Rivadeneyta
Ricardo Agustin Vs. Govt. of Delhi [1993] INSC 206 (8 April 1993)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Venkatachala N. (J)
CITATION:
1994 SCC Supl. (1) 597
ACT:
HEAD NOTE:
ORDER
1.In
this petition for issuance of a writ of Habeas Corpus, the validity of the
order of detention made by the Administrator of the Government of National
Capital Territory of Delhi Act under Section 3 of the COFEPOSA, is challenged.
The order of detention is dated August 18, 1992.
2.The
petitioner is a foreign national. He arrived in India from Bangkok on April 4, 1992. While he was passing through the Customs Hall he was
apprehended and on being searched, substantial quantity of gold was found
concealed in the VCR. He made a statement admitting that he was smuggling gold.
He was arrested and investigation commenced.
3.On May 13, 1992 the Magistrate took cognizance of
an offence under, Section 135 of the Customs Act. It appears that the actual
hearing of the case commenced on July 3, 1992 and charges were framed on August 11, 1992. It is at that stage, the impugned order of detention was
made on August 18, 1992. The order states that with a view
to prevent the petitioner from engaging himself in smuggling activities, it is
necessary to detain him. The grounds of detention served upon him mention the
number of visits he made to India during
the year 1991 (as many as eight) and during the year 1992 (two) and his local
contacts in India.
The
petitioner is stated to be an unemployed engineer engaged in the nefarious
activity of smuggling.
4.Though
several grounds are urged in support of the writ petition by Shri Ram Jethmalani,
learned counsel for the petitioner, it is not necessary to refer to all of them
except one which, in our opinion, merits acceptance. It is submitted that on
the date the order of detention was made the petitioner was in judicial
custody. The bail petitions filed by him were dismissed finally on June 9, 1992. He did not move any bail
application thereafter. No bail application was pending on August 18, 1992. There was no other circumstance
indicating that the petitioner would be released from custody. In these
circumstances, there was no material before the authority to believe that there
was a real possibility of petitioner being enlarged on bail or being released
and that it is necessary to detain him to prevent him from engaging in
prejudicial activity. It is pointed out that according to the counter, proposal
for the detention of petitioner was sent to the Administrator on May 22, 1992 but the authority passed the order
only on August 18, 1992 without apprising himself of the
fact-situation prevailing in the middle of August 1992. Reliance is placed upon
two decisions of this Court in Kamarunnissa v. Union of India' and Hawabi Sayed
Arif Sayed Hanif v. L Hmingliana2.
In the
first case the principle relied upon by the learned counsel, is stated in the
following words: (SCC pp. 138-39) "The decisions of this Court to which
our attention was drawn by the learned counsel for the petitioners Jay down in
no uncertain terms that detention orders can validly be passed against detenus
who are in jail, provided the officer passing the order is alive to the fact of
the detenus being in custody and there is material on record to justify his
conclusion that they would indulge in similar activity if set at liberty. We
will now consider the case-law in brief.
1
(1991) 1 SCC 128 1991 SCC (Cri) 88 2 (1993) 1 SCC 163 1993 SCC (Cri) 304 599 In
Vijay Narain Singh' this Court stated that the law of preventive detention
being a drastic and hard law must be strictly construed and should not
ordinarily be used for clipping the wings of an accused if criminal prosecution
would suffice. So also in Ramesh Yadav v. District Magistrate, Etah4 this Court
stated that ordinarily a detention order should not be passed merely on the
ground that the detenu who was carrying on smuggling activities was likely to
be enlarged on bail. In such cases the proper course would be to oppose the
bail application and if granted, challenge the order in the higher forum but
not circumvent it by passing an order of detention merely to supersede the bail
order. In Suraj Pal Sahu v. State Of Maharashtra5 the same principle was reiterated. In Binod Singh v.
District Magistrate, Dhanbad6 it was held that if a person is in custody and
there is no imminent possibility of his being released therefrom, the power of
detention should not ordinarily be exercised. There must be cogent material
before the officer passing the detention order for inferring that the detenu
was likely to be released on bail. This inference must be drawn from material
on record and must not be the ipse dixit of the officer passing the detention
order. Eternal vigilance on the part of the authority charged with the duty of
maintaining law and order and public order is the price which the democracy in
this country extracts to protect the fundamental freedoms of the citizens. This
Court, therefore, emphasised that before passing a detention order in respect
of the person who is in jail the concerned authority must satisfy himself and
that satisfaction must be reached on the basis of cogent material that there is
a real possibility of the detenu being released on bail and further if released
on bail the material on record reveals that he will indulge in prejudicial
activity if not detained." (emphasis supplied) 5. To the same effect is
the other decision.
6. On
the other hand, the learned Additional Solicitor- General appearing for the
State submitted that the authority did not sit over the proposal after
receiving it but was actively pursuing the matter, collecting material and was
following the criminal case against the petitioner deligently. On being fully
satisfied about the necessity of detaining the petitioner, did he pass the impugned
order.
He
submitted that the authority was aware that no bail petition was filed after June 9, 1992, yet, he was of the opinion that
the possibility of his filing such a petition and his release on that basis
could not be discounted. In view of his past record, the detention of the
petitioner was found absolutely essential. Learned Additional Solicitor-
General relied upon the decisions in Abdul Sathar Ibrahim Manik v. Union of
India7 and Birendra Kumar Rai alias Virendra Kumar Rai v. Union of India8. The
question for consideration is whether there was material before the authority
establishing that the detenu is likely to be released or that there was
imminent possibility of his being released and whether he was satisfied about
the said aspects? 3 Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 :
1984
SCC (Cri) 361 4 (1985) 4 SCC 232: 1985 SCC (Cri) 514 5 (1986) 4 SCC 378: 1986
SCC (Cri) 452 6 (1986) 4 SCC 416: 1986 SCC (Cri) 490 7 (1992) 1 SCC 1: 1992 SCC
(Cri) 1 8 (1993) 1 SCC 272: 1993 SCC (Cri) 324: JT (1992) 5 SC 264 600
7. In
the grounds of detention, the following statement occurs in para 9 :
"The
Administrator of the National Capital Territory of Delhi is aware that you are
in judicial custody and had not moved any bail application in the Court(s)
after June 9, 1992 but nothing prevents you from moving bail applications and
possibility of your release on bail cannot be ruled out in the near future.
Keeping in view your modus operandi to smuggle gold into India and frequent
visits to India, the Administrator of the National Capital Territory of Delhi
is satisfied that unless prevented you will continue to engage yourself in
prejudicial activities once you are released." 8.The above statement
merely speaks of a "possibility" of the detenu's release in case he
moves a bail petition. It neither says that such release was likely or that it
was imminent. Evidently, the statement falls short of the requirement
enunciated by this Court in Kamarunnissal. Even in the return filed in this
petition, the authority has not stated (in response to Ground 'B' of the writ
petition) that there was material before him upon which he was satisfied that
the petitioner was likely to be released or that such release was imminent. In
Ground 'B' of the writ petition, the petitioner had alleged:
"[T]hat
the respondent knew perfectly well that a complaint has already been filed in
Court against the petitioner. He also knew that his two applications for bail
were rejected by the Court. Between June and August, the petitioner had made no
attempt whatsoever to secure any bail either from the trial court or from any
superior court.
Without
any application of mind to this aspect of the matter, the respondent acted
perversely in coming to the conclusion that the petitioner was ever likely to
indulge in any offence of smuggling, to prevent which the respondent found it
necessary to pass the order Annexure 'A' hereto."
9. In
response thereto, the following statement is made in para 9-B of the return:
"As
regards contents of ground B, 1 say that the petitioner moved applications for
bail which were rejected by the concerned courts and the release of the
petitioner on bail on subsequent application could not be ruled out.
The
fact that the petitioner was in judicial custody was within the knowledge of
the detaining authority and having full knowledge of the facts, the detaining
authority considered it necessary to detain the petitioner. The subjective
satisfaction was arrived at having full knowledge of the facts." (emphasis
supplied) 10.The learned Additional Solicitor-General placed before us the
relevant file but he could not bring to our notice any material indicating that
the release of the petitioner was likely or that there was a real possibility
of his being released and/or that the authority was satisfied about the said
aspect.
11.In
the circumstances, we must hold that the principle enunciated by this Court in Kamarunnissa
v. Union of India1 squarely applies and the order is liable to be quashed. It
is accordingly quashed. The detenu if in custody shall be released forthwith if
he is not required in any other case or if he is not being detained under an
order of competent court.
12.
The writ petition is disposed of accordingly.
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