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TMI Blog2009 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government of India, Ministry of Finance, Department of Revenue (COFEPOSA Unit) in purported exercise of powers conferred on the said authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'). It is pertinent to note that prior to the said detention order being passed, the petitioner was already in custody since 26-3-2008 in respect of the very same incident which has formed the basis of the detention order. 2. The said incident was that fake Indian currency to the extent of approximately Rs. 13.36 lakhs was recovered from the possession of the petitioner on 25-3-2008. Further fake currency of approximately 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 pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of this bail application, the petitioner, on 16-6-2008, had to undergo a triple coronary by-pass surgery at G.B. Pant Hospital. On 11-7-2008, the learned ACMM rejected the petitioner's second bail application also. However, on 24-7-2008, the petitioner filed a third bail application, once again on health grounds and this time before the Additional Sessions Judge. During the pendency of this third bail application, the impugned detention order dated 28-7-2008 came to be passed. The very next day, i.e., on 29-7-2008, the petitioner was formally taken into custody pursuant to this detention order. On 19-8-2008, the petitioner's third bail application was also rejected by the Additional Sessions Judge. 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there must be imminent likelihood of the person being released from such custody. The third and the final condition is that upon such release there should be a likelihood of the person in custody indulging in prejudicial activities. He referred to the following decisions :- (i) Surya Prakash Sharma v. State of U.P. and Others - 1994 Supp (3) SCC 195; (ii) Rajesh Gulati v. Government of NCT of Delhi and Another - 2002 (7) SCC 129; (iii) T.V. Sravanan Alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State and Another - 2006 (2) SCC 664; (iv) Ramesh Yadav v. District Magistrate, Etah and Others - 1985 (4) SCC 232. 7. After referring to the said decisions, the learned counsel submitted that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive satisfaction of the detaining authority that has to be viewed in the light of the supporting material. The learned counsel also placed reliance on the decision of the Supreme Court in the case of Ibrahim Nazeer v. State of T.N. and Another - AIR 2006 SC 3606, wherein the Supreme Court noted that whether the prayer for bail would be accepted or not depends on the circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The Supreme Court stressed that the conclusion that the detenu may be released on bail cannot be the mere ipse dixit of the detaining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to detain him in order to prevent him from engaging in such activities." 11. From the above extract, it is apparent that when a detention order is passed in respect of a person already in custody, two conditions have to be satisfied. The first being that the detaining authority should be aware that the detenu is already in detention. The second is that there are compelling reasons justifying detention despite the fact that the detenu is already in detention. This condition is being further split up into two sub-conditions, they being that (a) the detenu is likely to be released from custody in the near future; and (b) taking into account the nature of the antecedent activities of the detenue, it is likely 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 conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that there was an imminent possibility of the appellant therein being released on bail. The Supreme Court rejected such a plea on the part of the detaining authority and was of the view that it could not be the satisfaction of the detaining authority that the appellant would be released on bail in the near future. 14. In T.V. Sarvanan (supra), the Supreme Court, after quoting the aforesaid passage from Rajesh Gulati (supra), observed as under :- "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 could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the learned ACMM rejected the second bail application on 11-7-2008. Thereafter, during the pendency of a third bail application, the detaining authority passed the said detention order. The detaining authority, as is clear from the earlier portion of this decision, stated that she was aware that another bail application had been Hied by the petitioner in the court of the Additional Sessions Judge, New Delhi on 24-7-2008 "reiterating the plea taken" in the petitioner's previous bail applications and that a reply to which was yet to be filed by the Department of Revenue Intelligence. The detaining authority further stated that - "However, nothing prevents you from filing further bail applications". We feel that in the 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 detainin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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