grounds of detention the manner in which the gold biscuits were concealed was mentioned and that itself suggested that the detenus must have been indulging in smuggling 439 activities
p 443 B C  ORIGINAL JURISDICTION Writ Petition Crl Nos 105  106 of 1991
Under Article 32 of the Constitution of India Harjinder Singh and RN Joshi for the Petitioners
AK Ganguli Ms Kitty Kumar Manglam Ms A Subhashini and TT Kunhikannan for the Respondents
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
Common questions arise for consideration in these two writ petitions filed under Arti cle 32 of the Constitution of India seeking writ of habeas corpus for quashing the orders of detention and for immedi ate release of the detenus
First we shall deal with Writ Petition Crl No 105 of 1991
Writ Petition Crl No 105 of 1991 The petitioner detenu is a foreign national being a resident of Republic of Maldives
On 251090 he landed at Trivandrum Airport from Male and was moving towards the exit gate of the Customs Import Baggage Hail
He was intercepted by the Air Customs Officers and on examination he was found to be carrying 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of he red colour suit case belonging to the petitioner
His passport and other documents were also seized
The petition er s statement was recorded under Section 108 of the wherein he is alleged to have confessed the guilt
After the arrest he was produced in the Court of Chief Judicial Magistrate Trivandrum and was remanded to judicial custody for a period of 14 days
Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate Economic Offences Ernakulam
While he was in jail he made an application for granting of bail under Section 437 Cr
PC on 291090 but it was rejected on 21190 by the Additional Chief Judicial Magistrate Economic Offences Ernakulam
While the petitioner
was confined in jail an order of detention was passed under Section 31 of the Conservation of Foreign Exchange  Prevention of Smug gling Activities Act 1974  COFEPOSA Act  for short by the Secretary to the Government Government of Kerala Home SS A Department on 71190 and the same was served on the petitioner on 81190
The grounds of 440 detention alongwith the list of documents annexed thereto were served in time
The petitioner made a representation and it was rejected
It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized there was no compelling necessity for such a deten tion
It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident therefore the provisions of the Act are not attracted
The next main and important submission is that the copies of the bail application filed by him and the order refusing bail which are relevant documents were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non application of mind and the petitioner also is denied a reasonable opportunity under Article 225 of the Constitu tion of India
We see no force in the first submission namely that there was no compelling necessity for passing the detention Order
It is true that when the detention order was passed on 7111990 the detenu was in jail and his bail application also was rejected and his passport also was seized
But the detaining authority has mentioned in the grounds that I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out
Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail  Therefore it cannot be said that the detaining authority did not apply his mind to this aspect
It is entirely within his subjective satisfaction whether there are such compelling circumstances or not
He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also
The learned counsel appearing for the petition er relied on a judgment of this Court in Dharmendra Sugan chand Chelawat and Anr
vs Union of India and Others   wherein it is observed that an order of 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 the detaining authority was aware of the fact that the detenu was already in detention and there were compelling reasons justifying such detention and that there should be cogent material on the basis of which the detain ing authority may be satisfied that there are compelling reasons such as that the
detenu is likely to be released from custody in the near future and the nature of the an tecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities
But we may observe that what 441 would be the compelling reasons in the context would depend on the facts of each case
In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase
This itself manifests the expertise of the carrier in smug gling
The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likeli hood of his being released on bail and he is likely to indulge in such smuggling activities
It is mentioned in the counter affidavit that the remand period of the detenu was to expire on 101190 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail
This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order
Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons
Learned counsel also relied on the judgment of this Court in Abdul Razak Abdul Wahab Sheikh vs
SN Sinha Commissioner of Police Ahmedabad and Another  That was a case of public order and after referring to some of the earlier decisions including the decision of the Constitution Bench in Rameshwar Shaw vs District Magistrate Burdwan   this Court considered the contention ie since the detenu was in custody at the time of service of the order of detention there was no material to disclose necessitating the detention
It was held thus On a consideration of the aforesaid deci sions the principle that emerges is 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 the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessi tate the making of an order of detention
In this case the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail
It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13 1988
It is also not disputed that no application for bail was made for release of the detenu before the order of detention was served on him on May 23 1988
It appears that in the grounds of detention there is a statement that at present you are in jail yet there are full possibilities that you may be released on bail in this offence also
 This state ment clearly shows that the detaining authori ty was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Desig nated Court and as such the possibility of his coming out 442 on bail was non existent
This fact of non awareness of the detaining authority in our opinion clearly establishes that the subjec tive satisfaction was not arrived at by the detaining authority on consideration of rele vant materials
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25 1988 was set aside by the Advisory Board on March 13 1988 on the basis of which the detaining authority could come to his subjective satisfaction that the detenu ii released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases having noth ing to do with the maintenance of public order and then held that These statements do not disclose any activity after March 14 1988 or any activity of the time when the detenu was a free person
Con sidering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods The Division Bench finally concluded thus It is highlighted in this connection that in the affidavit inreply filed by respondent 1 the detaining authority he merely denied the specific averments made in para 3111 that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between March 14 to April 13 1988 etc
without spe cifically denying those statements
In this background a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibili ties that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjec tive satisfaction by the detaining authority in making the order of detention in question emphasis supplied 443 From the above passages it can be seen that this Court categorically held that a person in custody can be detained
There must be awareness in the mind of the detaining author ity that the detenu is in custody and that there should be cogent and relevant material showing that there is a compel ling necessity to detain him
Since that was a case of public order the learned Judges proceeded to consider the nature of the cases that were pending and ultimately on the facts and circumstances of the case held that the absence of a reference to any one of such recent cases would show that the subjective satisfaction has not been arrived at proper ly
This reasoning cannot be applied to the facts of this case
In the grounds the manner in which the gold biscuits were concealed is mentioned and that itself suggests that the detenu must have been indulging in smuggling activities
So there was relevant material on the basis of which the detaining authority was satisfied that there was compelling necessity to pass the detention order
The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted
It is again a question of satisfaction of the detaining authority on the basis of the material placed before it
Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed
The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the poten tialities of a detenu in the activities of smuggling
The next and main submission is that there was suppres sion of vital documents namely bail application and the order refusing bail which are relevant documents and had those documents been placed before the detaining authority they might have influenced the mind of the detaining author ity one way or the other
Alternatively it is also contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner paripassu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is ille gal and violative of Article 225 of the Constitution of India
There is no dispute that the detenu moved for bail under Section 437 Cr
PC on 291090 before the Additional Chief Judicial Magistrate Economic Offences Ernakulam and by an order dated 21190 the bail application was rejected
The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed
In support of this plea reliance is placed on the grounds wherein the 444 detaining authority has stated that he was aware that the petitioner was in judicial custody and possibility of his release on bail in the near future cannot be ruled out
It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has been rejected and the only inference that can be drawn is that these relevant documents were suppressed and not placed before the detaining authori ty
In the counter affidavit filed by the second respondent State of Kerala it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner s name the copies of the bail application and the order refusing bail were not made available to the Department and therefore they were not placed before the authority
From these averments one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the failure to place the bail application and the order refusing bail before the detaining authority does in any way affect the detention order
The learned counsel in this context sought to place reliance on some of the judgments of this Court
In M Ahmedkutty vs Union of India and another   the contention was that the bail application and the order granting bail which were relied upon by the detaining authority were not supplied to the detenu and therefore the detention was illegal
A Division Bench of this Court noticed that in the grounds it was clearly men tioned that the detenu was remanded to judicial custody and was subsequently released on bail
Therefore these documents were in fact placed before the detaining authority and were relied upon by it and therefore the non supply of these relevant documents to the detenu disabled him to make an effective representation
Therefore there was violation of Article 225 of the Constitution
In arriving at this conclusion the Division Bench relied on several other decisions and observed that all the documents relied upon by the detaining authority must be pari passu supplied to the detenu
In the instant case the facts are different
In the counter affidavit it is clearly stated that the bail appli cation and the order refusing bail were not there before the sponsoring authority
Therefore they were not placed before the detaining authority
The grounds do not disclose that the detaining authority has relied upon any of these two documents
On the other hand as already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail
This itself shows that these documents were not before the authority
Therefore it cannot be said that the docu ments referred to and relied upon in the grounds were not supplied to the detenu and the ratio in 445 Ahmedkutty s case  on this aspect does not apply to the facts in the instant case
It is not necessary to refer to in detail various decisions of this Court where in it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied
This has been settled by a long line of decisions Ramachandra A Kamat vs Union of India   Frances Coralie Mullin vs
WC Khambra 19801 2 SCC 275 Ichhu Devi Choraria vs Union of India   Pritam Nath Hoon vs Union of India   Tushar Thakker vs Union of India  Lallubhai Jobibhai Patel vunion of India   Kirti Kumar Chatnan Lal Kundalia vs Union of India  and Ana Carolina D Souza v Union of India 1198x1 Supp
SCC 53 1 At this juncture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds need not be supplied
In Mst
LMS Ummu Saleema vs Shri BB Guja ral and another  after referring to some of the earlier decisions of this Court it was held thus It is therefore clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 225 fatal to the order of detention
It is only failure to furnish copies of such documents as were relied upon by the detaining authority making it difficult for the detenu to make an effec tive representation that amounts to a viola tion of the fundamental rights guaranteed by Article 225
In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention
It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under Article 225 of the Constitution
We may of course add that whether the document is casually or passingly referred to or whether it has also formed the material for arriving at the subjective satisfaction depends upon the facts and grounds in each case
In the instant case we are satisfied that these two documents were not placed before the detaining authority nor they were referred to or relied upon
The learned counsel however proceeded to submit that even assuming that these documents were not relied upon or referred to by the detaining authority yet the failure to place these relevant documents before the 446 detaining authority amounted to suppression and therefore there was non application of mind and that the detention order passed without looking into such relevant material is invalid
In Ahmedkutty s case no doubt there is an observa tion having regard to the facts therein that non considera tion of the bail application and the order of releasing would amount to non application of mind and that would affect the detention order
The Division Bench made these observations while considering the contention that the order granting bail and the bail application though referred to were not relied upon
It is not laid down clearly as a principle that in all cases non consideration of the bail application and the order refusing bail would automatically affect the detention
The relevant observations in this context made by this Court Ahmedkutty s case may be noted If in the instant case the bail order on condition of the detenu s reporting to the customs authorities was not considered the detention order itself would have been af fected
Therefore it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority
In section Gurdip Singh vs Union of India  following Ichhu Devi Choraria vs Union of India  and Shalini Soni vs Union of India  it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio emphasis supplied
It is further observed in this case that Considering the facts in the instant case the bail application and the bail order were vital materials for consideration
If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete
We have therefore no alterna tive but to hold that it amounted to denial of the detenu s right to make an effective repre sentation and that it resulted in violation of Article 225of the Constitution of India 447 rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case emphasis supplied Placing considerable reliance on this passage the learned counsel contended inter alia that in the instant case from other point of view namely i if the bail application and the order refusing bail were not considered or ii if considered the non supply of the copies of the same to the detenu would affect the detention order
In other words according to him non consideration of these two documents by the detaining authority would itself affect the satisfaction of the detaining authority
If on the other hand they are taken into consideration and relied upon the non supply of the same to the detenu would result in violation of Article 225 of the Constitution rendering the detention invalid
We are unable to agree with  the learned counsel
We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied
The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that Considering the facts  the bail application and the bail order were vital materials
In that view these observations were made
Further that was a case where the detenu was released on bail and was not in custody
This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied
Now we shall consider the other submission regarding the non supply of the bail application and the order refusing bail to the detenu and its effect
According to the learned counsel these two documents formed relevant material and irrespective of the fact whether they were placed before the detaining authority or not they ought to have been supplied to the detenu and failure to do so has caused prejudice in making an effective representation
We are unable to agree
In Abdul Sattar Abdul Kadar Shaikh vs Union of India and Others 1990 I SCC 480 it is observed thus In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon
These documents were not relied upon bv the detaining authority
When a request is made by the detenu for supply of these bail applications and 448 orders refusing thereon are made the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal
No authority has been placed before us which goes to the extent of holding that a mere non supply of any document whatever its nature may be to the detenu per se amounts to the denial of an opportunity under Article 225 emphasis supplied
In Syed Farooq Mohammed vs Union of India and Another JT 1990 3SC 102 this Court considered precisely the same question and it was observed thus The third ground of challenge is that the relevant document ie bail application of the petitioner and order made there on which might have been considered by the detaining authori ty were not supplied to the petitioner and as such his right of making effective representa tion guaranteed under Article 225 of the Constitution of India has been seriously prejudiced
This ground is without any sub stance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge Greater Bombay on January 5 1990 was considered by the detaining athority before passing the impugned order of detention and as such this being not referred to in the grounds of detention the documents had not been supplied to the petitioner and it therefore cannot be urged that non supply of this document prejudiced the petitioner in making effective representation against the order of detention
Article 225 of the Constitution undoubtedly mandates that all the relevant documents referred to in the grounds of detention and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu
The said document was not considered by the detaining authority in coming to his subjec tive satisfaction and in making the impugned order of detention
The nonfurnishing to the detenu of the said document ie the bail application and the order passed thereon does not affect in any manner whatsoever the dete nu s right to make an effective representation in compliance with the provisions of Article 225 of the Constitution of India
This ground therefore is wholly untenable emphasis supplied 449 From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed if the detaining authority does not refer to or rely upon or has failed to take them into consideration that by itself does not lead to an inference that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired
When these documents are neither referred to nor relied upon there is no need to supply the same to the detenu
As already noted in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody
These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary
Therefore the law requires that these two tests have to be satisfied in the case of such detention of a person in custody
The Constitution Bench in Rameshwar Shaw s case held thus  
Whether the detention of the said person would be necessary after he is released from jail and if the authority is bonafide 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
XXX XXXX XXX Therefore we are satisfied that 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 above principles another Bench of three Judges of this Court in N Meera Rani vs Government of Tamil Nadu and Another  after reviewing the various other decisions it was observed that A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw s case and that none of the observations made in any subse quent case can be construed at variance with the principle indicated in Rameshwar Shaw s case
 Having so observed the Bench summarised the principle thus Subsisting custody of the detenu by itself does not invalidate 450 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 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 sub sisting 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 proxi mate 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 In Chelawat s case after examining the various decisions of this Court dealing with preventive detention of a person in custody it is held thus 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 compel ling reasons in the context of making an order for detention of a person already in custody implies 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 in dulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities In Sanjay Kumar Aggarwal vs Union of India and Others  after reviewing all the relevant cases including Chelawat s case this Court observed as under 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 circum stances of each case have to be 451 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 instant case referred to the grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground
 In a very recent judgment of this Court in Kamarunnissa etc vs Union of India and Another all the above mentioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under From the catena of decisions referred to above it seems dear to us that even in the case of a person in custody a detention order can validly be passed 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 prejudi cial activity and 3 if it is felt essential to detain him to prevent him from so doing
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 notwithstand ing such opposition to question it before a higher Court
 Having regard to the various above cited decisions on the points often raised we find it appropriate to set down our conclusions 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 452 notwithstanding such opposition the same can be questioned before a higher Court
3 If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material
The question of non applica tion 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 non supply 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 225 when it is clear that the authority has not relied or referred to the same
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 arriv ing 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 225 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
Bearing in mind the principles laid down in the above mentioned case we shall now examine the facts in the case before us
The detaining authority in Ground Nos 3 and 4 has stated as under 3
You were arrested under Section 104 of the by the Superintendent on 261090
You were produced before the Chief Judicial Magistrate Trivandrum on the same day
The Magistrate remanded you to judicial custody
453 4
I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out
Also nothing prevents you from moving bail application in the jurisdictional court and getting release on bail
 In the counter affidavit it is stated that the period of remand to the judicial custody was to expire the next day after his detention
Therefore there was every likelihood of his moving for bail and getting released On bail
These materials Show that the detaining authority was not only aware that the detenu was in jail but also noted the circum stances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to in dulge himself in the smuggling activities
It therefore cannot be said that there were no compelling reasons justi fying the detention despite the fact that the detenu is already in custody
Likewise the failure to supply the bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order
However when they are not referred to or relied upon the non supply does not affect the detention
These are all the submissions made by the learned coun sel for the petitioner and we do not see any merit in any of them
Accordingly the Writ Petition is dismissed
Writ Petition Criminal No 106 of 1991 In this Writ Petition also the petitioner is a foreign national being resident of Republic of Maldives
On 251090 he landed at Trivandrum Airport from Male
After customs clearance the petitioner proceeded to Hotel Geeth at Trivandrum and while he was staying there some officers of Customs came to the room and conducted a search
Nothing was recovered
But the officers took the petitioner by force to the Customs Import Baggage Hall and it is alleged that on examination 30 gold biscuits of foreign origin were seized from either side of the handle inside the lock system of the blue colour suitcase which is alleged to be of petitioner
The petitioner s passport and other documents were also seized by the Air Customs Officer Trivandrum
The petition er s statement was recorded  under Section 108 of the Cus toms Act 1962 wherein he is alleged to have confessed the guilt
After the arrest he was produced in the Court of Chief Judicial Magistrate Trivandrum and was remanded to judicial custody for a period of 14 days
Thereafter he was shifted to the Court of the Additional Chief Judicial Magis trate Economic Offences Ernakulam
While he was in jail he made an application for grant of bail under Section 473 Cr
454 PC on 291090 but it was rejected on 21190 by the Additional Chief Judicial Magistrate Economic Offences Ernakulam
While the petitioner was in jail an order of detention was passed under Section 31 of the COFEPOSA Act by the Secretary to the Government Govt
of Kerala Home SSA Department on 71190 and the same was served on the petitioner on 81190
The grounds of detention alongwith the list of documents annexed thereto were served in time
The petitioner made a representation stating that since his bail application has been rejected and since he was in jail and his passport was also seized there is no compelling necessity for such a detention
He also stated that no antecedents are there showing his being involved in such incidents and this was the solitary incident therefore the provisions of the Act are not attracted
The same points as in Writ Petition Criminal No 105 of 1991 are raised in this petition also
We have negatived all the contentions in the above case
One another submission of the learned counsel for the petitioner is that in the case of this petitioner the deten tion order mentions only smuggling and that when once the detenu is in jail and when his passport is seized he can no more indulge in smuggling and therefore according to the learned counsel there is non application of mind
In this context he relied on the definition of smuggling
Section 2e of the COFEPOSA Act defines smuggling  thus 2
Definitions In this Act unless the context otherwise requires xxxx xxxx xxxx xxx e smuggling has the same meaning as in clause 39 of Section 2 of the  and all its grammatical variations and cognate expressions shall be construed accord ingly
 Clause 39 of Section 2 of the defines smuggling thus 2 Definitions In this Act unless the context otherwise requires 39 smuggling in relation to any goods means any act or 455 omission which will render such goods liable to confiscation under section 111 or section 113 Sections 111 and 113 of the provide for confiscation of improperly imported goods and exported goods respectively
The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non existent
We see no force in this submission
The potentialities of the detenu as gathered from his act of smuggling that form basis for detention
It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him
In the result this Writ Petition is also dismissed
RP Petitions dismissed


Summary:
One Smt M  inherited from her husband certain agri cultural lands
Some of the lands were under mortgage and in the possession of defendants 2 to 6
She died intestate after the came into force
As there was no heir entitled to succeed to her property mutation was sanctioned in favour of the State
The grandson of her brother claiming to be her legal heir filed a suit for possession of the property and for a declaration that he was entitled to redeem the mortgaged property from defend ants 2 to 6 The suit was resisted by the First Defendant viz the State on the ground that the intestate had left no heir to succeed and the mutation effected in favour of the State was valid
Defendants 2 to 6 contended that the right to redeem the mortgage had extinguished and they have become the owners of the property as they were in possession for more than sixty years
The Trial Court dismissed the suit holding that the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her husband
As regards the mortgage it was left open to be decided later as agreed to by the parties
Plaintiff preferred an appeal and the District Judge dismissed the same
On a second appeal preferred by him the High Court decreed the 459 suit for possession even against defendants 2 to 6
The State as well as the defendants 2 to 6 have preferred the present appeals by special leave
The appellant State contended that the plaintiff Re spondent was not a qualified heir under the and hence it was a case of failure of heirs resulting in the devolution of estate on the Government
The other appel lants Defendants 2 to 6 contended that the High Court ought not have decreed the suit against them since the plaintiff Respondent s right to redeem the mortgage was not adjudged by the trial court and by agreement the question was expressly left open
Dismissing the appeal preferred by the State and allow ing the appeal of defendants 2 to 6 this Court HELD 1
The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property
The property shall devolve on the Government and the Government shall take the property sub ject to all the obligations and liabilities of the property
It is only in the event of the deceased leaving behind no heir to succeed the State steps in to take the property
The State does not take the property as a rival or preferen tial heir of the deceased but as the Lord paramount of the whole soil of the country
464 BC 2
Section 29 of the shall not operate in favour of the State if there is any other heir of the intestate
Indeed Section 29 itself indicates that there must be failure of heirs Failure  of heirs means the total absence of heirs to the intestate
A female Hindu being the full owner of the property becomes a fresh stock of descend
If she leaves behind any heir either under sub section 1 or under sub section 2 of Section 15 her property cannot be escheated
464 EF Halsbury s Laws of England 4th Edn
17 para 1439 referred to
Sub Section 2 of Section 15 intended only to change the order of succession specified under sub section 1 and not to eliminate the other classes of heirs
Section 152 came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament
The report of the Joint Committee which was accepted by Parliament indicates that this sub section was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands to per sons to whom justice would 460 demand that they should not pass
That means the property should go in the first instance to the heirs of the husband or to the source from where it came
464 F H 465 C 32
Sub section 2b of Section 15 emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section 1 in the order specified thereunder but upon heirs of the husband
The object is not to eliminate the other heirs under sub sectiOn 1 and not to exclude them from inheritance altogether
There is no justice in such a construction of Section 15
The Parliament could not have intended that result
465 F G Bhajya vs Gopikabai and Anr   referred to