Abdul Sathar Ibrahim Manik Vs. Union of India & Ors [1991] INSC 257 (8 October 1991)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Pandian, S.R. (J)

CITATION: 1991 AIR 2261 1991 SCR Supl. (1) 435 1992 SCC (1) 1 JT 1991 (4) 103 1991 SCALE (2)758

ACT:

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974:

S.3(1) Detenu in jail-Bail application rejected-Deten- tion order---Compelling necessity for---Determination of--Whether within the subjective satisfaction of detaining authority.

Constitution of India, 1950:

Art. 22(5) Detention order---Non supply of bail appli- cation and order refusing bail to detenu--Detenu's right to a reasonable opportunity--Whether affected.

HEAD NOTE:

The petitioners-foreign nationals found to be carrying gold biscuits of foreign origin - were arrested by the Customs authorities. Their applications for grant of bail under s. 437 Cr.P.C. were rejected. Thereafter orders of their detention were passed under s. 3(1) of the Conserva- tion of Foreign Exchange and Prevention of Smuggling Activi- ties Act. The grounds of detention alongwith the lists of documents annexed thereto were served in time. The petition- ers made representations which were rejected.

In the writ petitions under Article 32 of the Constitu- tion, the petitioners before this Court contended that there was no compelling necessity for their detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act as they were in jail and their bail applica- tions were rejected and passports seized; that the provi- sions of the Act were not attracted, as each of the inci- dents in the case of the respective petitioners was solitary and there were no anticidents showing their involvement in the like incidents; that there was non-application of mind by the detaining authority as copies of the bail applica- tions and the orders refusing bail which were relevant documents were neither placed 436 before the detaining authority nor were supplied to them. On behalf of one of the petitioners it was also contended that there was no application of mind by the detaining authority inasmuch as the order of detention mentioned only smuggling and once the detenu is in jail, his passport being seized he could no more indulge in smuggling.

Dismissing the writ petitions, this Court,

HELD: 1.1 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. [451-F]

1.2 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. [451G-H, 452 A] Dharmendra Suganchand Chelawat & Anr. v. Union of India

v.S.N. Sinha, Commissioner of Police, Ahmedabad & Anr., [1989] 2 SCC 222, referred to. Rameshwar Shah v. District Magistrate, Burdwan, [1964] 4 SCR 921, followed.

N. Meera Rani v. Government of Tamil Nadu &Anr., [1989] 4 SCC 418; Sanjay Kumar Aggarwal v. Union of India & Ors., [1990] 3 SCC 309 and Kamarunnissa etc. v. Union of India &Anr., AIR 1991 SC 1640, relied on.

2.1 If the detenu has moved for bail then the applica- tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup- pression of relevant material. The question of non-applica- tion 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. [452 B] 437

2.2 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) of the Constitu- tion, when it is clear that the authority has not relied or referred to the same. [452-C]

2.3 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 arriv- ing 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 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. [452 C-E]

2.4 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. [452 E-F] M. Ahmedkutty v. Union of India & Anr., [1990] 2 SCC 1; Ramachandra A. Kamat v. Union of India. [1980] 2 SCC 270; Frances Coralie Muffin v.W.C. Khambra. [1980] 2 SCC 275; Icchu Devi Choraria v. Union of India. [1980] 2 SCC 531; Pritam Nath Hoon v. Union of India [1980] 4 SCC 525; Lallub- hai Jobibhai Patel v. Union of india, [1981] 2 SCC 427; Tushar Thakker v. Union of India [1980] 4 SCC 499; Kirti Kumar Chaman Lal Kundalia v. Union of India [1981] 2 SCC 436; Ana Carolina D'Souza v. Union of India [1981] Supp. SCC 53(10); Mst. L.M.S. Ummu Saleema v. Shri B.B. Gujaral & Anr., [1981] 3 SCC 317; Abdul Sattar Abdul Kadar Shaikh v. Union of India & Ors., [1990] 1 SCC 480 and SaVed Farooq Mohammad v. Union of India & Anr., JT [1990] 3 SC 102, referred to.

3. It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned. [p. 440 E] 438

4.1 In the instant case, in the counter affidavit it was stated that the period of remand to the judicial custody was to expire the next day after the detention. Therefore, there was every likelihood of the detenu's moving for bail and getting released on bail. These materials showed that the detaining authority was not only aware that the detenus were in jail but also noted the circumstances on the basis of which he was satisfied that they were likely to come out on bail'and continue to indulge in the smuggling activities.

[453 B-C] As mentioned in the grounds of detention, there was relevant material on the basis of which the detaining au- thority was satisfied that there was compelling necessity to pass the detention orders. It, therefore, cannot be said that there were no compelling reasons justifying the deten- tion despite the fact that detenus were already in custody. [443 C, 453 C]

4.2 Failure to supply the bail applications and the orders refusing bail did not in any manner prejudice the detenus from making representations particularly when they were fully aware of the contents of the applications made by them and also the refusal orders. However, when they are not referred to or relied upon, the non supply does not affect the detention. [453 C-D]

5.1 Even a solitary incident may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling. [p. 443 D-E]

5.2 The potentialities of the detenu as gathered from his act of smuggling form basis for detention. It is diffi- cult to comprehend precisely the manner in which a detenu with certain potentialities may likely to indulge in the activities of smuggling. It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him. [p. 455 B-C]

5.3 In the instant case, in the grounds of detention, the manner in which the gold biscuits were concealed was mentioned and that itself suggested that the detenus must have been indulging in smuggling 439 activities. [p. 443 B-C] & ORIGINAL JURISDICTION: Writ Petition (Crl.) Nos. 105 & 106 of 1991. (Under Article 32 of the Constitution of India.) Harjinder Singh and R.N. Joshi for the Petitioners.

A.K. Ganguli, Ms. Kitty Kumar Manglam, Ms. A. Subhashini and T.T. Kunhikannan for the Respondents.

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. Common-questions arise for consideration in these two writ petitions filed under Arti- cle 32 of the Constitution of India seeking writ of habeas corpus for quashing the orders of detention and for immedi- ate release of the detenus. First, we shall deal with Writ Petition (Crl.) No. 105 of 1991.

Writ Petition (Crl.) No. 105 of 1991 The petitioner-detenu is a foreign national being a resident of Republic of Maldives. On 25.10.90 he landed at Trivandrum Airport from Male and was moving towards the exit gate of the Customs Import Baggage Hail. He was intercepted by the Air Customs Officers and on examination he was found to be carrying 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of he red colour suit-case belonging to the petitioner. His passport and other documents were also seized. The petition- er's statement was recorded under Section 108 of the Customs Act, 1962 wherein he is alleged to have confessed the guilt.

After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days. Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While he was in jail he made an application for granting of bail under Section 437 Cr.P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While the petitioner. was confined in jail an order of detention was passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smug- gling Activities Act, 1974 ('COFEPOSA Act') for short) by the Secretary to the Government, Government of Kerala, Home (SS A) Department on 7.11.90 and the same was served on the petitioner on 8.11.90. The grounds of 440 detention alongwith the list of documents annexed thereto were served in time. The petitioner made a representation and it was rejected.

It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized, there was no compelling necessity for such a deten- tion. It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted. The next main and important submission is that the copies of the bail application filed by him and the order refusing bail, which are relevant documents, were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non application of mind and the petitioner also is denied a reasonable opportunity under Article 22(5) of the Constitu- tion of India.

We see no force in the first submission namely that there was no compelling necessity for passing the detention Order. It is true that when the detention order was passed on 7.11.1990 the detenu was in jail and his bail application also was rejected and his passport also was seized. But the detaining authority has mentioned in the grounds that "I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.

Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail.' Therefore it cannot be said that the detaining authority did not apply his mind to this aspect. It is entirely within his subjective satisfaction whether there are such compelling circumstances or not. He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also. The learned counsel appearing for the petition- er relied on a judgment of this Court in Dharmendra Sugan- chand Chelawat and Anr. v. Union of India and Others [ 1990] 1 SCC 746 wherein it is observed that an order of 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 the detaining authority was aware of the fact that the detenu was already in detention and there were compelling reasons justifying such detention and that there should be cogent material on the basis of which the detain- ing authority may be satisfied that there are compelling reasons such as that the. detenu is likely to be released from custody in the near future and the nature of the an- tecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities. But we may observe that what 441 would be the compelling reasons in the context would depend on the facts of each case. In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase.

This itself manifests the expertise of the carrier in smug- gling. The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likeli- hood of his being released on bail and he is likely to indulge in such smuggling activities. It is mentioned in the counter-affidavit that the remand period of the detenu was to expire on 10.11.90 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail. This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order. Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons.

Learned counsel also relied on the judgment of this Court in Abdul Razak Abdul Wahab Sheikh v.S.N. Sinha, Commissioner of Police, Ahmedabad and Another [1989] 2 SCC 222. That was a case of public order and after referring to some of the earlier decisions including the decision of the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan, [1964] 4 SCR 921, this Court considered the contention i.e. since the detenu was in custody at the time of service of the order of detention there was no material to disclose necessitating the detention. It was held thus:

"On a consideration of the aforesaid deci- sions the principle that emerges is that there must be awareness in the mind of the detain- ing authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessi- tate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail.

It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988. It is also not disputed that no application for bail was made for release of the detenu before the order of detention was served on him on May 23, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also." This state- ment clearly shows that the detaining authori- ty was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Desig- nated Court and as such the possibility of his coming out 442 on bail was non-existent. This fact of non- awareness of the detaining authority, in our opinion, clearly establishes that the subjec- tive satisfaction was not arrived at by the detaining authority on consideration of rele- vant materials. There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfaction that the detenu, ii released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative." Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases having noth- ing to do with the maintenance of public order and then held that:

"These statements do not disclose any activity after March 14, 1988 or any activity of the time when the detenu was a free person. Con- sidering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu. It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods." The Division Bench finally concluded thus:

"It is highlighted in this connection that in the affidavit-inreply filed by respondent 1, the detaining authority, he merely denied the specific averments made in para 3(111) that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between March 14 to April 13, 1988 etc. without spe- cifically denying those statements. In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibili- ties that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjec- tive satisfaction by the detaining authority in making the order of detention in question." (emphasis supplied) 443 From the above passages it can be seen that this Court categorically held that a person in custody can be detained.

There must be awareness in the mind of the detaining author- ity that the detenu is in custody and that there should be cogent and relevant material showing that there is a compel- ling necessity to detain him. Since that was a case of public order, the learned Judges proceeded to consider the nature of the cases that were pending and ultimately on the facts and circumstances of the case held that the absence of a reference to any one of such recent cases would show that the subjective satisfaction has not been arrived at proper- ly. This reasoning cannot be applied to the facts of this case. In the grounds, the manner in which the gold biscuits were concealed is mentioned and that itself suggests that the detenu must have been indulging in smuggling activities.

So there was relevant material on the basis of which the detaining authority was satisfied that there was compelling necessity to pass the detention order.

The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted. It is again a question of satisfaction of the detaining authority on the basis of the material placed before it. Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the poten- tialities of a detenu in the activities of smuggling.

The next and main submission is that there was suppres- sion of vital documents namely bail application and the order refusing bail, which are relevant documents, and had those documents been placed before the detaining authority they might have influenced the mind of the detaining author- ity one way or the other. Alternatively it is also contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner paripassu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is ille- gal and violative of Article 22(5) of the Constitution of India. There is no dispute that the detenu moved for bail under Section 437 Cr.P.C. on 29.10.90 before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and by an order dated 2.11.90 the bail application was rejected.

The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed,. In support of this plea reliance is placed on the grounds wherein the 444 detaining authority has stated that he was aware that the petitioner was in judicial custody and possibility of his release on bail in the near future cannot be ruled out. It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has been rejected and the only inference that can be drawn is that these relevant documents were suppressed and not placed before the detaining authori- ty. In the counter-affidavit filed by the second respondent, State of Kerala, it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner's name the copies of the bail application and the order refusing bail were not made available to the Department and therefore they were not placed before the authority. From these averments, one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the failure to place the bail application and the order refusing bail before the detaining authority does in any way affect the detention order. The learned counsel in this context sought to place reliance on some of the judgments of this Court. In M. Ahmedkutty v. Union of India and another, [1990] 2 SCC 1, the contention was that the bail application and the order granting bail which were relied upon by the detaining authority were not supplied to the detenu and therefore the detention was illegal. A Division Bench of this Court noticed that in the grounds it was clearly men- tioned that the detenu was remanded to judicial custody and was subsequently released on bail. Therefore these documents were in fact placed before the detaining authority and were relied upon by it and therefore the non-supply of these relevant documents to the detenu disabled him to make an effective representation. Therefore there was violation of Article 22(5) of the Constitution. In arriving at this conclusion, the Division Bench relied on several other decisions and observed that all the documents relied upon by the detaining authority must be pari-passu supplied to the detenu. In the instant case, the facts are different. In the counter- affidavit it is clearly stated that the bail appli- cation and the order refusing bail were not there before the sponsoring authority. Therefore they were not placed before the detaining authority. The grounds do not disclose that the detaining authority has relied upon any of these two documents. On the other hand as already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail.

This itself shows that these documents were not before the authority. Therefore it cannot be said that the docu- ments referred to and relied upon in the grounds were not supplied to the detenu and the ratio in 445 Ahmedkutty's case, [1990] 2 SCC 1 on this aspect does not apply to the facts in the instant case. It is not necessary to refer to in detail various decisions of this Court where- in it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied. This has been settled by a long line of decisions:

Ramachandra A. Kamat v. Union of India [1980] 2 SCC 270, Frances Coralie Mullin v.W.C. Khambra, [19801 2 SCC 275, Ichhu Devi Choraria v. Union of India, [1980] 4 SCC 531, Pritam Nath Hoon v. Union of India, [1980] 4 SCC 525, Tushar Thakker v. Union of India, [1980] 4 SCC 499, Lallubhai Jobibhai Patel v.union of India, [1981] 2 SCC 427, Kirti Kumar Chatnan Lal Kundalia v. Union of India [1981] 2 SCC 436, and Ana Carolina D'Souza v Union of India 1198x1 Supp. SCC 53 (1) At this juncture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds, need not be supplied. In Mst. L.M.S. Ummu Saleema v. Shri B.B. Guja- ral and another, [1981] 3 SCC 317 after referring to some of the earlier decisions of this Court, it was held thus:

"It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effec- tive representation, that amounts to a viola- tion of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.

It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under Article 22(5) of the Constitution. We may of course add that whether the document is casually or passingly referred to or whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case. In the instant case we are satisfied that these two documents were not placed before the detaining authority nor they were referred to or relied upon.

The learned counsel, however, proceeded to submit that even assuming that these documents were not relied upon or referred to by the detaining authority yet the failure to place these relevant documents before the 446 detaining authority amounted to suppression and therefore there was non application of mind and that the detention order passed without looking into such relevant material is invalid. In Ahmedkutty's case no doubt there is an observa- tion having regard to the facts therein that non considera- tion of the bail application and the order of releasing would amount to non application of mind and that would affect the detention order. The Division Bench made these observations while considering the contention that the order granting bail and the bail application, though referred to, were not relied upon. It is not laid down clearly as a principle that in all cases non consideration of the bail application and the order refusing bail would automatically affect the detention. The relevant observations in this context made by this Court Ahmedkutty's case may be noted:

"If in the instant case the bail order on condition of the detenu's reporting to the customs authorities was not considered the detention order itself would have been af- fected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. In S. Gurdip Singh v. Union of India, [1981] 1 SCC 419, following Ichhu Devi Choraria v. Union of India, [1980] 4 SCC 531 and Shalini Soni v. Union of India, [1980] 4 SCC 544 it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio." (emphasis supplied).

It is further observed in this case that:

"Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alterna- tive but to hold that it amounted to denial of the detenu's right to make an effective repre- sentation and that it resulted in violation of Article 22(5)of the Constitution of India 447 rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." (emphasis supplied) Placing considerable reliance on this passage, the learned counsel contended inter alia that in the instant case from other point of view namely (i) if the bail application and the order refusing bail were not considered or (ii) if considered the non-supply of the copies of the same to the detenu would affect the detention order. In other words, according to him, non-consideration of these two documents by the detaining authority would itself affect the satisfaction of the detaining authority. If on the other hand they are taken into consideration and relied upon the non-supply of the same to the detenu would result in violation of Article 22(5) of the Constitution rendering the detention invalid. We are unable to agree with' the learned counsel. We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied. The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that "Considering the facts ...... the bail application and the bail order were vital materials". In that view these observations were made. Further that was a case where the detenu was released on bail and was not in custody. This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied.

Now we shall consider the other submission regarding the non-supply of the bail application and the order refusing bail to the detenu and its effect. According to the learned counsel these two documents formed relevant material and irrespective of the fact whether they were placed before the detaining authority or not they ought to have been supplied to the detenu and failure to do so has caused prejudice in making an effective representation. We are unable to agree.

In Abdul Sattar Abdul Kadar Shaikh v. Union of India and Others [1990] I SCC 480 it is observed thus:

"In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon. These documents were not relied upon bv the detaining authority.

When a request is made by the detenu for supply of these bail applications and 448 orders refusing thereon are made, the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal. No authority has been placed before us which goes to the extent of holding that a mere non-supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Article 22(5)." (emphasis supplied).

In Syed Farooq Mohammed v. Union of India and Another, JT [1990] 3SC 102 this Court considered precisely the same question and it was observed thus:

"The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the detaining authori- ty were not supplied to the petitioner and as such his right of making effective representa- tion guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced. This ground is without any sub- stance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was considered by the detaining athority before passing the impugned order of detention and as such this being not referred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non-supply of this document prejudiced the petitioner in making effective representation against the order of detention. Article 22(5) of the Constitution, undoubtedly, mandates that all the relevant documents referred to in the grounds of detention and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu.

The said document was not considered by the detaining authority in coming to his subjec- tive satisfaction and in making the impugned order of detention. The nonfurnishing to the detenu of the said document i.e. the bail application and the order passed thereon, does not affect in any manner whatsoever the dete- nu's right to make an effective representation in compliance with the provisions of Article 22(5) of the Constitution of India. This ground, therefore, is wholly untenable." (emphasis supplied) 449 From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference .that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired. When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu.

As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody.

These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary. Therefore the law requires that these two tests have to be satisfied, in the case of such detention of a person in custody.

The Constitution Bench in Rameshwar Shaw's case held thus:

"....... Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bonafide 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.

XXX XXXX XXX 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 Tamil Nadu and Another, [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's case and that none of the observations made in any subse- quent case can be construed at variance with the principle indicated in Rameshwar Shaw's case." Having so observed the Bench summarised the principle thus:

"Subsisting custody of the detenu by itself does not invalidate 450 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 sub- sisting 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 proxi- mate in point of time he must be detained in order to prevent him from indulging in such prejudicial 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's case after examining the various decisions of this Court dealing with preventive detention of a person in custody, it is held thus:

"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 "compel- ling 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 nature of the antecedent activities of the detenu, it is likely that after his release from custody he would in- dulge 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 Others [1990] 3 SCC 309 after reviewing all the relevant cases including Chelawat's case, this Court observed as under:

"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 circum- stances of each case have to be 451 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." In a very recent judgment of this Court in Kamarunnissa etc.. v. Union of India and Another., AIR 1991 SC 1640 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 dear 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 prejudi- cial 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 notwithstand- ing such opposition to question it before a higher Court." Having regard to the various above-cited decisions on the points often raised we find 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 452 notwithstanding such opposition the same can be questioned before a higher Court.

(3) If the detenu has moved for bail then the applica- tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup- pression of relevant material. The question of non-applica- tion 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 arriv- ing 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 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.

Bearing in mind the principles laid down in the above mentioned case, we shall now examine the facts in the case before us. The detaining authority in Ground Nos. 3 and 4 has stated as under:

"3. You were arrested under Section 104 of the Customs Act, 1962 by the Superintendent on 26.10.90. You were produced before the Chief Judicial Magistrate, Trivandrum on the same day. The Magistrate remanded you to judicial custody.

453

4. I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.

Also nothing prevents you from moving bail application in the jurisdictional court and getting release on bail." In the counter-affidavit, it is stated that the period of remand to the judicial custody was to expire the next day after his detention. Therefore there was every likelihood of his moving for bail and getting released On bail. These materials Show that the detaining authority was not only aware that the detenu was in jail but also noted the circum- stances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to in- dulge himself in the smuggling activities. It, therefore, cannot be said that there were no compelling reasons justi- fying the detention despite the fact that the detenu is already in custody. Likewise the failure to supply the bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order.

However, when they are not referred to or relied upon the non supply does not affect the detention.

These are all the submissions made by the learned coun- sel for the petitioner and we do not see any merit in any of them. Accordingly the Writ Petition is dismissed.

Writ Petition (Criminal) No. 106 of 1991 In this Writ Petition also the petitioner is a foreign national, being resident of Republic of Maldives. On 25.10.90 he landed at Trivandrum Airport from Male. After customs clearance the petitioner proceeded to Hotel Geeth at Trivandrum and while he was staying there, some officers of Customs came to the room and conducted a search. Nothing was recovered. But the officers took the petitioner by force to the Customs Import Baggage Hall and it is alleged that on examination, 30 gold biscuits of foreign origin were seized from either side of the handle inside the lock system of the blue colour suitcase which is alleged to be of petitioner.

The petitioner's passport and other documents were also seized by the Air Customs Officer, Trivandrum. The petition- er's statement was recorded' under Section 108 of the Cus- toms Act, 1962 wherein he is alleged to have confessed the guilt. After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days. Thereafter he was shifted to the Court of the Additional Chief Judicial Magis- trate (Economic Offences), Ernakulam. While he was in jail he made an application for grant of bail under Section 473 Cr.

454 P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While the petitioner was in jail, an order of detention was passed under Section 3(1) of the COFEPOSA Act by the Secretary to the Government, Govt. of Kerala, Home (SSA) Department, on 7.11.90 and the same was served on the petitioner on 8.11.90. The grounds of detention alongwith the list of documents annexed thereto were served in time.

The petitioner made a representation stating that since his bail application has been rejected and since he was in jail and his passport was also seized, there is no compelling necessity for such a detention. He also stated that no antecedents are there showing his being involved in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.

The same points as in Writ Petition (Criminal) No. 105 of 1991 are raised in this petition also. We have negatived all the contentions in the above case.

One another submission of the learned counsel for the petitioner is that in the case of this petitioner the deten- tion order mentions only smuggling and that when once the detenu is in jail and when his passport is seized, he can no more indulge in smuggling and therefore according to the learned counsel, there is non application of mind. In this context he relied on the definition of "smuggling".

Section 2(e) of the COFEPOSA Act defines "smuggling*' thus:

"2. Definitions - In this Act, unless the context otherwise requires, - xxxx xxxx xxxx xxx (e) "smuggling" has the same meaning as in clause (39) of Section 2 of the Customs Act, 1962, and all its grammatical variations and cognate expressions shall be construed accord- ingly." Clause (39) of Section 2 of the Customs Act, 1962 defines "smuggling" thus:

"2. Definitions- In this Act, unless the context otherwise requires, -- (39) "smuggling" in relation to any goods means any act or 455 omission which will render such goods liable to confiscation under section 111 or section 113? Sections 111 and 113 of the Customs Act provide for confiscation of improperly imported goods and exported goods respectively. The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non-existent. We see no force in this submission. The potentialities of the detenu as gathered from his act of smuggling that form basis for detention. It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling. It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.

In the result this Writ Petition is also dismissed.

RP Petitions dismissed.

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