Reddy, J. - (1.) 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.
(2.) The detenu was detained under Section 3(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities 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 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 consumer 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 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 13-7-89 and the, same was served on 24-7-89. The grounds were also served in time.
(3.) The learned counsel submitted that there is a total non-application of mind by the detaining authority inasmuch as he has 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 up to 6-7-89. 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 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, Vijay 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 hereinabove, 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 along with two others were in judicial custody and they were further remanded up to 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 awareess on the detaining authority of this aspect. Reliance is placed on some of the decisions of Supreme Court of India in this context.;