SANJEEV KUMAR AGGARWAL v.

UNION OF INDIA AND OTHERS

APRIL 4, 1990

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA

REDDY, JJ.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act-Section 3( 1)-Detention order in case of detenu already in jail-Passing of-Whether permissible and when valid.

The petitioner was detained under Section 3( l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act by an order dated 13. 7 .1989. The facts leading to his arrest and detention are:

D On 7. 7 .1989 officers of Directorate of Revenue Intelligence New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present. On search of the car no recovery was made on the spot, but later on when the car was thoroughly rummaged in presence of two independent witnesses and the occupants of the car, 206 foreign marked gold biscuits of ten tolas each were recovered from E 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 the said gold biscuits. However 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. Mahesh Kumar admitted that he was F visiting Dubai frequently to bring consumer goods and ornaments for being sold in the local market. According to him one A vtar 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 details about Avtar Singh. Similarly Vijay Kumar also made a statement. From these statements it is also revealed that petitioner Sanjeev G 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 petitioner made a statement before the officers of the Directorate or Revenue Intelligence. On the basis of the material the detaining authority passed an order of detention on 13. 7 .1989 which was served on the petitioner on 24.7.1989. The grounds of detention H were also served on the petitioner in time.

S.K. AGGARWAL v. U.0.1. & ORS. 319

The petitioner challenged his detention by means of a writ petition before the Delhi High Court, and having remained unsuccessful, he filed this petition for Special Leave to Appeal against the order of the Delhi High Court dismissing his writ petition.

Before this Court two main points have been urged viz., (i) that there is a total non-application of mind by the detaining authority inasmuch as he has failed to note that the petitioner was in jail, and that there was no possibility of his being released, and the failure to consider this aspect on the part of the detaining authority renders his detention invalid; and

(ii) that the detaining authority has not applied his mind properly in rejecting his representation and that there was delay ir. serving the detention order on him.

Dismissing the petition, this Court,

--:..L HELD: Whether an order of detention can be passed agains< a person who is in detention or in jail, will always have to be determined

in the circumstances of each case.

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. [326B]

Section 3(3) of the Act lays down that for the purpose of Article E 22( 5) of the Constitution 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. [3208]

In the instant case from the record it was submitted that it took F quite sometime for translating the documents to Hindi and Gurmukhi, and the Court is satisfied that there are valid and sufficient reasons for delay in serving the detention order. [327C-D]

Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, Commisioner of Police, Ahmedabad & Anr., [1989] 2 S.C.C. 222; Binod Singh v.


Writ No. 333 of 1986, decided by Delhi High Court on 30.10.1986.

B CRIMINAL APPELLATE JURISDICTION: S.L.P. (Cric

minal) No. 2485 of 1989.

From the Judgment and Order dated 12.12.1989 of the Delhi High Court in C.W.P. 589 of 1989.

Harjinder Singh and R.N. Joshi for the Petitioner.

Soli J. Sorabjee, P.K. Goswamy, Udai Lalit, C.V.S. Rao, P.

Parrneshwaran 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 tbe 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 admis- E sion stage.

The detenu was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activites Act (hereinafter referred to as 'the Act') by an order dated 13.7.89. On 7 .6.89 Officers of Directorate of Revenue Intelligence, New Delhi F 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 tore1gn 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 G 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 Vi jay Kumar. The premises of these two peoples were searched and a receipt of token tax in respe, ct of the car was recovered. Mahesh H Kumar admitted that he was visiting Dubai frequently to bring con-

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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 statement. From these statements it is also revealed that petitioner 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 of ficers of the Directorate of Revenue Intelligence questioned me petitioner and he gave a statement. On the basis of this material the detaining authority passed an order of detention on 13.7.89 and the same was served on 24.7.89. 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 criminal proceedings. An application was filed in the court of A.C.M.M. Delhi for extending the remand and the remand was granted upto 6.7.89. Hcwever, 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 paragraph 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, Vi jay Kumar Dharne and you from moving bail application and getting 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 :1erein 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 or. bail."

The further submission of the learned counsel is that the petitioner H

alongwith two others were in judicial custody and they were further remanded upto 20. 7.1989 and no bail application was filed or pending as on the date of passing orders of detention. 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 Waha/J Sheikh v. S. N. Sinha, Commissioner of Police, Ahmadabad and Anr., I 1989] 2'SCC 222 it is held that there must be awareness in the mind of the detaining 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 judgment it is noted that the dtaining 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 v. District Magistrate, Dhanbad, [1986] 4 SCC D 416 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 indication 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 E into consideration by the detaining authority proper! y and serious! y before the service of the order."

In Vijay Kumar v. State of Jammu and Kashmir, [1982] 2 SCC 43 the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was F 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 application 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 G detaining authority in apprehending that the detenus are likely to be released on bail is that their remand to the judicial custody was upto 20.7.89 and that the other two co-accused have also filed bail applications and they were pending and that this material is sufficient to indicate that petitioner also may file bail application and is likely to be released on bail.

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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 v. Disctrict Magistrate, Jabalpur, [1975] 4 SCC 164, 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 v. State of V.P. and

Ors., [1988] 1SCC436it 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

v. District Magistrate, Etah & Ors., [1985] 4 SCC 232 wherein it is observed:

"Merely on the ground that an accused in detention as an G under trial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily 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." H

But as already held in the instant case the detaining authority 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. Therefore the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the B 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 important decision rendered by the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964

SC 334, 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 C detention and it was indicated that the detenu's subsisting detention did not by itself invalidate the detention order but fa~"ls and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order. It is observed in the said case that: D

"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

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E the past conduct on which the order of detention would be /~ based would, in such a case, oe proximate in point of time ana would have a rational connection with the conclusion drawn by the amhority that the detention of the person atter his release is necessary . . . . "

p It was further observed that:

"Therefore. we are satisfied that the questton as to whether - an order of detention can be passed against a person who is in detention or m 1a1l, will always have to be determined in the circumstances of each case."

'!he principles lrua down by the Constitution Bench are follwed in a number of subsequent decisions.

In A/ijan Mian v. District Magistrate, Dhanbaa, [1983] 4 SCC 301 the detention order was upheld even though the detenu was in jail H custody on the date of passing of the detention order because the

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 v. Government of Tamil Nadu & Anr., [1989] 4 sec 418 all these earlier cases have been referred to extensively and

the conclusions are deduced as follows: B

"Subsisting custody of the detenu by itself does not invalidate 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 detaining 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 detaining 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 Dharmendra Suganchand Che/awat etc. v. Union of India and Ors .. JT 1990 1 SC

184, once again all the authoritative pronouncements including that of f. 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 Jed 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 G detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be H

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 circumstances 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 Rameshwar 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 because 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."

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As a matter of fact, in Shri Dharmendra Suganchand Chelawat's, case there is a reference to Smt. Shashi Aggarwal's, case and Ramesh Yadav's, case and a Bench of three Judges folowing the decision of the Constitution Bench in Rameshwar 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 A.C.M.M.

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 Vi jay Kumar have not been referred to and considered by the authority while rejecting the representation. Reliance is also placed on a judgment of the Delhi Hig~ Court in Sat Pal Manchanda v. M.L. Wadhawan and Ors., (Criminal Writ No. 333 of 1986) decided on 30.10.86. 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 8.6.89 was received in the Ministry of Finance alleging 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 statement dated 8.6.89. It can therefore be seen that the detaining 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 miud in this regard, namely, in considering the representation. The same principle applies to the Advisory Board also. According to the submissions of the learned counsel, these documents were not placed before the Advisory Board in its meeting on 18.9.89. Whatever statement was made by the petitioners on 22.6.89 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 paragraph 10 also it is mentioned that a telegram was .received on 9.6.8'1 afleging 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 found to

A 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 13.7.89, but the same was served on 24.7.89. According to the learned counsel, there is a violation of Section 3(3) of the Act. The said provision lays down that for the purpose of Article 22(5) of the Constitution, 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, therefore 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 ).., D in serving the detention order. - '

Thus, we find no merit in anyone of the submissions. The petition is, therefore, dismissed.

N.V.K.

Petition dismissed.