner, or pending before the Court. Learned counsel submits that the detention order was passed without due application of mind, and without there being any cause for passing the same, as the petitioner was already under detention and, therefore, the detaining authority could not have arrived at its subjective satisfaction with regard to the petitioner absconding, or interfering in the investigation being conducted by the respondents. 17. In support of his submissions, learned counsel for the petitioner sought to place reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and Nawab are engaged in the smuggling of FICN into India from Bangkok and that you got acquainted with these persons through your brother-in-law, Mr. Taranjit Singh Anand, who is residing in Japan and running a hotel/restaurant business; that you know the proprietor of M/s Khurana Inn at 120/176-178, Baiyoke Tower 2, behind Indra Hotel, Pratunam, Rajprarop Road, Bangkok, Thailand, Tel.No.582 2080517-9, Fax No.862 208 0009 where Shera @ Bunty and Aslam had stayed for a period of 35 days from 16.04.2012 to 21.05.2012 by procuring the copy of the ID/passport details mentioned in the Hotel Register for knowing their correct identity and address, nationality etc. 27. During investigation, a copy of the passport of the said Mohd Aslam Rathor was procured and it was brought to light during interrogation that seized consignment of FICN were brought by Shri Adarsh Pal Singh, i.e. you, from one Mohd. Aslam Rathor, Pakistani National, S/o Abdul Sattar, holding Islamic Republic Paksitan Passport No. AA9446821 issued on 10.01.2008 and valid upto 08.01.2013, D.O.B:01.01.1966, place of birth Karachi, Pakistan. Investigation has further revealed the existence of organized syndicate of FICN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s own currency leading to fear psychosis of the public in general. It leads to criminal activity entering the realm of national security. The intention is to cause damage and destruction of India's legal tender and monetary system. 19. Mr. Soni submits that after 20.05.2012, the respondent was engaged in the process of developing information and making further investigation. He submits that the petitioner has withheld the contact details of Nawab, Shera @ Bunty Aslam. As noticed above, Nawab was the person named, who had to collect the TV set from the petitioner, whereas Shera @ Bunty Aslam had met and interacted with the petitioner at Bangkok. 20. Mr. Soni submits that during investigation, it had come out that the petitioner had brought the FICN from one Mohd. Aslam Rathore, a Pakistani national. Further investigation had revealed the existence of an organized syndicate of FICN racketeers, of which the petitioner was found to be a part, responsible for pumping FICN into the country by getting them smuggled them across from Bangkok. Investigation revealed that Mohd. Aslam Rathore and Shera @ Bunty - both Pakistani nationals, and the petitioner were a part of cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the GoD to claim that further investigation was in progress and, therefore, the detaining authority was justified in passing the detention order, as it did on 12.12.2012, appears to be of no avail. A perusal of the aforesaid extract from the GoD does not disclose that information was being gathered, or developed qua the petitioner till the time before the passing of the detention order. The respondent has not relied upon any fact discovered, or any further development in relation to the case pertaining to the petitioner after the date on which the chargesheet was filed, i.e. on 21.08.2012. The detaining authority observes in paragraph 37 of the GoD as follows: 37. I am also aware that detailed investigation is being conducted in close coordination with the concerned agencies at Bangkok, Thailand and Islamabad, Pakistan to unearth the nefarious activities of the syndicate involved in smuggling FICN into the country and your role therein. The investigation of CBI is in progress and has not yet been completed as the accused Mohd. Aslam Rathore (Pakistani National), Shera@Bunty and Nawab, r/o Delhi are yet to be traced and arrested for the purpose of investigation. I am therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner . This decision has been followed in Adishwar Jain (supra) and Abdul Kalam @ Mullaji (supra). 28. There is also merit in the petitioner's submission that there was no justification for passing the detention order on 12.12.2012 since the petitioner was already in custody in the CBI case; his two bail applications - one filed before the filing of the chargesheet and one thereafter, had been rejected and; no fresh bail application had been moved by the petitioner before the learned ACMM. Since the petitioner was already in JC, the respondent could not have arrived at its subjective satisfaction when the petitioner was likely to be released on bail, or that there was a possibility of the petitioner absconding and interfering in the investigation being conducted into the activities of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there being any possibility of the petitioner being granted bail by either Court when the petitioner had not even applied for bail in the CBI case. Obviously, if such an application were to be moved, notice would have to be issued to the Public Prosecutor and only after hearing the parties, bail could be granted. Therefore, there was no basis to entertain the apprehension that bail would be granted to the petitioner, or that if he is enlarged on bail, he shall abscond, or interfere with the investigation into the activities of the other members of the smuggling syndicate. 31. In Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors., (1986) 4 SCC 416, the Supreme Court observed as follows: 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 imminen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the five applications filed by the appellant for bail had been rejected by the Courts (indicating that this was not a 'normal' case), on what material did the detaining authority conclude that there was imminent possibility that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the normal rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. [See: in this context Ramesh Yadav v. District Magistrate : (1985) 4 SCC 232]. 34. We are, thus, satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the petitioner had been rejected by the Courts, and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The imminent possibility of the petitioner coming out on bail is merely the ipse dixit of the detaining au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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