Full Judgment Text
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PETITIONER:
SANJEEV KUMAR AGGARWAL
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT04/04/1990
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1990 AIR 1202 1990 SCR (2) 318
1990 SCC (3) 309 JT 1990 (2) 62
1990 SCALE (2)666
CITATOR INFO :
E&D 1990 SC1763 (5)
RF 1991 SC1640 (12)
C 1991 SC2261 (12)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act--Section 3(1)--Detention order in
case of detenu already in jail--Passing of--Whether permis-
sible and when valid.
HEADNOTE:
The petitioner was detained under Section 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act by an order dated 13.7.1989. The facts lead-
ing to his arrest and detention are:
On 7.7.1989 officers of Directorate of Revenue Intelli-
gence New Delhi intercepted a Maruti Car in which one Mahesh
Kumar Chauhan and three others were present. On search of
the car no recovery was made on the spot, but later on when
the car was thoroughly rummaged in presence of two independ-
ent witnesses and the occupants of the car, 206 foreign
marked gold biscuits of ten tolas each were recovered from
the cavities of the car meant for fitting speakers in the
rear portion of the car. The occupants did not give any
explanation for the possession of the. said gold biscuits.
However on personal search of Mahesh, a slip was recovered
which contained a telephone number and Mahesh Kumar in his
statement admitted that he was to hand over the smuggled
goods to one Vijay Kumar. Mahesh Kumar admitted that he was
visiting Dubai frequently to bring consumer goods and orna-
ments for being sold in the local market. According to him
one Avtar Singh who was engaged in smuggling of foreign gold
biscuits, agreed to sell the gold biscuits to Mahesh Kumar
on commission. He also gave some details about Avtar Singh.
Similarly Vijay Kumar also made a statement. From these
statements it is also revealed that petitioner Sanjeev Kumar
Aggarwal had made arrangements for selling the gold bis-
cuits. the residential premises of the petitioner was
searched and he was taken into custody. The petitioner made
a statement before the officers of the Directorate or Reve-
nue Intelligence. On the basis of the material the detaining
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authority passed an order of detention on 13.7.1989 which
was served on the petitioner on 24.7.1989. The grounds of
detention were also served on the petitioner in time.
318
The petitioner challenged his detention by means of a
writ petition before the Delhi High Court, and having re-
mained unsuccessful, he filed this petition for Special
Leave to Appeal against the order of the Delhi High Court
dismissing his writ petition.
Before this Court two main points have been urged viz.,
(i) that there is a total non-application of mind by the
detaining authority inasmuch as he has failed to note that
the petitioner was in jail, and that there was no possibili-
ty of his being released, and the failure to consider this
aspect on the part of the detaining authority renders his
detention invalid; and (ii) that the detaining authority has
not applied his mind properly in .rejecting his representa-
tion and that there was delay in serving the detention order
on him.
Dismissing the petition, this Court,
HELD: 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.
No decision of this Court has gone to the extent of
holding that no order of detention can validly be passed
against a person in custody under any circumstances. [326B]
Section 3(3) of the Act lays down that for the purpose
of Article 22(5) of the Constitution the order should be
served as soon as possible but ordinarily not later than
five days and in exceptional circumstances and for reasons
to be recorded in writing, not later than fifteen days from
the date of detention. [320B]
In the instant case from the record it was submitted
that it took quite sometime for translating the documents to
Hindi and Gurmukhi, and the Court is satisfied that there
are valid and sufficient reasons for delay in serving the
detention order. [327C-D]
Abdul Razak Abdul Wahab Sheikh v.S.N. Sinha, Commisioner
of Police, Ahmedabad & Anr., [1989] 2 S.C.C. 222; Binod
Singh v. District Magistrate, Dhanbad, [1986] 4 S.C.C. 416;
Vijay Kumar v. State of Jammu & Kashmir, [1982] 2 S.C.C. 43;
Ramakrishna Rawat v. District Magistrate, Jabalpur, [1975] 4
S.C.C. 164; Smt. Shashi Aggarwal v. State of U.P. & Ors.,
[1988] 1 S.C.C. 436; Ramesh Yadav v. District Magistrate,
Etah & Ors., [1985] 4 S.C.C. 232; Rameshwar Shaw v. District
Magistrate Burdwan, A.I.R. 1964, S.C. 334; Alijan
319
Mian v. District Magistrate, Dhanbad, [1983] 4 S.C.C. 301;
N. Meera Rani v. Government of Tamil Nadu & Anr., [1989] 4
S.C.C. 418: Shri Dharmendra Suganchand Chelawat etc. v.
Union of India & Ors., J.T. 1990 1 S.C. 184: Sat Pal Man-
chanda v.M.L. Wadhawan & Ors., Crl. Writ No. 333 of 1986,
decided by Delhi High Court on 30.10.1986.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: S.L.P. (Criminal)
No. 2485 of 1989.
From the Judgment and Order dated 12.12.1989 of the
Delhi High Court in C.W.P. 589 of 1989.
Harjinder Singh and R.N. Joshi for the Petitioner.
Soli J. Sorabjee, P.K. Goswamy, Udai Lalit, C.V.S. Rao,
P. Parmeshwaran and Sushma Suri for the Respondents.
The Judgment of the Court was delivered by
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REDDY, J. This is a petition under Article 136 of the
Constitution of India against the judgment and order of the
High Court of Delhi dismissing the writ petition filed on
behalf of the detenu challenging the detention. Notice was
given and after hearing counsel for both the parties at
length the matter is being disposed of at the admission
stage.
The detenu was detained under Section 3(1) of the Con-
servation of Foreign Exchange and Prevention of Smuggling
Activities Act (hereinafter referred to as ’the Act’) by an
order dated 13.7.89. On 7.6.89 Officers of Directorate of
Revenue Intelligence, New Delhi intercepted a Maruti Car in
which one Mahesh Kumar Chauhan and three others were present
but no recovery was effected on the spot. But later on the
Car was thoroughly rummaged in presence of two independent
witnesses and the occupants of the car and 206 foreign
marked gold biscuits of ten tolas each were recovered from
the cavities of the car meant for fitting speakers in the
rear portion of the car. The occupants did not give any
explanation for the possession of gold biscuits. On personal
search of Mahesh, a slip was recovered which contained a
telephone number and Mahesh Kumar in his statement admitted
that he was to hand over the smuggled goods to one Vijay
Kumar. The premises of these two peoples were searched and a
receipt of token tax in respect of the car was recovered.
Mahesh Kumar admitted that he was visiting Dubai frequently
to bring con-
320
sumer goods and gold ornaments for being sold in the local
market. One Avtar Singh who was engaged in smuggling of
foreign gold biscuits, agreed to sell the gold biscuits to
Mahesh Kumar on commission. He also gave some more details
about Avtar Singh. Similarly Vijay Kumar also made a state-
ment. From these statements it is also revealed that peti-
tioner herein Sanjeev Kumar Aggarwal had made arrangements
for selling the gold biscuits. The residential premises of
the petitioner was searched and he was taken into custody.
The officers of the Directorate of Revenue Intelligence
questioned the petitioner and he gave a statement. On the
basis of this material the detaining authority passed an
order of detention on 13.7.89 and the same was served on
24.7.89. The grounds were also served in time.
The learned counsel submitted that there is a total
non-application of mind by the detaining authority inasmuch
as he was failed to note that the detenu was in jail and
that there is no possibility of his being released and the
failure on the part of the detaining authority to consider
the same renders the detention invalid. It is true that the
petitioner was in judicial custody in connection with crimi-
nal proceedings. An application was filed in the court of
A.C.M.M. Delhi for extending the remand and the remand was
granted upto 6.7.89. However, two detenus who figured as
co-accused in that criminal proceedings were also in the
judicial custody and on their behalf an application for bail
was filed. As mentioned in the grounds of detention the
detaining authority has noted these circumstances. In para-
graph No. 16 it is mentioned that:
’I am aware that all of you are under judicial custody and
possibility of your release on bail in near future cannot be
ruled out. Also nothing prevents Mahesh Kumar Chauhan, Vijay
Kumar Dharne and you from moving bail application and get-
ting release on bail."
Then in paragraph No. 24 it is mentioned thus:
"From the foregoing facts and circumstances and statements
recorded in this connection as disclosed herein above, it is
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evident that you have engaged yourself in abetting the
smuggling of goods unless prevented you will continue to do
so in similar manner or otherwise in future when released on
bail."
The further submission of the learned counsel is that the
petitioner
321
alongwith two others were in judicial custody and they were
further remanded upto 20.7.1989 and no bail application was
filed or pending as on the date of passing orders of deten-
tion. Therefore it must necessarily be inferred that there
is no awareness on the detaining authority of this aspect.
Reliance is placed on some of the decisions of Supreme Court
of India in this context.
In Abdul Razak Abdul Wahab Sheikh v.S.N. Sinha, Commis-
sioner of Police, Ahmadabad and Anr., [1989] 2 SCC 222 it is
held that there must be awareness in the mind of the detain-
ing authority that the detenu is in custody at the time of
service of order of detention and that cogent and relevant
material and fresh facts have been disclosed necessitating
making of an order of detention. In the course of the judg-
ment it is noted that the detaining authority also was not
aware that application for bail filed on behalf of the
detenu was rejected by the designated court and therefore,
there was no application of mind.
In Binod Singh v. District Magistrate, Dhanbad, [1986] 4
SCC 4 16 it is laid down "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. In the
instant case when the actual order of detention was served
upon the detenu, the detenu was in jail. There is no indica-
tion that this factor or the question that the said detenu
might be released or that there was such a possibility of
his release, was taken into consideration by the detaining
authority properly and seriously before the service of the
order."
In Vijay Kumar v. State of Jammu and Kashmir, [1982] 2
SCC 43 the detention order was quashed because it did not
give the slightest indication that the detaining authority
was aware that the detenu was already in jail. But in the
case before us the detaining authority has noted in the
grounds that the petitioner alongwith other two coaccused
have been remanded to judicial custody and the bail applica-
tion was filed on behalf of the other two detenues and there
is every likelihood of the petitioner also being released on
bail and as such the possibility cannot be ruled out. The
other material relied upon by the detaining authority in
apprehending that the detenus are likely to be released on
bail is that their remand to the judicial custody was upto
20.7.89 and that the other two co-accused have also filed
bail applications and they were pending and that this mate-
rial is sufficient to indicate that petitioner also may file
bail application and is likely to be released on bail.
322
We have carefully examined the material relied upon by
the detaining authority in this regard and we are of the
opinion that it cannot be said that there was no awareness
in the mind of the detaining authority about the detenu
being in custody and that if he is released on bail he is
likely to indulge in the prejudicial activities. At this
juncture we may also notice another decision of the Supreme
Court. In Ramakrishna Rawat v. District Magistrate, Jabal-
pur, [1975] 4 SCC 164, the detention order was upheld since
the custody was obviously of a short duration and on the
basis of the antecedent activities of the detenu in the
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proximate past, the detaining authority could reasonably
reach its subjective satisfaction in respect of the detenu
that he was in custody.
The learned counsel, however, submitted that in case the
bail application is filed, the same can be opposed or even
if enlarged the same can be questioned in a higher court and
that a mere bald statement that the person would repeat his
criminal activities after release would not be enough. In
Smt. Shashi Aggarwal v. State of U.P. and Ors., [1988] 1 SCC
436 it is observed:
"The possibility of the court granting bail may not be
sufficient. Nor a bald statement that the person would
repeat his criminal activities would be enough. There must
also be credible information or cogent reasons apparent on
the record that the detenu, if enlarged on bail, would act
prejudicially to the interest of public order."
This is a case of detention on the ground of likelihood of
disruption of public order by the detenu. The detention
order shows that the order had been made only on the sole
ground that the detenu was trying to come out on bail.
Learned counsel also relied upon the decision in Ramesh
Yadav v. District Magistrate, Etah & Ors., [1985] 4 SCC 232
wherein it is observed:
"Merely on the ground that an accused in detention as an
under trial prisoner was likely to get bail, an order of
detention under the National Security Act should not ordi-
narily be passed. If the apprehension of the detaining
authority was true, the bail application had to be opposed
and in case bail was granted, challenge against that order
in the higher forum had to be raised."
323
But as already held in the instant case the detaining au-
thority was not only aware that the detenu was in jail but
also noted the circumstances on the basis of which he was
satisfied that the detenu was likely to come out on bail and
continue to engage himself in the smuggling of goods. There-
fore the detention was not ordered on the mere ground that
he is likely to be released on bail but on the ground that
the detaining authority was satisfied that the detenu was
likely to indulge in the same activities if released on
bail. At this stage it is useful to refer to another impor-
tant decision rendered by the Constitution Bench in Ramesh-
war Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334,
wherein the detention order was served while the detenu was
in custody. The detenu was in jail by virtue of a remand
order. The Constitution Bench considered the effect of the
detenU’s subsisting ’ detention and it was indicated that
the detenu’s subsisting detention
did not by itself invalidate the detention order but facts
and circumstances justifying the order of preventive deten-
tion notwithstanding his custody were necessary to sustain
such an order. It is observed in the said case that:
"Whether 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. The antecedent history and the past
conduct on which the order of detention would be based
would, in such a case, be proximate in point of time and
would have a rational connection with the conclusion drawn
by the authority that the detention of the person atter his
release is necessary .... "
It was further observed that:
"Therefore. we are satisfied that the question as to whether
an order of detention can be passed against a person who is
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in detention or m jail, will always have to be determined in
the circumstances of each case."
The principles laid down by the Constitution Bench are
followed in a number of subsequent decisions.
In Alijan Mian v. District Magistrate, Dhanbad, [1983] 4
SCC 301 the detention order was upheld even though the
detenu was in jail custody on the date of passing of the
detention order because the
324
detention order showed that the detaining authority was
alive to the fact yet it was satisfied that if the detenu
was enlarged on bail, which was quite likely, he could
create problems of public order.
In N. Meera Rani v. Government of Tamil Nadu & Anr., [
1989] 4 SCC 4 18 all these earlier cases have been referred
to extensively and the conclusions are deduced as follows:
"Subsisting custody of the detenu by itself does not invali-
date 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 the public order etc. ordinarily it is
not needed when the detenu is already in custody; the de-
taining 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 detain-
ing 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 pint of time he
must be detained in order to prevent him from indulging in
such prejudicial activities, the detention order can be
validly made even in anticipation to operate on his release.
This appears to us, to be the correct legal position."
In one of the latest judgments of this Court in Shri Dhar-
mendra Suganchand Chelawat etc. v. Union of India and Ors..
JT 1990 1 SC 184, once again all the authoritative pro-
nouncements including that of the Constitution Bench in
Rameshwar Shaw’s case are referred to and the Bench which
consisted of three Judges observed thus:
"The decisions referred to above led to the conclusion that
an order for detention can be validly passed against a
person in custody and for that purpose it is necessary that
the grounds of detention must show that (i) the detaining
authority was aware of the fact that the detenu is already
in detention; and (ii) there were compelling reasons justi-
fying such detention despite the fact that the detenu is
already in detention. The expression "compelling reasons" in
the context of making an order for detention of a person
already in custody implies that there must be cogent materi-
al before the detaining authority on the basis of which it
may be
325
satisfied that (a) the detenu is likely to be released from
custody in the near future and (b) taking into account the
nature of the antecedent activities of the detenu, it is
likely that after his release from custody he would indulge
in prejudicial activities and it is necessary to detain him
in order to prevent him from engaging in such activities."
It could thus be seen that no decision of this Court has
gone to the extent of holding that no order of detention can
validly be passed against a person in custody under any
circumstances. Therefore the facts and circumstances of each
case have to be taken into consideration in the context of
considering the order of detention passed in the case of a
detenu who is already in jail. We have already, in the
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instant case, referred to the grounds and the various cir-
cumstances noted by the detaining authority and we are
satisfied that the detention order cannot be quashed on this
ground.
Learned counsel, however, strongly relied on Smt. Shashi
Aggarwal’s case and Ramesh Yadav’s case and contended that
in the instant case also the bail application could be
opposed if moved or if enlarged the same can be questioned
in a higher court and on that ground the detention order
should be held to be invalid. In N. Meera Rani’s case a
Bench of three Judges noted the above observations in Smt.
Shashi Aggarwal’s case and Ramesh Yadav’s case and it is
said that they were made on the facts of those particular
cases and the Bench also observed thus:.
"A review of the above decisions reaffirms the position
which was settled by the decision of a Constitution Bench in
Rameshwar Shaw case. The conclusion about validity of the
detention order in each case was reached on the facts of the
particular case and the observations made in each of them
have to be read in the context in which they are made. None
of the observations made in any subsequent case can be
construed at variance with the principle indicated in Ra-
meshwar Shaw case for the obvious reason that all subsequent
decisions were by benches comprised of lesser number of
judges. We have dealt with this matter at some length be-
cause an attempt has been made for some time to construe
some of the recent decisions as modifying the principle
enunciated by the Constitution Bench in Rameshwar Shaw’s
case."
326
AS a matter of fact, in Shri Dharmendra Suganchand Chela-
wat’s, case there is a reference to Smt. Shashi Aggarwal’s,
case and Ramesh Yadav’s, case and a Bench of three Judges
following the decision of the Constitution Bench in Ramesh-
war Shaw’s Case, laid down the above principles which we
have already referred to. Therefore we see no force in the
submission.
The next submission of the learned counsel is that the
detaining authority has not applied his mind properly in
rejecting the representation made by the detenu. It is
submitted that in Annexure X-3, an application sent by Vijay
Kumar, the co-detenu, it is clearly mentioned that his
statement was recorded under torture and duress. Likewise in
Annexure X-4, a petition filed in the Court of A.C.M.M. New
Delhi, it is complained that the statement was recorded
under torture and duress. According to the learned counsel,
this petition as well as the medical reports of the Doctors
who examined Vijay Kumar have not been referred to and
considered by the authority while rejecting the representa-
tion. Reliance is also placed on a judgment of the Delhi
High Court in Sat Pal Manchanda v.M.L. Wadhawan and Ors.,
(Criminal Writ No. 333 of 1986) decided on 30.10.86. In that
case it is held that all the relevant material should be
taken into consideration by the detaining authority while
disposing of the representation. But in the instant case the
circumstances are different. As a matter of fact, it is
referred in paragraph 15 of the grounds that a telegram
dated 8.6.89 was received in the Ministry of Finance alleg-
ing that the detenu was picked up by the DRI officers and
that the allegations made therein were found false and
baseless. In paragraph 17, it is also mentioned that the
detenu alongwith his accomplices retracted from their state-
ment dated 8.6.89. It can therefore be seen that the detain-
ing authority has considered the allegations that the detenu
was manhandled etc. At any rate, the detaining authority has
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clearly noted that the detenu has retracted from the alleged
statement, therefore it can not be said that there is non-
application of mind in this regard, namely, in considering
the representation. The same principle applies to the Advi-
sory Board also. According to the submissions of the learned
counsel, these documents were not placed before the Advisory
Board in its meeting on 18.9.89. Whatever statement was made
by the petitioners on 22.6.89 prior to the detention and the
grounds clearly disclose that there was retraction. It must
also be noted in this context that in the grounds in para-
graph 10 also it is mentioned that a telegram was received
on 9.6.89) alleging about the wrongful arrest and extraction
of the statements and the detaining authority has also taken
note of the allegations made against the DRI officers which
were round to
327
be false and baseless. The same material was there before
the Advisory Board. Therefore there is no force in this
submission.
It is lastly submitted that there was 11 days delay in
serving the detention order. It is true that the order of
detention was passed on 13.7.89, but the same was served on
24.7.89. According to the learned counsel, there is a viola-
tion of Section 3(3) of the Act. The said provision lays
down that for the purpose of Article 22(5) of the Constitu-
tion, the order should be served as soon as possible but
ordinarily not later than five days and in exceptional
circumstances and for reasons to be recorded in writing, not
later than fifteen days from the date of detention. Learned
counsel for the State submitted that firstly the point of
delay was not taken up in the special leave petition, there-
fore he had no opportunity to counter the same. However,
from the record he submitted that it took quite sometime for
translating the documents to Hindi and Gurumukhi. We have
seen the documents filed before us and we are satisfied that
there are valid and sufficient reasons for delay in serving
the detention order.
Thus, we find no merit in anyone of the submissions. The
petition is, therefore, dismissed.
N.V.K. Petition
dismissed.
328