Karnataka High Court
Smt Afifa Samiya vs Joint Secretary on 12 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS.JUSTICE K.S. MUDAGAL
WRIT PETITION (HC) No.26/2018
Between:
Smt Afifa Samiya W/o Wasim Shariff,
Aged 22 years,
Residing at No.32, 5th Cross,
Annayappa Block,
Marappa Garden, J.C.Nagar,
Bangalore- 560 046.
... Petitioner
(By Sri.Kiran S.Javali, Advocate)
And:
1. Joint Secretary,
COFEPOSA, Government of India,
Ministry of Finance, Department of Revenue,
Central Economic Intelligence Bureau,
6th Floor, "B" Wing, Janpath Bhavan,
Janpath, New Delhi - 110001,
Rep. by Shri P.V.Subba Rao.
2 WP(HC) No.26/2018
2. Government of India,
By Central Economic Intelligence Bureau,
Government of India,
Ministry of Finance,
Department of Revenue,
6th Floor, "B' Wing, Janpath Bhavan,
Janpath, New Delhi - 110001,
Rep. by Director General.
3. Senior Superintendent,
Central Prison, Parapanna Agrahara,
Bangalore - 560 100.
... Respondents
(By Smt.M.R.Vanaja, CGA for R1 and R2;
Sri A.M.Suresh Reddy, AGA for R3 &
Sri Jeevan J.Neeralgi, Advocate for impleading on
I.A.No.1/2018)
This WP(HC) is filed under Articles 226 of the
Constitution of India, praying to issue a writ in the
nature of Habeas Corpus or any other appropriate
Writ, Order or direction declaring the detention of
Shri Wasim Shariff S/o Habibulla Shariff, by order
F.No.PD/ 12001/ 075/ 2017 - COFEPOSA dated
14.11.2017 (Annexure "A") and the confirmation
order dated 06.02.2018 (Annexure "D") as illegal
and void ab initio.
This WPHC having been heard and reserved for
orders on 25.04.2018 coming on for
3 WP(HC) No.26/2018
"Pronouncement of orders" this day,
K.S.Mudagal, J made the following;
ORDER
Whether the detention order Annexure 'A' dated 14.11.2017 passed by the first respondent and confirmation order Annexure 'D' dated 06.02.2018 passed by the second respondent are violative of Article 22(5) of the Constitution of India and the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') is the question involved in this case.
2. Petitioner is the wife of detenu Mr.Wasim Shariff. She has filed this petition on his behalf. The first respondent passed detention order Annexure 'A' invoking Section 3(1) of the COFEPOSA Act for detention of Mr.Wasim Shariff in Central Prison, Parappana Agrahara, 4 WP(HC) No.26/2018 Bengaluru on the grounds that such detention is required to prevent him from abetting the smuggling of goods in future. Annexure 'B' is the grounds of detention supporting Annexure 'A'. Annexure 'B' is passed on the basis of the report of the Sponsoring Authority viz., Department of Revenue, Intelligence, Zonal Unit and the material placed before him along with the said report.
3. As per the respondents the DRI, Bengaluru Zonal Unit the Sponsoring Authority, on the basis of specific intelligence information, on 08.10.2017 at 3.15 hours intercepted Skoda Octavia car No.KA-01-MB-835 and Hyundai Santro Xing Car No.KA-03-ME-6733 at Attibelle Toll Gate, Bengaluru and conducted search. It is alleged that during such search the inmates of Skoda Octavia car Mr.Farhad and Santro Car 5 WP(HC) No.26/2018 Mr.Syed Irfan escaped. The detenu was travelling in Santro Car along with his wife the petitioner and his sister Ruksar Fathima. It is alleged, on search of the cars they were found transporting 1012 turtles of Tricarinate Hill, Red eared slider and Indian Tent species in all worth Rs.3.03 crores stuffing them in gunny bags, transparent boxes and petal designed pillow covers and packing them in trolley and duffel bags which were kept at the back boot leg space of Skoda Car. The raiding squad took the cars along with incriminating material to their office, seized the incriminating material under the mahazars in the presence of panchas and Forest Officials. The interrogation of the detenu revealed that he was transporting those fauna to Chennai to supply to one Mr.Pramod for onward export to Hongkong and China, previously he 6 WP(HC) No.26/2018 had smuggled and abetted the smuggling of the endangered species of fauna. As per respondents those fauna fall under Schedule I Wildlife Protection Act and were liable for confiscation under Customs Act.
4. The DRI Officials conducted the investigation into the matter seized the mobile phones and conducted search in the house of detenu and his shop. They conducted search in the house of the wife of detenu and his aids. During the search of the house Mohsin Ahmed who was another occupant of Skoda Octavia car was found in the house of the detenu, he was also arrested.
5. DRI the Sponsoring Authority registered the case against the detenu for violation of Section 104 of the Customs Act and 7 WP(HC) No.26/2018 produced him before the Special Court for economic offences and he was remanded to judicial custody. Simultaneously DRI the Sponsoring Authority also submitted the records to the first respondent proposing for preventive detention of said Mr.Wasim Shariff. The bail applications of the detenu were rejected by the trial court as well as Sessions Court.
6. The first respondent passed the impugned order Annexure 'A' along with the grounds of detention Annexure-B holding that with a view to prevent the detenu from abetting smuggling of goods in future it is necessary to make preventive detention order. The order was executed on 16.11.2017 and served on 16.11.2017 along with the grounds of detention, list of documents and the copies of the documents supporting the detention order. In 8 WP(HC) No.26/2018 Para No.22 of the grounds of detention the first respondent briefed the detenu of his right to make representation against the detention order to the Detaining Authority and to the Advisory Board through the Jail Authorities. Then the matter was referred to the Advisory Board constituted under Section 8 of the COFEPOSA Act.
7. The detenu did not make any representation to the Detaining Authority or the Advisory Board. On hearing the detenu the Advisory Board vide its report dated 06.02.2018 opined that there is sufficient cause for detention of Mr.Wasim Shariff. Then the second respondent vide order Annexure 'D' dated 06.02.2018 passed the confirmation order invoking Section 8(f) of the COFEPOSA Act for detaining Mr.Wasim Shariff for a period of one 9 WP(HC) No.26/2018 year from the date of his detention i.e., from 16.11.2017.
8. Sri Kiran S.Javali learned counsel representing the petitioner reiterating the grounds of the petition seeks to assail the orders Annexure 'A' and 'D' on the following grounds :-
1. Order Annexure 'A' states that it is passed to prevent the detenu from abetting smuggling of goods. Annexure 'B' the grounds on detention states that, the detention order was sought to prevent smuggling of goods.
Therefore, the order was without application of mind.
2. The said variance in Annexure 'A' the detention order and Annexure 'B' the grounds of detention confused the detenu and incapacitated him from making representation before the Detaining Authority and Advisory Board, thereby Article 22(5) of the Constitution of India is violated. 10 WP(HC) No.26/2018
3. The variance in the detention order and the grounds of detention are insegregable. Therefore, the detention order is vitiated.
4. The detention order is based on the voluntary statement said to have been given by the detenu before the Authorities under Section 108 of Customs Act. But the detenu in his bail application denied having given any such statement. Thereby there was retraction from the voluntary statement. The Detaining Authority failed to take into consideration such retraction from the voluntary statement while passing the detention order.
5. The Detaining Authority was aware that the detenu's bail applications were rejected and thus there was no apprehension of release of the detenu on bail. But Annexure 'B' states that he is likely to be released on bail, which shows non-application of mind.
6. Therefore, the Authority shall be directed to produce the entire file pertaining to the detention order before the court, to satisfy 11 WP(HC) No.26/2018 that the orders are passed on due application of mind.
7. The detenu submitted representations to the Detaining Authority and the Advisory Board through Prison Authorities and Detaining Authority has failed to place them before Advisory Board.
9. In support of his contentions he relies on the following judgments :-
1. Ram Manohar Lohia vs. The State of Bihar and another - AIR 1966 SC 740
2. Kishori Mohan Bera vs. The State of West Bengal - AIR 1972 SC 1749
3. Akshoy Konia vs. State of West Bengal - AIR 1973 SC 300
4. R.Prakash vs. State of Karnataka - 1980 Cri.L.J 165
5. Munawar Hussain vs. Govt. of Karnataka -WPHC No.134/2009
6. Smt Sushma M Jain vs. Govt. of Karnataka -WPHC No.135/2009
7. Mohd.Farooq Kasim vs. Govt of Karnataka -WPHC No.121/2011 12 WP(HC) No.26/2018
8. Hymayu Shaikh vs. Govt. of Karnataka -WPHC No.150/2011
9. Abdul Sathar Ibrahim Manik vs UOI - AIR 1991 SC 2261
10. Shaban Abdul Rahaman vs. UOI - KR 1992 Kar 3286
11. Mohd. Towfeek - WP (Cri) No.602/1989
12. Arun Kumar Soni vs. UOI - 1992 Crl.L.J
13. N.Meera Rani vs. Govt of Tamil Nadu and another - AIR 1989 SC 2027
14. Kamarunnissa vs. Union of India - AIR 1991 SC 1640
15. Rekha vs. State of T.N - 2011 (2) SCC (Cri) 596
16. T.V.Saravanan vs. State - (2006) 1 SCC (Cri) 593
17. Yumman Ongbi L.L vs. State of Manipur -
AIR 2012 SC 321
18. Champion R.Sangma vs. State - LAWS (SC) 2015 (5) 92
19. Vishal vs. The State of India - WP No.201019/2015 (GM-.....)
20. Ayya Ayub - AIR 1989 SC 364
21. Tulshi Raidas - AIR 1975 SC 638
22. Mohd.Dhana - AIR 1976 SC 734 13 WP(HC) No.26/2018
23. Rattan Singh & Anr. vs. State of Punjab and Ors. - 1981 SCC (Cri) 853
24. Kamleshkumar Ishwardas Patel vs. Union of India (1995) SCC 51
25. Rekha vs. State of T.N - 2011 (2) SCC (Cri) 596.
10. Per contra Smt. M.R.Vanaja, learned standing counsel for respondent Nos.1 and 2 opposes the petition and justifies impugned orders on the following grounds :-
1. The scope of interference in a preventive detention order is very limited. This court cannot sit over the order as an Appellate Authority. The court cannot investigate the question whether the circumstances of suspicion exist warranting the detention of a person and substitute its judgment for the satisfaction of the Detaining Authority.
2. The detention order is based on multiple grounds and they are independent of each other. The grounds of detention say detenu smuggled as well as abetted smuggling.14 WP(HC) No.26/2018
Therefore, even assuming that the grounds of detention suggest the activities of the petitioner as smuggling and abetment of smuggling, the order is only in respect of abetment of smuggling and the same does not get vitiated.
3. The detention order is passed on examining the entire material placed before it and with due application of mind. Section 3(1) of COFEPOSA Act covers smuggling as well as abetment of smuggling. Having regard to the material placed before the Authority there is no variance between the grounds of detention and order of detention.
4. Once the statement is made before the Authority under Section 108 of the Customs Act the detenu can retract from that only before the said Authority. Mere denial of such statement at this stage before this court does not amount to retraction.
5. The detenu did not make any representation before the Detaining Authority and the Advisory Board, therefore his contention that 15 WP(HC) No.26/2018 the order is without proper opportunity to detenu and considering retraction of the voluntary statement are all after-thought.
6. The detenu had not exhausted all the remedies for bail available to him. Therefore it cannot be said that the satisfaction of the Authority that there are chances that detenu being released on bail is baseless.
11. In support of her contention she seeks to rely on the following judgments :-
1. Union of India and others vs. Arvind Shergill and another - (2000) 7 Supreme Court cases 601;
2. Abdul Sathar Ibrahim Manik vs. Union of Indian and others - (1992) 1 Supreme Court Cases1 ;
3. Gautam Jain vs. Union of India and another -
(2017) 3 Supreme Court Cases 133.
4. Prakash Chandra Mehta vs. Commissioner and Secretary, Government of Kerala and others - 1985 (Supp) Supreme Court Cases 144. 16 WP(HC) No.26/2018
12. The learned counsel for respondent Nos.1 and 2 made available the entire records pertaining to the impugned detention orders for the perusal of this court.
13. Article 22 of the Constitution of India provides for protection against arrest and detention. Clause (1) of Article 22 states that no person arrested shall be detained in custody without informing the arrestee about the ground of arrest and denying right to consult and defended through a legal practitioner of his choice. Clause (2) of Article 22 states that every person arrested and detained in custody shall be produced before the nearest Magistrate within twenty four hours of such arrest. 17 WP(HC) No.26/2018
14. Clause (3) of Article 22 is in the nature of exception to Article 22(1) and (2) which states that nothing in Clauses (1) and (2) shall apply to an enemy alien; or a person arrested or detained under any law providing for preventive detention. Clause (4) of Article 22 states that the preventive detention under the special Act shall not be longer than a period of three months unless Advisory Board specified in Clause (a) opines that there is sufficient cause for detention and even in such case the maximum period of detention shall not be beyond the period of detention prescribed under such Act. Article 22(5) of the Constitution of India states that person under preventive detention shall be communicated with the grounds of detention and 18 WP(HC) No.26/2018 afford the detenu earliest opportunity of making a representation against the order.
15. Order Annexure 'A' is passed invoking Section 3(1) of the COFEPOSA Act, 1974 and Annexure 'D' the confirmation order is passed invoking Section 8(f) of the COFEPOSA Act. Section 3(1) of COFEPOSA Act provides that the Central Government or the State Government or any officer of the Central Government, not below the rank of Joint Secretary to that Government, or officer of the State Government, not below the rank of Secretary to the State Government, specially empowered in that behalf, may, if satisfied that, with a view to preventing a person from acting in any manner prejudicial to the conservation and augmentation of foreign exchange with a view to preventing him from (i) smuggling 19 WP(HC) No.26/2018 goods, or (ii) abetting the smuggling of goods etc., if found necessary, make an order for detention of such person.
16. Sub-section (3) of Section 3 states that for the purposes of Article 22 of Clause (5) of the Constitution, the officer making the detention order shall communicate the ground of detention as soon as may be after the detention ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
17. Section 8 of the COFEPOSA Act provides for constitution of Advisory Board. Section 8(b) states that on detention of a person the appropriate Government within five weeks from the date of detention make a reference to 20 WP(HC) No.26/2018 the Advisory Board for its report. Section 8(c) says that Advisory Board on hearing the detenu and securing further material, if any required, from the appropriate Government submit its report within eleven weeks from the date of detention of the person concerned.
18. Section 8(e) states that the detenu has no right of appearing before the Advisory Board through a legal practitioner and to the copy of report of the Advisory Board except the operative portion of the report. Section 8(f) states that on receipt of the report of the Advisory Board the appropriate Government may confirm the detention order and continue the detention.
19. Section 9 of the Act provides for detaining a person up to six months without 21 WP(HC) No.26/2018 obtaining the report of the Advisory Board to prevent such person from smuggling the goods or abetting the smuggling etc., on certain conditions. Section 10 of the Act prescribes that in case where the Advisory Board has held that there is sufficient cause for detaining the person, the period of detention under the confirmation order under Section 8 (f) shall not be beyond two years.
20. In this case the formalities of the communication of the detention order and the ground of detention, securing the report of the Advisory Board and thereafter passing the confirmation order are all followed. The period of detention also does not exceed the period prescribed under Section 10 of the Act. The petitioner has no grievance about that. It is also not disputed that the order can be passed on 22 WP(HC) No.26/2018 subjective satisfaction of the Authority. As already pointed out petitioner's grievance are that the order is without application of mind, the detention order varies from the ground of detention etc., We shall now see whether those grounds are sustainable.
Reg. the variance in the ground of detention and the detention order :-
21. Learned counsel for the petitioner vehemently argued that the detention order Annexure 'A' states that the Authority is satisfied that to prevent the detenu from abetting the smuggling of the goods in future passing of detention order is necessary and passed accordingly, whereas the grounds of detention in Annexure 'B' imputes the acts of the smuggling. It is contended that Authority cannot pass order 23 WP(HC) No.26/2018 on allegation of one Act when the grounds mentioned are different, which shows non application of mind.
22. The satisfaction of the first respondent in passing the impugned order Annexure 'B' is in Para No.18 which reads as follows :-
"18. In view of the facts and circumstances explained above, I have no hesitation in concluding that you played a pivotal role in facilitating the smuggling of impugned protected species of Tortoise/Turtles. You have been actively engaging in smuggling protected species of Tortoise/Turtles from India for earning illicit profit by selling them to International Members of the smuggling syndicates. The investigation done by DRI, BZU, Bengaluru clearly establishes your continued propensity and inclination to indulge in acts of smuggling in an organized manner which 24 WP(HC) No.26/2018 you knew or had reasons to believe that your actions are having a serious adverse effect on the national as well as global bio- diversity and that unless prevented you will continue to do so. Further considering the nature and gravity of offence in a planned and organized manner in which you have engaged yourself in such prejudicial activities and your role therein-all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future. I am satisfied that you ought to be detained under the Consideration of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA, 1974) with a view to preventing you from smuggling goods and abetting the smuggling of goods in terms of Section 3(1) (ii) of the COFEPOSA Act, 1974."
23. Thus, in para No.18 it is said that detention order is passed on the satisfaction of the Authority with a view to prevent him from 25 WP(HC) No.26/2018 smuggling the goods and abetting the smuggling of the goods. Therefore there is no merit in the contention that the satisfaction recorded in Annexure 'B' is for smuggling of the goods, whereas the order Annexure 'A' says that it is passed with a view to prevent abetting of smuggling, therefore there is variance in Annexure 'A' the detention order and Annexure 'B' the grounds of detention.
24. Apart from that, in Annexure 'B' it is said that previously the detenu had procured the turtles/tortoises endangered species to supply to Mr.Promod to Chennai, from where Mr.Pramod exported them concealing under the layer of crabs in the shipment cartons. In the incident on hand, as per the material, the detenu had procured the turtles/tortoises from Anantapur District of Andhra Pradesh and transporting them 26 WP(HC) No.26/2018 to Chennai to enable the smuggler to smuggle them out of India.
25. The perusal of the entire order shows that according to the material placed before the first respondent the detenu was the part of smuggling syndicate of one Mr.Naito who is an Indonesian National who was importing the turtles/tortoises from one Mr.Pramod from Chennai coast, Mr.Pramod in turn was securing them from the detenu, detenu in turn was getting those species from one Mr.Mahesh of Anantapur, Andhra Pradesh.
26. Section 2(39) of the Customs Act, 1962, defines 'smuggling' as follows ;-
" "smuggling", in relation to any goods, means any act or omission which will render such goods liable to 27 WP(HC) No.26/2018 confiscation under section 111 or section 113."
27. Section 113 of the Customs Act, 1962 reads as follows :-
"113. Confiscation of goods attempted to be improperly exported, etc.--The following export goods shall be liable to confiscation:--
(a) .....
(b) .....
(c) .....
(d) any goods attempted to be
exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;
. . . . . . . . . ."28 WP(HC) No.26/2018
28. Petitioner is not at issue that export of fauna seized was prohibited and they were liable for confiscation under Section 113 of Customs Act and thereby such act amounts to smuggling under Section 2(39) of Customs Act.
29. The perusal of the grounds of detention shows that applying his mind to the materials placed before him the first respondent arrived at subjective satisfaction that the detenu was supplying the prohibited species of fauna to Mr.Pramod of Chennai, in turn Mr.Pramod was smuggling those species. Further the turtles/tortoises said to be seized on 08.10.2017 were being transported to supply the same to Mr.Pramod to facilitate him smuggle them from Chennai port to Hongkong and China. Therefore, first respondent has passed the order Annexure 'A' invoking Section 3(1) of COFEPOSA Act, 29 WP(HC) No.26/2018 which includes abetting the smuggling of the goods. Therefore, there is no variance between the ground of detention and the order of detention.
30. Further even assuming that in the grounds of detention against the detenu allegations of smuggling the goods as well as abetting the smuggling of the goods are made, both those grounds are severable. Therefore, Section 5A of the COFEPOSA Act operates and the order does not become invalid. In Gautam Jain's Case referred to supra the Hon'ble Apex Court held that when detention order is passed on multiple grounds, independent of each other, non supply of documents pertaining to one ground of detention could not vitiate the detention order.
30 WP(HC) No.26/2018
31. Since the order of detention and the ground of detention relate to abetting the smuggling of goods and they are cogent and consistent, the contention that the order is ambiguous, thereby the detenu was incapacitated from making his representation is totally untenable. Having regard to the facts of the case the Judgments relied upon by the learned counsel for the petitioner do not serve his contentions.
Reg. retraction of statement :
32. It is alleged that the detention order is based on the voluntary statement made by the detenu under Section 108 of the Customs Act before the Authorities, but the detenu in the bail application filed by him before the courts retracted from those statements. It is contended 31 WP(HC) No.26/2018 that though the said material was available the respondent has not taken into consideration that aspect, therefore, the order is invalid.
33. The perusal of the order and the records shows that the order is not based only on the statement of the detenu. In the grounds of detention, it is further said that on search of the cars the incriminating material was recovered under the mahazar. It further states that the cell phones of the detenu were recovered from his person, from his residence in Marappa Garden and from those phones the whatsapp and telegram app chat conversations and images and call details were retrieved, they revealed the detenu's connectivity with the smuggling syndicate of prohibited fauna from India and he abetting the members of such syndicate in smuggling by procuring for them the 32 WP(HC) No.26/2018 said prohibited fauna till the Chennai coast for their onward export. Further the first respondent has relied upon the material seized during the search in the aquatic shop of the detenu and the residence of his friend Mr.Aslam.
34. The detenu did not make any retraction before the Authorities under Section 108 of the Customs Act, before the Detaining Authority or before the Advisory Board by making any representation. As already pointed out, the respondents also relied on the material placed, other than the statements made by the detenu.
35. Hon'ble Supreme Court in Prakash Chandra Mehta's case referred to supra has held as follows ;-
33 WP(HC) No.26/2018
"75. In the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing the detenu from, inter alia, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, or engaging in transporting or concealing or keeping smuggled goods the detention of the detenu is necessary. This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before. We have to examine whether 34 WP(HC) No.26/2018 even if the facts stated in the confession are completely ignored, then too the inferences can still be drawn from other independent and objective facts mentioned in this case, namely the fact of seizure after search of 60 gold biscuits from the suitcase of the daughter in the presence of the father which indubitably belonged to the father and admitted by him to belong to him for which no explanation has been given and secondly the seizure of the papers connected with other groups and organisations. Pratap Sait and others to whom gold has been sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenus for the purpose of Section 3(1) (iii) and 3(1) (iv). We are of the opinion that the impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument was 35 WP(HC) No.26/2018 presented in a little different shade namely the fact of retraction should have been considered by the detaining authority and the Court does not know that had been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in section 3(1) of the said Act. Whether other ground should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of Section 5-A of the Act there was sufficient material to sustain this ground of detention."
(Emphasis supplied) 36 WP(HC) No.26/2018
36. In this case also apart from the confessional statement of the detenu, there was other material like seizure of the fauna referred above, seizure of the mobile phones and the incriminating chats from the said phones, seizure of incriminating material from the residence and shop of the detenu and his aid. Therefore there is no merit in the contention that the detention order is based on retracted confessional statement of the detenu and the retraction of the said statement was not taken into consideration. Regarding rejection of bail application :-
37. It is contended that the bail applications of the detenu were rejected by the Special Court for Economic Offences and the Sessions Court and therefore the statement in the detention order that there is an immediate 37 WP(HC) No.26/2018 possibility of release of the detenu from the custody on bail and on such release he continuing to indulge into the prejudicial activities, is without application of mind.
38. It is to be noted that though the bail applications of the detenu were rejected by the Special Court and the Sessions Court, detenu still had not exhausted his remedy before all other forums for bail. He had the right to approach this court and the Supreme Court seeking bail. Moreover filing of the second bail application before the very same court was also not barred, if he could make out changed circumstances.
39. In Abdul Sathar Ibrahim Manik's case referred to supra the Hon'ble Supreme Court has held as follows :-
38 WP(HC) No.26/2018
"12. The Constitution Bench in 3 Rameshwar Shaw case (1964) 4 SCR 921 held thus:
"... whether 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. Therefore, we are satisfied that 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."
Following the above principles, another Bench of three Judges of this Court in N.Meera Rani v. Government of T.N.18 (1989) 4 SCC 418, after reviewing the various other decisions, it was observed that: "A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw case and that "none of 39 WP(HC) No.26/2018 the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw case...." Having so observed the Bench summarised the principle thus: (SCC p.434, para 22) "Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case;
preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial 40 WP(HC) No.26/2018 activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position."
In Chelawat case after examining the various decisions of this Court dealing with preventive detention of a person in custody, it is held thus: (SCC p.754, para
21) "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that
(i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the 41 WP(HC) No.26/2018 nature of the antecedent activities of the detenu, 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."
In Sanjay Kumar Aggarwal v. Union of India and Others19 (1990) 3 SCC 309, after reviewing all the relevant cases including Chelawat case1, this Court observed as under (SCC p.316, para 11) "It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances. Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. We have already, in the instant case, referred to the grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground."
42 WP(HC) No.26/2018In a very recent judgment of this Court in Kamarunnissa v. Union of India20 (1991) 1 SCC 128, all the above mentioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under:
"From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (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. 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 before a higher Court."
Having regard to the various above-cited decisions on the points often raised we find 43 WP(HC) No.26/2018 it appropriate to set down our conclusions as under:
(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court.
(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to 44 WP(HC) No.26/2018 suppression of relevant material.
The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or 45 WP(HC) No.26/2018 passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can 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."
(Emphasis supplied) In view of the aforesaid judgment and the discussion the contentions that despite rejection of the detenu's bail applications Authority says that there is likelihood of his release on bail therefore order without application of mind etc., are not sustainable.
46 WP(HC) No.26/2018Regarding representation of the detenu :
40. The petitioner at one breath states that the detenu has not made any representation before the Detaining Authority and the Advisory Board due to the alleged incapacity of the detenu on account of his failure to comprehend or his confusion regarding the grounds of detention. She further contends that he had made his representations and they are still not considered.
41. The order of confirmation of detention is passed on 06.02.2018. The representations of the detenu addressed to respondent Nos.1 and 2 are dated 08.03.2018 and 13.02.2018 that is subsequent passing Annexure 'D' order. Therefore, they do not have any bearing on the validity of the orders Annexure 'A' and 'D'. The respondents in their objections statement state 47 WP(HC) No.26/2018 that they were received in the Ministry on 21.03.2018 and 26.03.2018 and same are under consideration. Thus, the said representations are irrelevant for the purpose of considering the validity of Annexure 'A' and 'D'.
42. The respondents produced before this court the entire file including the report of the Advisory Board. The records show that all the material was placed before the Advisory Board and Board submitted its report holding that there were sufficient reasons for detention. We do not find any ground for interference. Therefore, petition is dismissed.
43. Since the petition itself is disposed of, I.A.No.1/2018 filed by the Sponsoring Authority to implead them does not survive for 48 WP(HC) No.26/2018 consideration. Therefore, disposed of accordingly.
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