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TMI Blog2019 (11) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future. A Constitution Bench of this Court in the case of RAMESHWAR SHAW VERSUS DISTRICT MAGISTRATE BURDWAN [ 1963 (9) TMI 55 - SUPREME COURT ] has observed and held that the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. It is further observed that therefore the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. The High Court has committed a grave error in quashing and setting aside the detention orders and interfering with the subjective satisfaction of the Detaining Authority - The detenus, i.e., Ashok Kumar Jalan and Amit Jalan shall be taken into custody forthwith by the Detaining Authority - SLP dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the respective writ petitioners of writ petitions are concerned, though detention orders qua them have been set aside by the High Court, still the respective petitioners have prayed for the aforesaid reliefs. Criminal Appeal @ SLP (Criminal) No.7010/2019 and SLP(Criminal) No. 7013 of 2019 3. The facts of the case in nutshell are as follows: That in the light of specific intelligence, the Directorate of Revenue Intelligence, Kolkata Zonal Unit (for short DRI ) intercepted one Anand on 09.06.2019 near Dankuni Toll Plaza, West Bengal, while he was travelling on a bus from Siliguri to Kolkata, carrying 8 Kgs. of gold of foreign origin valued at ₹ 2.71 crores approximately. That the said Anand, vide his statements recorded on 09.06.2019 and 10.06.2019 indicated that, he had been engaged by the detenus to receive the 8 bars of smuggled gold from Indo-Bhutan border at Jaigaon from an unknown person, to be transported and delivered to Kolkata and Delhi. That as per the detenus, they were apprehended by officers of DRI on 10.06.2019 at about 2:00 p.m. at the Food Court of Quest Mall, 33, Syed Amir Ali Avenue, Park Circus, Beck Bagan Row, Kolkata, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subjective satisfaction is sham, erroneous and incomplete, and therefore, violative of the detenus right to effective representation as mandated and guaranteed by the Constitution, and by law. 4. The writ petition before the High Court was opposed by the Detaining Authority. It was requested not to entertain the writ petition at this stage, since the detenus representations were pending consideration before the Advisory Board. On merits, it was submitted 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. It was also submitted on behalf of the Detaining Authority that all the relevant documents were supplied to the detenus. That by the impugned judgment and order, the High Court has quashed and set aside the detention orders mainly on the ground that there was a clear lapse and failure on the part of the Detaining Authority to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India (1994) 1 SCC 381 (paras 5 6). 5.3 It is further submitted by the learned Additional Solicitor General that even in the case of Kamarunnisa v. Union of India (1991) 1 SCC 128, relied upon by the respondent, this Court lays down a threepointer test in passing of a detention order in case of a person already in judicial custody as under: (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 there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. It is submitted that in the said decision, this Court further observed: if the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harm and prejudice to the society in general and the economy of the nation in particular. 5.6 Now so far as the other grounds raised by the detenus with respect to retraction statement of Shri Anand not being with the Detaining Authority on the date of passing of the detention orders and therefore the detention orders have been vitiated is concerned, it is submitted that an affidavit has been furnished along with documentary evidence by the Sponsoring Authority by letter dated 31.8.2019. It is submitted that as per letter dated 31.08.2019 of the jail authority, prisoner s petition dated 22.6.2019 submitted by Shri Anand, was forwarded to the learned court of Chief Metropolitan Magistrate, Calcutta only. It is submitted that the said petition was not forwarded to any other concerned including the Sponsoring or Detaining Authority except the court of Chief Metropolitan Magistrate, Calcutta. It is submitted that further, as per letter memo dated 30.08.2019 of jail authority, a copy of the prisoner s petition of Shri Anand dated 22.6.2019 was forwarded on 22.6.2019 to learned Chief Metropolitan Magistrate, Calcutta. The same was received by the office of Chief Metropolitan M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice the decision of the Detaining Authority in passing of the detention orders, which were based on the facts and evidence on record which were duly mentioned in the detention orders and relied upon documents supplied along. 5.8 It is further submitted that even the retraction statement of Shri Anand is not a vital document in case of the present detention orders against the detenus as their retractions have been duly considered by the Detaining Authority. 5.9 It is further submitted by the learned ASG that apart from the above facts, Shri Anand after his release on bail has reiterated his earlier statements dated 9.6.2019, 10.6.2019 and 14.6.2019 on 19.7.2019 wherein he has categorically stated that he filed the retraction petition as per the directions of his advocate which was a mistake on his part. 5.10.It is further submitted by the learned ASG that even otherwise failure to place certain documents may not necessarily be fatal to a detention order. In support of his submission, learned ASG has also relied upon the decisions of this Court in the cases of Prakash Chandra Mehta v. Commissioner and Secretary., Government of Kerala, (1985) Suppl. SCC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of retraction petition in respect of Shri Anand . It is submitted that however the above document is a bail application of Shri Anand and not a retraction statement. It is submitted that therefore nonsupply of the retraction statement of Shri Anand to the detenus has vitiated the orders of detention. 6.4 It is further submitted that in the grounds of detention, there is no reference to the retraction petition on behalf of Shri Anand. 6.5 It is further submitted that as it is evident from the order sheet of the Court, retraction petition filed by Shri Anand has reached the Court on 24.06.2019 and handwritten court proceedings recorded the said fact. It is submitted that therefore retraction petition formed a part of the judicial/court record, much prior to the issuance of the detention orders. It is submitted that therefore the retraction petition of Shri Anand was in complete knowledge of the DRI Officers as well as their Advocates. It is submitted that except the Detaining Authority and the prosecution, none was aware of the proposal for detention and it was their bounden duty to call for all the records. It is submitted that, however, request for supply of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imple Happy Dhakad (supra), it is vehemently submitted by the learned counsel appearing on behalf of the respondent that, as held by this Court, the satisfaction of the Detaining Authority that the detenus may be released on bail cannot be ipse dixit of the Detaining Authority. It is submitted that as such on facts in the case of Dimple Happy Dhakad (supra), this Court confirmed the orders of detention having been satisfied that the subjective satisfaction of the Detaining Authority that the detenu is likely to be released on bail is based on the materials. It is submitted that even otherwise the decision of this Court in the case of Rekha (supra) has been delivered by three Judges Bench and the decision in the case of Dimple Happy Dhakad (supra) has been delivered by two Judges Bench. It is submitted that in any case, in the present case, as such no bail application of the detenus was pending before any court. 6.10 It is further submitted that even the question of severability under Section 5A of the COFEPOSA was never urged/pleaded by the appellant/Detaining Authority either before the High Court or before this Court in any of their pleadings. It is submitted that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity observed and stated as under: 7. I am aware that you, i.e., Shri Ashok Kumar Jalan are in judicial custody at present at Presidency Correctional Home, Alipore, Kolkata. However, 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. Therefore, it is evident that the Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future. As per catena of decisions of this Court, even if a person is in judicial custody, he can be detained under the relevant provisions of the concerned Act, like COFEPOSA etc. However, there must be a proper application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that the detenus were waiting for the setting aside of the detention orders on the ground that they are in custody and that there is no real apprehension that the detenus are likely to be released on bail. As discussed earlier, the detention orders show the application of mind by the Detaining Authority based on the material available on record, facts and circumstances of the case, nature of activities and propensity of the detenus indulging in such activities. Therefore, in the facts and circumstances of the case, the High Court has erred in setting aside the detention orders on the ground stated hereinabove, namely, that there is a clear lapse and failure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while recording its subjective satisfaction and passing the detention orders. 8.3 A Constitution Bench of this Court in the case of Rameshwar Shaw (supra) has observed and held that the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the learned counsel appearing on behalf of the detenus, in the case of Dimpy Happy Dhakad (supra), this Court has observed that even if a person is in judicial custody, he can be put on a preventive detention provided there must be an application of mind by the Detaining Authority that (i) the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody; (ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority. 8.5 In the case of Kamarunniss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be examined by the Court. (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. 9. Now applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand and considering the ground (para 7) and the various circumstances noted by the Detaining Authority, we are satisfied that the detention orders cannot be quashed on this ground. It is to be noted that the detenus have been granted bail by the Court on the very date the orders of detention were quashed by the High Court, i.e., on 2.8.2019. Therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified. Therefore, the High Court has fallen in error in quashing and setting aside the detention orders on the ground that there is a clear lapse and failure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider aspect of Anand s retraction. However, it is required to be noted that there are two orders available on the order sheet of the trial Court. First is the handwritten order and other is a typed order. All other orders are typed orders. The handwritten order does not bear the stamp of the court and/or signature of the learned Magistrate. Therefore, the handwritten order does not inspire any confidence and therefore no reliance can be placed upon the handwritten order on the order sheet of the trial Court dated 24.06.2019. Under the circumstances, it appears that when the detention orders were passed by the Detaining Authority, neither the Sponsoring Authority nor even the Detaining Authority was aware of any retraction petition of Shri Anand. Under the circumstances, there was no occasion and/or reason for the Detaining Authority to consider the retraction statement of Shri Anand. Under the circumstances, it cannot be said that on nonconsideration of the Anand s retraction petition, the detention orders have been vitiated. 11. In view of the above and for the reasons stated above, the High Court has committed a grave error in quashing and setting aside the detention or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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