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TMI Blog2019 (6) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order of detention is unsustainable - appeal allowed. - CRIMINAL WRIT PETITION NO. 2844 OF 2019 - - - Dated:- 25-6-2019 - B.P. DHARMADHIKARI SMT.SWAPNA JOSHI, JJ. Mr. Vikram Chaudhary a/w Dr. Sujay Kantawala, Advocate Aishwarya Kantawala i/by Adv. Neha Ahuja for the petitioner in WP No. 2844 of 2019. Mr. Vikram Chaudhary a/w Dr. Sujay Kantawala, Advocate Aishwarya Kantawala i/by Adv. Sabin Joseph for the petitioner in WP No. 2843 of 2019. Mrs. Aruna Pai, Special PP for respondent nos. 1 to 3. Mr. J.P. Yagnik, APP for respondent State. JUDGMENT (Per Dharmadhikari,J.): These criminal writ petitions challenging the order of detention dated 17/5/2019 are admitted on 04/06/2019. At that time by a speaking order, this court directed respondent no. 3 Joint Secretary (COFEPOSA) Government of India to consider the writ petition itself as representation of the detenue under article 22(5) of the Constitution of India and to produce before this court the file concerning such consideration along with the orders passed thereon. The rule was then made returnable on 12/06/2019. We need not go to the circumstances in which therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en served upon both the petitioners on 18/5/2019 and the documents relied upon are served upon the petitioner in Writ Petition No. 2844 of 2019 on 21/5/2019 while on other petitioner on 22/5/2019. Submission is this belated supply of documents relied upon vitiates the entire exercise. 6. It is submitted that respondent no. 3 must demonstrate due application of mind to the fact that the petitioners were already in jail and order must demonstrate that there was imminent possibility of their release on bail and further possibility of their indulging in similar prohibited conduct based upon the material on record. Contention is the impugned order does not show any application of mind in this respect. 7. Learned senior Advocate Mr. Chaudhary submits that section 3(3) of Conservance of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act ) which permits the grounds to be served upon the detenue within 5 days has been violated in the present matter. It is further submitted that there is no material on record to show that time of 4 or 5 days taken for service of the documents relied upon was required to prepare the copies as alleged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. She also points out that after the orders of detention were served, the bail applications then pending before the Sessions Court were withdrawn by the petitioners. However, as no chargesheet could be filed within 60 days, they got default bail order. Because they were already in detention, they were not released. 13. She further states that as the grounds of detention were already served and supporting documents were made available within the stipulated time, petitioners have to show how any of their legal rights have been violated. They did not make any representation before receipt of documents and hence, in the absence of any prejudice, the technical objection on that ground is misconceived. 14. Learned senior counsel in brief reply invited our attention to the judgment in the case of Kameshkumar Ishwardas Patel Vs. Union of India and Ors. (1995) 4 Supreme Court Cases 51 to urge that there is no question of any prejudice in such matters and the concept of demonstrating prejudice in such violation of fundamental right is not germane in this jurisdiction. He also submits that the prosecution did not file any chargesheet on the strength of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of augmentation of the foreign exchange or with a view to preventing him from indulging in any of the 5 activities mentioned in that sub section. Section 3(3) states that for the purposes of clause (5) of the Constitution, the grounds on which the order of detention has been made, shall be communicated as soon as may be after the detention but ordinarily not later than 5 days. It also stipulates that in exceptional circumstances and for the reasons to be recorded in writing, this period can be more than 5 days, but not more than 15 days from the date of detention. Thus ordinarily after the order of detention is made, the grounds in support thereof can be served upon the detenue within five days and in exceptional circumstances this period can extend upto 15 days. If this period is to be more than 5 days, the reasons are required to be recorded in writing. 17. In Kamleshkumar Ishwardas Patel Vs. Union of India and Ors. (1995) 4 Supreme Court Cases 51 an argument was raised pointing out illicit smuggling of narcotic Drugs and Psychotropic Substances Act on large scale and harmful nature thereof, its impact on national economy. Hon ble Apex Court has observed that while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Writ Petition No. 2/1996, 4/1996 and other connected matters, in paragraph 7, the Division Bench of this Court has found that the grounds of detention in English and detention order were served on the petitioners on 24/11/1995. The documents in support of these grounds of detention in English as well as vernacular translations were supplied on 29/11/1995. The detaining authority argued that it was not necessary to serve the grounds of detention along with the detention order, but the grounds could have been furnished to the petitioners within 5 days i.e. by 29/11/1995. Further contention was service of grounds of detention in English on 24/11/1995 should be ignored and it may be considered to have been furnished to the detenue on 29/11/1995. The Division Bench has not accepted this submission. It has been found that the vernacular translations ought to have been served on 24/11/1995 itself so as to enable the petitioners to make effective representation. The orders of detention were therefore quashed. 22. In the Judgment dated 11/7/1996 in Criminal Writ Petition No. 824 of 1995 and other connected matters the order of detention and grounds of detention were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above grounds are communicated to you for the purpose of Clause (5) of Article 22 of the Constitution of India and as required under Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 25. This necessitates reference to guidelines mentioned supra. Guideline No. 14 mandates that the Sponsoring Agency must bring to the notice of detaining authority any material generated after forwarding the proposal. In present matters, the proposal for detention was scrutinized and accepted by Screening Committee on 14/5/2019. The reply opposing the bail application was filed by the Sponsoring Agency in Sessions Court on 16/5/2019 and thus this material (reply) was generated after forwarding the proposal and after its acceptance. 26. Guideline No. 21 stipulates that the grounds of detention and relied upon documents must be invariably served on the detenue together including the copies translated into language known to him and this should be served as quickly as possible but within stipulated time limit of 5 days from the date of detention. Guideline No. 24 is about application of mind when the person is in judicial custody. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person is likely to continue to indulge in the prejudicial activities. The impugned order mentions past history and material in support thereof. It also takes note of the fact that the petitioners were already in custody. The propensity and capacity has also been looked into. However, there is no application of mind demonstrating the satisfaction that there was any possibility of their release on bail in proceedings before the Sessions Court. 29. We may refer to the judgment of the Hon ble Apex Court in Kamarunnissa Vs. union of India and another (1991) 1 Supreme Court Cases 128 where in paragraph 13 Hon ble Apex Court has explained the law as settled. The detaining authority has to show its awareness of the fact that the petitioner is actually in custody. On the basis of reliable material placed before him, satisfaction or reason to believe that there is real possibility of his being released on bail and after such release he would in all probability, again indulge in prejudicial activities. The detaining authority has to find it essential to detain him so as to prevent him from indulging therein. Learned APP has attempted to distinguish this judgment by inviting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but an indication of non application of mind. 32. Guideline No. 24 mentioned supra which cautions the detaining authority in this respect is also being observed in breach. 33. Few judgments have been cited before us to point out how the High Court or the Hon ble Apex Court have looked into the process of application of mind to such additional material coming on record. The impact of such document on available material needs to be looked into afresh and considering the large number of pages which needed scrutiny and appreciation as also reasonable time required for it, courts have found that such additional material was not evaluated at all. The findings in those matters are the findings of facts. Here even if we presume that there was some application of mind before 16/5/2019 to the possibility of release on bail, when the reply opposing the bail was made available to the detaining authority on 16/5/2019, respondent no. 3 authority ought to have looked into it and evaluated the objections raised opposing bail therein to consider its impact on its earlier application of mind. It could have then mentioned that after such evaluation, it was satisfied that no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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