UNION OF INDIA THROUGH JOINT SECRETARY (COFEPOSA), MINISTRY OF FINANCE, NEW DELHI versus ANKIT ASHOK JALAN

UNION OF INDIA THROUGHJOINT SECRETARY (COFEPOSA),MINISTRY OF FINANCE, NEW DELHI

ANKIT ASHOK JALAN

(Criminal Appeal No. 1746 OF 2019)

NOVEMBER 22, 2019

[UDAY UMESH LALIT, INDIRA BANERJEE AND

M. R. SHAH, JJ.]

Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974 – Passing of detention order in caseof person already in judicial custody – Subjective satisfaction ofthe Detaining Authority– One ‘A’ carrying 8 Kgs. of gold of foreignorigin valued at Rs.2.71 crores approx. intercepted by the Directorateof Revenue Intelligence, Kolkata Zonal Unit – He indicated that hewas engaged by the detenus – Detenus apprehended – Bail rejected–Remanded to judicial custody– Detention orders passed by theDetaining Authority– Writ petition filed by the respondentchallenging the detention orders against his father and brother(detenus)– High Court quashed and set aside the detention orders– In appeal by both the parties and writ petitions filed by variouswrit petitioners, held: Detaining Authority while passing thedetention orders was aware of the fact that the detenus are actuallyin custody; that there is real possibility of their being released onbail; and that on being so released they would in all probabilityindulge in prejudicial activities and therefore it is essential to preventthem from smuggling of gold and foreign currency in future –Detention orders show the application of mind by the DetainingAuthority – Detenus were granted bail by the Court on the verydate the orders of detention were quashed by the High Court,therefore, the apprehension in the mind of the Detaining Authoritythat the detenus are likely to be released on bail was well foundedand fortified – Further, when the detention orders were passed bythe Detaining Authority, neither the Sponsoring Authority nor even

Athe Detaining Authority was aware of any retraction petition of ‘A’– No occasion and/or reason for the Detaining Authority to considerhis retraction statement – Thus, it cannot be said that on non-consideration of A’s retraction petition, the detention orders werevitiated – High Court erred in interfering with the subjectivesatisfaction of the Detaining Authority – Impugned judgment setBaside – Detention orders of the respective detenus restored –Detenus be taken into custody forthwith by the Detaining Authority– In view of the judgment in Criminal Appeal arising from SLP(Criminal) No. 7010/2019, no merit found in the present writ petitions– Customs Act, 1962 – s.104, 108 – Constitution of India –CArts.22(5), 32.

Disposing of the matters, the Court

HELD: 1.1 The Detaining Authority while passing thedetention orders was aware of the fact that the detenus are actuallyin custody; that there is real possibility of their being releasedDon bail; and that on being so released they would in all probabilityindulge in prejudicial activities and therefore it is essential toprevent them from smuggling of gold and foreign currency infuture. Even if person is in judicial custody, he can be detainedunder the relevant provisions of the concerned Act, likeECOFEPOSA etc. However, there must be proper application ofmind and the Detaining Authority must have been subjectivelysatisfied on considering the relevant material that there is areason to believe that there is real possibility of detenus beingreleased on bail and that on being so released the detenus will inall probability indulge in prejudicial activities. In the recentFdecision, Supreme Court in Dimple Happy Dhakad observed andheld (i) that the order of detention validly can be passed againsta person in custody and for that purpose it is necessary that thegrounds of detention must show whether the Detaining Authoritywas aware of the fact that the detenu was already in custody; (ii)Gthat the Detaining Authority must be further satisfied that thedetenu is likely to be released from custody and the nature ofactivities of the detenu indicate that if he is released, he is likelyto indulge in such prejudicial activities and therefore, it isnecessary to detain him in order to prevent him from engaging insuch activities; and (iii) the satisfaction of the Detaining AuthorityH

that the detenu is already in custody and is likely to be releasedon bail and on being released, he is likely to indulge in the sameprejudicial activities with the subjective satisfaction of theDetaining Authority. The detention orders show the applicationof mind by the Detaining Authority based on the material availableon record, facts and circumstances of the case, nature of activitiesand propensity of the detenus indulging in such activities.Therefore, in the facts and circumstances of the case, the HighCourt has erred in setting aside the detention orders on theground stated hereinabove, namely, that there is clear lapseand failure on the part of the Detaining Authority, to examine andconsider the germane and relevant question relating to theimminent possibility of the detenus being granted bail, whilerecording its subjective satisfaction and passing the detentionorders. [Paras 8.1, 8.2] [187-D-H; 188-A-C]

Rameshwar Shaw v. District Magistrate AIR 1964 SC334 : [1964] SCR 921 – followed.

Union of India and another v. Dimple Happy Dhakad2019 AIR 3428 ; Noor Salman Makani v. Union ofIndia (1994) 1 SCC 381 ; N. Meera Rani v. Governmentof T.N. (1989) 4 SCC 418 : [1989] 3 SCR 901 – reliedon.

Merugu Satyanarayana v. State of A.P. (1982) 3 SCC301 : [1983] 1 SCR 635 ; State of Gujarat v. SunilFulchand Shah (1988) 1 SCC 600 : [1988] 2 SCR 903 ; Vijay Kumar v. Union of India (1988) 2 SCC 57 ;Abdul Sathar Ibrahim Manik v. Union of India (1992)1 SCC 1 : [1991] 1 Suppl. SCR 435 ; Baby DevassyChully v. Union of India (2013) 4 SCC 531 : [2012] 9SCR 515 ; Raverdy Marc Germain Jules v. State ofMaharashtra (1982) 3 SCC 135 ; Prakash ChandraMehta v. Commissioner and Secretary., Government ofKerala (1985) Suppl. SCC 144 : [1985] SCR 697 ;Madan Lal Anand v. Union of India (1990) 1 SCC 81 :[1989] 1 Suppl. SCR 733 ; V.C. Mohan v. Union ofIndia (2002) 3 SCC 451 : [2002] 2 SCR 144 ; DeepakBajaj v. State of Maharashtra (2008) 16 SCC 14 :

172SUPREME COURT REPORTS

[2019] 14 S.C.R.

A[2008] 15 SCR 1062 ; Rushikesh Tanaji Bhoite v. Stateof Maharashtra (2012) 2 SCC 72 : [2012] 2 SCR640 ; A. Sowkath Ali v. Union of India (2000) 7 SCC148 : [2000] 2 Suppl. SCR 48 ; P. Saravanan v. Stateof T.N. (2001) 10 SCC 212 ; Huidrom Konungjao Singhv. State of Manipur (2012) 7 SCC 181 : [2012] 5 SCRB1173 ; Union of India v. Paul Manickam (2003) 8 SCC342 : [2003] 4 Suppl. SCR 618 DharmendraSuganchand Chelawat v. Union of India (1990) 1 SCC746 ; Veeramani v. State of T.N. (1994) 2 SCC 337 :[1993] 3 Suppl. SCR 796 – referred to.C1.2 The detenus were granted bail by the Court on thevery date the orders of detention were quashed by the High Court,i.e., on 2.8.2019. Therefore, the apprehension in the mind of theDetaining Authority that the detenus are likely to be released onbail was well founded and fortified. Therefore, the High CourtDhas fallen in error in quashing and setting aside the detentionorders on the ground that there is clear lapse and failure onthe part of the Detaining Authority, to examine and consider thegermane and relevant question relating to the imminent possibilityof the detenus being granted bail, while recording its subjectivesatisfaction and passing the detention orders. It appears thatEMemo No. 9920/AB-I dated 31.08.2019 of Jail Authority,prisoner’s (Shri ‘A’) petition dated 22.6.2019 was forwarded tothe Chief Metropolitan Magistrate, Calcutta only. It appears thatthe said petition was not forwarded to any other concernedincluding the Sponsoring Authority or Detaining Authority. It alsoFappears from the material on record that as per letter Memo No.9899/AB-I dated 30.08.2019 of Jail Authority, copy of theprisoner’s petition of Shri ‘A’ dated 22.6.2019 was forwarded on22.6.2019 itself to the Chief Metropolitan Magistrate, Calcutta.The same was received by the office of the Chief Metropolitan

Magistrate, Calcutta on 24.6.2019. It appears that Shri ‘A’ andGthe detenus herein were produced before the Chief MetropolitanMagistrate, Calcutta from judicial custody on 2.7.2019 and duringthe course of hearing, it had come to the notice of prosecutionthat retraction petition was filed by Shri ‘A’. Therefore, andaccordingly, request was made before the Chief Metropolitan

Magistrate, Calcutta for supply copy of the same and accordinglythe Chief Metropolitan Magistrate ordered advocate of Shri ‘A’to serve copy of the retraction petition vide order dated2.7.2019. It appears from the material on record that the officeof DRI, Calcutta received copy of the retraction petition of Shri‘A’ dated 22.6.2019 on 15.07.2019. It is required to be notedthat there are two orders available on the order sheet of the trialCourt. First is the handwritten order and other is typed order.All other orders are typed orders. The handwritten order doesnot bear the stamp of the court and/or signature of the Magistrate.Therefore, the handwritten order does not inspire any confidenceand therefore no reliance can be placed upon the handwrittenorder on the order sheet of the trial Court dated 24.06.2019.Under the circumstances, it appears that when the detentionorders were passed by the Detaining Authority, neither theSponsoring Authority nor even the Detaining Authority was awareof any retraction petition of Shri ‘A’. Under the circumstances,there was no occasion and/or reason for the Detaining Authorityto consider the retraction statement of Shri ‘A’. Under thecircumstances, it cannot be said that on non-consideration of the‘A’s’ retraction petition, the detention orders were vitiated. TheHigh Court committed grave error in quashing and setting asidethe detention orders and interfering with the subjectivesatisfaction of the Detaining Authority. Consequently, the appealpreferred by the Detaining Authority, i.e., Civil Appeal arisingfrom Special Leave Petition (Criminal) No. 7010 of 2019 isallowed, the impugned judgment and order passed by the HighCourt quashing and setting aside the detention orders is herebyquashed and set aside and the detention orders of the respectivedetenus are hereby restored. The detenus, shall be taken intocustody forthwith by the Detaining Authority. Accordingly, thespecial leave petition preferred by the respondent, i.e.,Special Leave Petition (Criminal) No. 7013/2019 standsdismissed. [Paras 9-11] [191-C-H; 192-A-H; 193-A]

1.3 Writ Petition (Criminal) Nos. 204, 206 & 209/2019

In view of the judgment rendered in Criminal Appeal arisingfrom Special Leave Petition (Criminal) No. 7010/2019, no merits

EFG

Afound in the present writ petitions and they are accordinglydismissed. [Para 11]

T.V. Sravanan v. State (2006) 2 SCC 664 ; Rekha v.State of T.N. (2011) 5 SCC 244 : [2011] 4 SCR 740– held inapplicable.

BKamarunnisa v. Union of India (1991) 1 SCC 128 : [1990]1 Suppl. SCR 457 – relied on.

Case Law Reference

CRIMINAL APPELLATE/ORIGINAL JURISDICTION :Criminal Appeal No. 1746 of 2019.

From the Judgment and Order dated 02.08.2019 of the High Courtof Delhi at New Delhi in Writ Petition (Criminal) No. 1840 of 2019.

With

Special Leave Petition (Criminal) No. 7013/2019, Writ Petition(Criminal) Nos. 204, 206, 209 of 2019.

K.M. Nataraj, ASG, Vikram Chaudhri, Sr. Adv., Kanu Agrawal,Sanjay Tyagi, Sharath Nambiar, Vinayak Sharma, B. Krishna Prasad,Ashish Batra, Wattan Sharma, Sarthak Sachdev, Harshit Sethi, RishiSehgal, Keshvam Chaudhri, Anzu. K. Varkey, Amit K. Nain, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted in Special Leave Petition (Criminal) No. 7010of 2019.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 02.08.2019 passed by the High Court of Delhi at NewDelhi in Writ Petition (Criminal) No. 1840 of 2019, by which the HighCourt has allowed the said writ petition preferred by the respondentherein and has quashed and set aside the detention orders bearing Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSAdated 1.7.2019, the Union of India through the Detaining Authority haspreferred the present appeal. Feeling aggrieved and dissatisfied withthe aforesaid impugned judgment and order passed by the High Court,even the detenu has preferred the special leave petition challenging theaforesaid impugned judgment and order, inasmuch as on grounds ‘C’,‘D’, ‘E’, ‘F’ and ‘G’ raised in the main writ petition before the HighCourt, having not been decided one way or the other, while allowing the

Awrit petition of the original writ petitioner on the first two grounds, i.e.,grounds ‘A’ & ‘B’.

2.1 Writ Petition (Criminal) Nos. 204/2019, 206/2019 and 209/2019 have been preferred by the respective writ petitioners under Article32 of the Constitution of India for an appropriate writ, direction or orderBdeclaring that the disjunctive ‘or’ in Section 13 of the Conservation ofForeign Exchange and Prevention of Smuggling Activities Act, 1974(hereinafter referred to as ‘COFEPOSA Act’) shall be read as ‘and’ sothat only those actions which are actually done in good faith would beprotected under the said Section, to enable the respective petitioners totake such further action against the Detaining Authority, as may beCpermissible in law.

2.2 At the outset, it is required to be noted that so far as therespective writ petitioners of writ petitions are concerned, thoughdetention orders qua them have been set aside by the High Court, stillthe respective petitioners have prayed for the aforesaid reliefs.DCriminal Appeal @ SLP (Criminal) No.7010/2019 and SLP(Criminal) No. 7013 of 2019.

3. The facts of the case in nutshell are as follows:

That in the light of specific intelligence, the Directorate of RevenueEIntelligence, Kolkata Zonal Unit (for short ‘DRI’) intercepted one Anandon 09.06.2019 near Dankuni Toll Plaza, West Bengal, while he wastravelling on bus from Siliguri to Kolkata, carrying 8 Kgs. of gold offoreign origin valued at Rs.2.71 crores approximately. That the saidAnand, vide his statements recorded on 09.06.2019 and 10.06.2019Findicated that, he had been engaged by the detenus to receive the 8 barsof smuggled gold from Indo-Bhutan border at Jaigaon from an unknownperson, to be transported and delivered to Kolkata and Delhi. That asper the detenus, they were apprehended by officers of DRI on 10.06.2019at about 2:00 p.m. at the Food Court of Quest Mall, 33, Syed Amir AliAvenue, Park Circus, Beck Bagan Row, Kolkata, West Bengal – 700017Gand taken to the latter’s office. That the detenus’ self-incriminatingconfessions were purportedly obtained under Section 108 of the CustomsAct, 1962 (hereinafter referred to as the ’Act’) and they were formallyshown as arrested on 11.06.2019 under the provisions of Section 104 ofthe Act. That thereafter the detenus were produced before the Court ofJudicial Magistrate on 12.06.2019.H

3.1 That vide order dated 12.06.2019 in Misc. 67/2019, the learnedChief Metropolitan Magistrate, Kolkata rejected the prayer of bail madeon behalf of the detenus and remanded them to judicial custody till18.06.2019.

3.2 That while the detenus were in custody, the detention orderswere rendered by the Detaining Authority on 01.07.2019. The detentionorders were served on both the detenus on 02.07.2019. The detenushave been served with the relied upon documents with the list ofdocuments on 04.07.2019.

3.3 That the detenus filed their representations dated 07.07.2019,under Article 22(5) of the Constitution of India read with Section 3(3) ofthe COFEPOSA Act, addressed to the Detaining Authority against theimpugned detention orders, through the jail authorities.

3.4 That the respondent Ankit Ashok Jalan filed writ petition beforethe High Court challenging the aforesaid detention orders against hisfather – Ashok Kumar Jalan and his brother – Amit Jalan (detenus)dated 01.07.2019. It was mainly contended on behalf of the original writpetitioner that despite the detenus already being in judicial custody, theDetaining Authority rendered the detention orders and there being noimminent possibility of their being released on bail nor any material reliedupon therein to raise an apprehension that they may be so released inthe near future since no bail application was pending, the same are exfacie illegal and without any basis. It was further contended that therelied upon documents have not been perused by the Detaining Authority,inasmuch as, the retraction petition of the said Anand, which is vitaldocument, has neither been placed before the Detaining Authority norconsidered by it in accordance with law, the document purported to be acopy of the ‘retraction petition’ in respect of the said Anand, placed atSr. No.30 of the list of relied upon documents, is actually the latter’s bailapplication, and thus the subjective satisfaction is sham, erroneous andincomplete, and therefore, violative of the detenus’ right to effectiverepresentation as mandated and guaranteed by the Constitution, and bylaw.

4. The writ petition before the High Court was opposed by theDetaining Authority. It was requested not to entertain the writ petitionat this stage, since the detenus’ representations were pendingconsideration before the Advisory Board. On merits, it was submitted

Athat there was cogent material before the Detaining Authority to arriveat the subjective satisfaction that the detenus were likely to be releasedfrom judicial custody and that there was likelihood of their continuing toindulge in the prejudicial activities. It was also submitted on behalf ofthe Detaining Authority that all the relevant documents were supplied tothe detenus. That by the impugned judgment and order, the High CourtBhas quashed and set aside the detention orders mainly on the ground thatthere was clear lapse and failure on the part of the Detaining Authorityto examine and consider the germane and relevant question relating tothe imminent possibility of the detenus being granted bail, while recordingits subjective satisfaction and passing the detention orders.C

4.1 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court quashing and setting aside thedetention orders, Union of India through the Detaining Authority haspreferred the present appeal. As observed hereinabove, even the originalwrit petitioner has also approached this Court against the impugnedDjudgment and order passed by the High Court, inasmuch as on grounds‘C’, ‘D’, ‘E’, ‘F’ and ‘G’ raised in the main writ petition before the HighCourt, having not been decided one way or the other, while allowing thewrit petition of the original writ petitioner on the first two grounds, i.e.,grounds ‘A’ & ‘B’ only.E5. Shri K.M. Nataraj, learned Additional Solicitor General of Indiahas vehemently submitted that the impugned judgment and order passedby the High Court is clearly contrary to the law laid down by this Courtin recent judgment rendered in the case of Union of India and anotherv. Dimple Happy Dhakad, Criminal Appeal No. 1064/2019 arisingout of SLP (Criminal) No. 5459/2019, decided on 18.07.2019, 2019FSCC OnLine SC 875. It is submitted that despite the categorical findingrecorded by the Detaining Authority with regard to the “immediatepossibility of the release of the detenus from judicial custody”, the HighCourt has observed that the same is not sufficient compliance in law andhas quashed the detentions orders on this sole ground.G

5.1 Relying upon para 7 of the detention orders, it is submittedthat the Detaining Authority was aware with regard to detenus being incustody and their immediate possibility of the release and their propensityto indulge in prejudicial activities after release. It is submitted that thesubjective satisfaction of the Detaining Authority has been clearlyHrecorded with regard to the custody - the likelihood of the release and

the propensity to indulge in prejudicial activities. It is submitted thateven the bail application of Anand was also considered by the DetainingAuthority.

5.2 It is further submitted by the learned Additional Solicitor Generalthat the aforesaid consideration on the part of the Detaining Authority issufficient compliance with the constitutional protections. Reliance isplaced upon the decision of this Court in the case of Noor SalmanMakani v. Union of India (1994) 1 SCC 381 (paras 5 & 6).

5.3 It is further submitted by the learned Additional Solicitor Generalthat even in the case of Kamarunnisa v. Union of India (1991) 1SCC 128, relied upon by the respondent, this Court lays down three-pointer test in passing of detention order in case of person already injudicial custody as under:

“(1) if the authority passing the order is aware of the fact that heis actually in custody;

(2) if he has reason to believe on the basis of reliable materialplaced before him;

(a) that there is real possibility of his being released on bail,and

(b) that on being so released he would in all probability indulgein prejudicial activity and

(3) if it is felt essential to detain him to prevent him from so doing.”

It is submitted that in the said decision, this Court furtherobserved:

“if the authority passes an order after recording his satisfaction inthis behalf, such an order cannot be struck down on the groundthat the proper course for the authority was to oppose the bail andif bail is granted notwithstanding such opposition, to question itbefore higher court.”

It is submitted that this Court further clarified as under:

“….What this court stated in the case of Ramesh Yadav [(1985)4 SCC 232] was that ordinarily detention order should not bepassed merely to pre-empt or circumvent enlargement on bail incases which are essentially criminal in nature and can be dealt

Awith under the ordinary law. It seems to be well settled that evenin case where person is in custody, if the facts andcircumstances of the case so demand, resort can be had to thelaw of prevention detention.”

5.4 It is submitted that even as per the said decision, the awarenessBthat the detenus are in custody and the categorical recording of the factthat the detenu is likely to be released on bail, is sufficient when detentionorder is being passed against person in custody. Learned ASG hasalso relied upon the following decisions of this Court, MeruguSatyanarayana v. State of A.P. (1982) 3 SCC 301; State of Gujaratv. Sunil Fulchand Shah (1988) 1 SCC 600; Vijay Kumar v. UnionCof India (1988) 2 SCC 57; Abdul Sathar Ibrahim Manik v. Unionof India (1992) 1 SCC 1; Veeramani v. State of T.N. (1994) 2 SCC337; and Baby Devassy Chully v. Union of India (2013) 4 SCC531.5.5 It is further submitted by the learned ASG that the detenusDhave been released on bail subsequent to the impugned judgment andorder of the High Court and therefore the ground of imminent likelihoodof release stood proved. It is submitted that admittedly the detenus havebeen granted bail by the Court on the very date of the order of detentionwas quashed by the High Court by the impugned judgment and orderEdated 2.8.2019. It is submitted therefore the apprehension in the mindof the Detaining Authority that the detenus are likely to be released onbail and regarding the prejudicial activities of the detenus has to be takenas well founded and fortified. It is submitted therefore that the groundsraised by the detenus regarding non-mentioning of imminent likelihoodof release does not survive for consideration, as the detenus have beenFreleased subsequent to the order of detention as apprehended by theDetaining Authority. It is submitted that as on date if the detention orderis quashed, the detenus will be free to indulge in the prejudicial activitiesas mentioned in the detention order thereby causing serious harm andprejudice to the society in general and the economy of the nation inGparticular.

5.6 Now so far as the other grounds raised by the detenus withrespect to retraction statement of Shri Anand not being with the DetainingAuthority on the date of passing of the detention orders and thereforethe detention orders have been vitiated is concerned, it is submitted that

an affidavit has been furnished along with documentary evidence by theSponsoring Authority by letter dated 31.8.2019. It is submitted that asper letter dated 31.08.2019 of the jail authority, prisoner’s petition dated22.6.2019 submitted by Shri Anand, was forwarded to the learned courtof Chief Metropolitan Magistrate, Calcutta only. It is submitted that thesaid petition was not forwarded to any other concerned including theSponsoring or Detaining Authority except the court of Chief MetropolitanMagistrate, Calcutta. It is submitted that further, as per letter memodated 30.08.2019 of jail authority, copy of the prisoner’s petition ofShri Anand dated 22.6.2019 was forwarded on 22.6.2019 to learnedChief Metropolitan Magistrate, Calcutta. The same was received bythe office of Chief Metropolitan Magistrate on 24.6.2019. It is submittedthat Shri Anand, Shri Ashok Kumar Jalan and Shri Amit Jalan wereproduced before the learned Chief Metropolitan Magistrate, Calcuttafrom judicial custody on 2.7.2019. It is submitted that during the courseof hearing of the case, it came to the notice of the prosecution that aretraction petition was filed by Shri Anand. Accordingly, request wasmade before the learned Chief Metropolitan Magistrate for supply of acopy of the same. Accordingly, learned Chief Metropolitan Magistrateordered advocate of accused No.1 (Shri Anand) to serve the copy videorder dated 2.7.2019. It is submitted that the office of DRI, Kolkattareceived copy of the prisoner’s petition/retraction petition of Shri Ananddated 22.6.2019 on 15.7.2019, which was served by one Shri Sumit Dey,Advocate of Shri Anand as per learned Chief Metropolitan Magistrate’sorder dated 2.7.2019. It is submitted that therefore when the SponsoringAuthority was not aware about the retraction application of Shri Ananddated 22.6.2019 when the proposal was forwarded by the SponsoringAuthority to the Detaining Authority and therefore the alleged retractionapplication dated 22.6.2019 could not be placed by Sponsoring Authoritybefore the Detaining Authority before passing the detention orders on1.7.2019 against the detenus. It is submitted that therefore and evenotherwise non-consideration of the retraction application dated 22.6.2019of Shri Anand by the Detaining Authority does not vitiate the orders ofdetention. In support of his above submission, learned ASG has reliedupon decision of this Court in the case of Raverdy Marc GermainJules v. State of Maharashtra (1982) 3 SCC 135.5.7 It is further submitted by the learned ASG that even otherwisethe contents of the prisoner’s petition/retraction petition of Shri Anand

CDEFG

Adated 22.6.2019 is mere afterthought. It is submitted that Shri Anandwas caught carrying 8Kgs. of foreign origin gold without any supportingdocuments whatsoever in the presence of the independent witnesses, asper due process and procedure. It is submitted that whatsapp messagesexchanged between him and Shri Ashok Jalan and the whatsapp callsmade between them provides unclenching evidence about theirBacquaintance and complicity in the case. It is submitted that hence theprisoner’s petition/retraction petition does not prejudice the decision ofthe Detaining Authority in passing of the detention orders, which werebased on the facts and evidence on record which were duly mentionedin the detention orders and relied upon documents supplied along.C5.8 It is further submitted that even the retraction statement ofShri Anand is not vital document in case of the present detention ordersagainst the detenus as their retractions have been duly considered bythe Detaining Authority.

5.9 It is further submitted by the learned ASG that apart from theDabove facts, Shri Anand after his release on bail has reiterated his earlierstatements dated 9.6.2019, 10.6.2019 and 14.6.2019 on 19.7.2019 whereinhe has categorically stated that he filed the retraction petition as per thedirections of his advocate which was mistake on his part.

5.10. It is further submitted by the learned ASG that even otherwiseEfailure to place certain documents may not necessarily be fatal to adetention order. In support of his submission, learned ASG has alsorelied upon the decisions of this Court in the cases of Prakash ChandraMehta v. Commissioner and Secretary., Government of Kerala,(1985) Suppl. SCC 144 (paras 69 to 73, 75, 82 & 83) and MadanFLal Anand v. Union of India (1990) 1 SCC 81.

5.11 Making the above submissions and relying upon the abovedecisions, it is prayed to allow the present appeal and quash and setaside the impugned judgment and order passed by the High Courtquashing and setting aside the detention orders.G6. While supporting the impugned judgment and order passed bythe High Court quashing and setting aside the orders of detention, learnedcounsel appearing on behalf of the respondent has vehemently submittedthat the High Court has given cogent reasons while quashing and settingaside the orders of detention, and therefore, the same is not required tobe interfered with by this Court.H

6.1 Shri Vikram Chaudhri, learned Senior Advocate appearing onbehalf of the original writ petitioner has taken us to the relevant groundsof detention, more particularly paragraphs (v) and (vii) and has submittedthat the statements of Shri Anand are the fulcrum, basis and foundationon which the entire case set up against the detenus rests. Consequently,if the statements are excluded from the zone of consideration, nothingshall survive qua the detenus. It is submitted that there is no incriminatingrecovery from the detenus as such.

6.2 It is further submitted by the learned Senior Advocate appearingon behalf of the original writ petitioner that though specific referencehas been made by the Detaining Authority regarding the factum ofretraction of their statement by the present detenus, however, not awhisper has been made as to the fact of any retraction made by ShriAnand even in his bail application. It is submitted that even if the shortdenial of statement of bail application of Shri Anand is seen as retraction,the same has never gone into the mind making of the Detaining Authorityfor arriving at his subjective satisfaction. It is submitted that the DetainingAuthority has chosen to make detailed consideration of the retractionmade by the detenus, but it will not show the same consideration to theretraction made by Shri Anand, it was alive and aware regarding thesame.6.3 It is further submitted that as such the retraction statement ofShri Anand has not been supplied by the Detaining Authority to thedetenus. It is submitted that as per the relied upon documents, it isstated as “copy of retraction petition in respect of Shri Anand”. It issubmitted that however the above document is bail application of ShriAnand and not retraction statement. It is submitted that thereforenon-supply of the retraction statement of Shri Anand to the detenus hasvitiated the orders of detention.

6.4 It is further submitted that in the grounds of detention, there isno reference to the retraction petition on behalf of Shri Anand.

6.5 It is further submitted that as it is evident from the order sheetof the Court, retraction petition filed by Shri Anand has reached theCourt on 24.06.2019 and handwritten court proceedings recorded thesaid fact. It is submitted that therefore retraction petition formed partof the judicial/court record, much prior to the issuance of the detentionorders. It is submitted that therefore the retraction petition of Shri Anand

Awas in complete knowledge of the DRI Officers as well as theirAdvocates. It is submitted that except the Detaining Authority and theprosecution, none was aware of the proposal for detention and it wastheir bounden duty to call for all the records. It is submitted that, however,request for supply of the said retraction petition and the entire Courtrecord was not made before passing of the detention orders.

6.6 It is further submitted that the stand that the authorities gotknowledge of the retraction only on 2.7.2019 has not been substantiated.It is submitted that the retraction petition dated 22.6.2019 of co-accusedShri Anand had vital bearing on the complicity or otherwise of thedetenus in the alleged prejudicial activities. It is submitted that theCDetaining Authority would have been aware of the contents of theretraction and would have considered the same, it may have influencedthe mind of the Detaining Authority one way or the other. It is submittedtherefore that non-supply of the retraction petition by Shri Anand and/ornon-consideration of the factual factum of retraction petition by ShriDAnand has definitely vitiated the orders of detention and therefore theHigh Court has rightly set aside the detention orders. In support, learnedcounsel has heavily relied upon the decisions of this Court in the casesof V.C. Mohan v. Union of India (2002) 3 SCC 451; Deepak Bajajv. State of Maharashtra (2008) 16 SCC 14; and Rushikesh TanajiBhoite v. State of Maharashtra (2012) 2 SCC 72.E

6.7 It is further submitted that even otherwise subjectivesatisfaction was also vitiated for lack of any cogent material to arrive atthe satisfaction regarding the imminent possibility of release on bail, moreparticularly when the bail application filed by both the detenus was alreadyrejected by the Magistrate and no further bail application of the detenusFwas pending.

6.8 It is further submitted that indisputably bail application of thedetenus was rejected on 12.06.2019. No further bail application wasfiled or pending before any court. It is submitted therefore the subjectivesatisfaction of the Detaining Authority that the detenus are likely to beGreleased on bail has been vitiated and therefore the High Court hasrightly quashed and set aside the orders of detention on this ground alone.In support, learned counsel has heavily relied upon the decisions of thisCourt in the cases of Rameshwar Shaw v. District Magistrate AIR

1964 SC 334; Kamaarunnissa (supra); T.V. Sravanan v. State (2006)2 SCC 664; and Rekha v. State of T.N. (2011) 5 SCC 244.

6.9 Relying upon the decision of this Court in the case of Unionof India v. Dimple Happy Dhakad (supra), it is vehemently submittedby the learned counsel appearing on behalf of the respondent that, asheld by this Court, the satisfaction of the Detaining Authority that thedetenus may be released on bail cannot be ipse dixit of the DetainingAuthority. It is submitted that as such on facts in the case of DimpleHappy Dhakad (supra), this Court confirmed the orders of detentionhaving been satisfied that the subjective satisfaction of the DetainingAuthority that the detenu is likely to be released on bail is based on thematerials. It is submitted that even otherwise the decision of this Courtin the case of Rekha (supra) has been delivered by three Judges Benchand the decision in the case of Dimple Happy Dhakad (supra) hasbeen delivered by two Judges Bench. It is submitted that in any case, inthe present case, as such no bail application of the detenus was pendingbefore any court.

6.10 It is further submitted that even the question of severabilityunder Section 5-A of the COFEPOSA was never urged/pleaded by theappellant/Detaining Authority either before the High Court or beforethis Court in any of their pleadings. It is submitted that even otherwisein view of the decisions of this Court in the cases of A. Sowkath Ali v.Union of India (2000) 7 SCC 148; and P. Saravanan v. State of T.N.(2001) 10 SCC 212, Section 5-A of COFEPOSA shall not be applicable.

6.11 It is further submitted that even otherwise there was delayin deciding the representation and therefore also the orders of detentionwere liable to be set aside.

6.12 Learned counsel appearing on behalf of the detenus has alsorequested to consider the observations made by the learned trial Courtwhile granting bail to the detenus, more particularly strictures on theconduct of the DRI officials thereby highlighting illegal incarceration ofthe detenus by the DRI and extraction of false statements during suchillegal custody.

6.13 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeal/petitions and not to

Ainterfere with the impugned judgment and order passed by the HighCourt quashing and setting aside the orders of detention.7. We have heard the learned counsel for the respective partiesat length.

8. By the impugned judgment and order, the High Court has setBaside the respective orders of detention and released the detenus, namely,Ashok Kumar Jalan and Amit Jalan under the provisions of COFEPOSA.The orders of detention are set aside by the High Court mainly, inter alia,on the ground that there was clear lapse and failure on the part of theDetaining Authority, to examine and consider the germane and relevantCquestion relating to the imminent possibility of the detenus being grantedbail, while recording its subjective satisfaction and passing the detentionorders and also on the ground that non-placement of the relevant materialin the form of Anand’s retraction petition and its non-consideration bythe Detaining Authority, also vitiates the detention orders.

D8.1 Now so far as the first ground on which the detention ordershave been set aside, namely, there is clear lapse and failure on the partof the Detaining Authority, to examine and consider the germane andrelevant question relating to imminent possibility of detenus being grantedbail while recording its subjective satisfaction and passing the detentionorders is concerned, at the outset, it is required to be noted that inEparagraph 7, the Detaining Authority observed and stated as under:

“7. I am aware that you, i.e., Shri Ashok Kumar Jalan are injudicial custody at present at Presidency Correctional Home,Alipore, Kolkata. However, there is an immediate possibility ofyour release from judicial custody and if you are released on bail,Fyou are likely to continue to indulge in the prejudicial activities andtherefore there is need to issue Detention Order against youunder the COFEPOSA Act, 1974 with view to prevent you fromsmuggling of gold and foreign currency in future.”

Therefore, it is evident that the Detaining Authority while passingGthe detention orders was aware of the fact that the detenus are actuallyin custody; that there is real possibility of their being released on bail;and that on being so released they would in all probability indulge inprejudicial activities and therefore it is essential to prevent them fromsmuggling of gold and foreign currency in future.

As per catena of decisions of this Court, even if person is injudicial custody, he can be detained under the relevant provisions of theconcerned Act, like COFEPOSA etc. However, there must be properapplication of mind and the Detaining Authority must have beensubjectively satisfied on considering the relevant material that there is areason to believe that there is real possibility of detenus being releasedon bail and that on being so released the detenus will in all probabilityindulge in prejudicial activities. In the recent decision, this Court in thecase of Dimple Happy Dhakad (supra) had an occasion to considerthe aforesaid aspect and after considering the decisions of this Court inthe cases of Kamarunnisa (supra); Union of India v. Paul Manickam(2003) 8 SCC 342; Huidrom Konungjao Singh v. State of Manipur(2012) 7 SCC 181; Dharmendra Suganchand Chelawat v. Unionof India (1990) 1 SCC 746; and Veeramani (supra), this Courtobserved and held (i) that the order of detention validly can be passedagainst person in custody and for that purpose it is necessary that thegrounds of detention must show whether the Detaining Authority wasaware of the fact that the detenu was already in custody; (ii) that theDetaining Authority must be further satisfied that the detenu is likely tobe released from custody and the nature of activities of the detenu indicatethat if he is released, he is likely to indulge in such prejudicial activitiesand therefore, it is necessary to detain him in order to prevent him fromengaging in such activities; and (iii) the satisfaction of the DetainingAuthority that the detenu is already in custody and is likely to be releasedon bail and on being released, he is likely to indulge in the same prejudicialactivities with the subjective satisfaction of the Detaining Authority.

8.2 In the case of Noor Salman Makani (supra), submissionwas made regarding non-application of mind by the Detaining Authoritywith regard to the circumstance that the detenu was in jail and merebald statement that the possibility that the detenu was likely to be releasedon bail cannot be ruled out is not enough and it only shows that therewas no proper application of mind. This Court did not accept the saidsubmission and has observed that nothing more could have been said bythe Detaining Authority in this context. It is required to be noted that inthe said decision the apprehension of the Detaining Authority came tobe true as the detenu was released on bail. This Court refused to setaside the detention order on the aforesaid ground. It appears that thedetenus were waiting for the setting aside of the detention orders on the

Aground that they are in custody and that there is no real apprehensionthat the detenus are likely to be released on bail.

As discussed earlier, the detention orders show the application ofmind by the Detaining Authority based on the material available on record,facts and circumstances of the case, nature of activities and propensityBof the detenus indulging in such activities. Therefore, in the facts andcircumstances of the case, the High Court has erred in setting aside thedetention orders on the ground stated hereinabove, namely, that there isa clear lapse and failure on the part of the Detaining Authority, to examineand consider the germane and relevant question relating to the imminentpossibility of the detenus being granted bail, while recording its subjectiveCsatisfaction and passing the detention orders.

8.3 Constitution Bench of this Court in the case of RameshwarShaw (supra) has observed and held that the detention of the saidperson would be necessary after he is released from jail, and if theauthority is bona fide satisfied that such detention is necessary, he canDmake valid order of detention few days before the person is likely tobe released. It is further observed that “therefore the question as towhether an order of detention can be passed against person who is indetention or in jail, will always have to be determined in the circumstancesof each case. Following the aforesaid decision of this Court, in theEsubsequent decision, in the case of N. Meera Rani v. Government ofT.N. (1989) 4 SCC 418, in para 22, this Court observed and held asunder:

“….Subsisting custody of the detenu by itself does not invalidatean order of his preventive detention and the decision must dependon the facts of the particular case; preventive detention beingnecessary to prevent the detenu from acting in any mannerprejudicial to the security of the State or to the maintenance ofpublic order etc. ordinarily it is not needed when the detenu isalready in custody; the detaining authority must show its awarenessto the fact of subsisting custody of the detenu and take that factorinto account while making the order; but, even so, if the detainingauthority is reasonably satisfied on cogent material that there islikelihood of his release and in view of his antecedent activitieswhich are proximate in point of time he must be detained in orderto prevent him from indulging in such prejudicial activities, the

detention order can be validly made even in anticipation to operateon his release. This appears to us, to be the correct legal position.”

8.4 Now so far as the reliance placed upon the decisions of thisCourt in the cases of Rekha (supra) and T.V. Sravanan (supra) by thelearned counsel appearing on behalf of the detenus is concerned, at theoutset, it is required to be noted that on the facts and circumstances ofthe case, narrated hereinabove, the aforesaid decisions shall not be ofany assistance to the detenus and/or, as such, the same shall not beapplicable to the facts of the case on hand. Even in the case of Rekha(supra), the decision of the Constitution Bench of this Court in the caseof Rameshwar Shaw (supra) was not placed before the Court forconsideration and therefore this Court had no occasion to consider thesaid decision. It is also required to be noted that even after consideringthe decision of this Court in the case of Rekha (supra), which has beenheavily relied upon by the learned counsel appearing on behalf of thedetenus, in the case of Dimpy Happy Dhakad (supra), this Court hasobserved that even if person is in judicial custody, he can be put on apreventive detention provided there must be an application of mind bythe Detaining Authority that (i) the order of detention validly can bepassed against person in custody and for that purpose it is necessarythat the grounds of detention must show whether the Detaining Authoritywas aware of the fact that the detenu was already in custody; (ii) thatthe Detaining Authority must be further satisfied that the detenu is likelyto be released from custody and the nature of activities of the detenuindicate that if he is released, he is likely to indulge in such prejudicialactivities and therefore, it is necessary to detain him in order to preventhim from engaging in such activities; and (iii) the satisfaction of theDetaining Authority that the detenu is already in custody and is likely tobe released on bail and on being released, he is likely to indulge in thesame prejudicial activities with the subjective satisfaction of the DetainingAuthority.

8.5 In the case of Kamarunnissa (supra), this Court concludedas under:

“(1) detention order can validly be passed even in the case of aperson who is already in custody. In such case, it must appearfrom the grounds that the authority was aware that the detenuwas already in custody.

(2) When such awareness is there then it should further appearfrom the grounds that there was enough material necessitatingthe detention of the person in custody. This aspect depends uponvarious considerations and facts and circumstances of each case.If there is possibility of his being released and on being so releasedhe is likely to indulge in prejudicial activity then that would be onesuch compelling necessity to pass the detention order. The ordercannot be quashed on the ground that the proper course for theauthority was to oppose the bail and that if bail is grantednotwithstanding such opposition the same can be questioned beforea higher court.

(3) If the detenu has moved for bail then the application and theorder thereon refusing bail even if not placed before the detainingauthority it does not amount to suppression of relevant material.The question of non-application of mind and satisfaction beingimpaired does not arise as long as the detaining authority wasaware of the fact that the detenu was in actual custody.

(4) Accordingly the non-supply of the copies of bail application orthe order refusing bail to the detenu cannot affect the detenu’sright of being afforded reasonable opportunity guaranteed underArticle 22(5) when it is clear that the authority has not relied orreferred to the same.

(5) When the detaining authority has merely referred to them inthe narration of events and has not relied upon them, failure tosupply bail application and order refusing bail will not cause anyprejudice to the detenu in making an effective representation. Onlywhen the detaining authority has not only referred to but alsorelied upon them in arriving at the necessary satisfaction thenfailure to supply these documents, may, in certain cases dependingupon the facts and circumstances amount to violation of Article22(5) of the Constitution of India. Whether in given case thedetaining authority has casually or passingly referred to thesedocuments or also relied upon them depends upon the facts andthe grounds, which aspect can be examined by the Court.

(6) In case where detenu is released on bail and is at liberty atthe time of passing the order of detention, then the detaining

authority has to necessarily rely upon them as that would be avital ground for ordering detention. In such case the bailapplication and the order granting bail should necessarily be placedbefore the authority and the copies should also be supplied to thedetenu.”

9. Now applying the law laid down by this Court, referred tohereinabove, to the facts of the case on hand and considering the ground(para 7) and the various circumstances noted by the Detaining Authority,we are satisfied that the detention orders cannot be quashed on thisground. It is to be noted that the detenus have been granted bail by theCourt on the very date the orders of detention were quashed by theHigh Court, i.e., on 2.8.2019. Therefore, the apprehension in the mindof the Detaining Authority that the detenus are likely to be released onbail was well founded and fortified. Therefore, the High Court hasfallen in error in quashing and setting aside the detention orders on theground that there is clear lapse and failure on the part of the DetainingAuthority, to examine and consider the germane and relevant questionrelating to the imminent possibility of the detenus being granted bail,while recording its subjective satisfaction and passing the detention orders.

10. Now so far as the other submissions made by the learnedcounsel appearing on behalf of the detenus, which according to thelearned counsel were not considered by the High Court, namely, non-consideration of the relevant facts, namely, the retraction statement madeby Shri Anand, by the Detaining Authority is concerned, at the outset, itis required to be noted that it appears that Memo No. 9920/AB-I dated31.08.2019 of Jail Authority, prisoner’s (Shri Anand) petition dated22.6.2019 was forwarded to the learned Chief Metropolitan Magistrate,Calcutta only. It appears that the said petition was not forwarded to anyother concerned including the Sponsoring Authority or Detaining Authority.It also appears from the material on record that as per letter Memo No.9899/AB-I dated 30.08.2019 of Jail Authority, copy of the prisoner’spetition of Shri Anand dated 22.6.2019 was forwarded on 22.6.2019itself to the learned Chief Metropolitan Magistrate, Calcutta, The samewas received by the office of the learned Chief Metropolitan Magistrate,Calcutta on 24.6.2019. It appears that Shri Anand and the detenus hereinwere produced before the learned Chief Metropolitan Magistrate, Calcuttafrom judicial custody on 2.7.2019 and during the course of hearing, it

Ahad come to the notice of prosecution that retraction petition was filedby Shri Anand. Therefore, and accordingly, request was made beforethe learned Chief Metropolitan Magistrate, Calcutta for supply copyof the same and accordingly the learned Chief Metropolitan Magistrateordered advocate of Shri Anand to serve copy of the retraction petitionvide order dated 2.7.2019. It appears from the material on record thatBthe office of DRI, Calcutta received copy of the retraction petition ofShri Anand dated 22.6.2019 on 15.07.2019. Much reliance is placedupon the orders sheet of the learned trial Court dated 22.06.2019 insupport of the submission on behalf of the detenus that the SponsoringAuthority was aware of the Anand’s retraction statement and thereforeCthe Sponsoring Authority ought to have drawn the attention of the DetainingAuthority on the wider aspect of Anand’s retraction. However, it isrequired to be noted that there are two orders available on the ordersheet of the trial Court. First is the handwritten order and other is atyped order. All other orders are typed orders. The handwritten orderdoes not bear the stamp of the court and/or signature of the learnedDMagistrate. Therefore, the handwritten order does not inspire anyconfidence and therefore no reliance can be placed upon the handwrittenorder on the order sheet of the trial Court dated 24.06.2019. Under thecircumstances, it appears that when the detention orders were passedby the Detaining Authority, neither the Sponsoring Authority nor evenEthe Detaining Authority was aware of any retraction petition of ShriAnand. Under the circumstances, there was no occasion and/or reasonfor the Detaining Authority to consider the retraction statement of ShriAnand. Under the circumstances, it cannot be said that on non-consideration of the Anand’s retraction petition, the detention orders havebeen vitiated.F

11. In view of the above and for the reasons stated above, theHigh Court has committed grave error in quashing and setting asidethe detention orders and interfering with the subjective satisfaction ofthe Detaining Authority. Consequently, the appeal preferred by theDetaining Authority, i.e., Civil Appeal arising from Special Leave PetitionG(Criminal) No. 7010 of 2019 is allowed, the impugned judgment andorder passed by the High Court quashing and setting aside the detentionorders is hereby quashed and set aside and the detention orders of therespective detenus are hereby restored. The detenus, i.e., Ashok KumarJalan and Amit Jalan shall be taken into custody forthwith by the DetainingH

Authority. Accordingly, the special leave petition preferred by therespondent, i.e., Special Leave Petition (Criminal) No. 7013/2019 standsdismissed.

Writ Petition (Criminal) Nos. 204, 206 & 209/2019

As stated above, Writ Petition (Criminal) Nos. 204/2019, 206/2019 and 209/2019 have been preferred by the respective writ petitionersunder Article 32 of the Constitution of India for an appropriate writ,direction or order declaring that the disjunctive ‘or’ in Section 13 of theCOFEPOSA Act shall be read as ‘and’ so that only those actions whichare actually done in good faith would be protected under the said Section,to enable the respective petitioners to take such further action againstthe Detaining Authority, as may be permissible in law. But in support ofthe prayer(s) made in the writ petitions, during the course of hearing, nosuch submissions were advanced by the learned counsel for the respectivepetitioners.

Even otherwise, in view of our judgment rendered in CriminalAppeal arising from Special Leave Petition (Criminal) No. 7010/2019,we find no merits in the present writ petitions and they are accordinglydismissed.

Divya Pandey

Matters disposed of.