Full Judgment Text
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28.05.2009
+ WP(CRL) 536/2009
RAMAN KUMAR SHARMA A.K.A. PANDIT ..... Petitioner
- versus –
UNION OF INDIA & ANOTHER ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Gaurav Pachnanda with Ms Renu Gupta and
Mr Chetan Gupta
For the Respondents : Mr Satish Aggarwal with Mr Shirish Aggarwal
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J (ORAL)
1. The petitioner, who is aged about 65 years, is under detention
from 29.07.2008 pursuant to the impugned detention order dated
28.07.2008 passed by the Joint Secretary to the Government of India,
Ministry of Finance, Department of Revenue (COFEPOSA Unit) in
purported exercise of powers conferred on the said authority under
Section 3(1) of the Conservation of Foreign Exchange and Prevention
WP (CRL) 536/09 Page 1 of 17
of Smuggling Activities Act, 1974 (hereinafter referred to as
„COFEPOSA‟). It is pertinent to note that prior to the said detention
order being passed, the petitioner was already in custody since
26.03.2008 in respect of the very same incident which has formed the
basis of the detention order.
2. The said incident was that fake Indian currency to the extent of
approximately Rs 13.36 lakhs was recovered from the possession of the
petitioner on 25.03.2008. Further fake currency of approximately Rs
22.84 lakhs was also recovered from the co-accused Tahseem @ Akbar
from Amritsar, Punjab. The learned counsel appearing on behalf of the
petitioner stated that while both the petitioner and the said co-accused
are being prosecuted under Section 135 of the Customs Act, 1962, the
co-accused Tahseem @ Akbar has not been subjected to preventive
detention and it is only the petitioner against whom the impugned order
of preventive detention has been made.
3. It was also pointed out by the learned counsel for the petitioner
that the representation made by the petitioner before the Advisory
Board was rejected on 14.10.2008. He also submitted that immediately
after the fake currency was allegedly recovered from the petitioner, the
petitioner‟s residence as well as his office premises were searched.
Nothing incriminating was found from either of the two premises. To
WP (CRL) 536/09 Page 2 of 17
substantiate this plea, he drew our attention to paragraph 6 of the
grounds for detention wherein it is so recorded.
4. On 22.04.2008, while the petitioner was in custody in respect of
the prosecution under Section 135 of the Customs Act, 1962, the
petitioner moved a bail application. On the very next day, i.e., on
23.04.2008, the petitioner was hospitalized at G.B. Pant Hospital on
account of his medical condition which included diabetes and coronary
heart disease. A certificate issued by the G.B. Pant Hospital has been
placed on record at page 175 of the paper book. Despite the medical
condition of the petitioner being serious, the learned ACMM, Patiala
House, New Delhi rejected the bail application of the petitioner on
26.04.2008. He rejected the said application for bail on the ground that
the allegations against the petitioner were very serious and despite the
fact that the petitioner was not keeping good health, for which he had to
be hospitalized, because of the seriousness of the allegations, bail could
not be granted to the petitioner. On 08.05.2008, the Central Bureau of
Investigation (CBI) informed the Department of Revenue Intelligence
(DRI) that they had registered another FIR in respect of the very same
incident of alleged recovery of fake Indian currency. This fact is also
noted in paragraph 20 of the grounds of detention wherein it is
indicated that the CBI had registered an FIR No. RCSIJ 2008 E on
08.05.2008 under Sections 120-B/489-B and 489-C of the Indian Penal
WP (CRL) 536/09 Page 3 of 17
Code against both the petitioner and the co-accused Akbar for criminal
conspiracy, possession and circulation of counterfeit / fake Indian
currency notes. On 23.05.2008, the Department of Revenue
Intelligence initiated the prosecution under Section 135 of the Customs
Act. On 28.05.2008, cognizance of the Customs Act violation was
taken by the learned ACMM, Patiala House, New Delhi. On
04.06.2008, the petitioner moved a second bail application. This
application was also preferred on health grounds. During the pendency
of this bail application, the petitioner, on 16.06.2008, had to undergo a
triple coronary by-pass surgery at G.B. Pant Hospital. On 11.07.2008,
the learned ACMM rejected the petitioner‟s second bail application
also. However, on 24.07.2008, the petitioner filed a third bail
application, once again on health grounds and this time before the
Additional Sessions Judge. During the pendency of this third bail
application, the impugned detention order dated 28.07.2008 came to be
passed. The very next day, i.e., on 29.07.2008, the petitioner was
formally taken into custody pursuant to this detention order. On
19.08.2008, the petitioner‟s third bail application was also rejected by
the Additional Sessions Judge.
5. In the grounds for detention, one of the grounds, which led the
detaining authority to pass the detention order, was that there was
imminent likelihood of the petitioner being released on bail in the case
WP (CRL) 536/09 Page 4 of 17
pending against him under the Customs Act. This can be easily
discerned from paragraph 22 of the grounds of detention which reads as
under:-
“22. In view of the above, it is clear that you, Shri Raman
Kumar Sharma @ Pandit have shown the propensity and
inclination to indulge in smuggling of FICN and
transportation of smuggled FICN in an organized manner.
You are in judicial custody and I am aware that you applied
for bail twice before the Ld. ACMM, New Delhi which
were rejected. I am also aware that you have been
suffering from heart ailment and; that applications were
filed by you or on your behalf and by your brother-in-law,
Shri Ashok Kumar in the Court of Ld. ACMM, New Delhi,
from time to time since your remand in Judicial Custody,
citing your ailment and praying for relief or directions to
the concerned authorities and the Orders passed by the
Court of Ld. ACMM, New Delhi, on those applications. I
am further aware that you were treated at DDU Hospital as
well as at G.B. Pant Hospital and also that you were
operated upon for your heart ailment at G.B. Pant Hospital
on 16.06.2008 and you were discharged from that Hospital
on 09.07.2008; that the Ld. Court allowed your brother-in-
law, Shri Ashok Kumar to be your attendant in view of
your ailment and; further that your Judicial Remand has
been extended by the Metropolitan Magistrate by visiting
the Hospital where you are admitted in view of your non-
production in the Court by the Jail Authorities. I am also
aware that your second bail application was rejected by the
Court of Ld. ACMM, New Delhi, on 11.07.2008. I am
further aware that another application for bail has been
filed by you in the Court of Additional Sessions Judge,
New Delhi on 24.07.2008 reiterating the plea taken in your
previous bail applications, reply to which is yet to be filed
by the DRI. However, nothing prevents you from filing
further bail applications before the appropriate Court and in
case you file a bail application, the possibility of your
release on bail in near future cannot be ruled out. In case
bail is granted, you are again likely to engage yourself in
such activities in future. I am satisfied that you ought to be
detained under the COFEPOSA Act, 1974 with a view to
WP (CRL) 536/09 Page 5 of 17
preventing you from abetting the smuggling of goods and
engaging in transporting and keeping smuggled goods.”
(underlining added)
6. The learned counsel for the petitioner submitted that the law with
regard to validity of a detention order in respect of a person who is
already in custody requires three conditions to be fulfilled. The first
condition, which is obvious, is that the person must be in custody. The
second condition is that there must be imminent likelihood of the
person being released from such custody. The third and the final
condition is that upon such release there should be a likelihood of the
person in custody indulging in prejudicial activities. He referred to the
following decisions:-
i) Surya Prakash Sharma v. State of U.P. and Others : 1994
Supp (3) SCC 195 ;
ii) Rajesh Gulati v. Government of NCT of Delhi and
Another : 2002 (7) SCC 129 ;
iii) T.V. Sravanan alias S.A.R. Prasana Venkatachaariar
Chaturvedi v. State and Another : 2006 (2) SCC 664 ;
iv) Ramesh Yadav v. District Magistrate, Etah and Others :
1985 (4) SCC 232 .
7. After referring to the said decisions, the learned counsel
submitted that the second and the third conditions necessary for
validating the detention order are absent in the present case. He
submitted that since the bail applications of the petitioner had
WP (CRL) 536/09 Page 6 of 17
repeatedly been rejected, there was no likelihood of the petitioner being
released on bail. He also submitted that the antecedent activities of the
petitioner also did not disclose that there was any likelihood of the
petitioner indulging in any prejudicial activities if he was released from
custody. He submitted that it is only the solitary incident of the alleged
recovery of fake Indian currency representing a value of Rs 13.36 lakhs
from the petitioner that has formed the basis of the preventive detention
order. According to him, that by itself did not enable the detaining
authority to jump to the conclusion that in case the petitioner is not
detained, he would continue to indulge in prejudicial activities,
particularly with regard to dealing in fake currency notes.
Consequently, the learned counsel for the petitioner submitted that the
detention order was bad and ought to be set aside. He also pointed out
that the petitioner has already been in continuous custody since
26.03.2008, first of all, under the Customs Act offence and, secondly,
by way of preventive detention with effect from 29.07.2008.
8. The learned counsel appearing on behalf of the respondents
submitted that all the conditions necessary for the detention order to be
a valid one have been satisfied. He submitted that there was an
imminent likelihood of the petitioner being released on bail. He made
this submission on the basis of the provisions of Section 437(6) of the
Code of Criminal Procedure, 1973 which stipulates that in cases triable
WP (CRL) 536/09 Page 7 of 17
by a Magistrate, if 60 days have elapsed from the first date fixed for
taking evidence, then the Magistrate is to release the accused on bail
unless he decides not to do so for reasons to be recorded. Secondly, the
learned counsel submitted that the third bail application which was
pending at the time when the detention order was passed was not before
the learned ACMM, but before a higher authority, i.e., the Additional
Sessions Judge and, therefore, there was a greater likelihood of the
petitioner being released on bail. Apart from this, the learned counsel
also submitted that the detaining authority was fully satisfied that in
case the petitioner is set at large, he would indulge in prejudicial
activities. He referred to the Supreme Court decision in the case of
Chowdarapu Raghunandan v. State of Tamil Nadu and Others : 2002
(3) SCC 754 , wherein the Supreme Court has observed that even a
single incident may lead to the prognosis that a person may, in the
future, indulge in prejudicial activities. There is no hard and fast rule
about this and that it has to be determined from case to case and
ultimately it is the subjective satisfaction of the detaining authority that
has to be viewed in the light of the supporting material. The learned
counsel also placed reliance on the decision of the Supreme Court in
the case of Ibrahim Nazeer v. State of T.N. and Another : AIR 2006
SC 3606 , wherein the Supreme Court noted that whether the prayer for
bail would be accepted or not depends on the circumstances of each
case and no hard and fast rule can be applied. The only requirement is
WP (CRL) 536/09 Page 8 of 17
that the detaining authority should be aware that the detenu is already
in custody and is likely to be released on bail. The Supreme Court
stressed that the conclusion that the detenu may be released on bail
cannot be the mere ipse dixit of the detaining authority and that it is on
the basis of the material before him that the detaining authority comes
to a conclusion as to whether there is a likelihood of the detenu being
released on bail. The Supreme Court observed that this is the
subjective satisfaction of the detaining authority based on materials and
that normally such satisfaction is not to be interfered with.
9. The learned counsel for the petitioner, in rejoinder, submitted that
the argument based on Section 437(6) of the Code of Criminal
Procedure, 1973 cannot be considered at this stage because this was not
a ground on the basis of which the detaining authority thought that
there was imminent likelihood of the petitioner being released on bail.
Secondly and, more importantly, he submitted that in the third bail
application, the petitioner had not taken the ground of Section 437(6),
CrPC for seeking release on bail. The learned counsel for the petitioner
also pointed out that the first date fixed for taking evidence in the
Customs Act prosecution was 13.10.2008, which was much after the
detention order and, therefore, this could not have been in the
contemplation of the detaining authority. In fact, the six month period,
even if 13.10.2008 is taken as the starting point for the purposes of
WP (CRL) 536/09 Page 9 of 17
Section 437(6), CrPC, would end on 12.04.2009 which was far into the
future insofar as the detaining authority is concerned. Consequently,
the learned counsel for the petitioner submitted that no grounds for a
valid detention order have been made out and, therefore, the impugned
detention order ought to be set aside.
10. In Surya Prakash Sharma (supra) , the Supreme Court referred
to its earlier Constitution Bench decision in Rameshwar Shaw v.
District Magistrate, Burdwan and Another : 1964 (4) SCR 921 = AIR
1964 SC 334 and Dharmendra Suganchand Chelawat and Another v.
Union of India and Others : 1990 (1) SCC 746 and quoted the
following words from the latter decision:-
“The decisions referred to above lead 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 justifying
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 implied that there must be cogent
material before the detaining authority on the basis of
which it may be 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.”
WP (CRL) 536/09 Page 10 of 17
11. From the above extract, it is apparent that when a detention order
is passed in respect of a person already in custody, two conditions have
to be satisfied. The first being that the detaining authority should be
aware that the detenu is already in detention. The second is that there
are compelling reasons justifying detention despite the fact that the
detenu is already in detention. This condition is being further split up
into two sub-conditions, they being 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 detenue, 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 is, therefore, clear that unless and until the detaining
authority is satisfied that the detenu is likely to be released from
custody in the near future, a detention order against a person already in
custody cannot be said to have been validly passed. In Surya Prakash
Sharma (supra) , the second condition, i.e., of the likelihood of the
person in custody indulging in prejudicial activities was considered and
it was found that on the basis of a solitary murder, it could not be
extrapolated that the person in detention would, in future also, indulge
in such prejudicial activities.
WP (CRL) 536/09 Page 11 of 17
12. In Rajesh Gulati (supra) , the Supreme Court observed as under:-
“12. It cannot be over emphasized that the object of
detention under the Act is not to punish but to prevent the
commission of certain offences. Section 3(1) of the Act
allows the detention of a person only if the appropriate
detaining authority is satisfied that with a view to
preventing such person from carrying on any of the
offensive activities enumerated therein, it is necessary to
detain such person. The satisfaction of the detaining
authority is not a subjective one based on the detaining
authority's emotions, beliefs or prejudices. There must be a
real likelihood of the person being able to indulge in such
activities, the inference of such likelihood being drawn
from objective data.
13. In this case, the detaining authority's satisfaction
consisted of two parts-one: that the appellant was likely to
be released on bail and two: that after he was so released
the appellant would indulge in smuggling activities. The
detaining authority noted that the appellant was in custody
when the order of detention was passed. But the detaining
authority said that "bail is normally granted in such cases".
When in fact the five applications filed by the appellant for
bail had been rejected by the Courts (indicating that this
was not a 'normal' case), on what material did not detaining
authority conclude that there was "imminent possibility"
that the appellant would come out on bail? The fact that the
appellant was subsequently released on bail by the High
Court could not have been foretold. As matters in fact stood
when the order of detention was passed, the 'normal' rule of
release on bail had not been followed by the courts and it
could not have been relied on by the detaining authority to
be satisfied that the appellant would be released on bail.
[See: in this context Ramesh Yadav v. District Magistrate :
1985 (4) SCC 232).”
WP (CRL) 536/09 Page 12 of 17
13. It is pertinent to note that in that case, five applications for bail
had been filed by the appellant which had all been rejected by the
courts and yet the detaining authority had concluded that there was an
imminent possibility of the appellant therein being released on bail.
The Supreme Court rejected such a plea on the part of the detaining
authority and was of the view that it could not be the satisfaction of the
detaining authority that the appellant would be released on bail in the
near future.
14. In T.V. Sarvanan (supra) , the Supreme Court, after quoting the
aforesaid passage from Rajesh Gulati (supra) , observed as under:-
“14. We are satisfied that for the same reason the order of
detention cannot be upheld in this case. The bail
applications moved by the appellant had been rejected by
the Courts and there was no material whatsoever to
apprehend that he was likely to move a bail application or
that there was imminent possibility of the prayer for bail
being granted. The "imminent possibility" of the appellant
coming out on bail is merely the ipse dixit of the detaining
authority unsupported by any material whatsoever. There
was no cogent material before the detaining authority on
the basis of which the detaining authority could be satisfied
that the detenue was likely to be released on bail. The
inference has to be drawn from the available material on
record. In the absence of such material on record the mere
ipse dixit of the detaining authority is not sufficient to
sustain the order of detention. There was, therefore, no
sufficient compliance with the requirements as laid down
by this Court. These are the reasons for which while
allowing the appeal we directed the release of the appellant
by order dated 13-12-2005.”
WP (CRL) 536/09 Page 13 of 17
15. In Ramesh Yadav (supra) , the Supreme Court observed as
under:-
“6. On a reading of the grounds, particularly the
paragraph which we have extracted above, it is clear that
the order of detention was passed as the detaining authority
was apprehensive that in case the detenu was released on
bail he would again carry on his criminal activities in the
area. 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. 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 ordinarily be passed. We are inclined to
agree with counsel for the petitioner that the order of
detention in the circumstances is not sustainable and is
contrary to the well settled principles indicated by this
Court in series of cases relating to preventive detention.
The impugned order, therefore, has to be quashed .”
16. After having considered the decisions placed before us by the
counsel for the parties, we are of the view that it must be shown that the
detaining authority had the material before him / her which could
enable him / her to arrive at the satisfaction that there was imminent
likelihood of the person in custody being released on bail. Insofar as
the facts of the present case are concerned, we find that the petitioner
was seriously ill. He had moved his first bail application and
immediately thereafter he had been hospitalized in respect of both
ailments, namely, diabetes as well as coronary heart disease, yet the
learned ACMM had rejected his bail application on the ground of
WP (CRL) 536/09 Page 14 of 17
seriousness of the offence involved. Thereafter, the petitioner had
moved a second bail application, once again on the grounds of ill-
health and during the pendency of that bail application, the petitioner
had, in fact, undergone a triple by-pass surgery at G.B. Pant Hospital.
Despite these facts, the learned ACMM rejected the second bail
application on 11.07.2008. Thereafter, during the pendency of a third
bail application, the detaining authority passed the said detention order.
The detaining authority, as is clear from the earlier portion of this
decision, stated that she was aware that another bail application had
been filed by the petitioner in the court of the Additional Sessions
Judge, New Delhi on 24.07.2008 “reiterating the plea taken” in the
petitioner‟s previous bail applications and that a reply to which was yet
to be filed by the Department of Revenue Intelligence. The detaining
authority further stated that – “However, nothing prevents you from
filing further bail applications”. We feel that in the circumstances as
narrated above, there was no material before the detaining authority
whereby she could have come to the conclusion that the bail application
would be allowed and that there was an imminent likelihood of the
petitioner being released on bail. Consequently, the purported
satisfaction of the detaining authority that there was a likelihood of the
petitioner being released on bail was not founded on any material and
was the mere ipse dixit of the detaining authority herself.
WP (CRL) 536/09 Page 15 of 17
17. As regards the argument raised by the learned counsel for the
respondents based upon the provisions of Section 437(6) CrPC, we
agree with the submissions made by the learned counsel for the
petitioner that such an argument is not available to the respondents.
The first reason being that the petitioner had not taken this ground in
the third bail application which was pending before the learned
Additional sessions Judge at the time when the detention order was
passed. Secondly, in any event, the first date of taking evidence had
not been fixed when the detention order was passed. The first date of
taking evidence was fixed much later and the same was 13.10.2008.
Therefore, it could not have been in the contemplation of the detaining
authority. In any event, there is nothing in the grounds of detention to
suggest that such a factor weighed with the detaining authority.
18. We have not embarked upon an examination of the detaining
authority‟s „satisfaction‟ with regard to prejudicial activities because
we find that this ground itself, i.e., of imminent likelihood of the
petitioner being released on bail, is sufficient to decide the present
petition. Since we have come to the conclusion that there was no
material before the detaining authority on the basis of which she could
have arrived at the satisfaction that there was imminent likelihood of
the petitioner being released on bail, the detention order is liable to be
set aside. It is so set aside. The petitioner is entitled to be released
WP (CRL) 536/09 Page 16 of 17
provided he is not required in any other case. The writ petition stands
allowed to this extent. There shall be no order as to costs.
BADAR DURREZ AHMED, J
AJIT BHARIHOKE, J
MAY 28, 2009
dutt
WP (CRL) 536/09 Page 17 of 17
% Judgment delivered on: 28.05.2009
+ WP(CRL) 536/2009
RAMAN KUMAR SHARMA A.K.A. PANDIT ..... Petitioner
- versus –
UNION OF INDIA & ANOTHER ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Gaurav Pachnanda with Ms Renu Gupta and
Mr Chetan Gupta
For the Respondents : Mr Satish Aggarwal with Mr Shirish Aggarwal
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to
see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J (ORAL)
1. The petitioner, who is aged about 65 years, is under detention
from 29.07.2008 pursuant to the impugned detention order dated
28.07.2008 passed by the Joint Secretary to the Government of India,
Ministry of Finance, Department of Revenue (COFEPOSA Unit) in
purported exercise of powers conferred on the said authority under
Section 3(1) of the Conservation of Foreign Exchange and Prevention
WP (CRL) 536/09 Page 1 of 17
of Smuggling Activities Act, 1974 (hereinafter referred to as
„COFEPOSA‟). It is pertinent to note that prior to the said detention
order being passed, the petitioner was already in custody since
26.03.2008 in respect of the very same incident which has formed the
basis of the detention order.
2. The said incident was that fake Indian currency to the extent of
approximately Rs 13.36 lakhs was recovered from the possession of the
petitioner on 25.03.2008. Further fake currency of approximately Rs
22.84 lakhs was also recovered from the co-accused Tahseem @ Akbar
from Amritsar, Punjab. The learned counsel appearing on behalf of the
petitioner stated that while both the petitioner and the said co-accused
are being prosecuted under Section 135 of the Customs Act, 1962, the
co-accused Tahseem @ Akbar has not been subjected to preventive
detention and it is only the petitioner against whom the impugned order
of preventive detention has been made.
3. It was also pointed out by the learned counsel for the petitioner
that the representation made by the petitioner before the Advisory
Board was rejected on 14.10.2008. He also submitted that immediately
after the fake currency was allegedly recovered from the petitioner, the
petitioner‟s residence as well as his office premises were searched.
Nothing incriminating was found from either of the two premises. To
WP (CRL) 536/09 Page 2 of 17
substantiate this plea, he drew our attention to paragraph 6 of the
grounds for detention wherein it is so recorded.
4. On 22.04.2008, while the petitioner was in custody in respect of
the prosecution under Section 135 of the Customs Act, 1962, the
petitioner moved a bail application. On the very next day, i.e., on
23.04.2008, the petitioner was hospitalized at G.B. Pant Hospital on
account of his medical condition which included diabetes and coronary
heart disease. A certificate issued by the G.B. Pant Hospital has been
placed on record at page 175 of the paper book. Despite the medical
condition of the petitioner being serious, the learned ACMM, Patiala
House, New Delhi rejected the bail application of the petitioner on
26.04.2008. He rejected the said application for bail on the ground that
the allegations against the petitioner were very serious and despite the
fact that the petitioner was not keeping good health, for which he had to
be hospitalized, because of the seriousness of the allegations, bail could
not be granted to the petitioner. On 08.05.2008, the Central Bureau of
Investigation (CBI) informed the Department of Revenue Intelligence
(DRI) that they had registered another FIR in respect of the very same
incident of alleged recovery of fake Indian currency. This fact is also
noted in paragraph 20 of the grounds of detention wherein it is
indicated that the CBI had registered an FIR No. RCSIJ 2008 E on
08.05.2008 under Sections 120-B/489-B and 489-C of the Indian Penal
WP (CRL) 536/09 Page 3 of 17
Code against both the petitioner and the co-accused Akbar for criminal
conspiracy, possession and circulation of counterfeit / fake Indian
currency notes. On 23.05.2008, the Department of Revenue
Intelligence initiated the prosecution under Section 135 of the Customs
Act. On 28.05.2008, cognizance of the Customs Act violation was
taken by the learned ACMM, Patiala House, New Delhi. On
04.06.2008, the petitioner moved a second bail application. This
application was also preferred on health grounds. During the pendency
of this bail application, the petitioner, on 16.06.2008, had to undergo a
triple coronary by-pass surgery at G.B. Pant Hospital. On 11.07.2008,
the learned ACMM rejected the petitioner‟s second bail application
also. However, on 24.07.2008, the petitioner filed a third bail
application, once again on health grounds and this time before the
Additional Sessions Judge. During the pendency of this third bail
application, the impugned detention order dated 28.07.2008 came to be
passed. The very next day, i.e., on 29.07.2008, the petitioner was
formally taken into custody pursuant to this detention order. On
19.08.2008, the petitioner‟s third bail application was also rejected by
the Additional Sessions Judge.
5. In the grounds for detention, one of the grounds, which led the
detaining authority to pass the detention order, was that there was
imminent likelihood of the petitioner being released on bail in the case
WP (CRL) 536/09 Page 4 of 17
pending against him under the Customs Act. This can be easily
discerned from paragraph 22 of the grounds of detention which reads as
under:-
“22. In view of the above, it is clear that you, Shri Raman
Kumar Sharma @ Pandit have shown the propensity and
inclination to indulge in smuggling of FICN and
transportation of smuggled FICN in an organized manner.
You are in judicial custody and I am aware that you applied
for bail twice before the Ld. ACMM, New Delhi which
were rejected. I am also aware that you have been
suffering from heart ailment and; that applications were
filed by you or on your behalf and by your brother-in-law,
Shri Ashok Kumar in the Court of Ld. ACMM, New Delhi,
from time to time since your remand in Judicial Custody,
citing your ailment and praying for relief or directions to
the concerned authorities and the Orders passed by the
Court of Ld. ACMM, New Delhi, on those applications. I
am further aware that you were treated at DDU Hospital as
well as at G.B. Pant Hospital and also that you were
operated upon for your heart ailment at G.B. Pant Hospital
on 16.06.2008 and you were discharged from that Hospital
on 09.07.2008; that the Ld. Court allowed your brother-in-
law, Shri Ashok Kumar to be your attendant in view of
your ailment and; further that your Judicial Remand has
been extended by the Metropolitan Magistrate by visiting
the Hospital where you are admitted in view of your non-
production in the Court by the Jail Authorities. I am also
aware that your second bail application was rejected by the
Court of Ld. ACMM, New Delhi, on 11.07.2008. I am
further aware that another application for bail has been
filed by you in the Court of Additional Sessions Judge,
New Delhi on 24.07.2008 reiterating the plea taken in your
previous bail applications, reply to which is yet to be filed
by the DRI. However, nothing prevents you from filing
further bail applications before the appropriate Court and in
case you file a bail application, the possibility of your
release on bail in near future cannot be ruled out. In case
bail is granted, you are again likely to engage yourself in
such activities in future. I am satisfied that you ought to be
detained under the COFEPOSA Act, 1974 with a view to
WP (CRL) 536/09 Page 5 of 17
preventing you from abetting the smuggling of goods and
engaging in transporting and keeping smuggled goods.”
(underlining added)
6. The learned counsel for the petitioner submitted that the law with
regard to validity of a detention order in respect of a person who is
already in custody requires three conditions to be fulfilled. The first
condition, which is obvious, is that the person must be in custody. The
second condition is that there must be imminent likelihood of the
person being released from such custody. The third and the final
condition is that upon such release there should be a likelihood of the
person in custody indulging in prejudicial activities. He referred to the
following decisions:-
i) Surya Prakash Sharma v. State of U.P. and Others : 1994
Supp (3) SCC 195 ;
ii) Rajesh Gulati v. Government of NCT of Delhi and
Another : 2002 (7) SCC 129 ;
iii) T.V. Sravanan alias S.A.R. Prasana Venkatachaariar
Chaturvedi v. State and Another : 2006 (2) SCC 664 ;
iv) Ramesh Yadav v. District Magistrate, Etah and Others :
1985 (4) SCC 232 .
7. After referring to the said decisions, the learned counsel
submitted that the second and the third conditions necessary for
validating the detention order are absent in the present case. He
submitted that since the bail applications of the petitioner had
WP (CRL) 536/09 Page 6 of 17
repeatedly been rejected, there was no likelihood of the petitioner being
released on bail. He also submitted that the antecedent activities of the
petitioner also did not disclose that there was any likelihood of the
petitioner indulging in any prejudicial activities if he was released from
custody. He submitted that it is only the solitary incident of the alleged
recovery of fake Indian currency representing a value of Rs 13.36 lakhs
from the petitioner that has formed the basis of the preventive detention
order. According to him, that by itself did not enable the detaining
authority to jump to the conclusion that in case the petitioner is not
detained, he would continue to indulge in prejudicial activities,
particularly with regard to dealing in fake currency notes.
Consequently, the learned counsel for the petitioner submitted that the
detention order was bad and ought to be set aside. He also pointed out
that the petitioner has already been in continuous custody since
26.03.2008, first of all, under the Customs Act offence and, secondly,
by way of preventive detention with effect from 29.07.2008.
8. The learned counsel appearing on behalf of the respondents
submitted that all the conditions necessary for the detention order to be
a valid one have been satisfied. He submitted that there was an
imminent likelihood of the petitioner being released on bail. He made
this submission on the basis of the provisions of Section 437(6) of the
Code of Criminal Procedure, 1973 which stipulates that in cases triable
WP (CRL) 536/09 Page 7 of 17
by a Magistrate, if 60 days have elapsed from the first date fixed for
taking evidence, then the Magistrate is to release the accused on bail
unless he decides not to do so for reasons to be recorded. Secondly, the
learned counsel submitted that the third bail application which was
pending at the time when the detention order was passed was not before
the learned ACMM, but before a higher authority, i.e., the Additional
Sessions Judge and, therefore, there was a greater likelihood of the
petitioner being released on bail. Apart from this, the learned counsel
also submitted that the detaining authority was fully satisfied that in
case the petitioner is set at large, he would indulge in prejudicial
activities. He referred to the Supreme Court decision in the case of
Chowdarapu Raghunandan v. State of Tamil Nadu and Others : 2002
(3) SCC 754 , wherein the Supreme Court has observed that even a
single incident may lead to the prognosis that a person may, in the
future, indulge in prejudicial activities. There is no hard and fast rule
about this and that it has to be determined from case to case and
ultimately it is the subjective satisfaction of the detaining authority that
has to be viewed in the light of the supporting material. The learned
counsel also placed reliance on the decision of the Supreme Court in
the case of Ibrahim Nazeer v. State of T.N. and Another : AIR 2006
SC 3606 , wherein the Supreme Court noted that whether the prayer for
bail would be accepted or not depends on the circumstances of each
case and no hard and fast rule can be applied. The only requirement is
WP (CRL) 536/09 Page 8 of 17
that the detaining authority should be aware that the detenu is already
in custody and is likely to be released on bail. The Supreme Court
stressed that the conclusion that the detenu may be released on bail
cannot be the mere ipse dixit of the detaining authority and that it is on
the basis of the material before him that the detaining authority comes
to a conclusion as to whether there is a likelihood of the detenu being
released on bail. The Supreme Court observed that this is the
subjective satisfaction of the detaining authority based on materials and
that normally such satisfaction is not to be interfered with.
9. The learned counsel for the petitioner, in rejoinder, submitted that
the argument based on Section 437(6) of the Code of Criminal
Procedure, 1973 cannot be considered at this stage because this was not
a ground on the basis of which the detaining authority thought that
there was imminent likelihood of the petitioner being released on bail.
Secondly and, more importantly, he submitted that in the third bail
application, the petitioner had not taken the ground of Section 437(6),
CrPC for seeking release on bail. The learned counsel for the petitioner
also pointed out that the first date fixed for taking evidence in the
Customs Act prosecution was 13.10.2008, which was much after the
detention order and, therefore, this could not have been in the
contemplation of the detaining authority. In fact, the six month period,
even if 13.10.2008 is taken as the starting point for the purposes of
WP (CRL) 536/09 Page 9 of 17
Section 437(6), CrPC, would end on 12.04.2009 which was far into the
future insofar as the detaining authority is concerned. Consequently,
the learned counsel for the petitioner submitted that no grounds for a
valid detention order have been made out and, therefore, the impugned
detention order ought to be set aside.
10. In Surya Prakash Sharma (supra) , the Supreme Court referred
to its earlier Constitution Bench decision in Rameshwar Shaw v.
District Magistrate, Burdwan and Another : 1964 (4) SCR 921 = AIR
1964 SC 334 and Dharmendra Suganchand Chelawat and Another v.
Union of India and Others : 1990 (1) SCC 746 and quoted the
following words from the latter decision:-
“The decisions referred to above lead 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 justifying
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 implied that there must be cogent
material before the detaining authority on the basis of
which it may be 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.”
WP (CRL) 536/09 Page 10 of 17
11. From the above extract, it is apparent that when a detention order
is passed in respect of a person already in custody, two conditions have
to be satisfied. The first being that the detaining authority should be
aware that the detenu is already in detention. The second is that there
are compelling reasons justifying detention despite the fact that the
detenu is already in detention. This condition is being further split up
into two sub-conditions, they being 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 detenue, 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 is, therefore, clear that unless and until the detaining
authority is satisfied that the detenu is likely to be released from
custody in the near future, a detention order against a person already in
custody cannot be said to have been validly passed. In Surya Prakash
Sharma (supra) , the second condition, i.e., of the likelihood of the
person in custody indulging in prejudicial activities was considered and
it was found that on the basis of a solitary murder, it could not be
extrapolated that the person in detention would, in future also, indulge
in such prejudicial activities.
WP (CRL) 536/09 Page 11 of 17
12. In Rajesh Gulati (supra) , the Supreme Court observed as under:-
“12. It cannot be over emphasized that the object of
detention under the Act is not to punish but to prevent the
commission of certain offences. Section 3(1) of the Act
allows the detention of a person only if the appropriate
detaining authority is satisfied that with a view to
preventing such person from carrying on any of the
offensive activities enumerated therein, it is necessary to
detain such person. The satisfaction of the detaining
authority is not a subjective one based on the detaining
authority's emotions, beliefs or prejudices. There must be a
real likelihood of the person being able to indulge in such
activities, the inference of such likelihood being drawn
from objective data.
13. In this case, the detaining authority's satisfaction
consisted of two parts-one: that the appellant was likely to
be released on bail and two: that after he was so released
the appellant would indulge in smuggling activities. The
detaining authority noted that the appellant was in custody
when the order of detention was passed. But the detaining
authority said that "bail is normally granted in such cases".
When in fact the five applications filed by the appellant for
bail had been rejected by the Courts (indicating that this
was not a 'normal' case), on what material did not detaining
authority conclude that there was "imminent possibility"
that the appellant would come out on bail? The fact that the
appellant was subsequently released on bail by the High
Court could not have been foretold. As matters in fact stood
when the order of detention was passed, the 'normal' rule of
release on bail had not been followed by the courts and it
could not have been relied on by the detaining authority to
be satisfied that the appellant would be released on bail.
[See: in this context Ramesh Yadav v. District Magistrate :
1985 (4) SCC 232).”
WP (CRL) 536/09 Page 12 of 17
13. It is pertinent to note that in that case, five applications for bail
had been filed by the appellant which had all been rejected by the
courts and yet the detaining authority had concluded that there was an
imminent possibility of the appellant therein being released on bail.
The Supreme Court rejected such a plea on the part of the detaining
authority and was of the view that it could not be the satisfaction of the
detaining authority that the appellant would be released on bail in the
near future.
14. In T.V. Sarvanan (supra) , the Supreme Court, after quoting the
aforesaid passage from Rajesh Gulati (supra) , observed as under:-
“14. We are satisfied that for the same reason the order of
detention cannot be upheld in this case. The bail
applications moved by the appellant had been rejected by
the Courts and there was no material whatsoever to
apprehend that he was likely to move a bail application or
that there was imminent possibility of the prayer for bail
being granted. The "imminent possibility" of the appellant
coming out on bail is merely the ipse dixit of the detaining
authority unsupported by any material whatsoever. There
was no cogent material before the detaining authority on
the basis of which the detaining authority could be satisfied
that the detenue was likely to be released on bail. The
inference has to be drawn from the available material on
record. In the absence of such material on record the mere
ipse dixit of the detaining authority is not sufficient to
sustain the order of detention. There was, therefore, no
sufficient compliance with the requirements as laid down
by this Court. These are the reasons for which while
allowing the appeal we directed the release of the appellant
by order dated 13-12-2005.”
WP (CRL) 536/09 Page 13 of 17
15. In Ramesh Yadav (supra) , the Supreme Court observed as
under:-
“6. On a reading of the grounds, particularly the
paragraph which we have extracted above, it is clear that
the order of detention was passed as the detaining authority
was apprehensive that in case the detenu was released on
bail he would again carry on his criminal activities in the
area. 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. 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 ordinarily be passed. We are inclined to
agree with counsel for the petitioner that the order of
detention in the circumstances is not sustainable and is
contrary to the well settled principles indicated by this
Court in series of cases relating to preventive detention.
The impugned order, therefore, has to be quashed .”
16. After having considered the decisions placed before us by the
counsel for the parties, we are of the view that it must be shown that the
detaining authority had the material before him / her which could
enable him / her to arrive at the satisfaction that there was imminent
likelihood of the person in custody being released on bail. Insofar as
the facts of the present case are concerned, we find that the petitioner
was seriously ill. He had moved his first bail application and
immediately thereafter he had been hospitalized in respect of both
ailments, namely, diabetes as well as coronary heart disease, yet the
learned ACMM had rejected his bail application on the ground of
WP (CRL) 536/09 Page 14 of 17
seriousness of the offence involved. Thereafter, the petitioner had
moved a second bail application, once again on the grounds of ill-
health and during the pendency of that bail application, the petitioner
had, in fact, undergone a triple by-pass surgery at G.B. Pant Hospital.
Despite these facts, the learned ACMM rejected the second bail
application on 11.07.2008. Thereafter, during the pendency of a third
bail application, the detaining authority passed the said detention order.
The detaining authority, as is clear from the earlier portion of this
decision, stated that she was aware that another bail application had
been filed by the petitioner in the court of the Additional Sessions
Judge, New Delhi on 24.07.2008 “reiterating the plea taken” in the
petitioner‟s previous bail applications and that a reply to which was yet
to be filed by the Department of Revenue Intelligence. The detaining
authority further stated that – “However, nothing prevents you from
filing further bail applications”. We feel that in the circumstances as
narrated above, there was no material before the detaining authority
whereby she could have come to the conclusion that the bail application
would be allowed and that there was an imminent likelihood of the
petitioner being released on bail. Consequently, the purported
satisfaction of the detaining authority that there was a likelihood of the
petitioner being released on bail was not founded on any material and
was the mere ipse dixit of the detaining authority herself.
WP (CRL) 536/09 Page 15 of 17
17. As regards the argument raised by the learned counsel for the
respondents based upon the provisions of Section 437(6) CrPC, we
agree with the submissions made by the learned counsel for the
petitioner that such an argument is not available to the respondents.
The first reason being that the petitioner had not taken this ground in
the third bail application which was pending before the learned
Additional sessions Judge at the time when the detention order was
passed. Secondly, in any event, the first date of taking evidence had
not been fixed when the detention order was passed. The first date of
taking evidence was fixed much later and the same was 13.10.2008.
Therefore, it could not have been in the contemplation of the detaining
authority. In any event, there is nothing in the grounds of detention to
suggest that such a factor weighed with the detaining authority.
18. We have not embarked upon an examination of the detaining
authority‟s „satisfaction‟ with regard to prejudicial activities because
we find that this ground itself, i.e., of imminent likelihood of the
petitioner being released on bail, is sufficient to decide the present
petition. Since we have come to the conclusion that there was no
material before the detaining authority on the basis of which she could
have arrived at the satisfaction that there was imminent likelihood of
the petitioner being released on bail, the detention order is liable to be
set aside. It is so set aside. The petitioner is entitled to be released
WP (CRL) 536/09 Page 16 of 17
provided he is not required in any other case. The writ petition stands
allowed to this extent. There shall be no order as to costs.
BADAR DURREZ AHMED, J
AJIT BHARIHOKE, J
MAY 28, 2009
dutt
WP (CRL) 536/09 Page 17 of 17