Appeal No 1150 of 1978
From the Judgment and Order dated 2291976 of the Bombay High Court in Special Civil Appln
No 1544 of 1971
B Datta JP Pathak and PHParekh for the Appellant
AM Khanwilkar for the Respondents
The Judgment of the Court was delivered by KANIA J
The facts found in this appeal show that the appellant Laxmi Bai was at the relevant time a member of a joint family with her son the partition pleaded by the appellant not having been accepted as genuine by the author ities concerned
She terminated the tenancy of the predeces sor in title of the respondents by a notice dated June 24 1960
Under the provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter re ferred to as the said Act April 1 1957 was declared as the tillers  day and Section 32 of the said Act provided biter alia that the tenants of the land who fell within any of categories described in sub section 1 of the said section were deemed to have purchased the land held by them as tenants from their landlords free of all encumbrances subsisting thereon on the said day
The case of the appel lant is that in the present case the tillers  day was postponed in view of the provisions of clause a of sub section 1 of Section 32 F of the said Act as she was a widow and hence it must be held that she had terminated the tenancy of tenant Dayanu the predecessor in title of the respondents before he became a deemed purchaser of the land
It is not possible to accept this contention in view of the proviso to sub section 1 of Section 32 F of the said Act which provides inter alia that the tillers  day would not get postponed where the widow land owner is a member of a joint family one of the members whereof was outside the protected categories mentioned under clause a of sub section 1 of Section 32 F of the said Act
In the present case there is no dispute that the son of the appellant who was joint with her did not fall within any of the categories referred to in clause a of sub section 1 of Section 32 F of the said Act
In these circumstances Dayanu became the owner of the said land on the tillers  day as a deemed predecessor and the appellant lost her rights in the said land
Notice given thereafter is of no avail
The appeal fails and is dismissed with no order as to costs
NPV Appeal dismissed


Summary:
The petitioners foreign nationals found to be carrying gold biscuits of foreign origin were arrested by the Customs authorities
Their applications for grant of bail under section 437 Cr
PC were rejected
Thereafter orders of their detention were passed under section 31 of the Conserva tion of Foreign Exchange and Prevention of Smuggling Activi ties Act
The grounds of detention alongwith the lists of documents annexed thereto were served in time
The petition ers made representations which were rejected
In the writ petitions under Article 32 of the Constitu tion the petitioners before this Court contended that there was no compelling necessity for their detention under the as they were in jail and their bail applica tions were rejected and passports seized that the provi sions of the Act were not attracted as each of the inci dents in the case of the respective petitioners was solitary and there were no anticidents showing their involvement in the like incidents that there was non application of mind by the detaining authority as copies of the bail applica tions and the orders refusing bail which were relevant documents were neither placed 436 before the detaining authority nor were supplied to them
On behalf of one of the petitioners it was also contended that there was no application of mind by the detaining authority inasmuch as the order of detention mentioned only smuggling and once the detenu is in jail his passport being seized he could no more indulge in smuggling
Dismissing the writ petitions this Court HELD 11 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
451 F 12 When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody
This aspect depends upon various considerations and facts and circumstances of each case
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court
451G H 452 A Dharmendra Suganchand Chelawat  Anr
vs Union of India vs
SN Sinha Commissioner of Police Ahmedabad  Anr   referred to
Rameshwar Shah vs District Magistrate Burdwan   followed
N Meera Rani vs Government of Tamil Nadu Anr
   Sanjay Kumar Aggarwal vs Union of India  Ors  and Kamarunnissa etc
vs Union of India Anr  relied on
21 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
452 B 437 22 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 of the Constitu tion when it is clear that the authority has not relied or referred to the same
452 C 23 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
452 C E 24 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
452 E F M Ahmedkutty vs Union of India  Anr   Ramachandra A Kamat vs Union of India   Frances Coralie Muffin
WC Khambra
  Icchu Devi Choraria vs Union of India  Pritam Nath Hoon vs Union of India   Lallub hai Jobibhai Patel vs Union of india   Tushar Thakker vs Union of India  Kirti Kumar Chaman Lal Kundalia vs Union of India  Ana Carolina D Souza vs Union of India 1981 Supp
SCC 5310 Mst
LMS Ummu Saleema vs Shri BB Gujaral  Anr
   Abdul Sattar Abdul Kadar Shaikh vs Union of India  Ors and SaVed Farooq Mohammad vs Union of India  Anr JT  referred to
It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned
p 440 E 438 41 In the instant case in the counter affidavit it was stated that the period of remand to the judicial custody was to expire the next day after the detention
Therefore there was every likelihood of the detenu s moving for bail and getting released on bail
These materials showed that the detaining authority was not only aware that the detenus were in jail but also noted the circumstances on the basis of which he was satisfied that they were likely to come out on bail and continue to indulge in the smuggling activities
453 B C As mentioned in the grounds of detention there was relevant material on the basis of which the detaining au thority was satisfied that there was compelling necessity to pass the detention orders
It therefore cannot be said that there were no compelling reasons justifying the deten tion despite the fact that detenus were already in custody
443 C 453 C 42 Failure to supply the bail applications and the orders refusing bail did not in any manner prejudice the detenus from making representations particularly when they were fully aware of the contents of the applications made by them and also the refusal orders
However when they are not referred to or relied upon the non supply does not affect the detention
453 C D 51 Even a solitary incident 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 even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling
p 443 D E 52 The potentialities of the detenu as gathered from his act of smuggling form basis for detention
It is diffi cult to comprehend precisely the manner in which a detenu with certain 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
p 455 B C