1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL WRIT PETITION NO. 1988 OF 2006 REKHA UMESH SHETTY ) residing at B-18, Maniyar ) Building, Tardeo Road, ) Mumbai 400 034. ) .. PETITIONER Versus 1. THE STATE OF MAHARASHTRA ) Through the Secretary to the) Govt. of Maharashtra, Home ) Department, Mantralaya ) MUMBAI 400 032 ) 2. CHANDRA IYENGAR ) Principal Secretary ) (Appeals and Security) ) Government of Maharashtra ) Home Department and Detaining Authority, Mantralaya, ) Mumbai 400 032. ) 3. THE SUPERINTENDENT OF PRISON) The Mumbai Central Prison ) Arthur Road, Mumbai. ) 4. THE SUPERINTENDENT OF PRISON) Nashik Road, Central Prison,) Nashik. ) .. RESPONDENTS Mr. Maqsood Khan for petitioner Mr. D. S. Mhaispurkar, APP CORAM:-SMT. RANJANA DESAI & D. B. BHOSALE, JJ. DATED:-17th_July, 2007 JUDGMENT:-(Smt. Ranjana Desai, J.) 2 . The petitioner is the wife of one Umesh Shetty ("detenu" for convenience), who has been detained by the 2nd respondent, Principal Secretary (Appeals and Security), Government of Maharashtra, under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("COFEPOSA Act" for short), with a view to preventing him in future from smuggling goods. In this petition, the petitioner has challenged the said order of detention. 2. The order of detention was served on the detenu when he was in judicial custody. The grounds of detention indicate that the material placed before the detaining authority disclosed that two consignments imported by the detenu were seized by the DRI Officers on 21/2/06. The relevant bills of entry showed the goods contained in the consignments as plastic parts of toys. However, they contained 4 lakh pieces of Analog Watch Movements valued at Rs.68 lakhs. It was apparent, therefore, that the goods were misdeclared. 3. On the basis of the material placed before her the detaining authority was satisfied that the detenu had engaged in prejudicial activities and 3 she was satisfied that unless detained he was likely to continue to engage in similar prejudicial activities in future also after his release from custody. In the circumstances she issued the impugned detention order with a view to preventing the detenu in future from smuggling goods. 4. We have heard Mr. Maqsood Khan, the learned counsel for the petitioner and Mr. Mhaispurkar, the learned APP for the State. With the assistance of the learned counsel, we have gone through the relevant material and the affidavits on record. 5. Mr. Khan’s first submission is that the order of detention should be set aside because in the grounds of detention the detaining authority has stated that she was aware that the detenu was in judicial custody and considering the nature and gravity of the offence, she was satisfied that unless detained the detenu was likely to continue to engage in similar prejudicial activities in future also after his release from custody, but the detaining authority has not recorded as to how she reached the conclusion that the detenu was likely to be released from the custody in near future. He submitted that no material was placed before her to 4 come to such a conclusion. He submitted that remand proceedings before the Additional Chief Metropolitan Magistrate’s court were vital documents which would have enabled the detaining authority to record her satisfaction as to whether or not the detenu would be released on bail. However, the remand proceedings were not placed before her. Mr. Khan submitted that, therefore, the conclusion reached by the detaining authority that the detenu was likely to be released on bail is based on no material. This indicates non application of mind of the detaining authority. He submitted that remand proceedings were vital documents which ought to have been placed before the detaining authority and copies thereof ought to have been supplied to the detenu. Mr. Khan submitted that this not having been done there is a violation of detenu’s right under Article 22(5) of the Constitution of India. In this connection Mr. Khan relied on T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary & Anr., (2006) 2 SCC 664. 6. Mr. Khan submitted that the detaining authority’s non application of mind is evident from the fact that in her affidavit she has stated that 5 the offence in respect of which the detenu was arrested was punishable with maximum imprisonment of three years, when in fact it is punishable with minimum imprisonment of three years. He submitted that offence under Section 135 of the Customs Act is punishable with minimum imprisonment of three years and maximum imprisonment of seven years. He submitted that the detaining authority was not aware of the exact nature of sentence which may be imposed on the detenu and, therefore, it must be said that she had not considered whether offence was of such a nature where court would release the detenu on bail. This is, therefore, a case of gross non application of mind of the detaining authority. 7. As against this Mr. Mhaispurkar, the learned APP submitted that in the grounds of detention the detaining authority has shown her awareness that the detenu was in judicial custody when the order of detention was issued. She has recorded her satisfaction that the detenu was involved in a well organized offence and considering the nature and gravity of the same she was satisfied that unless the detenu was detained, he was likely to continue to engage in similar prejudicial activities in 6 future after release from custody. The detaining Authority has further stated that considering this she has issued the detention order with a view to preventing the detenu from smuggling goods in future. Mr. Mhaispurkar submitted that the detaining authority had, therefore, applied her mind to all vital considerations. He drew our attention to the affidavit of the detaining authority and submitted that the detaining authority has properly explained why she has issued the order of detention while the detenu was in custody. Mr. Mhaispurkar contended that therefore, it cannot be said that there is non application of mind on the part of the detaining authority. In support of his submissions, Mr. Mhaispurkar relied on the judgment of the Supreme Court in A Geetha v. State of T.N. and Anr., (2006) 3 SCC (Cri.) 324. 8. So far as the remand proceedings are concerned, Mr. Mhaispurkar submitted that the remand proceedings cannot be called vital and material documents. He submitted that remand proceedings only contain the allegations against the detenu. In the facts of the case where other relevant material was before the detaining authority 7 indicating the nature of the prejudicial activity in which the detenu is involved, the remand proceedings cannot be called vital and material documents. 9. So far as the grievance made by Mr. Khan that non application of mind of the detaining authority is evident from the fact that in the affidavit-in-reply the detaining authority has stated that the offences in respect of which the detenu was arrested was punishable with maximum punishment of three years is concerned, Mr. Mhaispurkar, the learned APP submitted that that is merely a typographical error. The word ’maximum’ should in fact be ’minimum’. He submitted that this would be evident from the affidavit of Dr. T. Tiju, the Deputy Director, DRI, wherein he has stated that the detaining authority was made aware by a letter that the detenu was in custody in respect of offence punishable under Section 135 of the Customs Act which is punishable with minimum imprisonment of three years and in such an offence bail is normally granted by the court. Mr. Mhaispurkar submitted that, therefore, the allegation that there is non application of mind of the detaining authority is baseless. 8 10. We shall first deal with Mr. Khan’s submission that the apprehension expressed in the grounds of detention that the detenu may be released on bail is merely the ipse dixit of the detaining authority. 11. In the grounds of detention after setting out in detail the nature of the prejudicial activity in which the detenu is involved in paragraph 17 the detaining authority has stated as under: "17. From the prevailing circumstances, it is apparent that you have knowingly been involved in the prejudicial activity. I am aware that you are now in judicial custody. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in prejudicial activities, I am satisfied that, unless detained, you are likely to continue to engage in aforesaid prejudicial activities in future also, after released from custody and therefore, it is necessary to detain you under the Conservation of Foreign 9 Exchange and Prevention of of smuggling Activities Act,1974 with a view to prevent you in future from smuggling goods." It is clear from this averment that the detaining authority was aware that the detenu was in judicial custody. She was satisfied, looking to the nature of the prejudicial activity, that after release from custody the detenu was likely to continue to engage in similar prejudicial activities and hence it was necessary to detain him. 12. It is contended by the petitioner that there was no material before the detaining authority to come to a conclusion that the detenu was likely to be released on bail in near future. It is contended that it was incumbent upon the sponsoring authority to place the remand application before the detaining authority and copy thereof ought to have been served on the detenu. 16. In this connection it is necessary to refer to the judgments on which reliance is placed by Mr. Khan. In T.V. Sravanan’s case (supra) the detenu had moved an application for bail before the 10 Sessions Court which was rejected on 17/11/04. The detenu had moved another bail application before the High Court which was withdrawn on 3/12/04. The detaining authority noticed that the detenu had not moved any bail application subsequently but it went on to state that there was imminent possibility of the detenu coming out on bail by filing another bail application before the Sessions Court or the High Court since in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed merely 12 days after the dismissal of the bail application by the High Court. It is in this context that the Supreme Court held that the bail applications moved by the detenu had been rejected by the courts and there was no material whatsoever to apprehend that the detenu was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted and the "imminent possibility" referred to by the detaining authority was merely the ipse dixit of the detaining authority. 14. Such are not the facts here. It is not the case of the detenu that his bail application was rejected. In this case, the detaining authority 11 has stated on affidavit that in respect of offence punishable under the Customs Act bail is normally granted. This assessment made by the detaining authority on the basis of the material placed before him cannot be gone into by this court, it being in the realm of her subjective satisfaction. 15. In this connection, we may also refer to the judgment of the Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (1964) 4 SCR 921, where while dealing with the similar question the Supreme Court has observed that as an abstract proposition of law, there may not be any doubt that an order of detention can be passed against a person while he is in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. The Supreme Court has further observed that the question as to whether an order of detention can be passed against a person who is in jail, will always have to be determined in the circumstances of each case. 16. We must also refer to the judgment of the 12 Supreme Court in A. Geetha’s case (supra). In that case the conclusion drawn by the detaining authority about imminent possibility of release on bail was under challenge. The Supreme Court observed that whether prayer for bail would be accepted or not depends on the circumstances of each case and no hard and fast rule can be laid down. The Supreme Court clarified that the only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. On the facts before it the Supreme Court observed that on the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail and this being his subjective satisfaction it cannot be interfered with. The conclusion of the detaining authority cannot be his ipse dixit. The Supreme Court on facts approved the averment made by the detaining authority that in similar cases orders granting bail are passed by various courts. The Supreme Court distinguished its judgment in Rajesh Gulati v. Govt. of NCT of Delhi (2002) 7 SCC 129 by observing that in that case five bail applications filed by the detenu had been already rejected and against that background the Supreme 13 Court had observed that it was not a ’normal’ case. In our opinion, the respondents can draw support from this judgment. The averment made by the detaining authority in the affidavit that in cases in which persons are charged with offences under the customs Act, bail is normally granted which has not been controverted by the petitioner by filing affidavit or in the court cannot be called improper. It is not possible for us to hold that the detaining authority was not justified in entertaining an apprehension that the detenu might be released on bail. This is not a case where several bail applications made by the detenu were rejected. In such circumstances subjective satisfaction of the detaining authority cannot be described as her ipse dixit. 17. So far as the statement made by the detaining authority in her affidavit that "the detenu was arrested in respect of the offence punishable under the Customs Act, which is punishable under the Customs Act for maximum imprisonment of 3 years" is concerned, in our opinion, the explanation offered by Mr. Mhaispurkar, the learned APP that it is a typing error and the word maximum should be read as minimum appears to us to be correct. In this 14 connection reference must be made to the affidavit of Dr. T. Tiju Deputy Director, DRI. Dr. Tiju has stated that the detenu was arrested on 1/8/06 and, therefore, the intimation of the same was given to the detaining authority and thereby the detaining authority was made aware about the detenu being in custody, in respect of the offence punishable under Section 135 of the Customs Act which is punishable for minimum imprisonment of 3 years and in such an offence the bail is normally granted by courts. In her affidavit the detaining authority has confirmed that the sponsoring authority had sent her such intimation. Therefore, it is apparent that the detaining authority knew that minimum imprisonment was of 3 years. The word "maximum" is, therefore, clearly a typographical error. The first submission of Mr. Khan must, therefore, fail. 18. In our opinion, in the circumstances of the case remand application cannot be called a vital document because in the grounds of detention the detaining authority has given the gist of the case against the detenu. The detaining authority has obviously culled it out from the statements and documents placed before her, copies of which have 15 been given to the detenu. It is common knowledge that remand application contains the gist of the prosecution case and seeks custody of the accused. Whether a case for bail exists or not can be made out from the material placed before the detaining authority. Therefore, non placement of remand application before the detaining authority and non supply thereof to the detenu does not vitiate the detention order. 19. Mr. Khan then urged that on 2/8/06 when the detenu was produced before the learned Magistrate, the detenu retracted his statement recorded under Section 108 of the Customs Act by the DRI Officers on 1/8/06. He submitted that retraction was filed in the court. However, the sponsoring authority did not place it before the detaining authority. Mr. Khan submitted that the detaining authority has heavily relied on the detenu’s statement and hence it ought to have been placed before the detaining authority. In support of this submission Mr. Khan relied on the judgments of the Supreme Court in Kurjibhai Dhanjibhai Patel v. State of Gujrat & Ors., 1985(1) SCALE, an unreported judgment of the Supreme Court in Mohd. Towfeek Mohd. Mulaffar (a) M.T.M. Mulaffar v. The 16 Additional Secretary to Government of Tamil Nadu & Anr. in Writ Petition No. (Cri.) 602 of 1989 decided on 23/2/90, Amanullah Quareshi v. Union of India, AIR 1992 SC 1831 and Ahmed Nassar v. State of Tamil Nadu And Others., 1999 SCC(Cri.) 1469. Mr. Khan further urged that the respondents cannot save the impugned order by relying on S.5-A of the COFEPOSA Act because the detention order rests on one composite ground. In support of this submission, he relied on K. Satyanarayan Subudhi v. Union of India & Others, 1991 Supp.(2) SCC 153, A. Sowkath Ali v. Union of India & Ors., JT 2000(8) SC 385 & Prem Prakash v. Union of India & Others 2000 SCC (Cri.) 1318. 20. Mr. Mhaispurkar, the learned APP on the other hand did not seriously dispute that in a given case retraction of the statement made by the detenu can be a vital document and its non-placement would vitiate the detention order. He took us to the affidavit of the detaining authority where the detaining authority has stated that the sponsoring authority had informed her vide letter dated 16/8/06 that the detenu had retracted his statement and rebuttal to the same was filed by the department. He pointed out that the detaining 17 authority has stated that she had perused the retraction of the detenu and according to her it is not a vital and material document. Mr. Mhaispurkar submitted that this explanation is acceptable. He submitted that in any event the detention order cannot be set aside on this ground because the detaining authority has relied on other material apart from the detenu’s statement and hence the order of detention can be sustained on the basis of the other pieces of material which constitute separate grounds. He submitted that section 5-A will come to the aid of the detaining authority and save her order. In this connection Mr. Mhaispurkar relied on the judgments of the Supreme Court in State of Gujarat v. Chamanlal Manjibhai Soni (1981) 2 SCC 24, Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Others, AIR 1986 SC 687, Attorney General for India v. Amratlal Prajivandas & Others, 1995 Cr.L.J. 426, Meena Jayendra Thakur v. Union of India & Others, (1999) 8 SCC 177, Kirit Kumar Nirula v. State of Maharashtra & Others (2005) 9 SCC 65 & D. Anuradha v. Joint Secretary & Another (2006) 2 SCC 142. 21. So far as the stand taken by the detaining 18 authority that she has gone through the retraction after the detention order was issued and has found it to be not a vital document is concerned, it must be rejected because in Kurjibhai’s case (supra) post facto consideration of the detenu’s reply to the show cause notice after issuance of the detention order was held not good enough to fill up the lacuna of non consideration thereof before issuance of the detention order. 22. In view of the fact that Mr. Mhaispurkar has not seriously disputed that retraction of the detenu is a vital and material document it is not necessary to deal with the judgments cited by Mr. Khan on that point. We are, however, of the opinion, that assuming that retraction of the detenu is a vital document, the detention order can be sustained on the basis of Section 5-A of the COFEPOSA Act. Section 5-A of the COFEPOSA Act reads thus; "5-A. Grounds of detention severable.-Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or 19 more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, . and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub- section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being 20 satisfied as provided in that sub-section with reference to the remaining ground or grounds." 23. In Chimanlal Soni’s case (supra) the High Court had quashed the order of detention issued under the COFEPOSA Act on the ground that as one of the grounds, namely ground no. 7 was irrelevant, the entire order of detention is vitiated. The Supreme Court held that the High Court has put a wrong interpretation on Section 5-A. The Supreme Court observed that the detention order under Section 3 of the COFEPOSA Act is only for the purpose of preventing smuggling and all the grounds whether there are one or more, would be relatable only to various activities of smuggling and no other separate ground could be conceived which could deal with matters other than smuggling because the act of smuggling covers several activities each forming a separate ground of detention and the COFEPOSA Act deals with no other act except smuggling. We may quote the relevant observations of the Supreme Court. "It is manifest that whenever the allegations of smuggling are made against a person who is sought to be detained by 21 way of preventing further smuggling, there is bound to be one act or several acts with the common object of smuggling goods which is sought to be prevented by the Act. It would, therefore, not be correct to say that the object of the Act constitutes the ground for detention, except the one which relates to smuggling. In our opinion, this is neither the object of the Act nor can such an object be spelt out from the language in which Section 5-A is couched. What the Act provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and, if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention. The reason for enacting Section 5-A was the fact that several High Courts took the view that where several grounds are mentioned in an order of detention and one of them is found to be either vague or irrelevant then the entire order is 22 vitiated because it cannot be predicated to what extent the subjective satisfaction of the authority could have been influenced by the vague or irrelevant ground. It was to