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TMI Blog1988 (2) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal by special leave is directed against the judgment of the Delhi High Court whereby the High Court dismissed the writ petition of the appellant challenging the validity of his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as 'the Act'. 2. Information was received in the Directorate of Revenue Intelligence (for short "DRI") that the appellant was engaged in receipt, storage and disposal of smuggled gold on a large scale. On a specific information received on March 11, 1987 that large quantity of gold had been received by the appellant and stored at his instance in various premises, the DRI mounted a discreet surveillance in the vicinity of the residence of the appellant. Shorn of all details, it may be stated that 100 foreign marked gold biscuits, each weighing 10 Tolas, were seized from Uttam Chand, a milk vendor. It was disclosed by Uttam Chand that the said gold had been given to him by the appellant. He also disclosed that the appellant had given him 300 gold biscuits. The remaining 200 gold biscuits were taken away from Uttam Chand by Raj Kumar alias Chhotu, the servant of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred by Section 8(f) of the Act, confirmed the detention of the appellant and directed that under Section 10 of the Act the appellant would be detained for a period of one year from the date of his detention, that is, from April 2, 1987. 6. At this stage, it may be stated that before the order of detention was passed by the detaining authority, the appellant Vijay Kumar was arrested on a charge under Section 135 of the Customs Act, 1962. 7. Being aggrieved by the order of detention as confirmed by the Central Government, the appellant challenged the same by filing a writ petition before the Delhi High Court and, as stated already, the High Court dismissed the writ petition. Hence this appeal by special leave. 8. Before considering the contentions of the parties, it may be stated here that similar detention orders were passed in respect of the said Uttam Chand, Bhuramal Jain and Raj Kumar alias Chhotu. They also challenged their detentions by filing writ petitions before the Delhi High Court. The High Court, however, by the same judgment under appeal allowed their writ petitions and quashed the orders of detention. 9. It is urged by Mr. Thakur, learned Counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the detaining authority in regard to the appellant, it may be assumed that he was also of the impression that the offence under Section 135 of the Customs Act, for which the appellant was arrested and detained in jail, was a bailable offence. But, the question whether or not a particular offence for which a detenu has been detained, is a bailable or non-bailable offence, does not in our opinion, have any hearing on the question of passing an order of detention. Even though an offence is a non-bailable one, an accused may be enlarged on bail. Again, an offence for which a detenu has been put under detention, may be a bailable offence. It has been observed by this Court in Rameshwar Shaw v. District Magistrate, Burdwan, (1964) if S.C.R 9.21 that whether an order of detention can be against a person who is already in detention or in jail, will always have to be determined in the facts and circumstance of each case. Again, in Ramesh Yadav v. District Magistrate Etah, (1985) 4. S.C.C 232 it has been ruled by this Court that merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail, an order or detention under the National Security Act, shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch detention, despite the fact that the detenu is already under detention. 16. In the instant case, it has been already noticed that the detaining authority was aware of the fact that the appellant was arrested and produced before the Additional Metropolitan Magistrate, New Delhi. The grounds of detention also disclosed compelling reasons that the appellant should be preventively detained under the Act in spite of his detention on a charge under Section 135 of the Customs Act. It is not the case of the appellant that the grounds of detention do not disclose compelling reasons. All that has been urged on behalf of the appellant is that there has been non-application of mind by the detaining authority of the fact of detention of the appellant. We are, however, unable to accept the contention made on behalf of the appellant that there has been non-application of mind by the detaining authority to the relevant facts. The detaining authority besides being aware of the fact that the appellant was already in detention, has taken into consideration the relevant facts before passing the impugned order of detention under the Act, which is apparent from the grounds of detention. In the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether his witnesses were present outside or whether he would like to examine them in rebuttal of the charges made against him. Further, it is stated that in the affidavit that the appellant did not bring his friend with him to assist him, although he had stated in his representation that he might be permitted that assistance of an advocate or a friend at the time of hearing. The allegations of the appellant that he was denied his right to examine witnesses or the assistance of a friend have been stated by the detaining authority in his affidavit as totally false. It has been also averred by the detaining authority in his affidavit that the appellant was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, but the appellant did not avail himself of the same. 20. A similar contention was raised before the High Court. The High Court, after referring to the affidavit of the detaining authority, has observed that it was for the detenu at the time of hearing to submit to the Advisory Board that his witnesses, who were present outside the Board room, should be examined, and that he should also be allowed assistance of his friend. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of India, Ministry of Finance, Department of Revenue, New Delhi, on behalf of the respondents. In paragraph 2 of the additional affidavit it has been stated as follows :- "I submit that in the above case, the petitioner's wife's representation, dated 11-4-1987 was received by the office of the Minister of State for Finance on 21-4-1987 and from that office, it was received in COFEPOSA Unit on 22-4-1987, on which date, the comments from the Directorate of Revenue Intelligence were called for. The comments from the said Directorate were received on 27-4-1987 at 5.35 p.m. These comments were received by the Senior Technical Officer on 28-4-1987. He, however, could not take action on 29-4-1987 as the hearing of the petitioner's case was fixed before the Advisory Board on that date. The Senior Technical Officer put his note on 30-4-1987 to the Detaining authority. The Detaining Authority was, however, on leave on 1-5-1987 and 2nd May and 3rd May 1987, being holidays, the Detaining Authority passed orders on 4-5-1987 rejecting the representation of the petitioner's wife and forwarded the file to the Minister of State for Finance for his consideration on behalf of the Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the position is altered, yet it is submitted by the learned Counsel for the appellant that the comment of the detaining authority "merits rejection" has influenced the mind of the Minister, who considered the representation on behalf of the Government. Counsel further submits that there was no necessity for getting a comments from the detaining authority inasmuch as any comment by him against the detenu would influence the mind of the Government. We are unable to accept the contention. In our view, unless the comments of the relevant authorities are placed before the Minister, it will be difficult for him to properly considered the representation. There is no substance in the contention that any comment from the detaining authority would influence the mind of the Government. Such assumption is without any foundation. The contention in this regard is, accordingly, rejected. 26. As regards the representation, dated 23-4-1987 of the appellant to the detaining authority, it appears from the statement made in paragraph 3 of the said additional affidavit that it was rejected by him on 4-5-1987. There is a further statement that after such rejection, the file was forwarded to the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to him only on 20-5-1987 and not along with the grounds of detention. There is, therefore, no factual foundation in the complaint made by the appellant that he was not supplied with the relevant documents along with the grounds of detention. 29. The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in Section 10 of the Act. It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant. This contention, in our opinion, is devoid of any merit. Section 10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given. In conforming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entive detention, notwithstanding the fact that he is under custody in connection with a case. As said by Sabyasachi Mukharji, J. in Suraj Pal Sahu v. State of Maharashtra [1986 (4) S.C.C. 378 at 391] :- "....But where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention." 35. There cannot, however, be any uniform principle to be applied in this regard. Each case has to be judged on its own facts and on its own grounds of detention. If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention. 36. In the instant case, having regard to the nature of the grounds furnished to the detenu, I agree with my learned brother that there is hardly any justification to find fault with the order of detention. 37. The next aspect which needs to be clarified is whether it is necessary for the concerned authority to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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