Supreme Court - Daily Orders
P.P. Rukhiya vs Joint Secy., Government on 10 March, 2016
Bench: A.K. Sikri, R.K. Agrawal
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 947 OF 2005
P.P. RUKHIYA ... Appellant
VERSUS
JOINT SECY., GOVERNMENT & ANR. ... Respondents
WITH
CRIMINAL APPEAL NO. 948 OF 2005
O R D E R
CRIMINAL APPEAL NO. 947 OF 2005 Few facts which need to be taken note of for the purposes of deciding this appeal are recapitulated below.
On 11.04.2000, there was a search conducted on the residence of the appellant, though no incriminating material was found therein. However, in some customs case, the husband of the appellant was arrested on 27.07.2003 along with two other co-accused persons. Other co-accused filed bail application which was rejected by the trial court. The said co-accused, thereafter, went to the High Court challenging the order of the trial court dismissing his bail application. The High Court on 29.08.2003 dismissed the said bail application of the co-accused. At the same time, it ordered the trial court to conclude the trial in the aforesaid customs case within six months. Insofar as the Signature Not Verified Digitally signed by NIDHI AHUJA Date: 2016.03.17 05:27:25 IST Reason: husband of the appellant is concerned, he had not made any 1 CRIMINAL APPEAL NO. 947 OF 2005 etc. bail application. The respondent passed order dated 06.10.2003 under Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') for detention of the husband of the appellant/ detenue herein. As mentioned above, as on that date, the husband of the appellant was in jail and he had not filed any application for bail. The detention order was executed on 29.10.2003 by serving the same upon the husband of the appellant in jail. His representation against the detention order filed by his wife was rejected. Thereafter, challenging the detention order, the appellant preferred Writ Petition No. 1819 of 2003. This writ petition, however, has been dismissed by the High Court of Madras vide the impugned judgment dated 16.08.2004.
Though the period of detention as per the aforesaid detention order is over since the respondents have also started proceedings against the husband of the appellant under CFMA, the appellant is pressing this appeal because of the aforesaid reason.
A neat submission which is made by the learned senior counsel appearing for the appellant is that when the husband of the appellant was in jail, he had not made any application for bail, there could not have been any apprehension on the part of the respondents/ detaining authority about him indulging in any activity as alleged in the detention order 2 CRIMINAL APPEAL NO. 947 OF 2005 etc. and thus, there was no occasion to pass any preventive detention order in respect of the husband of the appellant who was already in jail.
He has referred to various judgments in support of the aforesaid plea. For our purposes, it would be sufficient to rely upon the judgment of this Court in 'Rekha v. State of Tamil Nadu through Secretary to Government and Another' [2011 (5) SCC 244). The law is discussed in the aforesaid judgment after taking note of various earlier judgments.
The court has, categorically, held that only in those cases where there is a real possibility of release of a person on bail who is already in custody, action can be taken for detention of such a person by passing orders of preventive detention under COFEPOSA Act. Otherwise, there is no occasion and justification to pass such an order.
We reproduce paragraph 27 of the said judgment which captures the aforesaid principle of law: -
“In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenue being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged 3 CRIMINAL APPEAL NO. 947 OF 2005 etc. similar cases must be given, otherwise the bald statement of the authority cannot be believed.” Since the fact situation is identical in the instant case, the detention order cannot be sustained. The impugned judgment of the High court upholding such an order is also not in conformity with law. We, thus, allow this appeal, set aside the order of the High Court and quash the detention order dated 06.10.2003.
CRIMINAL APPEAL NO. 948 OF 2005 The detention order dated 06.10.2003 referred to above was passed in the case of the detenue in this appeal as well who was also in jail at that time. For the reasons mentioned above, this appeal also succeeds and allowed, thereby quashing the detention order.
........................, J.
[ A.K. SIKRI ] ........................, J.
[ R.K. AGRAWAL ] New Delhi;
March 10, 2016.
4 CRIMINAL APPEAL NO. 947 OF 2005 etc. ITEM NO.104 COURT NO.11 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No. 947/2005 P.P. RUKHIYA Appellant(s) VERSUS JOINT SECY., GOVERNMENT & ANR. Respondent(s) (With office report) WITH
Crl.A. No. 948/2005 (With Office Report) Crl.A. No. 949/2005 (With Office Report) Date : 10/03/2016 These appeals were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE R.K. AGRAWAL For Appellant(s) Mr. R. S. Sodhi, Sr. Adv.
Ms. Vandana Sharma, Adv.
Ms. Shikha Tyagi, Adv.
Mr. P. K. Manohar, Adv.
For Respondent(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. T. C. Sharma, Adv.
Ms. Rashmi Malhotra, Adv.
Ms. Sunita Rani Singh, Adv.
Mr. Arvind Kumar Sharma, Adv.
UPON hearing the counsel the Court made the following O R D E R Criminal Appeal No. 947 of 2005 and Criminal Appeal No. 948 of 2005 The appeals are allowed in terms of the signed order.
Criminal Appeal No. 949 of 2005 The appeal is not taken up today.
(Nidhi Ahuja) (Tapan Kr. Chakraborty)
Court Master Court Master
[Signed order is placed on the file.] 5