- (1.) THIS Habeas Corpus Petition has been filed by the petitioner, who is brother of detenu - Saeedad Khan, who has been detained by respondent No. 1 while exercising the powers under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act, 1974' ). It has been prayed that the order dated August 3,1990 (Annex. 5) issued by respondent No. 1 be quashed and detenu be set at liberty.
(2.) IT is submitted by Mr. N. A. Naqvi, learned counsel, that the Customs Authorities are said to have information that the smuggled gold will reach at Banner in between March 20 and March 23, 1990. At about 9. 30 p. m. , a jeep was coming towards Gadra Road, which was intercepted by the Customs Authorities. In the aforesaid jeep, detenu and Salu Meghwal were sitting while Gangaram was driving the jeep. The Customs Authorities inspected the jeep and found a canvass bag, lying in the back side of the jeep, where Salu Meghwal was sitting. When enquired about the said canvass bag, he looked towards the detenu and did not reply. The Customs Authorities enquired from the detenu and driver Gangaram also, but they did not give any satisfactory reply. Therefore, the Customs Authorities became suspicious and the jeep along with the three persons, was taken to the Custom Officer at Barmer, for investigation. On search, 150 Gold Biscuits of Foreign Marks were recovered from the said bag. The Gold Biscuits were got examined by the gold-Smyth, who confirmed that the biscuits are of gold. None of the occupants of the Jeep could produce the import licence or other necessary documents, regarding the gold biscuits to satisfy the Customs Authorities. Therefore, the Customs Authorities had reason to believe that the gold biscuits were brought in the territory of India in violation of the provisions of law. Hence, the gold biscuits were seized and all the three occupants of the jeep were arrested on March, 21, 1990. It is further submitted by the learned counsel that respondent No. l, on may 7,1990, while exercising powers under Section 3 (1) of the COFEPOSA Act, issued a direction for detaining Salu Meghwal & detenu. The detention orders have been marked as Annexs. 1 & 2, respectively. It is pointed out that the State Government put the matter of detenu and Salu Meghwal before the Advisory Board on July 25, 1990. On the recommendation of the Advisory Board, the respondent No. l while exercising the power under Section 10 of the COFEPOSA Act, issued an order dated August 3, 1990 (Annex. 5), which was served on the detenu on August 10,1990. In the order (Annex. 5), respondent No. 1 directed to detain detenu Saeedad Khan for a period of one year, i. e. from May 9, 1990 to May 8, 1991. Simultaneously, the State Government also issued an order, on the same date, stating the grounds of detention vide Annex. 3. It is submitted that Salu Meghwal and detenu both were detained by the same order. Cases of both these persons are identical, as is evident from the statement of Salu Meghwal recorded under Section 108 of the Customs Act. However, Salu Meghwal has not been detained by the respondent, which shows that the detenu has been discriminated and there is violation of Article 14 of the Constitution of India. It is submitted by the learned counsel that since the detenu was already of custody, question of passing further order of detention under Section 3 did not arise. The detenu has been detained on account of one incident, therefore, the detention order is not legally sustainable. It is also submitted that no challan under Customs Act has yet been filed against the detenu. Salu Meghwal and Gangaram - driver of the jeep were released on June 25, 1990 vide Annex. 11 under the provisions of Section 167 (2), Cr. P. C. , because after the expiry of 90 days, no challan was filed against them under the Customs Act. It is further submitted by the learned counsel that representation was filed by the detenu on 9. 6. 90, which was sent to the appropriate Authorities through the Jail Authorities. It is pointed out that without application of mind, it was rejected on July 2, 1990, after unexplained delay of 22 days. It is also pointed out that the Apex Court in several similar cases has held that unexplained delay of even 19 or less days, is sufficient to quash the order of detention. It is submitted that detenu was already in judicial custody since March 20, 1990. On May 7, 1990, when the order of detention was served upon the detenu, he was already in jail. It is further submitted that the detention order has been passed under Section 3 of the COFEPOSA Act, evidently with a view to preventing him from acting in any manner to indulge in smuggling activities etc. It is also submitted that the detenu was arrested on March, 20, 1990 and the period of three months has been provided under Section 9 of the COFEPOSA Act from this date and not from the date on which the detention order was passed. It is pointed out that no reliance can be placed on the statement of the detenu recorded under Section 108 of the Customs Act, since the detenu has retracted the same and it was obtained by the Customs Authorities under pressure. Therefore, the admission of guilt as per his statement cannot be taken to be a ground for his detention. It is submitted by Mr. M. I. Khan, learned Additional Advocate- General, that respondent No. 1 detained both Salu Meghwal as well as the detenu and their cases were referred to the Advisory Board under Sec. 8 (b) of the COFEPOSA Act, on May 18,1990. The detenu was also heard in person. The Board gave its opinion on July 24, 1990 and found that there was sufficient material and grounds for detention of the petitioner. Salu Meghwal was released on recom mendation of the Advisory Board. This itself shows that there is clear distinction between the cases of Salu Meghwal and detenu. The learned Additional Ad vocate-General pointed out that the representation dated June 9, 1990, submitted by the detenu was considered most expeditiously and without any loss of time. It is also pointed out that the Apex Court found delay of even 35 days to be reasonable when property explained. The whole record is available in Court for perusal of the Court to verify the same. Day-to-day proceedings were read out to show that not a single day was wasted in deciding the representation of the detenu. The matter had to be referred to the Collector (Customs), at Jodhpur, since the matter was initially also dealt by him. Thereafter, it was also referred to the Chief Minister, who is also Home Minister, for taking final decision, on the same. It shows that the representation was considered carefully and there was full application of mind, before it was rejected. It is further pointed that the order of detention was passed under Section 10 of the COFEPOSA Act, on August 3, 1990, on the basis of opinion of the Advisory Board, which was served on the detenu on August 10, 1990. It is also submitted that even a single incident is enough to detain a person under the provisions of the COFEPOSA Act. It is pointed out that retraction of the statement given by the detenu under Section 108 of the Customs Act has no material bearing at this stage when the order of detention has been passed and such statement in any case is relevant while considering to pass such an order. It is further pointed out that even when a person is already in custody under some offence, the detention order passed under the provisions of the COFEPOSA Act cannot be assailed on the Ground that it could not have been passed, while the detenu was already in jail.
(3.) WE have heard both the parties and also gone through the documents on records. One of the ground raised by the petitioner is that the detenu was held in custody, therefore, question of passing any order under the provisions of section 3 (1) of the COFEPOSA Act did not arise. This order is passed with a view to prevent a person from indulging in any smuggling activities etc. in future. It was, therefore, urged that while passing detention order, it has been not disclosed whether there was any possibility of petitioner being released on bail or otherwise from jail to show that it was necessary to pass the order of detention under the provisions of Section 3 (1) of the COFEPOSA Act. Thus, there was no application of mind on this aspect of the matter. It was urged by the learned Additional Advocate-General that a bare perusal of the detention order will show that all necessary facts have been mentioned & considered and that the order of detention was passed after the respondent No. 1 was fully satisfied in this respect. This shows that such an order could be passed only after application of mind. It is common ground that the order of detention was passed while the detenu was already in jail. There is no doubt that even when a person is in custody or in jail, a detention order can be passed under the provisions of Section 3 (1) of the COFEPOSA Act. It may also be mentioned that satisfaction of the Detaining Authority, while passing an, order under the provisions of Section 3 (1) of the COFEPOSA Act, refers to its subjective satisfaction. While considering this aspect of the matter, a constitution Bench of the Apex Court in Rameshwar V. District Magistrate, Burdwan (1), held as under:- Where a person is undergoing imprisonment for a very short time and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether his detention 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 actually released. On the other hand, if a person is sentenced to a long terms of imprisonment, the authority cannot pass an order soon after the sentence is pronounced, directing the detention of the person after he is released from jail at the end of the long period of sentence imposed on him. Therefore, the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. " It was further held that: - At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under S3 (l) (a), and this basis is clearly absent in the case of a person already in jail custody. Therefore, the detention of the person in the circumstances of this case, is not justified by S. 3 (1) (a) and is outside its purview. The District Magistrate, who orders the detention of the detenu acts outside his powers conferred on him by S. 3 (1) (a) when he holds that it was necessary to detain the person in order to prevent him from acting in a prejudicial manner. " It may be stated that order of detention is resorted to prevent or thwart future action. If the detenu is already in custody charged with sane serious offence, he is naturally prevented from acting in a way which may be prejudicial to the security of the State. In such a case, when the person is already in jail custody, it is necessary that the detaining authority should disclose awareness of the fact that the person against whom order of preventive detention is made, is in jail custody to the knowledge of the authority, but for compelling reasons inspite of his being in jail custody, it was essential to pass a preventive detention order. We have carefully gone through the detention order dated May 7,1990 (Annex. 2) and order dated 3. 8. 90 (Annex. 5), by which the order Annex. 2 confirmed. These orders do not even make a mention of the fact that the person is already in jail custody. Therefore, the question of disclosing compelling reasons for passing the preventive detention order against the detenu does not arise. In Vijay Kumar vs. State of Jammu & Kashmir (2), the detention order was quashed, because it did net give any slightest indication that the detaining authority was aware that the detenue was already in jail. It may be mentioned that in similar circumstances, in Binol Singh v. District Magistrate, Dhanbad, Bihar (3), it was held by the Apex Court hat the detention order was invalid, because the jail custody of the detenu at the time of service of the order as also the prospect of his release were not considered while making the detention order. It was held that the detention order was invalid on the ground of non-application of mind these relevant factors even if the detention was otherwise justified. In N, Meera Rani v. Government of Tamil Nadu (4), it was held by the Apex Court as under:- 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 he security of the State or to the maintenance of 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. " In this case, the appeal was allowed and the detention order was quashed. The learned Additional Advocate-General referred the case of Shri M. Mohammed Sulthan v. The Joint Secretary to Government of India (5 ). This was a matter, in which the order granting bail subject to certain conditions had been duly considered by the detaining authority, as was evident from the grounds of detention itself. The contention of the petitioner that application for relaxation of conditions of bail and the order relaxing the conditions of bail passed by the Additional Chief Metropolitan Magistrate were not material documents and should not have been considered before passing the order of detention, was repelled by the Apex Court. It was held that the order of preventive detention was founded on a reasonable prognosis of the future behaviour, therefore, the writ petition was dismissed. This authority is, therefore, not applicable to the facts and circumstances of the matter under consideration. The above referred settled proposition of law is fully applicable to the matter under consideration. Neither in the grounds of detention nor in the order of detention, there is any mention that the detenu would act prejudicially if he is not detained and the detaining authority did not show any awareness of the fact of the detenu being already in custody, It also did not consider that he was likely to be released and, therefore, it was necessary to detain him. Since the order of detention is liable to be quashed on this ground alone, we need not express any opinion on other grounds raised in the petition. Consequently, the petition is allowed, the order of detention dated 7. 5. 90 (Annex. 2) and order dated 3. 8. 90 (Annex. 5), by which the order Annex. 2 was confirmed, passed by the Commissioner and Secretary, Home Department, Government of Rajasthan, are quashed & set aside. However, it is made clear that this order shall not have any effect on the custody of the detenu in connection with any other case, pending against him. It is further made clear that, in case, the detenu is released in any other case pending against him, the respondents can consider the question of preventive detention order on the above material, in accordance with law and this order shall not cause any prejudice for any such purpose. Costs made easy. . ;