Bombay High Court
Riyaz Ahmed Kashmiri vs Union Of India (Uoi) And Ors. on 3 August, 2000
Equivalent citations: 2001(5)BOMCR238
Author: S.S. Parkar
Bench: S.S. Parkar
JUDGMENT S.S. Parkar, J.
1. The petitioner, detained on 30th August, 1999 under the order of detention dated 24th May, 1999 passed by the respondent No. 2 under the provisions of section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (as amended), has challenged his detention by this petition.
2. The aforesaid order of detention, though passed on 24th May, 1999, came to be served on the detenu on 30th August, 1999 when he was already in custody in connection with offence registered under C.R. No. 61/99 under sections 489(B) and 489(C) read with section 34 of I.P.C. Petitioner-detenu came to be arrested for the aforesaid offence on 15-8-1999 by D.C.B., C.I.D., Mumbai. The petitioner-detenu was served with the order of detention on 30th August, 1999 while he was in police custody. The detention order has been challenged on the sole ground that the detaining authority did not consider the subsequent development which took place between the issue of the order of detention on 24-5-1999 and its actual execution on 30-8-1999 i.e. the arrest of the detenu in connection with the aforesaid crime.
3. The reliance was placed on behalf of the petitioner on the decision of the Supreme Court in the case of Binod Singh v. District Magistrate, Dhanbad, Bihar and others, . In the case before the Supreme Court, the detention order was issued on 2nd January, 1986 when detenu was not in custody. The detenu surrendered himself on 10th January, 1986 in criminal case registered against him on the basis of which the impugned detention order was passed. The detention order issued under section 3(2) of the National Security Act on 2-1-1986 was served on the detenu on or about 11th January, 1986 while he was in custody. In that context, the Apex Court held that though the order of preventive detention was not invalid when it was passed, the service of the order was not on proper consideration as the detaining authority had not considered the subsequent development that the detenu was already in the custody. The Apex Court in the aforesaid circumstances observed in para 6 of the judgment as follows:
"6. In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified."
4. In the present case also the detaining authority does not appear at all to have considered the subsequent development. In the reply affidavit dated 31st March, 2000 filed by the detaining authority, it is stated in para 1-4 as follows:
"1-4. As regards averments made in Ground 4(1), it is submitted that the Detaining Authority was aware of the fact that the petitioner was in police custody at Mumbai at the time of execution of Detention Order No. 673/36/99 Cus. VIII dated 24th May, 1999 along with the Grounds of detention and relied upon documents and the detention order was executed on 30-8-1999. It is, however, submitted that the petitioner was in police custody (not in judicial custody) at the time of execution of detention order and, therefore, need for fresh consideration and/or satisfaction of the detaining authority did not arise."
(Underlining supplied)
5. From the aforesaid reply it is quite clear that before executing the order of detention the detaining authority had not at all considered the fact that the detenu was already in custody in connection with the offences under sections 489(B) and 489(C) read with section 34 of I.P.C. and his chances of being released on bail when the offence under section 489(B) is punishable with life imprisonment. In the petition it is pointed out that the remand of the detenu was extended from time to time in the aforesaid crime and on 30th August, 1999 the detenu was directed to be kept in judicial custody. We are informed by the Counsel for the respondents that the petitioner's application for bail was rejected in connection with the aforesaid offences.
6. Mr. Agarwal, the learned Counsel appearing on behalf of respondent Nos. 1 and 2 contended that what is required is that detaining authority must be only aware and alive to the subsequent development i.e. the detenu being already in custody. In our view, that is not the ratio of the decision of the Supreme Court in Binod Singh's case (supra). The Apex Court has clearly laid down that the detaining authority should consider the subsequent development whether inspite of the detenu being in jail there was necessity of detaining him under the Preventive Detention Act. Counsel for the petitioner has also relied on the decisions of this Court and other High Courts applying the ratio of the judgment of the Supreme Court in the above case in similar circumstances. Reference may be made to the decision of the Division Bench of this Court in the case of Satish Ratilal Rawal v. Union of India and others, in which the detaining authority was represented by Mr. Agarwal himself. Similarly, Delhi High Court has followed the ratio of the aforesaid Supreme Court decision in the case of Kuldep Singh v. Union of India and others, 1995 Cri.L.J. 3737 and the Punjab and Haryana High Court in the case of Manjit Singh Dhillon v. Union of India and others, 1998 Cri.L.J. 1837.
7. Reliance by Mr. Agarwal on para 5 of the judgment of the Apex Court in the case of Noor Salman Makani v. Union of India and others, is, in our view, misplaced. In that case the detaining authority had actually considered the possibility of the detenu being likely to be released on bail and he had in fact been released on bail. In this case the application of detenu for bail was rejected as conceded by Mr. Agarwal. Moreover, from the reply affidavit extracted above and, particularly, from the underlined portion thereof it is quite clear that the detaining authority did not consider the fresh development at all though he was bound to consider the same before the execution of the impugned order. The detaining authority has on the contrary averred that need for fresh consideration and/or satisfaction of the detaining authority did not arise which is against the ratio of the decision of the Apex Court in Binod Singh's case (supra).
8. In the aforesaid circumstances, the petition is allowed and rule is made absolute in terms of prayer Clause 7(a) of the petition. The petitioner detenu shall be released forthwith unless he is required in any other case.
Petition allowed.