9911796707
TMI Blog2009 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... oximately Rs. 22.84 lakhs was also recovered from the co-accused Tahseem @ Akbar from Amritsar, Punjab. The learned counsel appearing on behalf of the petitioner stated that while both the petitioner and the said co-accused are being prosecuted under Section 135 of the Customs Act, 1962, the co-accused Tahseem @ Akbar has not been subjected to preventive detention and it is only the petitioner against whom the impugned order of preventive detention has been made. 3. It was also pointed out by the learned counsel for the petitioner that the representation made by the petitioner before the Advisory Board was rejected on 14-10-2008. He also submitted that immediately after the fake currency was allegedly recovered from the petitioner, the petitioner's residence as well as his office premises were searched. Nothing incriminating was found from either of the two premises. To substantiate this plea, he drew our attention to paragraph 6 of the grounds for detention wherein it is so recorded. 4. On 22-4-2008, while the petitioner was in custody in respect of the prosecution under Section 135 of the Customs Act, 1962, the petitioner moved a bail application. On the very next day, i.e., on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge. 5. In the grounds for detention, one of the grounds, which led the detaining authority to pass the detention order, was that there was imminent likelihood of the petitioner being released on bail in the case pending against him under the Customs Act. This can be easily discerned from paragraph 22 of the grounds of detention which reads as under :- "22. In view of the above, it is clear that you, Shri Raman Kumar Sharma @ Pandit have shown the propensity and inclination to indulge in smuggling of FICN and transportation of smuggled FICN in an organized manner. You are in judicial custody and I am aware that you applied for bail twice before the Ld. ACMM, New Delhi which were rejected. I am also aware that you have been suffering from heart ailment and; that applications were filed by you or on your behalf and by your brother-in-law, Shri Ashok Kumar in the Court of Ld. ACMM, New Delhi, from time to time since your remand in Judicial Custody, citing your ailment and praying for relief or directions to the concerned authorities and the Orders passed by the Court of Ld. ACMM, New Delhi, on those applications. I am further aware that you were treated at DDU Hospital as well as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second and the third conditions necessary for validating the detention order are absent in the present case. He submitted that since the bail applications of the petitioner had repeatedly been rejected, there was no likelihood of the petitioner being released on bail. He also submitted that the antecedent activities of the petitioner also did not disclose that there was any likelihood of the petitioner indulging in any prejudicial activities if he was released from custody. He submitted that it is only the solitary incident of the alleged recovery of fake Indian currency representing a value of Rs. 13.36 lakhs from the petitioner that has formed the basis of the preventive detention order. According to him, that by itself did not enable the detaining authority to jump to the conclusion that in case the petitioner is not detained, he would continue to indulge in prejudicial activities, particularly with regard to dealing in fake currency notes. Consequently, the learned counsel for the petitioner submitted that the detention order was bad and ought to be set aside. He also pointed out that the petitioner has already been in continuous custody since 26-3-2008, first of all, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority and that it is on the basis of the material before him that the detaining authority comes to a conclusion as to whether there is a likelihood of the detenu being released on bail. The Supreme Court observed that this is the subjective satisfaction of the detaining authority based on materials and that normally such satisfaction is not to be interfered with. 9. The learned counsel for the petitioner, in rejoinder, submitted that the argument based on Section 437(6) of the Code of Criminal Procedure, 1973 cannot be considered at this stage because this was not a ground on the basis of which the detaining authority thought that there was imminent likelihood of the petitioner being released on bail. Secondly and, more importantly, he submitted that in the third bail application, the petitioner had not taken the ground of Section 437(6), CrPC for seeking release on bail. The learned counsel for the petitioner also pointed out that the first date fixed for taking evidence in the Customs Act prosecution was 13-10-2008, which was much after the detention order and, therefore, this could not have been in the contemplation of the detaining authority. In fact, the six months perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. It is, therefore, clear that unless and until the detaining authority is satisfied that the detenu is likely to be released from custody in the near future, a detention order against a person already in custody cannot be said to have been validly passed. In Surya Prakash Sharma (supra), the second condition, i.e., of the likelihood of the person in custody indulging in prejudicial activities was considered and it was found that on the basis of a solitary murder, it could not be extrapolated that the person in detention would, in future also, indulge in such prejudicial activities. 12. In Rajesh Gulati (supra), the Supreme Court observed as under :- "12. It cannot be over emphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3(1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13-12-2005." 15. In Ramesh Yadav (supra), the Supreme Court observed as under :- "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances as narrated above, there was no material before the detaining authority whereby she could have come to the conclusion that the bail application would be allowed and that there was an imminent likelihood of the petitioner being released on bail. Consequently, the purported satisfaction of the detaining authority that there was a likelihood of the petitioner being released on bail was not founded on any material and was the mere ipse dixit of the detaining authority herself. 17. As regards the argument raised by the learned counsel for the respondents based upon the provisions of Section 437(6) CrPC, we agree with the submissions made by the learned counsel for the petitioner that such an argument is not available to the respondents. The first reason being that the petitioner had not taken this ground in the third bail application which was pending before the learned Additional sessions Judge at the time when the detention order was passed. Secondly, in any event, the first date of taking evidence had not been fixed when the detention order was passed. The first date of taking evidence was fixed much later and the same was 13-10-2008. Therefore, it could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
