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TMI Blog2019 (9) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of reliable material to this effect, the detention order is vitiated and cannot be sustained. Co-ordinate Benches of this Court in Navpreet Kaur Chadha [ 2013 (6) TMI 302 - DELHI HIGH COURT ] and Sandhya Jain [ 2017 (6) TMI 35 - DELHI HIGH COURT ], it is made clear, categorical and unequivocal that the settled position of law is that when the detenus are in judicial custody and there is no imminent possibility of their release on bail and even no bail applications are pending, the power of preventive detention ought not to be exercised. Threshold objection raised on behalf of the official respondent to the effect that, in view of the pendency of the representations before the Advisory Board which has adequate powers to examine the entire material - HELD THAT:- The present writ petition ought not to be determined at this stage is concerned, the same cannot be countenanced in view of the decision of the Hon ble Supreme Court Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad City and Another [ 1988 (12) TMI 339 - SUPREME COURT ] where it was held that The concerned detenus be released forthwith, if not required to be detained in any other case - Petition allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.06.2019 in Misc.67/2019, the learned CMM, Kolkata rejected the prayer of bail made on behalf of the detenus and remanded them to judicial custody till 18.06.2019. However, in view of the contention made on behalf of the detenus in relation to their illegal detention by the office of DRI on 10.06.2019, as aforestated, the learned CMM directed the office of the Cyber Police Station, Kolkata to obtain the relevant CCTV footage of the Food Court at Quest Mall, Kolkata. (vii) The detenus remand to custody has been extended from time to time up to date. (viii) Whilst the detenus were in custody, as aforestated, the detention orders impugned in the present petition were rendered by the Detaining Authority on 01.07.2019. (ix) The impugned detention orders were served on both the detenus on 02.07.2019, and the relied upon documents (for short RUD ) with the list of documents were served upon them on 04.07.2019. (x) In the case of both the documents, a document at Sl.No.30 in the list of RUD served upon them, is purported to be a copy of the retraction petition in respect of said Anand. It is an admitted position that, the said document at Sl.No.30, which is purported to be a retra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charya, learned Additional Solicitor General appearing on behalf of Union of India would raise a preliminary objection to the effect that, the present habeas corpus should not be considered at this stage, since the detenus representations thereagainst are pending consideration before the Advisory Board, which is empowered by law to consider the validity thereof. 6. By inviting our attention to the paragraph Nos.1 to 9 of the detention order, it would also be urged by Ms. Maninder Acharya, learned ASG that, there was cogent material before the Detaining Authority to arrive at the subjective satisfaction that the detenus were likely to be released from judicial custody and that there was likelihood of their continuing to indulge in the prejudicial activities. In this behalf it was stated that, the material on record unerringly pointed to the propensity of the detenus to continue with their prejudicial activities. 7. Our attention was invited to the following decisions, in support of the foregoing contentions:- (i) Haradhan Saha vs. The State of West Bengal and Others reported as (1975) 3 SCC 198 (ii) Union of India and Anr. vs. Dimple Happy Dhakad in Criminal Appeal No.1064/2019 aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in the habit of repeatedly smuggling goods into India from abroad without declaring the same before the Customs Authorities and paying applicable duty which amounts smuggling in terms of Section 2 of the Customs Act, 1962. The underlying common threat is your propensity to smuggle goods for making illicit profit and putting the National economy into danger which needs to be curbed and you need to be prevented from indulging in such activities further. 3. I am satisfied that you i.e. Shri Ashok Kumar Jalan have indulged in activities amounting to smuggling in terms of Section 2(39) of Customs Act, 1962 and Section 2(e) of COFEPOSA Act, 1974 and your acts of deliberate commissions and omissions have rendered the goods involved liable to confiscation under the Customs Act, 1962. 4. I am satisfied that, as evidenced above and as discussed in the foregoing paras, you i.e. Shri Ashok Kumar Jalan have shown a repeated habit and propensity to indulge in fraudulent activities by way of smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods at the cost of government revenue and nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, there is an immediate possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and therefore there is a need to issue a Detention Order against you under the COFEPOSA Act, 1974 with a view to prevent you from smuggling of gold and foreign currency in future. 9. A perusal of the above extracted grounds of detention and in particular paragraph 7 thereof, clearly reflects that, it is completely bereft of any material expressed therein for the Detaining Authority to arrive at the conclusion to the effect that there is immediate possibility of your release from judicial custody . Further, as is axiomatic from a reading of the same paragraph, the Detaining Authority was aware that the detenus were in judicial custody at the Presidency Correctional Home, Alipore, Kolkata, at the time of passing of the impugned order. 10. In our opinion, in the absence of cogent material, the statement in the grounds of detention regarding the alleged imminent possibility of the detenus coming out on bail, is mere ipse dixit, untenable and without any cogent basis, and consequently has to be ignored. In our co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C (Cri) 324] and Ibrahim Nazeer v. State of T.N. [(2006) 6 SCC 64 : (2006) 3 SCC (Cri) 17] wherein it has been held that even if no bail application of the petitioner is pending but if in similar cases bail has been granted, then this is a good ground for the subjective satisfaction of the detaining authority to pass the detention order. 10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. 28. Mr Altaf Ahmed, learned Senior Counsel, further submitted that we are taking an overtechnical view of the matter, and we should not interfere with the preventive detention orders passed in cases where serious crimes have been committed. We do not agree. 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, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case, as is evident from the record itself as well as the order of detention, the appellant was already in custody when the order of detention was passed. There was no imminent chance of his being released on bail and yet the detaining authority, even in the absence of any material to raise an apprehension that he may be released on bail in near future and continue with his nefarious activities, passed the impugned order of detention. In our view having regard to the material on record it is not necessary to consider the first ground of challenge, since the second ground of challenge must succeed. It may be useful to notice the relevant part of the detention order which deals with this aspect of the matter. It reads as follows: I am aware that Thiru Venkata Sravanan alias S.A.R. Prasanna Venkatachariyar Chaturvedi is in remand in Central Crime Branch, Crime Nos. 582 of 2004, 592 of 2004, 594 of 2004, 598 of 2004, 601 of 2004 and 602 of 2004 and a bail application was moved before the Principal Sessions Court in Crl. MP No. 11163 of 2004 in Central Crime Branch, Crime No. 582 of 2004 and the same was dismissed on 17-11-2004. Further a bail application was moved befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. 9. In Kamarunnissa v. Union of India [(1991) 1 SCC 128 : 1991 SCC (Cri) 88] this Court observed: (SCC p. 140, para 13) 13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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, Etah [(1985) 4 SCC 232 : 1985 SCC (Cri) 514] , AIR at p. 316.) 14. We are satisfied that for the same reason the order of detention cannot be upheld in this case. The bail applications moved by the appellant 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 appellant 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 coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the petitioner is pending before the Advisory Board. The question that has been raised on behalf of the respondents is whether in view of the pendency of the representation before the Advisory Board, the writ petition is maintainable under Article 32 of the Constitution. The question need not detain us long, for it has already been decided by this Court in Prabhu Dayal Deorah v. District Magistrate, Kamrup [(1974) 1 SCC 103 : 1974 SCC (Cri) 18 : 1974 Cri LJ 286] . In para 16 of the Report Mathew, J., speaking for himself and Mukherjea, J., observed inter alia as follows : (SCC pp. 112-13, para 16) We think that the fact that the Advisory Board would have to consider the representations of the petitioners where they have also raised the contention that the grounds are vague would not in any way prevent this Court from exercising its jurisdiction under Article 32 of the Constitution. The detenu has a right under Article 22(6) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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