REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1746  OF 2019           (Arising from S.L.P.(Criminal) No.7010/2019)

Union of India through Joint Secretary (COFEPOSA), Ministry of Finance, New Delhi …Appellant

Versus

Ankit Ashok Jalan …Respondent

WITH

SPECIAL LEAVE PETITION(CRIMINAL) NO.7013/2019 WRIT PETITION(CRIMINAL) NO. 204 OF 2019 WRIT PETITION(CRIMINAL) NO. 206 OF 2019 WRIT PETITION(CRIMINAL) NO. 209 OF 2019

J U D G M E N T

M.R. SHAH, J.

Leave granted in Special Leave Petition (Criminal) No. 7010

of 2019.

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2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 02.08.2019 passed by the High Court

of  Delhi  at  New Delhi in  Writ  Petition (Criminal)  No.  1840  of

2019, by which the High Court has allowed the said writ petition

preferred  by the respondent  herein  and  has  quashed  and  set

aside the detention orders bearing Nos. PD­12001/34/2019­

COFEPOSA and PD­12001/35/2019­COFEPOSA dated 1.7.2019,

the Union of India through the Detaining Authority has preferred

the present appeal.   Feeling aggrieved and dissatisfied with the

aforesaid impugned judgment and order passed by the High

Court, even the detenu has preferred the special leave petition

challenging the aforesaid impugned judgment and order,

inasmuch as on grounds ‘C’, ‘D’, ‘E’, ‘F’ and ‘G’ raised in the main

writ petition before the High Court, having not been decided one

way or the other, while allowing the writ 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 Article 32  of the Constitution of India for an appropriate

writ, direction or order declaring that the disjunctive ‘or’ in

Section 13 of the Conservation of Foreign Exchange and

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Prevention of Smuggling Activities Act, 1974 (hereinafter referred

to as ‘COFEPOSA Act’) shall be read as ‘and’ so that only those

actions which are actually done in good faith would be protected

under  the said Section, to enable the respective  petitioners  to

take such further action against the Detaining Authority, as may

be permissible in law.

2.2 At the outset, it is required to be noted that so far as the

respective writ petitioners of writ petitions are concerned, though

detention orders qua them have been set aside by the High

Court, still the respective petitioners have prayed for the

aforesaid reliefs.

Criminal 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

Revenue Intelligence, Kolkata Zonal Unit (for short ‘DRI’)

intercepted one Anand on 09.06.2019 near Dankuni Toll Plaza,

West Bengal, while he was travelling on a bus from Siliguri to

Kolkata, carrying 8 Kgs. of gold of foreign origin valued at Rs.2.71

crores approximately.  That the said Anand, vide his statements

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recorded on 09.06.2019 and 10.06.2019 indicated that, he had

been engaged by the detenus to receive the 8 bars of smuggled

gold from Indo­Bhutan border at Jaigaon from an unknown

person, to  be  transported and delivered to  Kolkata and Delhi.

That as per the detenus, they were apprehended by officers of

DRI on 10.06.2019 at about 2:00 p.m. at the Food Court of Quest

Mall, 33, Syed Amir Ali Avenue, Park Circus, Beck Bagan Row,

Kolkata, West Bengal – 700017 and taken to the latter’s office.

That the detenus’ self­incriminating confessions were purportedly

obtained under Section 108 of the Customs Act, 1962

(hereinafter referred to as the ’Act’) and they were formally shown

as arrested on 11.06.2019 under the provisions of Section 104 of

the Act.   That thereafter the detenus were produced before the

Court of Judicial Magistrate on 12.06.2019.

3.1 That vide  order  dated  12.06.2019 in  Misc.  67/2019, the

learned Chief Metropolitan Magistrate, Kolkata rejected the

prayer of bail made on behalf of the detenus and remanded them

to judicial custody till 18.06.2019.

3.2 That while the detenus were in custody, the detention

orders were rendered by the Detaining Authority on 01.07.2019.

The detention orders were served on both the detenus on

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02.07.2019.  The detenus have been served with the relied upon

documents with the list of documents 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) of the COFEPOSA Act, addressed to the

Detaining Authority against the impugned detention orders,

through the jail authorities.

3.4 That the respondent Ankit  Ashok Jalan filed writ petition

before the High Court challenging the aforesaid detention orders

against his father – Ashok Kumar Jalan and his brother – Amit

Jalan (detenus) dated 01.07.2019.   It was mainly contended on

behalf  of the original  writ  petitioner  that  despite the detenus

already being in judicial custody, the Detaining Authority

rendered the detention orders and there being no imminent

possibility of their being released on bail nor any material relied

upon therein to raise an apprehension that they may be so

released in the near future since no bail application was pending,

the same are  ex facie  illegal and  without any  basis.  It  was

further contended that the relied upon documents have not been

perused by the Detaining Authority, inasmuch as, the retraction

petition of the said Anand, which is a vital document, has neither

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been placed before the Detaining Authority nor considered by it

in accordance with law, the document purported to be a copy of

the ‘retraction petition’ in respect of the said Anand, placed at Sr.

No.30 of the list of relied upon documents, is actually the latter’s

bail  application,  and  thus the  subjective  satisfaction  is  sham,

erroneous and incomplete, and therefore, violative of the detenus’

right to effective representation as mandated and guaranteed by

the Constitution, and by law.

4. The writ petition before the High Court was opposed by the

Detaining Authority.   It was requested not to entertain the writ

petition  at this  stage, since the  detenus’ representations  were

pending consideration before the Advisory Board.   On merits, it

was submitted that there was cogent material before the

Detaining Authority to arrive at the subjective satisfaction that

the detenus were likely to be released from judicial custody and

that there was  likelihood of their  continuing to  indulge  in  the

prejudicial activities.   It  was also submitted on  behalf of the

Detaining Authority that all the relevant documents were

supplied to the detenus.   That by the impugned judgment and

order, the High Court has quashed and set aside the detention

orders mainly on the ground that there was a clear lapse and

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failure on the part of the Detaining Authority  to examine and

consider the germane and relevant question relating to the

imminent possibility of the detenus being granted bail, while

recording its subjective satisfaction  and passing the  detention

orders.

4.1 Feeling aggrieved and dissatisfied with the impugned

judgment and  order  passed  by the  High  Court quashing  and

setting aside  the detention orders,  Union of India  through the

Detaining Authority has preferred the present appeal.   As

observed hereinabove, even the original writ petitioner has also

approached this Court against the impugned judgment 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 High Court,

having not been decided one way or the other, while allowing the

writ petition of the original writ petitioner on the first two

grounds, i.e., grounds ‘A’ & ‘B’ only.

5. Shri  K.M.  Nataraj, learned Additional  Solicitor  General  of

India  has vehemently submitted that the impugned judgment

and order passed by the High Court is clearly contrary to the law

laid down by this Court  in a recent  judgment rendered  in the

case  of  Union  of India  and  another v.  Dimple  Happy  Dhakad,

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Criminal Appeal No. 1064/2019 arising out of SLP (Criminal) No.

5459/2019, decided on 18.07.2019, 2019 SCC OnLine SC 875.  It

is submitted that despite the categorical finding recorded by the

Detaining Authority with regard to the “immediate possibility of

the release of the detenus from judicial custody”, the High Court

has observed that the same is not sufficient compliance in law

and has quashed the detentions orders on this sole ground.

5.1 Relying upon para 7 of the detention orders, it is submitted

that the Detaining Authority was aware with regard to detenus

being in custody and their  immediate possibility of  the release

and their propensity to indulge in prejudicial activities after

release.   It is  submitted that the subjective satisfaction of the

Detaining Authority has been clearly recorded with regard to the

custody ­ the likelihood of the release and the  propensity to

indulge in prejudicial activities.  It is submitted that even the bail

application of Anand was also considered by the Detaining

Authority.

5.2 It is  further submitted by the  learned Additional Solicitor

General that the aforesaid consideration on the part of the

Detaining Authority is sufficient compliance with the

constitutional protections.   Reliance is placed upon the decision

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of this Court in the case of Noor Salman Makani v. Union of India

(1994) 1 SCC 381 (paras 5 & 6).

5.3 It is  further submitted by the  learned Additional Solicitor

General that even in the case of  Kamarunnisa v. Union of India

(1991) 1 SCC 128, relied upon by the respondent, this Court lays

down a three­pointer test in passing of a detention order in case

of a person already in judicial custody as under:

“(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 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 further

observed:

“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 notwithstanding such opposition, to question it before a higher court.”

It is submitted that this Court further clarified as under:

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“….What this court stated in the case of Ramesh Yadav [(1985) 4 SCC 232] was that ordinarily a detention order should not be passed merely to pre­empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law.   It seems to be well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of prevention detention.”

5.4 It is submitted that even as per the said decision, the

awareness that the detenus are in custody and the categorical

recording of the fact that the detenu is likely to be released on

bail, is sufficient when a detention order is being passed against

a  person in custody.   Learned  ASG has  also relied  upon  the

following decisions of this Court, Merugu Satyanarayana v. State

of A.P. (1982) 3 SCC 301; State of Gujarat v. Sunil Fulchand Shah

(1988) 1 SCC 600;  Vijay Kumar v. Union of India (1988) 2 SCC 57;

Abdul Sathar  Ibrahim Manik v.  Union of India  (1992)  1 SCC 1;

Veeramani v. State of T.N. (1994) 2 SCC 337; and Baby Devassy

Chully v. Union of India (2013) 4 SCC 531.

5.5 It is further submitted by the learned ASG that the detenus

have been released on bail subsequent to the impugned judgment

and order of the High Court and therefore the ground of

imminent likelihood of release stood proved.  It is submitted that

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admittedly the detenus have been granted bail by the Court on

the very date of the order of detention was quashed by the High

Court by the impugned judgment and order dated 2.8.2019.  It is

submitted therefore the apprehension in the mind of the

Detaining Authority that the detenus are likely to be released on

bail and regarding the prejudicial activities of the detenus has to

be taken as well founded and fortified.  It is submitted therefore

that the grounds raised by the detenus regarding non­mentioning

of imminent likelihood of release does not survive for

consideration, as the detenus have been released subsequent to

the order of detention as apprehended by the Detaining

Authority.  It is submitted that as on date if the detention order is

quashed, the detenus will  be free to  indulge  in the prejudicial

activities  as mentioned  in the detention order  thereby causing

serious  harm and  prejudice to the  society in  general  and  the

economy of the nation in particular.

5.6 Now so far as the other grounds raised by the detenus with

respect to retraction statement of Shri Anand not being with the

Detaining Authority on the date of passing of the detention orders

and therefore the detention orders have been vitiated is

concerned, it is submitted that an affidavit has been furnished

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along with documentary evidence by the Sponsoring Authority by

letter dated 31.8.2019.   It is submitted that as per letter dated

31.08.2019 of the jail authority, prisoner’s petition dated

22.6.2019 submitted by Shri Anand, was forwarded to the

learned court of Chief Metropolitan Magistrate, Calcutta only. It

is submitted that the said  petition  was  not forwarded to  any

other concerned including the Sponsoring or Detaining Authority

except the court of Chief Metropolitan Magistrate, Calcutta.  It is

submitted that further, as per letter memo dated 30.08.2019 of

jail  authority, a copy  of the  prisoner’s  petition  of  Shri  Anand

dated 22.6.2019 was  forwarded on 22.6.2019 to  learned Chief

Metropolitan Magistrate, Calcutta.  The same was received by the

office of Chief Metropolitan Magistrate on 24.6.2019.   It is

submitted that Shri Anand, Shri Ashok Kumar Jalan and Shri

Amit Jalan were produced before the learned Chief Metropolitan

Magistrate,  Calcutta from  judicial custody  on  2.7.2019.   It is

submitted that during the course of hearing of the case, it came

to the notice of the prosecution that a retraction petition was filed

by Shri Anand. Accordingly, a request was made before the

learned Chief Metropolitan Magistrate for supply of a copy of the

same.   Accordingly, learned Chief Metropolitan Magistrate

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ordered advocate of accused No.1 (Shri Anand) to serve the copy

vide order dated 2.7.2019.  It is submitted that the office of DRI,

Kolkatta received a copy of the prisoner’s petition/retraction

petition of Shri Anand dated 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’s order dated 2.7.2019.  It

is submitted that therefore when the Sponsoring Authority was

not aware about the retraction application of Shri Anand dated

22.6.2019 when the proposal was forwarded by the Sponsoring

Authority to the  Detaining  Authority  and  therefore the alleged

retraction application dated 22.6.2019 could  not  be placed by

Sponsoring Authority before the Detaining Authority before

passing the detention orders on 1.7.2019 against the detenus.  It

is submitted that therefore and even otherwise non­consideration

of the retraction application dated 22.6.2019 of Shri Anand by

the Detaining Authority does not vitiate the orders of detention.

In support of his above submission, learned ASG has relied upon

a decision of this Court  in the case of  Raverdy Marc Germain

Jules v. State of Maharashtra (1982) 3 SCC 135.

5.7 It is further submitted by the learned ASG that even

otherwise the contents of the prisoner’s petition/retraction

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petition of Shri Anand dated 22.6.2019 is a mere afterthought.  It

is submitted that Shri Anand was caught carrying 8Kgs. of

foreign origin gold without any supporting documents whatsoever

in the presence of the independent witnesses, as per due process

and procedure.   It is submitted that whatsapp messages

exchanged between him and Shri Ashok Jalan and the whatsapp

calls made between them provides unclenching evidence about

their acquaintance and complicity in the case.   It is submitted

that  hence the  prisoner’s  petition/retraction  petition  does  not

prejudice the decision of the Detaining Authority in passing of the

detention orders, which were based on the facts and evidence on

record which were duly mentioned in the detention orders and

relied upon documents supplied along.

5.8 It is further submitted that even the retraction statement of

Shri Anand is not a vital document in case of the present

detention orders against the detenus as  their retractions have

been duly considered by the Detaining Authority.

5.9 It is further submitted by the learned ASG that apart from

the   above facts, Shri Anand after his release on bail has

reiterated his earlier statements dated 9.6.2019, 10.6.2019 and

14.6.2019 on 19.7.2019 wherein he has categorically stated that

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he filed the retraction petition as per the directions of his

advocate which was a mistake on his part.

5.10.It is further submitted by the learned ASG that even

otherwise failure to place certain documents may not necessarily

be fatal to a  detention  order.   In support of  his submission,

learned ASG has also relied upon the decisions of this Court in

the cases of  Prakash Chandra Mehta v. Commissioner and

Secretary., Government of Kerala, (1985) Suppl. SCC 144 (paras

69 to 73, 75, 82 & 83) and Madan Lal Anand v. Union of India

(1990) 1 SCC 81.

5.11 Making the above submissions and relying upon the above

decisions, it is prayed to allow the present appeal and quash and

set aside the impugned judgment and order passed by the High

Court quashing and setting aside the detention orders.  

6. While supporting the impugned judgment and order passed

by the High Court quashing and setting aside the orders of

detention, learned counsel appearing on behalf of the respondent

has vehemently submitted that the High Court has given cogent

reasons while quashing and setting aside the orders of detention,

and therefore, the same is not required to be interfered with by

this Court.

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6.1 Shri Vikram Chaudhri, learned Senior Advocate appearing

on  behalf of the original writ petitioner has taken us to the

relevant grounds of detention, more particularly paragraphs (v)

and (vii) and has submitted that the statements of Shri Anand

are the fulcrum, basis and foundation on which the entire case

set up against the detenus rests.  Consequently, if the statements

are excluded from the zone of consideration, nothing shall

survive qua the detenus.   It is submitted that there is no

incriminating recovery from the detenus as such.

6.2 It is further submitted by the learned Senior Advocate

appearing on behalf of the original writ petitioner that though a

specific reference has been made by the Detaining Authority

regarding the factum of retraction of their statement by the

present detenus, however, not a whisper has been made as to the

fact of any retraction made by Shri Anand even in his bail

application.   It is submitted that even if the short denial of

statement of bail application of Shri Anand is seen as retraction,

the same has never gone into the mind making of the Detaining

Authority for arriving at his subjective satisfaction.   It is

submitted that  the Detaining Authority has chosen to make a

detailed consideration of the retraction made by the detenus, but

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it will not show the same consideration to the retraction made by

Shri Anand, it was alive and aware regarding the same.

6.3 It is further submitted that as such the retraction statement

of Shri Anand has not been supplied by the Detaining Authority

to the  detenus.   It is submitted that as per the relied  upon

documents, it is stated as “copy of retraction petition in respect of

Shri Anand”.  It is submitted that however the above document is

a bail application of Shri Anand and not a retraction statement.

It is submitted that therefore non­supply of the retraction

statement of Shri Anand to the detenus has vitiated the orders of

detention.

6.4 It is further  submitted that in the  grounds  of  detention,

there is no reference to the retraction petition on behalf of Shri

Anand.

6.5 It is further submitted that as it is evident from the order

sheet of the Court, retraction petition filed by Shri Anand has

reached the Court on 24.06.2019 and handwritten court

proceedings recorded the said fact.  It is submitted that therefore

retraction  petition formed a part of the judicial/court record,

much prior to the issuance of the detention orders.   It is

submitted  that therefore the retraction petition  of  Shri  Anand

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was in complete knowledge of the DRI Officers as well as their

Advocates.   It is submitted that except the Detaining Authority

and the prosecution, none was aware of the proposal for

detention and it was their bounden duty to call for all the

records.  It is submitted that, however, request for supply of the

said retraction petition and the entire Court record was not made

before passing of the detention orders.

6.6 It is further submitted that the stand that the authorities

got knowledge of the retraction only on 2.7.2019 has not been

substantiated.   It is submitted that the retraction petition dated

22.6.2019 of co­accused Shri Anand had a vital bearing on the

complicity or otherwise of the detenus in the alleged prejudicial

activities.   It is  submitted  that the  Detaining  Authority  would

have been aware of the contents of the retraction and would have

considered  the  same, it  may  have influenced the  mind of the

Detaining Authority one way or the other.   It is submitted

therefore that non­supply of the retraction petition by Shri Anand

and/or non­consideration of the factual factum of retraction

petition by Shri Anand has definitely vitiated the orders of

detention and therefore the High Court has rightly set aside the

detention orders.  In support, learned counsel has heavily relied

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upon the decisions of this Court in the cases of  V.C. Mohan v.

Union of India (2002) 3 SCC 451; Deepak Bajaj v. State of

Maharashtra (2008) 16 SCC 14; and Rushikesh Tanaji Bhoite v.

State of Maharashtra (2012) 2 SCC 72.

6.7 It is further submitted that even otherwise subjective

satisfaction was also vitiated for lack of any cogent material to

arrive  at the  satisfaction regarding  the imminent  possibility  of

release on bail, more particularly when the bail application filed

by both the detenus was already rejected by the Magistrate and

no further bail application of the detenus was pending.

6.8 It is further submitted that indisputably bail application of

the detenus was rejected on 12.06.2019.   No further bail

application was filed or pending before any court.  It is submitted

therefore the  subjective  satisfaction of the  Detaining Authority

that the detenus are likely to be released on bail has been vitiated

and therefore the High Court has rightly quashed and set aside

the orders of detention on this ground alone.  In support, learned

counsel has heavily relied upon the decisions of this Court in the

cases  of  Rameshwar  Shaw v.  District  Magistrate  AIR  1964 SC

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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 Union

of India v. Dimple Happy Dhakad (supra), it is vehemently

submitted  by the learned counsel appearing on  behalf of the

respondent that,  as held by this Court, the satisfaction of the

Detaining Authority that the detenus may be released on bail

cannot be ipse dixit of the Detaining Authority.    It is submitted

that as such on facts in the case of  Dimple Happy Dhakad

(supra), this Court confirmed the orders of detention having been

satisfied that the subjective satisfaction of the Detaining

Authority that the detenu is likely to be released on bail is based

on the materials.  It is submitted that even otherwise the decision

of this Court in the case of  Rekha (supra) has been delivered by

three Judges Bench and the decision in the case of Dimple Happy

Dhakad (supra)   has been delivered by two Judges Bench.   It is

submitted that in any case, in the present case, as such no bail

application of the detenus was pending before any court.

6.10 It is further submitted that even the question of severability

under Section 5­A of the COFEPOSA was never urged/pleaded by

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the appellant/Detaining Authority either before the High Court or

before this Court in any of their pleadings.   It is submitted that

even otherwise in 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 5­A of

COFEPOSA shall not be applicable.

6.11 It is further submitted that even otherwise there was a delay

in deciding the representation and therefore also the orders of

detention were liable to be set aside.

6.12 Learned  counsel  appearing  on  behalf  of the  detenus  has

also requested to consider the observations made by the learned

trial Court while granting bail to the detenus, more particularly

strictures on the conduct of the DRI officials thereby highlighting

illegal incarceration of the detenus by the DRI and extraction of

false statements during such illegal custody.

6.13 Making the above submissions and relying upon the

aforesaid decisions, it is prayed to dismiss the present

appeal/petitions and not to interfere with the impugned

judgment and  order  passed  by the  High  Court quashing  and

setting aside the orders of detention.     

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7. We have heard the learned counsel for the respective parties

at length.

8. By the impugned judgment and order, the High Court has

set aside 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 a clear lapse and failure on the part of the Detaining

Authority, to  examine  and  consider the  germane  and  relevant

question relating to the imminent possibility of the detenus being

granted bail, while recording its subjective satisfaction and

passing the detention orders and also on the ground that non­

placement of the relevant material in the form of Anand’s

retraction  petition  and its  non­consideration  by the  Detaining

Authority, also vitiates the detention orders.

8.1 Now so far as the first ground on which the detention orders

have been set aside, namely, there is a clear lapse and failure on

the part of the Detaining Authority, to examine and consider the

germane and relevant question relating to imminent possibility of

detenus being granted bail while recording its subjective

satisfaction and passing the detention orders is concerned, at the

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outset, it is required to be noted that in paragraph 7, the

Detaining Authority observed and stated as under:

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

Therefore, it is evident that the Detaining Authority while passing

the detention orders was aware of the fact that the detenus are

actually in custody; that there is a real possibility of their being

released on bail; and that on being so released they would in all

probability indulge in prejudicial activities and therefore it is

essential to  prevent them  from smuggling  of gold  and foreign

currency in future.

As per catena of decisions of this Court, even if a person is

in judicial custody, he can be detained under the relevant

provisions of the concerned Act, like COFEPOSA etc.   However,

there must be a proper application of mind and the Detaining

Authority must have been subjectively satisfied on considering

the relevant material that there is a reason to believe that there is

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a real possibility of detenus being released on bail and that on

being so released the detenus will in all  probability  indulge  in

prejudicial activities.  In the recent decision, this Court  in the

case of  Dimple Happy Dhakad (supra)  had an occasion to

consider the aforesaid aspect and after considering the decisions

of this Court in the 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.  Union  of India (1990)  1  SCC 746;  and Veeramani

(supra),  this Court observed and held (i) that the order of

detention validly can be passed against a person in custody and

for  that  purpose  it is  necessary that  the grounds of  detention

must show whether the Detaining Authority was aware of the fact

that the detenu was already in custody;  (ii)  that the Detaining

Authority must be further satisfied that the detenu is likely to be

released from custody and the nature of activities of the detenu

indicate that if  he is released,  he is likely to indulge in such

prejudicial activities and therefore, it is necessary to detain him

in order to prevent him from engaging in such activities; and (iii)

the satisfaction  of the  Detaining  Authority that the  detenu is

already in custody and is  likely to be released on bail  and on

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being released,  he is likely to indulge in the  same prejudicial

activities with the subjective satisfaction of the Detaining

Authority.

8.2 In the case of  Noor Salman Makani  (supra),  a submission

was made regarding non­application of  mind by the Detaining

Authority with regard to the circumstance that the detenu was in

jail and a mere bald statement that the possibility that the

detenu was likely to be released on bail cannot be ruled out is not

enough and it only shows that there was no proper application of

mind.   This Court did not accept the said submission and has

observed that nothing more could have been said by the

Detaining Authority in this context.   It  is required to be noted

that in the said decision the apprehension of the Detaining

Authority came to be true as the  

detenu was released on bail. This Court refused to set aside the

detention order  on  the  aforesaid  ground.   It  appears that the

detenus were waiting for the setting aside of the detention orders

on the ground that they are in custody and that there is no real

apprehension that the detenus are likely to be released on bail.

As discussed earlier, the detention orders show the

application  of  mind  by the  Detaining  Authority based  on the

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material available on record, facts and circumstances of the case,

nature of activities and propensity of  the detenus indulging in

such activities.  Therefore, in the facts and circumstances of the

case, the  High Court  has  erred in  setting  aside the  detention

orders on the ground stated hereinabove, namely, that there is a

clear lapse and failure on the part of the Detaining Authority, to

examine and consider the germane and relevant question relating

to the imminent  possibility  of the  detenus  being  granted bail,

while recording its subjective satisfaction and passing the

detention orders.

8.3 A Constitution Bench of this Court in the case of

Rameshwar Shaw (supra)    has observed and held that the

detention of the said person would be necessary after he is

released from jail, and if the authority is bona fide 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.  It

is further observed that “therefore 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 aforesaid decision of

this Court, in the subsequent decision, in the case of  N. Meera

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Rani v.  Government of T.N.  (1989) 4 SCC 418,  in para 22,  this

Court observed and held as under:

“….Subsisting custody of the detenu by  itself  does not invalidate 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 to 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 subsisting 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 proximate 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.”  

8.4 Now so far as the reliance placed upon the decisions of this

Court in the cases of Rekha (supra) and T.V. Sravanan (supra) by

the learned counsel appearing on behalf of the detenus is

concerned, at the outset, it is required to be noted that on the

facts and circumstances of the case, narrated hereinabove, the

aforesaid decisions shall not be of any assistance to the detenus

and/or, as such, the same shall not be applicable 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 case of Rameshwar

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Shaw (supra) was not placed before the Court for consideration

and therefore this Court had no occasion to consider the said

decision.   It is also required to be noted that even after

considering the decision of this Court in the case of  Rekha

(supra), which has been heavily relied upon by the learned

counsel appearing on behalf of the detenus, in the case of Dimpy

Happy Dhakad  (supra), this Court has observed that even  if  a

person is in judicial custody,  he can  be  put on  a  preventive

detention provided there must be an application of mind by the

Detaining Authority that (i) the order of detention validly can be

passed against a person in custody and for that purpose it is

necessary that the grounds of detention must show whether the

Detaining Authority was aware of the fact that the detenu was

already in custody; (ii) that the  Detaining  Authority must be

further satisfied that the  detenu  is likely to  be released from

custody and the nature of activities of the detenu indicate that if

he is released, he is likely to indulge in such prejudicial activities

and therefore, it is necessary to detain him in order to prevent

him from engaging in such activities; and (iii) the satisfaction of

the Detaining Authority that the detenu is already in custody and

is likely to be released on bail and on being released, he is likely

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to indulge in the same prejudicial activities with the subjective

satisfaction of the Detaining Authority.

8.5 In the case of  Kamarunnissa (supra), this Court concluded

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 notwithstanding such opposition the same can be questioned before a higher court.

(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non­ application 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 non­supply 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.

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(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 arriving 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.”

9. Now applying the law laid down by this Court, referred to

hereinabove, 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 this ground.   It  is to be noted that the

detenus have been granted bail by the Court on the very date the

orders of  detention  were  quashed  by the  High  Court, i.e., on

2.8.2019.   Therefore, the apprehension in the mind of the

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Detaining Authority that the detenus are likely to be released on

bail was well founded and fortified.   Therefore, the High Court

has fallen in error in quashing and setting aside the detention

orders on the ground that   there is a clear lapse and failure on

the part of the Detaining Authority, to examine and consider the

germane and relevant question relating 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 learned

counsel appearing on behalf of the detenus, which according to

the learned counsel were not considered by the High Court,

namely, non­consideration of the relevant facts, namely, the

retraction statement made by Shri Anand, by the Detaining

Authority is concerned, at the outset, it is required to be noted

that it appears that Memo No. 9920/AB­I dated 31.08.2019 of

Jail Authority, prisoner’s (Shri Anand) petition dated 22.6.2019

was forwarded to the learned Chief Metropolitan Magistrate,

Calcutta only.   It appears that the said petition was not

forwarded to any other concerned including the Sponsoring

Authority or Detaining Authority.   It also appears from the

material on record that as per letter Memo No. 9899/AB­I dated

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30.08.2019 of Jail Authority, a copy of the prisoner’s petition of

Shri Anand dated 22.6.2019 was forwarded on 22.6.2019 itself to

the learned Chief Metropolitan Magistrate, Calcutta,   The same

was received by the office of the learned Chief Metropolitan

Magistrate, Calcutta on 24.6.2019.   It appears that Shri Anand

and the detenus herein were produced before the learned Chief

Metropolitan Magistrate, Calcutta from judicial custody on

2.7.2019 and during the course of hearing, it had come to the

notice of prosecution that a retraction petition was filed by Shri

Anand.   Therefore, and accordingly, a request was made before

the learned Chief Metropolitan Magistrate, Calcutta for supply a

copy of the same and accordingly the learned Chief Metropolitan

Magistrate ordered advocate of Shri Anand to serve a copy of the

retraction petition vide order dated 2.7.2019.  It appears from the

material on record that the office of DRI, Calcutta received a copy

of the retraction petition of Shri Anand dated 22.6.2019 on

15.07.2019.   Much reliance is placed upon the orders sheet of

the learned trial Court dated 22.06.2019 in support of the

submission on behalf of the detenus that the Sponsoring

Authority  was  aware of the  Anand’s retraction statement  and

therefore the Sponsoring Authority ought to have drawn the

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attention of the Detaining Authority on the wider aspect of

Anand’s retraction.  However, it is required to be noted that there

are two orders available on the order sheet of the trial  Court.

First is the handwritten order and other  is a typed order.   All

other orders are typed orders. The handwritten order does not

bear the stamp  of the court and/or signature of the learned

Magistrate.  Therefore, the handwritten order  does not inspire

any confidence and therefore no reliance can be placed upon the

handwritten order  on  the order  sheet  of the trial  Court  dated

24.06.2019.  Under the circumstances, it appears that when the

detention orders were passed by the Detaining Authority, neither

the Sponsoring Authority nor even the Detaining Authority was

aware of any retraction petition of Shri Anand.   Under the

circumstances, there was no occasion and/or reason for the

Detaining Authority to consider the retraction statement of Shri

Anand.  Under the circumstances, it cannot be said that on non­

consideration  of the  Anand’s retraction  petition, the  detention

orders have been vitiated.

11. In view of the above and for the reasons stated above, the

High Court has committed a grave error in quashing and setting

aside the  detention  orders and interfering  with the subjective

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satisfaction of the Detaining Authority.  Consequently, the appeal

preferred  by the  Detaining  Authority, i.e.,  Civil  Appeal  arising

from Special Leave Petition (Criminal) No. 7010 of 2019 is

allowed, the impugned judgment and order passed by the High

Court quashing and setting aside the detention orders is hereby

quashed and set aside and the detention orders of the respective

detenus are hereby restored.  The detenus, i.e.,  Ashok Kumar

Jalan and Amit Jalan shall be taken into custody forthwith by

the Detaining Authority.  Accordingly, the special leave petition

preferred by the respondent, i.e., Special Leave Petition (Criminal)

No. 7013/2019 stands dismissed.

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 petitioners under Article 32  of the Constitution of India for

an appropriate writ, direction or order declaring that the

disjunctive ‘or’ in Section 13 of the COFEPOSA Act shall be read

as  ‘and’ so that only those actions which are actually done in

good faith would be protected under the said Section, to enable

the respective petitioners to take such further action against the

Detaining Authority, as may be permissible in law.   But in

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support of  the prayer(s) made in the writ petitions, during the

course of hearing, no such submissions were advanced by the

learned counsel for the respective petitioners.

Even otherwise, in view of our judgment rendered in

Criminal Appeal arising from Special Leave Petition (Criminal) No.

7010/2019, we find no merits in the present writ petitions and

they are accordingly dismissed.

………………………….J. [UDAY UMESH LALIT]

………………………….J. [INDIRA BANERJEE]

NEW DELHI; ………………………….J. NOVEMBER 22, 2019. [M.R. SHAH]

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