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      REPORTABLE         

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     866     OF     2008   

Baby Devassy Chully @ Bobby                   .... Appellant(s)

Versus

Union of India & Ors.           .... Respondent(s)       

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) This appeal is directed against the final judgment and  

order dated 16.03.2006 passed by the High Court of  

Judicature at Bombay in Criminal Writ Petition No. 1500 of  

2005 whereby the High Court dismissed the petition filed by  

the appellant herein.

2) Brief facts:

(a) According to the appellant, the Directorate of Revenue  

Intelligence (DRI), Mumbai Zonal Unit, Mumbai, received an  

intelligence that one sea-faring vessel by name M.T. AL  

SHAHABA (a motor tanker) carrying approximately 700 metric  

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tons (MT) of Diesel Oil of foreign origin is arriving into Indian  

Customs Waters on or around 20th or 21st December, 2004 and  

the said diesel oil would be smuggled into India.  The officers of  

the DRI, Mumbai, therefore, kept surveillance in that area and  

on 21.12.2004, the officers spotted the said vessel.  They  

noticed two self propelled barges and two dumb barges each  

towed by a tow boat were around the said vessel.  They also  

noticed that pipes were attached from the said vessel to the  

barges and oil was being pumped into the barges from the  

vessel.  The officers of the DRI boarded the said vessel and  

took control of the same.  The vessel and barges were found to  

be of Mumbai coast within the Indian territorial waters.  When  

the officers made enquiry with the Captain of the vessel -  

Fouad Ahmed Al Manie, he informed that the vessel was  

carrying High Speed Diesel (HSD) from Muscat.  The Captain  

was not holding any legal documents for import of the said  

diesel oil into India.  The Captain informed the officers that he  

has already discharged around 250 MTs of oil from the vessel  

into three barges before they boarded the vessel.  The officers,  

therefore, brought the said vessel and barges to the P and V  

Anchorage of Port Trust, Mumbai.  Two independent panchas  

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were brought and detailed inventory was prepared and after  

conducting search of the said vessel and barges, panchnamas  

were drawn.  The officers of the DRI seized the said diesel oil  

weighing about 770 MTs, worth Rs. 2 crores, under the  

Customs Act, 1962.   

(b) During the course of investigation, the officers came to  

know the name of the appellant-detenu and one Chand as the  

persons behind the said smuggling.  On 22/23.12.2004, the  

statement of the Captain of the vessel was recorded wherein he  

stated that he was asked by his master to take the vessel to  

the Indian Coast and to deliver the consignment to one Bobby-

the detenu in India.  On the same day, the statement of Sayyed  

Hussain Madar @ Chand was also recorded wherein he, inter  

alia, stated that he was to purchase the said Diesel Oil brought  

by Bobby in India and sell the same.   

(c) During the course of follow-up action of the said seizure  

of the vessel, the officers of the DRI, Mumbai seized about  

5.127 MTs of previously smuggled diesel oil stored in two  

barges at Reti Bunder, Belapur and arrested Chand, Captain  

Fouad Ahmed Al Manie, Shaikh Ahmedali, Murugan  

Murugeshan and Sadiq Anwar under Section 104 of the  

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Customs Act, 1962 on 23.12.2004 and were produced before  

the Addl. CMM, Esplanade, Mumbai on 24.12.2004 and were  

later released on bail on 09.02.2005.  However, subsequently,  

all of them retracted their statements.  On 04.03.2005,  

residential premises of the appellant-Bobby were searched and  

finally he was traced on 14.03.2005.  On the same day, he  

moved an anticipatory bail application in the Sessions Court,  

Mumbai which was rejected on 24.03.2005.  On 24.03.2005,  

the statement of Bobby was recorded under Section 108 of the  

Customs Act, 1962.  On the basis of his statement, the officers  

arrested the appellant on 25.03.2005.  On 12.04.2005, he was  

granted bail by the Addl. CMM, Mumbai but he did not avail of  

the same.  On 03.05.2005, the Joint Secretary to the  

Government of India, after considering the appellant’s high  

propensity and potentiality to indulge in prejudicial activities  

and with a view to prevent him from abetting the smuggling of  

goods in future, passed the detention order against him under  

Section 3(1) of the Conservation of Foreign Exchange and  

Prevention of Smuggling Activities Act, 1974 (hereinafter  

referred to as “the COFEPOSA Act”).   

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(d) Being aggrieved by the said order, on 02.06.2005, the  

appellant filed Criminal Writ Petition No. 1500 of 2005 before  

the Bombay High Court.  The High Court, finding no substance  

in the writ petition, by impugned judgment dated 16.03.2006,  

dismissed the same.   

(e) Aggrieved by the said judgment, the appellant has filed  

this appeal by way of special leave before this Court.  On  

09.05.2008, leave was granted.

3) Heard Mr. K.K. Mani, learned counsel for the appellant,  

Mr. K. Swami, learned counsel for respondent Nos. 1 & 2 and  

Ms. Asha Gopalan Nair, learned counsel for Respondent No.4-

State.   

4) Mr. K.K. Mani, learned counsel for the appellant, after  

taking us through the detention order dated 03.05.2005 and  

the grounds of detention as well as the impugned order of the  

High Court dismissing the writ petition raised the following  

contentions:

(i) inasmuch as on the date of passing of the detention  

order, i.e., 03.05.2005, the appellant was in jail, in that event  

there is no compelling necessity to detain him under the  

provisions of the COFEPOSA Act ;

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(ii) the Detaining Authority failed to take note of relevant  

aspect, i.e., the detenu was in custody, hence, the Detention  

Order is liable to be quashed on the ground of non-application  

of mind; and

(iii) the Detaining Authority relied upon the retraction  

statement of co-accused without adverting to their confessional  

statement which vitiates the detention order.

5) Mr. K. Swami, learned counsel for respondent Nos. 1 & 2-

Detaining Authority, submitted as under:-

(i)   taking note of prejudicial activities and with a view to  

prevent the appellant from involving/abetting the smuggling of  

goods, the Detaining Authority rightly invoked the provisions of  

the COFEPOSA Act;   

(ii) all the procedural safeguards have been strictly adhered  

to by the Detaining Authority; and

(iii) all the points raised by the learned counsel for the  

appellant before this Court had already been considered and  

negatived by the High Court, hence, there is no ground for  

interference.

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6) We have carefully considered the rival contentions,  

perused the detention order, grounds of detention and all the  

connected materials.   

7) At the foremost, Mr. K.K. Mani, learned counsel for the  

appellant pressed into service the decision of this Court in  

Rekha vs. State of Tamil Nadu Through Secretary to  

Government and Anr., (2011) 5 SCC 244.  He very much  

relied on paragraph 29 of the said decision which reads as  

under:

“29. Preventive detention is, by nature, repugnant to  democratic ideas and an anathema to the rule of law. No  such law exists in the USA and in England (except during  war time). Since, however, Article 22(3)(b) of the Constitution  of India permits preventive detention, we cannot hold it  illegal but we must confine the power of preventive detention  within very narrow limits, otherwise we will be taking away  the great right to liberty guaranteed by Article 21 of the  Constitution of India which was won after long, arduous and  historic struggles. It follows, therefore, that if the ordinary  law of the land (the Penal Code and other penal statutes) can  deal with a situation, recourse to a preventive detention law  will be illegal.”

We are conscious of the fact that the right to liberty is  

guaranteed by Article 21 of the Constitution of India.  At the  

same time, Article 22(3)(b) of the Constitution permits  

preventive detention.  Keeping the above principles in mind, let  

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us consider whether the impugned detention order is  

sustainable in law or not.

8) In a series of decisions, this Court has held that it is the  

subjective satisfaction of the Detaining Authority whether a  

person has to be detained for a particular period of time or not.  

In the impugned grounds of detention, the Detaining Authority  

has narrated all the reasons for passing the detention order  

detaining the appellant with a view to prevent him from  

abetting the smuggling of goods in future.

9) With regard to non-application of mind, Mr. K.K. Mani,  

learned counsel for the appellant pointed out that on the date  

of passing of the detention order, i.e., 03.05.2005, the detenu  

was in prison though he was granted bail on 12.04.2005, he  

had not availed the same and continued in prison on the date  

of order.  According to him, this aspect was not reflected in the  

detention order which, according to him, vitiates the detention  

on the principle of non-application of mind.  It is true that  

though the detenu was granted bail on 12.04.2005, for the  

reasons best known to him, he did not avail such benefit and  

continued to be in jail on the date of the detention, i.e.,  

03.05.2005.  It is true that this aspect has not been mentioned  

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in the detention order, however, on the other hand, it is not in  

dispute that the grounds of detention which forms part of the  

Detention Order dated 03.05.2005 clearly mention the details  

about the bail order dated 12.04.2005 and non-availing of the  

same on the date of detention order, i.e., 03.05.2005.  In this  

regard, learned counsel for the appellant relied on a decision of  

this Court in Binod Singh vs. District Magistrate, Dhanbad,  

Bihar & Ors., (1986) 4 SCC 416 wherein the contention of the  

petitioner therein was that the order of preventive detention  

could only be justified against a person in detention if the  

Detaining Authority was satisfied that his release from  

detention was imminent and the order of detention was  

necessary for putting him back in jail.  He also contented that  

the service of order of detention on the petitioner while he was  

in jail was futile and useless since such an order had no  

application under Section 3(2) of the National Security Act,  

1980.  While considering the said claim, this Court, in  

paragraph 7, held as under:

“7. It is well settled in our constitutional framework that  the power of directing preventive detention given to the  appropriate authorities must be exercised in exceptional  cases as contemplated by the various provisions of the  different statutes dealing with preventive detention and  should be used with great deal of circumspection. There  

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must be awareness of the facts necessitating preventive  custody of a person for social defence. If a man is in custody  and there is no imminent possibility of his being released,  the power of preventive detention should not be  exercised……..”

10) It is clear that if a person concerned is in custody and  

there is no imminent possibility of his being released, the rule  

is that the power of preventive detention should not be  

exercised.   In the case on hand, it is not in dispute that on  

12.04.2005 itself, the competent Court has granted bail but  

the appellant did not avail such benefit.  In other words, on the  

date of the detention order, i.e., 03.05.2005, by virtue of the  

order granting bail even on 12.04.2005, it would be possible  

for the detenu to come out without any difficulty.  In such  

circumstances, while reiterating the principle of this Court  

enunciated in the above decision and in view of the fact that  

the detenu was having the order of bail in his hand, it is  

presumed that at any moment, it would be possible for him to  

come out and indulge in prejudicial activities, hence, the said  

decision is not helpful to the case of the appellant.  In view of  

the above circumstances and of the fact that the Detaining  

Authority was aware of the grant of bail and clearly stated the  

same in the grounds of detention, we reject the contra  

arguments made by the learned counsel for the appellant.  On  1

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the other hand, we hold that the Detaining Authority was  

conscious of all relevant aspects and passed the impugned  

order of detention in order to prevent the appellant from  

abetting the smuggling of goods in future.   

11) For the same reason, the other contention, namely, that  

no compelling necessity to pass the order of detention is to be  

rejected.  As a matter of fact, learned counsel for the Detaining  

Authority took us through various grounds/details/materials  

adverted to in the impugned order and we are satisfied that it  

cannot be claimed that there was no compelling necessity to  

pass the order of detention.  We have already pointed out that  

it is the subjective satisfaction of the Detaining Authority  

whether the order of detention is to be invoked or not.  

Accordingly, we reject the above contention also.

12) The next contention, namely, the Detaining Authority  

relied on the retraction statement of co-accused without  

looking into their confession, it is argued by the learned  

counsel for the appellant that without adverting to confessional  

statement of the co-accused, reliance based upon the  

retraction statement is not maintainable.  It is true that in  

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paragraph 10 of the grounds of detention, the Detaining  

Authority has stated as under:-

“Chand, Capt. Fouad Ahmed and Sadruddin B. Khan  have retracted their statements after arrest before the  Magistrate.  However, a rebuttal to these retractions was  filed before the Magistrate.  No correspondence has been  received from the said persons or the Advocate’s on the  rebuttal filed by DRI.”

It is equally true that there is no reference to confessional  

statement of the co-accused.  As rightly pointed out by the  

learned counsel for respondent Nos. 1 & 2 that what the  

Detaining Authority has stated in paragraph 10, extracted  

above, is only mere reference or narration of fact for  

completion of the proceedings.  In other words, we are satisfied  

that it is not relied upon statement/document as claimed by  

the learned counsel for the appellant.  No doubt, by drawing  

our attention to the decision in A. Sowkath Ali vs. Union of  

India & Ors., (2000) 7 SCC 148, Mr. K.K. Mani, learned  

counsel for the appellant contended that both the confessional  

and retraction statements ought to have been placed and  

furnished to the appellant.  In the said decision, this Court has  

held that the confessional statement and the retraction  

statement both constituting a composite relevant fact should  

have been placed.  It was further held that if any one of the  

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two documents alone is placed, without the other, it would  

affect the subjective satisfaction of the Detaining Authority.  

Therefore, it was held that non-placement of the retraction  

affects the subjective satisfaction of the Detaining Authority.  

There is no quarrel as to the proposition, in fact, the  

sponsoring authority has to place all the relevant documents  

before the Detaining Authority.  We reiterate that all the  

documents which are relevant, which have bearing on the  

issue, which are likely to affect the mind of the Detaining  

Authority should be placed before it.  Further, a document  

which has no link with the issue cannot be construed as  

relevant.  In the case on hand, we have already observed that  

what the Detaining Authority has stated in paragraph 10 of the  

grounds is only a mere reference and no reliance can be based  

on the same.  However, it is not in dispute that the appellant-

detenu was supplied even the retraction statement referred to  

in paragraph 10 along with the grounds of detention.  In such  

circumstance, this contention is also rejected.

13) Learned counsel appearing for respondent Nos. 1 & 2 has  

brought to our notice that on earlier occasion, i.e., 27.02.2006,  

the present appellant challenged the very same detention order  

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by way of filing a writ petition being W.P.(Crl.) No. D-5620 of  

2006 under Article 32 of the Constitution before this Court.  

By order dated 06.03.2006, this Court dismissed the said  

petition, hence, according to the learned counsel for the  

respondents, the appellant is debarred from filing the present  

appeal against the dismissal of the writ petition by the High  

Court of Bombay.  Similar issue was considered by this Court  

relating to filing of Habeas Corpus petition under Article 32 of  

the Constitution of India in Kirit Kumar Chaman Lal  

Kundaliya vs. Union of India & Ors. (1981) 2 SCC 436  

wherein this Court held in paragraph 10 as under:

“10. ……………….The doctrine of finality of judgment or  the principles of res judicata are founded on the basic  principle that where a Court of competent jurisdiction has  decided an issue, the same ought not allowed to be agitated  again and again. Such a doctrine would be wholly  inapplicable to cases where the two forums have separate  and independent jurisdictions. In the instant case, the High  Court decided the petition of the detenu under Article 226  which was a discretionary jurisdiction whereas the  jurisdiction to grant relief in a petition under Article 32 filed  in the Supreme Court is guaranteed by the Constitution and  once the court finds that there has been a violation of Article  22(5) of the Constitution, then it has no discretion in the  matter but is bound to grant the relief to the detenu by  setting aside the order of detention. The doctrine of res  judicata or the principles of finality of judgment cannot be  allowed to whittle down or override the express  constitutional mandate to the Supreme Court enshrined in  Article 32 of the Constitution. In a recent decision in the  case of Santosh Anand v. Union of India, (1981) 2 SCC 420  this Court has pointed out that the concept of liberty has  now been widened by Maneka Gandhi case (1978) 1 SCC 248  

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where Article 21 as construed by this Court has added new  dimensions to the various features and concepts of liberty as  enshrined in Articles 21 and 22 of the Constitution. For  these reasons, therefore, we overruled the preliminary  objection taken by the respondents.”

In view of the same and in the light of the additional grounds  

raised and also of the fact that the issue relates to personal  

liberty of a citizen, we reject the objection of the respondents  

and hold that the present appeal cannot be dismissed on the  

grounds of res judicata.   

14) Before winding up, it is our duty to refer one factual  

aspect pointed out by the learned counsel for the appellant.  It  

is seen that immediately after passing of the detention order on  

03.05.2005, a writ petition under Article 226 of the  

Constitution of India was filed before the High Court of  

Bombay on 02.06.2005.  It is the claim of the appellant that  

after hearing all the parties, the High Court reserved its orders  

on 24.10.2005 and according to the learned counsel for the  

appellant, the High Court pronounced its orders only on  

16.03.2006, i.e., nearly after a period of 5 months.  He pointed  

out that because of the same, the detenu could not know the  

fate of his petition for a period of 5 months when the detention  

period was for one year.   

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15) By this appeal, we remind all the High Courts that in a  

matter of this nature affecting the personal liberty of a citizen,  

it is the duty of the Courts to take all endeavours and efforts  

for an early decision.  In the case on hand, we feel that keeping  

the writ petition pending after hearing the parties and  

compelling the detenu to wait for 5 months to know the result  

of his petition, cannot be accepted.  We request all the High  

Courts to give priority for the disposal of the matters relating to  

personal liberty of a citizen, particularly, when the detention  

period is for one year or less than a year and, more so, after  

hearing the parties, the decision must be known to the affected  

party without unreasonable delay.   

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16) In the light of the above discussion, we are unable to  

accept any of the contentions raised by the appellant.  

Consequently, the appeal fails and the same is dismissed.

...…………….…………………………J.            (P. SATHASIVAM)                                  

..…....…………………………………J.    (RANJAN GOGOI)  

NEW DELHI; OCTOBER 12, 2012.  

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