ON SLP Criminal No 2485 of 1989
From the Judgment and Order dated 12121989 of the Delhi High Court in CWP 589 of 1989
Harjinder Singh and RN Joshi for the Petitioner
Soli J Sorabjee PK Goswamy Udai Lalit CVS Rao P Parmeshwaran and Sushma Suri for the Respondents
The Judgment of the Court was delivered by REDDY J
This is a petition under Article 136 of the Constitution of India against the judgment and order of the High Court of Delhi dismissing the writ petition filed on behalf of the detenu challenging the detention
Notice was given and after hearing counsel for both the parties at length the matter is being disposed of at the admission stage
The detenu was detained under Section 31 of the Con servation of Foreign Exchange and Prevention of Smuggling Activities Act hereinafter referred to as the Act  by an order dated 13789
On 7689 Officers of Directorate of Revenue Intelligence New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present but no recovery was effected on the spot
But later on the Car was thoroughly rummaged in presence of two independent witnesses and the occupants of the car and 206 foreign marked gold biscuits of ten tolas each were recovered from the cavities of the car meant for fitting speakers in the rear portion of the car
The occupants did not give any explanation for the possession of gold biscuits
On personal search of Mahesh a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar
The premises of these two peoples were searched and a receipt of token tax in respect of the car was recovered
Mahesh Kumar admitted that he was visiting Dubai frequently to bring con 320 sumer goods and gold ornaments for being sold in the local market
One Avtar Singh who was engaged in smuggling of foreign gold biscuits agreed to sell the gold biscuits to Mahesh Kumar on commission
He also gave some more details about Avtar Singh
Similarly Vijay Kumar also made a state ment
From these statements it is also revealed that peti tioner herein Sanjeev Kumar Aggarwal had made arrangements for selling the gold biscuits
The residential premises of the petitioner was searched and he was taken into custody
The officers of the Directorate of Revenue Intelligence questioned the petitioner and he gave a statement
On the basis of this material the detaining authority passed an order of detention on 13789 and the same was served on 24789
The grounds were also served in time
The learned counsel submitted that there is a total non application of mind by the detaining authority inasmuch as he was failed to note that the detenu was in jail and that there is no possibility of his being released and the failure on the part of the detaining authority to consider the same renders the detention invalid
It is true that the petitioner was in judicial custody in connection with crimi nal proceedings
An application was filed in the court of ACMM Delhi for extending the remand and the remand was granted upto 6789
However two detenus who figured as co accused in that criminal proceedings were also in the judicial custody and on their behalf an application for bail was filed
As mentioned in the grounds of detention the detaining authority has noted these circumstances
In para graph No 16 it is mentioned that I am aware that all of you are under judicial custody and possibility of your release on bail in near future cannot be ruled out
Also nothing prevents Mahesh Kumar Chauhan Vijay Kumar Dharne and you from moving bail application and get ting release on bail Then in paragraph No 24 it is mentioned thus From the foregoing facts and circumstances and statements recorded in this connection as disclosed herein above it is evident that you have engaged yourself in abetting the smuggling of goods unless prevented you will continue to do so in similar manner or otherwise in future when released on bail
 The further submission of the learned counsel is that the petitioner 321 alongwith two others were in judicial custody and they were further remanded upto 2071989 and no bail application was filed or pending as on the date of passing orders of deten tion
Therefore it must necessarily be inferred that there is no awareness on the detaining authority of this aspect
Reliance is placed on some of the decisions of Supreme Court of India in this context
In Abdul Razak Abdul Wahab Sheikh vs
SN Sinha Commis sioner of Police Ahmadabad and Anr  it is held that there must be awareness in the mind of the detain ing authority that the detenu is in custody at the time of service of order of detention and that cogent and relevant material and fresh facts have been disclosed necessitating making of an order of detention
In the course of the judg ment it is noted that the detaining authority also was not aware that application for bail filed on behalf of the detenu was rejected by the designated court and therefore there was no application of mind
In Binod Singh vs District Magistrate Dhanbad 16 it is laid down If a man is in custody and there is no imminent possibility of his being released the power of preventive detention should not be exercised
In the instant case when the actual order of detention was served upon the detenu the detenu was in jail
There is no indica tion that this factor or the question that the said detenu might be released or that there was such a possibility of his release was taken into consideration by the detaining authority properly and seriously before the service of the order In Vijay Kumar vs State of Jammu and Kashmir  the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail
But in the case before us the detaining authority has noted in the grounds that the petitioner alongwith other two coaccused have been remanded to judicial custody and the bail applica tion was filed on behalf of the other two detenues and there is every likelihood of the petitioner also being released on bail and as such the possibility cannot be ruled out
The other material relied upon by the detaining authority in apprehending that the detenus are likely to be released on bail is that their remand to the judicial custody was upto 20789 and that the other two co accused have also filed bail applications and they were pending and that this mate rial is sufficient to indicate that petitioner also may file bail application and is likely to be released on bail
322 We have carefully examined the material relied upon by the detaining authority in this regard and we are of the opinion that it cannot be said that there was no awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities
At this juncture we may also notice another decision of the Supreme Court
In Ramakrishna Rawat vs District Magistrate Jabal pur  the detention order was upheld since the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past the detaining authority could reasonably reach its subjective satisfaction in respect of the detenu that he was in custody
The learned counsel however submitted that in case the bail application is filed the same can be opposed or even if enlarged the same can be questioned in a higher court and that a mere bald statement that the person would repeat his criminal activities after release would not be enough
In Smt
Shashi Aggarwal vs State of UP and Ors
  it is observed The possibility of the court granting bail may not be sufficient
Nor a bald statement that the person would repeat his criminal activities would be enough
There must also be credible information or cogent reasons apparent on the record that the detenu if enlarged on bail would act prejudicially to the interest of public order
 This is a case of detention on the ground of likelihood of disruption of public order by the detenu
The detention order shows that the order had been made only on the sole ground that the detenu was trying to come out on bail
Learned counsel also relied upon the decision in Ramesh Yadav vs District Magistrate Etah  Ors wherein it is observed Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordi narily be passed
If the apprehension of the detaining authority was true the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised
 323 But as already held in the instant case the detaining au thority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods
There fore the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail
At this stage it is useful to refer to another impor tant decision rendered by the Constitution Bench in Ramesh war Shaw vs District Magistrate Burdwan   wherein the detention order was served while the detenu was in custody
The detenu was in jail by virtue of a remand order
The Constitution Bench considered the effect of the detenU s subsisting  detention and it was indicated that the detenu s subsisting detention did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive deten tion notwithstanding his custody were necessary to sustain such an order
It is observed in the said case that Whether the detention of the said person would be necessary after he is released from jail and if the authority is bona fide satisfied that such detention is necessary he can make a valid order of detention a few days before the person is likely to be released
The antecedent history and the past conduct on which the order of detention would be based would in such a case be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person atter his release is necessary   It was further observed that Therefore
we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or m jail will always have to be determined in the circumstances of each case
 The principles laid down by the Constitution Bench are followed in a number of subsequent decisions
In Alijan Mian vs District Magistrate Dhanbad 1983 4 SCC 301 the detention order was upheld even though the detenu was in jail custody on the date of passing of the detention order because the 324 detention order showed that the detaining authority was alive to the fact yet it was satisfied that if the detenu was enlarged on bail which was quite likely he could create problems of public order
In N Meera Rani vs Government of Tamil Nadu  Anr  18 all these earlier cases have been referred to extensively and the conclusions are deduced as follows Subsisting custody of the detenu by itself does not invali date an order of his preventive detention and the decision must depend on the facts of the particular case preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of the public order etc
ordinarily it is not needed when the detenu is already in custody the de taining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order but even so if the detain ing authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in pint of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release
This appears to us to be the correct legal position
 In one of the latest judgments of this Court in Shri Dhar mendra Suganchand Chelawat etc
vs Union of India and Ors
JT  once again all the authoritative pro nouncements including that of the Constitution Bench in Rameshwar Shaw s case are referred to and the Bench which consisted of three Judges observed thus The decisions referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that i the detaining authority was aware of the fact that the detenu is already in detention and ii there were compelling reasons justi fying such detention despite the fact that the detenu is already in detention
The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent materi al before the detaining authority on the basis of which it may be 325 satisfied that a the detenu is likely to be released from custody in the near future and b taking into account the nature of the antecedent activities of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities
 It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances
Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail
We have already in the instant case referred to the grounds and the various cir cumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground
Learned counsel however strongly relied on Smt
Shashi Aggarwal s case and Ramesh Yadav s case and contended that in the instant case also the bail application could be opposed if moved or if enlarged the same can be questioned in a higher court and on that ground the detention order should be held to be invalid
In N Meera Rani s case a Bench of three Judges noted the above observations in Smt
Shashi Aggarwal s case and Ramesh Yadav s case and it is said that they were made on the facts of those particular cases and the Bench also observed thus
A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw case
The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they are made
None of the observations made in any subsequent case can be construed at variance with the principle indicated in Ra meshwar Shaw case for the obvious reason that all subsequent decisions were by benches comprised of lesser number of judges
We have dealt with this matter at some length be cause an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw s case
 326 AS a matter of fact in Shri Dharmendra Suganchand Chela wat s case there is a reference to Smt
Shashi Aggarwal s case and Ramesh Yadav s case and a Bench of three Judges following the decision of the Constitution Bench in Ramesh war Shaw s Case laid down the above principles which we have already referred to
Therefore we see no force in the submission
The next submission of the learned counsel is that the detaining authority has not applied his mind properly in rejecting the representation made by the detenu
It is submitted that in Annexure X 3 an application sent by Vijay Kumar the co detenu it is clearly mentioned that his statement was recorded under torture and duress
Likewise in Annexure X 4 a petition filed in the Court of ACMM
New Delhi it is complained that the statement was recorded under torture and duress
According to the learned counsel this petition as well as the medical reports of the Doctors who examined Vijay Kumar have not been referred to and considered by the authority while rejecting the representa tion
Reliance is also placed on a judgment of the Delhi High Court in Sat Pal Manchanda vs
ML Wadhawan and Ors Criminal Writ No 333 of 1986 decided on 301086
In that case it is held that all the relevant material should be taken into consideration by the detaining authority while disposing of the representation
But in the instant case the circumstances are different
As a matter of fact it is referred in paragraph 15 of the grounds that a telegram dated 8689 was received in the Ministry of Finance alleg ing that the detenu was picked up by the DRI officers and that the allegations made therein were found false and baseless
In paragraph 17 it is also mentioned that the detenu alongwith his accomplices retracted from their state ment dated 8689
It can therefore be seen that the detain ing authority has considered the allegations that the detenu was manhandled etc
At any rate the detaining authority has clearly noted that the detenu has retracted from the alleged statement therefore it can not be said that there is non application of mind in this regard namely in considering the representation
The same principle applies to the Advi sory Board also
According to the submissions of the learned counsel these documents were not placed before the Advisory Board in its meeting on 18989
Whatever statement was made by the petitioners on 22689 prior to the detention and the grounds clearly disclose that there was retraction
It must also be noted in this context that in the grounds in para graph 10 also it is mentioned that a telegram was received on 9689 alleging about the wrongful arrest and extraction of the statements and the detaining authority has also taken note of the allegations made against the DRI officers which were round to 327 be false and baseless
The same material was there before the Advisory Board
Therefore there is no force in this submission
It is lastly submitted that there was 11 days delay in serving the detention order
It is true that the order of detention was passed on 13789 but the same was served on 24789
According to the learned counsel there is a viola tion of Section 33 of the Act
The said provision lays down that for the purpose of Article 225 of the Constitu tion the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention
Learned counsel for the State submitted that firstly the point of delay was not taken up in the special leave petition there fore he had no opportunity to counter the same
However from the record he submitted that it took quite sometime for translating the documents to Hindi and Gurumukhi
We have seen the documents filed before us and we are satisfied that there are valid and sufficient reasons for delay in serving the detention order
Thus we find no merit in anyone of the submissions
The petition is therefore dismissed
NVK Petition dismissed


Summary:
For admission to BE Course 1989 90 Session in the appellant Institute and 3 other institutes there was a Combined Entrance Test held by the Punjab University
The results were declared and students allotted to the respec tive institutes of their choice
The appellantInstitute drew up merit list of candidates allotted to it and gave admis sions in that order
To fill up the vacant seats as a result of some students leaving the Institute the appellant Institute held inter views on 1481989 which incidentally was the last date for admission to BE Course
However the last date was extend ed up to 2551989
When admission was closed on that day the last student admitted was at section No 1127 in the merit list prepared by the University
Respondents 1 to 4 filed a writ petition before the High Court on 3081989 alleging that six seats were vacant and the appellantInstitute be directed to admit them
The High Court on 2191989 allowed the writ petition on the assump tion that six seats were vacant whereas only 2 seats were available according to the appellantInstitute
Respondents 5 to 8B also approached the High Court by way of writ petitions and the High Court directed the appel lant Institute to admit the six Respondents also in the BE Course
Further three other similar writ petitions were pending before the High Court
395 Against the above said orders of the High Court the appellantInstitute has preferred these appeals contending that the last candidate admitted was at section No 1127 in the merit list and admittedly all the Respondents except Re spondent No 6 were less meritorious while candidates with higher merits were still waiting for admission
It was contended that while there were only 2 vacant seats the High Court has directed the appellant Institute to admit as many as ten candidates that too long after the course started and the First Terminal Exams were over
Dismissing the appeals this Court HELD 11 The High Court not only ignored the fact which was specifically pointed out in the appellant Institute s affidavit that there were no seats available in the appel lant Institute whose capacity was only 180 seats but also the fact that there were more meritorious students than the Respondents as per the Combined Entrance Test who could not secure admission and who were waiting to he admitted to the appellant Institute
The Respondent students could get admission to the appellant Institute only if theft compara tive merits ordained it and not otherwise
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission
In fact in their writ petitions before the High Court the respondent students had claimed no further relief than that they should be directed to be admitted according to their merit
399B E 12 There was nothing wrong in the appellant Institute admitting 10 more students in BE Course
The Institute has a capacity of only 180 students
To meet the contingency of the students leaving it soon after admission the appellant Institute had admitted 10 more students as has been done every year
As it turned out 12 of the students left leav ing 178 students on the roll with only 2 vacancies
The High Court could have directed only two students to be admitted and that too on merit
Admittedly there were more meritorious students than the respondents waiting in queue
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious to he admitted
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellant Institute as well as to the students who stood higher in merit than almost all the respondentstudents except Respondent No 6399E H 396 2
Since however the respondent students stand already admitted and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time their pursuit of the course is not interfered with
400A