W.P.(CRL.) 1840/2019 Page 1 of 23

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On : 26.07.2019

Judgment Pronounced On : 02.08.2019

W.P.(CRL) 1840/2019, CRL.M.A.13331/2019 & CRL.M.(BAIL)

1186/2019

ANKIT ASHOK JALAN ..... Petitioner

versus

UNION OF INDIA ..... Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. Vikram Chaudhri, Sr. Advocate and Mr. Saurabh Kirpal, Sr.

Advocate with Mr. Ashish Batra, Mr. Wattan Sharma, Mr.

Sarthak Sahdev, Mr. Harshit Sethi and Mrs. Aanchal, Advocates

For the Respondent : Ms. Maninder Acharya, ASG with Mr. Vinod Diwakar, Mr.

Ayush Sharma, Mr. Harshul Choudhary, Ms. Ikshita Singh and

Mrs. Sakshi Singh, Advocates

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

HON'BLE MR. JUSTICE BRIJESH SETHI

J U D G M E N T

SIDDHARTH MRIDUL, J

1.The present writ petition under Article 226 of the Constitution

of India read with Section 482 of the Code of Criminal Procedure,

1973 essentially in the nature of writ of habeas corpus, has been

instituted by Ankit Ashok Jalan, seeking quashing and setting aside of

the impugned detention orders bearing Nos.PD-12001/34/2019-

W.P.(CRL.) 1840/2019 Page 2 of 23

COFEPOSA and PD-12001/35/2019-COFEPOSA dated 01.07.2019

issued against his father Ashok Kumar Jalan as well his brother Amit

Jalan (hereinafter referred to as ‘the detenus’) respectively, and to set

them at liberty forthwith.

2.The facts as are relevant for the adjudication of the present

proceeding are briefly encapsulated as follows:-

(i)In the light of specific intelligence, the Directorate of

Revenue Intelligence, Kolkata Zonal Unit (for short

‘DRI’) intercepted one “Anand” on 09.06.2019 near

Dankuni Toll Plaza, West Bengal, while he was travelling

on a bus from Siliguri to Kolkata, carrying 8 Kgs. of gold

of foreign origin valued at Rs.2.71 crores approximately.

(ii)The said Anand, vide his statements recorded on

09.06.2019 and 10.06.2019 indicated that, he had been

engaged by the detenus to receive the 8 bars of smuggled

gold from Indo-Bhutan border at Jaigaon from an

unknown person, to be transported and delivered to

Kolkata and Delhi.

(iii)As per the detenus, they were apprehended by officers of

DRI on 10.06.2019 at about 2.00 p.m. at the Food Court

W.P.(CRL.) 1840/2019 Page 3 of 23

of Quest Mall,33, Syed Amir Ali Avenue, Park Circus,

Beck Bagan Row, Kolkata, West Bengal-700017 and

taken to the latter’s office.

(iv)The detenus’ self-incriminating confessions were

purportedly obtained under Section 108 of the Customs

Act, 1962 (hereinafter referred to as ‘the said Act’) and

they were formally shown as arrested on 11.06.2019

under the provisions Section 104 of the said Act.

(v)Thereafter the detenus were produced before the court of

Judicial Magistrate on 12.06.2019.

(vi)Vide order dated 12.06.2019 in Misc.67/2019, the learned

CMM, Kolkata rejected the prayer of bail made on behalf

of the detenus and remanded them to judicial custody till

18.06.2019. However, in view of the contention made on

behalf of the detenus in relation to their illegal detention

by the office of DRI on 10.06.2019, as aforestated, the

learned CMM directed the office of the Cyber Police

Station, Kolkata to obtain the relevant CCTV footage of

the Food Court at Quest Mall, Kolkata.

(vii)The detenus remand to custody has been extended from

W.P.(CRL.) 1840/2019 Page 4 of 23

time to time up to date.

(viii)Whilst the detenus were in custody, as aforestated, the

detention orders impugned in the present petition were

rendered by the Detaining Authority on 01.07.2019.

(ix)The impugned detention orders were served on both the

detenus on 02.07.2019, and the relied upon documents

(for short ‘RUD’) with the list of documents were served

upon them on 04.07.2019.

(x)In the case of both the documents, a document at

Sl.No.30 in the list of RUD served upon them, is

purported to be a copy of the ‘retraction petition’ in

respect of said Anand. It is an admitted position that, the

said document at Sl.No.30, which is purported to be a

‘retraction petition’ is actually a copy of the bail

application, filed by the said Anand.

(xi)The detenus filed their representations dated 07.07.2019,

under Article 22(5) of the Constitution of India read with

Section 3(3) of the Conservation of Foreign Exchange

and Prevention of Smuggling Activities Act, 1974

(hereinafter referred to as ‘COFEPOSA’), addressed to

W.P.(CRL.) 1840/2019 Page 5 of 23

the Detaining Authority, against the impugned detention

orders, through the jail authorities.

3.Mr. Vikram Chaudhri, learned Senior Counsel appearing on

behalf of the detenus vehemently assails the impugned orders, as

being the mereipse dixitof the Detaining Authority and issued

mechanically, without due application of mind and also without any

compelling reason and further without pointing out any cogent

material for the alleged satisfaction, on the grounds that:-

(a)Despite the detenus already being in judicial custody,

when the same was rendered; and there being no

imminent possibility of their being released on bail; nor

any material relied upon therein to raise an apprehension

that they may be so released in the near future – since no

bail application was pending – the same areex facie

illegal and without any basis; and

(b)The RUD’s have not been perused by the Detaining

Authority, inasmuch as, the retraction petition of the said

Anand, which is a vital document, has neither been

placed before the Detaining Authority nor considered by

it, in accordance with law; the document purported to be

W.P.(CRL.) 1840/2019 Page 6 of 23

a copy of the ‘retracted petition’ in respect of the said

Anand, placed at Sl.No.30 of the list of RUD, is actually

the latter’s bail application, and thus the subjective

satisfaction is sham, erroneous and incomplete; and,

therefore, violative of the detenus’ right to effective

representation as mandated and guaranteed by the

Constitution, by law. .

4.In order to buttress his submissions, Mr. Vikram Chaudhri,

learned Senior Counsel has placed reliance on the following

decisions:-

(i)T.V. Sravanan alias S.A.R. Prasana Venkatachaariar

Chaturvedi vs. State Through Secretary and Another

reported as(2006) 2 SCC 664.

(ii)Rekha vs. State of Tamil Nadu Through Secretary to

Government and Anotherreported as(2011) 5 SCC 244.

(iii)Navpreet Kaur Chadha vs. UOI & Anotherreported as

(2013) 2 DLT (Cri) 795.

(iv)Sandhya Jain vs. Union of India & Anotherreported as

(2017) 3 DLT (Cri) 555

5.On the other hand, Ms. Maninder Acharya, learned Additional

Solicitor General appearing on behalf of Union of India would raise a

preliminary objection to the effect that, the present habeas corpus

should not be considered at this stage, since the detenus’

representations thereagainst are pending consideration before the

W.P.(CRL.) 1840/2019 Page 7 of 23

Advisory Board, which is empowered by law to consider the validity

thereof.

6.By inviting our attention to the paragraph Nos.1 to 9 of the

detention order, it would also be urged by Ms. Maninder Acharya,

learned ASG that, there was cogent material before the Detaining

Authority to arrive at the subjective satisfaction that the detenus were

likely to be released from judicial custody and that there was

likelihood of their continuing to indulge in the prejudicial activities.

In this behalf it was stated that, the material on record unerringly

pointed to the propensity of the detenus to continue with their

prejudicial activities.

7.Our attention was invited to the following decisions, in support

of the foregoing contentions:-

(i)Haradhan Saha vs. The State of West Bengal and

Othersreported as(1975) 3 SCC 198

(ii)Union of India and Anr. vs. Dimple Happy Dhakadin

Criminal Appeal No.1064/2019 arising out of SLP

(Crl.) 5459/2019decided by the Hon’ble Supreme Court

on 18.07.2019.

8.Before we proceed to consider the submissions made on behalf

of the parties, it would be appropriate to extract the necessary

paragraphs of the impugned orders, relevant to the determination of

the issues before us, and the same are reproduced hereinbelow:-

W.P.(CRL.) 1840/2019 Page 8 of 23

“xvi. You i.e. Shri Ashok Kumar Jalan and Amit Jalan were

arrested under Section 104 of the Customs Act, 1962 on

11.06.2019, as both of you appeared to be guilty of offence

punishable under Section 135 of the Customs Act, 1962

and were produced before the Ld. Chief Metropolitan

Magistrate, Kolkata on 12.06.2019, within 24 hrs of their

arrest. The Ld. Chief Metropolitan Magistrate, Kolkata

after hearing the accused from time to time was pleased to

remand both of you to Judicial Custody, till 2.07.2019 and

both of you are presently lodged at Presidency Correctional

Home, Kolkata.

xvii. Petition have been filed on behalf of you i.e. Shri Ashok

Kumar Jalan and Shri Amit Jalan before the Ld. Chief

Metropolitan Magistrate, Kolkata, retracting their

statements given before DRI officers.

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

xxxi. It is on record vide letter F.No.T-23/7/Cal/95/Part dated

24.06.2019 of the Joint Director, Office of the Special

Director, Eastern Region, Enforcement Directorate,

Kolkata that you i.e. Shri Ashok Kumar Jalan alias Pappu

Jalan S/o Late Madan Lal Jalan was detained in Presidency

Jail on 2.10.1994 under COFEPOSA Act, 1974 vide

Detention Order No.673/160/94 dated 22.09.1994.

Subsequently the detention order was quashed by Hon’ble

Calcutta High Court and you i.e. Ashok Kumar Jalan were

released from jail on 23.12.1994. In another case a

Detention Order No.673/14/2002 – Cus VII

dated 20.05.2002 under COFEPOSA Act, 1974 was issued

against you i.e. Shri Ashok Kumar Jalan alias Pappu and

you were detained on 13.06.2002. Subsequently the said

detention order was revoked by Central Government vide

Order dated 21.08.2002 on the basis of opinion of the

COFEPOSA Advisory Board.

2. In view of the facts, circumstances, findings corroborative

evidence and your role in the whole operation, I am

satisfied that you i.e. Shri Ashok Kumar Jalan are a key

person and mastermind of a syndicate and ably assisted by

your nephew Shri Amit Jalan involved in smuggling of

gold and foreign currency. You along with your associates,

are in the habit of repeatedly smuggling goods into India

from abroad without declaring the same before the

W.P.(CRL.) 1840/2019 Page 9 of 23

Customs Authorities and paying applicable duty which

amounts “smuggling” in terms of Section 2 of the Customs

Act, 1962. The underlying common threat is your

propensity to smuggle goods for making illicit profit and

putting the National economy into danger which needs to

be curbed and you need to be prevented from indulging in

such activities further.

3. I am satisfied that you i.e. Shri Ashok Kumar Jalan have

indulged in activities amounting to smuggling in terms of

Section 2(39) of Customs Act, 1962 and Section 2(e) of

COFEPOSA Act, 1974 and your acts of deliberate

commissions and omissions have rendered the goods

involved liable to confiscation under the Customs Act,

1962.

4. I am satisfied that, as evidenced above and as discussed in

the foregoing paras, you i.e. Shri Ashok Kumar Jalan have

shown a repeated habit and propensity to indulge in

fraudulent activities by way of smuggling goods, abetting

the smuggling of goods and dealing in smuggled goods

otherwise than by engaging in transporting or concealing or

keeping smuggled goods at the cost of government revenue

and national security and with the clear motive of enriching

yourself with no concern to the general economy and the

national security interests.

5. In view of the facts and circumstances explained above, I

have no hesitation in concluding that you i.e. Shri Ashok

Kumar Jalan played a vital role in smuggling of gold from

abroad along with other accomplices. You have also

designed plan in an organized and repeated manner in the

act of smuggling. Investigation done by DRI Kolkata

clearly establishes your continued propensity and

inclination to indulge in acts of smuggling in a planned

manner to the detriment of the economic security of the

country and that unless prevented you i.e. Shri Ashok

Kumar Jalan will continue to do so. Further considering

the nature and gravity of offence in an organized manner in

which you i.e. Shri Ashok Kumar Jalan have engaged

yourself in such prejudicial activities and your role therein,

all of which reflect your high potentiality and propensity to

indulge in such prejudicial activities in future, I am

satisfied that there is a need to prevent you i.e. Shri Ashok

Kumar Jalan from smuggling goods. Hence, you i.e. Shri

Ashok Kumar Jalan ought to be detained under the

W.P.(CRL.) 1840/2019 Page 10 of 23

Conservation of Foreign Exchange and Prevention of

Smuggling Activities (COFEPOSA) Act, 1974 with a view

to preventing you from smuggling goods, abetting the

smuggling of goods and dealing in smuggled goods

otherwise than by engaging in transporting or concealing or

keeping smuggled goods in terms of Section 3(1) of the

COFEPOSA Act, 1974.

6. I am aware that prosecution under Section 135 of the

Customs Act, 1962 may be launched against you and

adjudication proceedings are also likely to be initiated

soon, which are however, punitive in nature and

independent of the preventive detention provided under the

COFEPOSA Act, 1974. However, considering your i.e.

Shri Ashok Kumar Jalan high propensity to indulge in the

prejudicial activities, I am satisfied that in the meantime

you should be immobilized by detention under the

COFEPOSA Act, 1974 with a view to prevent you from

smuggling goods, abetting the smuggling of goods and

dealing in smuggled goods otherwise than by engaging in

transporting or concealing or keeping smuggled goods in

future.

7. I am aware that you i.e. Shri Ashok Kumar Jalan are in

Judicial custody at present at Presidency Correctional

Home, Alipore, Kolkata. However, there is an

immediate possibility of your release from judicial

custody and if you are released on bail,you are likely to

continue to indulge in the prejudicial activities and

therefore there is a need to issue a Detention Order against

you under the COFEPOSA Act, 1974 with a view to

prevent you from smuggling of gold and foreign currency

in future.”

9.A perusal of the above extracted grounds of detention and in

particular paragraph 7 thereof, clearly reflects that, it is completely

bereft of any material expressed therein for the Detaining Authority to

arrive at the conclusion to the effect that ‘there is immediate

possibility of your release from judicial custody’. Further, as is

axiomatic from a reading of the same paragraph, the Detaining

W.P.(CRL.) 1840/2019 Page 11 of 23

Authority was aware that the detenus were in judicial custody at the

Presidency Correctional Home, Alipore, Kolkata, at the time of

passing of the impugned order.

10.In our opinion, in the absence of cogent material, the statement

in the grounds of detention regarding the alleged imminent possibility

of the detenus’ coming out on bail, is mereipse dixit, untenable and

without any cogent basis, and consequently has to be ignored. In our

considered view, therefore, in the absence of reliable material to this

effect, the detention order is vitiated and cannot be sustained.

11.We are supported in this behalf by the dictum of the Supreme

Court in the three Judge Bench decision inRekha(supra),and in

particular paragraphs 7,8,9,10,11,13,26,27,28,29,35 and 36, which

read as under:-

“7.A perusal of the above statement in Para 4 of the grounds

of detention shows that no details have been given about the

alleged similar cases in which bail was allegedly granted by the

court concerned. Neither the date of the alleged bail orders has

been mentioned therein, nor the bail application number, nor

whether the bail orders were passed in respect of the co-accused on

the same case, nor whether the bail orders were passed in respect

of other co-accused in cases on the same footing as the case of the

accused. All that has been stated in the grounds of detention is that

“in similar cases bails were granted by the courts”. In our opinion,

in the absence of details this statement is mere ipse dixit, and

cannot be relied upon. In our opinion, this itself is sufficient to

vitiate the detention order.

8. It has been held inT.V. Sravananv.State[(2006) 2 SCC

664 : (2006) 1 SCC (Cri) 593] ,A. Shanthiv.Govt. of T.N.[(2006)

W.P.(CRL.) 1840/2019 Page 12 of 23

9 SCC 711 : (2006) 3 SCC (Cri) 371] ,Rajesh Gulativ.Govt. of

NCT of Delhi[(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] , etc. that

if no bailapplication was pending and the detenu was already,

in fact, in jail in a criminal case, the detention order under the

preventive detention law is illegal. These decisions appear to

have followed the Constitution Bench decision inHaradhan

Sahav.State of W.B.[(1975) 3 SCC 198: 1974 SCC (Cri) 816]

wherein it has been observed: (SCC p. 209, para 34):

“34. …where the person concerned is actually in jail

custody at the time when an order of detention is passed

against him and is not likely to be released for a fair

length of time, it may be possible to contend that there

could be no satisfaction on the part of the detaining

authority as to the likelihood of such a person indulging

in activities which would jeopardise the security of the

State or public order.”

9. On the other hand, Mr Altaf Ahmed, learned Senior

Counsel appearing for the State of Tamil Nadu, has relied on the

judgments of this Court inA. Geethav.State of T.N.[(2006) 7

SCC 603 : (2006) 3 SCC (Cri) 324] andIbrahim Nazeerv.State of

T.N.[(2006) 6 SCC 64 : (2006) 3 SCC (Cri) 17] wherein it has

been held that even if no bail application of the petitioner is

pending but if in similar cases bail has been granted, then this is a

good ground for the subjective satisfaction of the detaining

authority to pass the detention order.

10.In our opinion, if details are given by the respondent

authority about the alleged bail orders in similar cases mentioning

the date of the orders, the bail application number, whether the bail

order was passed in respect of the co-accused in the same case, and

whether the case of the co-accused was on the same footing as the

case of the petitioner, then, of course, it could be argued that there

is likelihood of the accused being released on bail, because it is the

normal practice of most courts that if a co-accused has been

granted bail and his case is on the same footing as that of the

petitioner, then the petitioner is ordinarily granted bail. However,

the respondent authority should have given details about the

alleged bail order in similar cases, which has not been done in the

present case. A mere ipse dixit statement in the grounds of

detention cannot sustain the detention order and has to be ignored.

11.In our opinion, the detention order in question only

contains ipse dixit regarding the alleged imminent possibility

W.P.(CRL.) 1840/2019 Page 13 of 23

of the accused coming out on bail and there was no reliable

material to this effect. Hence, the detention order in question

cannot be sustained.

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

13.In our opinion, Article 22(3)(b) of the Constitution of India

which permits preventive detention is only an exception to Article

21 of the Constitution. An exception is an exception, and cannot

ordinarily nullify the full force of the main rule, which is the right

to liberty in Article 21 of the Constitution. Fundamental rights are

meant for protecting the civil liberties of the people, and not to put

them in jail for a long period without recourse to a lawyer and

without a trial. As observed inR.v.Secy. of State for the Home

Deptt., ex p Stafford[(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-

G)

“ … The imposition of what is in effect a substantial term

of imprisonment by the exercise of executive discretion,

without trial, lies uneasily with ordinary concepts of the

rule of law.”

Article 22, hence, cannot be read in isolation but must be read as

an exception to Article 21. An exception can apply only in rare and

exceptional cases, and it cannot override the main rule.

26.It was held inUnion of Indiav.Paul Manickam[(2003) 8

SCC 342 : 2004 SCC (Cri) 239] that if the detaining authority is

aware of the fact that the detenu is in custody and the detaining

authority is reasonably satisfied with cogent material that there is

likelihood of his release and in view of his antecedent activities he

must be detained to prevent him from indulging in such prejudicial

activities, the detention order can validly be made.

27.In our opinion, there is a real possibility of release of a

person on bail who is already in custodyprovided he has moved a

bail application which is pending.It follows logically that if no

bail application is pending, then there is no likelihood of the

person in custody being released on bail, and hence the

detention order will be illegal.However, there can be an

exception to this rule, that is, where a co-accused whose case

stands on the same footing had been granted bail. In such cases,

the detaining authority can reasonably conclude that there is

likelihood of the detenu being released on bail even though no bail

W.P.(CRL.) 1840/2019 Page 14 of 23

application of his is pending, since most courts normally grant bail

on this ground. However, details of such alleged similar cases must

be given, otherwise the bald statement of the authority cannot be

believed.

28.Mr Altaf Ahmed, learned Senior Counsel, further submitted

that we are taking an overtechnical view of the matter, and we

should not interfere with the preventive detention orders passed in

cases where serious crimes have been committed. We do not agree.

29.Preventive detention is, by nature, repugnant to

democratic ideas and an anathema to the rule of law. No such

law exists in the USA and in England (except during war time).

Since, however, Article 22(3)(b) of the Constitution of India

permits preventive detention, we cannot hold it illegal but we

must confine the power of preventive detention within very

narrow limits, otherwise we will be taking away the great right

to liberty guaranteed by Article 21 of the Constitution of India

which was won after long, arduous and historic struggles. It

follows, therefore, that if the ordinary law of the land (the

Penal Code and other penal statutes) can deal with a situation,

recourse to a preventive detention law will be illegal.

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

35.It must be remembered that in cases of preventive detention

no offence is proved and the justification of such detention is

suspicion or reasonable probability, and there is no conviction

which can only be warranted by legal evidence. Preventive

detention is often described as a “jurisdiction of suspicion”

(videState of Maharashtra v.Bhaurao Punjabrao

Gawande[(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128] , SCC para

63). The detaining authority passes the order of detention on

subjective satisfaction. Since clause (3) of Article 22 specifically

excludes the applicability of clauses (1) and (2), the detenu is not

entitled to a lawyer or the right to be produced before a Magistrate

within 24 hours of arrest. To prevent misuse of this potentially

dangerous power the law of preventive detention has to be strictly

construed and meticulous compliance with the procedural

safeguards, however technical, is, in our opinion, mandatory and

vital.

36.It has been held that the history of liberty is the history of

procedural safeguards. (SeeKamleshkumar Ishwardas

W.P.(CRL.) 1840/2019 Page 15 of 23

Patelv.Union of India[(1995) 4 SCC 51 : 1995 SCC (Cri) 643]

vide para 49.) These procedural safeguards are required to be

zealously watched and enforced by the court and their rigour

cannot be allowed to be diluted on the basis of the nature of the

alleged activities of the detenu. As observed inRattan

Singhv.State of Punjab[(1981) 4 SCC 481 : 1981 SCC (Cri) 853]

: (SCC p. 483, para 4)

“4. … May be that the detenu is a smuggler whose tribe

(and how their numbers increase!) deserves no sympathy

since its activities have paralysed the Indian economy. But

the laws of preventive detention afford only a modicum of

safeguards to persons detained under them, and if freedom

and liberty are to have any meaning in our democratic set

up, it is essential that at least those safeguards are not

denied to the detenus.”

12.A similar view was also expressed by a Division Bench of the

Supreme Court inT.V. Sravanan(supra)in paragraphs 6,7,8,9,12,13

and 14. The same are extracted hereinbelow:-

“6.Before us the same submission was advanced as was

advanced before the High Court. However, Shri K.T.S. Tulsi,

learned Senior Counsel appearing for the appellant, in addition to

the aforesaid submission, advanced a second submission that in the

facts and circumstances of the case, as is evident from the record

itself as well as the order of detention, the appellant was already in

custody when the order of detention was passed. There was no

imminent chance of his being released on bail and yet the detaining

authority, even in the absence of any material to raise an

apprehension that he may be released on bail in near future and

continue with his nefarious activities, passed the impugned order

of detention. In our view having regard to the material on record it

is not necessary to consider the first ground of challenge, since the

second ground of challenge must succeed. It may be useful to

notice the relevant part of the detention order which deals with this

aspect of the matter. It reads as follows:

“I am aware that Thiru Venkata Sravanan alias S.A.R.

Prasanna Venkatachariyar Chaturvedi is in remand in

Central Crime Branch, Crime Nos. 582 of 2004, 592 of

W.P.(CRL.) 1840/2019 Page 16 of 23

2004, 594 of 2004, 598 of 2004, 601 of 2004 and 602 of

2004 and a bail application was moved before the Principal

Sessions Court in Crl. MP No. 11163 of 2004 in Central

Crime Branch, Crime No. 582 of 2004 and the same was

dismissed on 17-11-2004. Further a bail application was

moved before the Hon'ble High Court, Madras in Crl. OP

No. 37011 of 2004 in Central Crime Branch, Crime No.

582 of 2004 and the same was withdrawn on 3-12-2004. He

has not moved any bail subsequently. However, there is

imminent possibility of his coming out on bail by filing

another bail application before the Principal Sessions Court

or the Hon'ble High Court since in similar cases bails are

granted by the Principal Sessions Court after a lapse of

time. If he comes out on bail, he will indulge in further

activities which will be prejudicial to the maintenance of

public order.”

7. The question is whether on the basis of such material, an

order of detention was justified, even though the appellant was in

custody on the date of issuance of the order of detention. The

principle in this regard is well settled. InRameshwar

Shawv.District Magistrate, Burdwan[(1964) 4 SCR 921 : AIR

1964 SC 334 : (1964) 1 Cri LJ 257] this Court observed: (SCR pp.

929-30)

“[12.] As an abstract proposition of law, there may not be

any doubt that Section 3(1)(a) does not preclude the

authority from passing an order of detention against a

person whilst he is in detention or 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. … 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 in jail, will always

have to be determined in the circumstances of each case.”

8. The principle was further elucidated in Binod

Singhv.District Magistrate, Dhanbad[(1986) 4 SCC 416 : 1986

SCC (Cri) 490] in the following words: (SCC pp. 420-21, para 7)

“7. It is well settled in our constitutional framework that the

power of directing preventive detention given to the

appropriate authorities must be exercised in exceptional

cases as contemplated by the various provisions of the

W.P.(CRL.) 1840/2019 Page 17 of 23

different statutes dealing with preventive detention and

should be used with great deal of circumspection. There

must be awareness of the facts necessitating preventive

custody of a person for social defence. 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 into

consideration by the detaining authority properly and

seriously before the service of the order. A bald statement

is merely an ipse dixit of the officer. If there were cogent

materials for thinking that the detenu might be released

then these should have been made apparent. Eternal

vigilance on the part of the authority charged with both law

and order and public order is the price which the

democracy in this country extracts from the public officials

in order to protect the fundamental freedoms of our

citizens.”

9. InKamarunnissav.Union of India[(1991) 1 SCC 128 :

1991 SCC (Cri) 88] this Court observed: (SCC p. 140, para 13)

“13. From the catena of decisions referred to above it

seems clear to us that even in the case of a person in

custody a detention order can validly be passed (1) if the

authority passing the order is aware of the fact that he is

actually in custody; (2) if he has reason to believe on the

basis of reliable material placed before him (a) that there is

a real possibility of his being released on bail, and (b) that

on being so released he would in all probability indulge in

prejudicial activity; and (3) if it is felt essential to detain

him to prevent him from so doing. If the authority passes

an order after recording his satisfaction in this behalf, such

an order cannot be struck down on the ground that the

proper course for the authority was to oppose the bail and if

bail is granted notwithstanding such opposition to question

it before a higher court.”

xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

W.P.(CRL.) 1840/2019 Page 18 of 23

12.The order of detention itself notices the fact that the

appellant had moved an application for grant of bail before the

Principal Sessions Court which was rejected on 17-11-2004. The

appellant had moved another bail application before the High

Court which was withdrawn on 3-12-2004. The detaining authority

noticed that the appellant had not moved any bail application

subsequently but it went on to state that there was imminent

possibility of the appellant 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 on 15-12-2004

i.e. merely 12 days after the dismissal of the bail application by the

High Court. There is nothing on record to show that the appellant

had made any preparation for filing a bail application, or that

another bail application had actually been filed by him which was

likely to come up for hearing in due course.

13.A somewhat similar reasoning was adopted by the detaining

authority inRajesh Gulativ.Govt. of NCT of Delhi[(2002) 7 SCC

129 : 2002 SCC (Cri) 1627] . This Court noticing the facts of the

case observed: (SCC pp. 133-34, para 13)

“13. In this case, the detaining authority's satisfaction

consisted of two parts—one: that the appellant was likely to

be released on bail and two: that after he was so released

the appellant would indulge in smuggling activities. The

detaining authority noted that the appellant was in custody

when the order of detention was passed. But the detaining

authority said that ‘bail is normally granted in such cases’.

When in fact the five applications filed by the appellant for

bail had been rejected by the courts (indicating that this

was not a ‘normal’ case), on what material did the

detaining authority conclude that there was ‘imminent

possibility’ that the appellant would come out on bail? The

fact that the appellant was subsequently released on bail by

the High Court could not have been foretold. As matters in

fact stood when the order of detention was passed, the

‘normal’ rule of release on bail had not been followed by

the courts and it could not have been relied on by the

detaining authority to be satisfied that the appellant would

be released on bail. (See in this contextRamesh

Yadavv.District Magistrate, Etah[(1985) 4 SCC 232 :

1985 SCC (Cri) 514] , AIR at p. 316.)”

14.We are satisfied that for the same reason the order of

detention cannot be upheld in this case. The bail applications

W.P.(CRL.) 1840/2019 Page 19 of 23

moved by the appellant had been rejected by the courts and

there was no material whatsoever to apprehend that he was

likely to move a bail application or that there was imminent

possibility of the prayer for bail being granted. The “imminent

possibility” of the appellant coming out on bail is merely the

ipse dixit of the detaining authority unsupported by any

material whatsoever. There was no cogent material before the

detaining authority on the basis of which the detaining

authority could be satisfied that the detenu was likely to be

released on bail. The inference has to be drawn from the

available material on record. In the absence of such material

on record the mere ipse dixit of the detaining authority is not

sufficient to sustain the order of detention. There was,

therefore, no sufficient compliance with the requirements as

laid down by this Court.These are the reasons for which while

allowing the appeal we directed the release of the appellant by

order dated 13-12-2005.”

14.From a conjoint reading of the above extracted paragraphs, as

well as, the decisions of Co-ordinate Benches of this Court in

Navpreet Kaur Chadha(supra)andSandhya Jain(supra), it is clear,

categorical and unequivocal that the settled position of law is that

when the detenus are in judicial custody and there is no imminent

possibility of their release on bail and even no bail applications are

pending, the power of preventive detention ought not to be exercised.

15.The decision of the Hon’ble Supreme Court inDimple Happy

Dhakad(supra),relied upon on behalf of the Detaining Authority,

does not come to their aid, inasmuch as, it was clearly expressed by

the Hon’ble Supreme Court in that case as well that the satisfaction of

the Detaining Authority, that the detenu may be released on bail,

W.P.(CRL.) 1840/2019 Page 20 of 23

cannot be the mereipse dixitof the Detaining Authority, and that the

Guideline No.24 (Part-A of Don’s) of the ‘Hand Book on Compilation

of Instructions on COFEPOSA Matters’ clearly stipulates that, when

the detenu is in judicial custody, the Detaining Authority has to record

in the grounds of detention its awareness thereof and then indicate the

reasons for the satisfaction that there is imminent possibility of his

release from the custody.

16.Insofar as, the threshold objection raised on behalf of the

official respondent to the effect that, in view of the pendency of the

representations before the Advisory Board – which has adequate

powers to examine the entire material – the present writ petition ought

not to be determined at this stage is concerned, the same cannot be

countenanced in view of the decision of the Hon’ble Supreme Court

Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad City

and Anotherreported as1989 Supp (1) SCC 322and in particular

paragraphs 6 and 7 thereof, wherein it was observed as follows:-

“6.At this stage, it may be stated that the representation of the

petitioner is pending before the Advisory Board. The question that

has been raised on behalf of the respondents is whether in view of

the pendency of the representation before the Advisory Board, the

writ petition is maintainable under Article 32 of the Constitution.

The question need not detain us long, for it has already been

decided by this Court inPrabhu Dayal Deorahv.District

Magistrate, Kamrup[(1974) 1 SCC 103 : 1974 SCC (Cri) 18 :

1974 Cri LJ 286] . In para 16 of the Report Mathew, J., speaking

W.P.(CRL.) 1840/2019 Page 21 of 23

for himself and Mukherjea, J., observed inter alia as follows :

(SCC pp. 112-13, para 16)

“We think that the fact that the Advisory Board would have

to consider the representations of the petitioners where they

have also raised the contention that the grounds are vague

would not in any way prevent this Court from exercising its

jurisdiction under Article 32 of the Constitution. The

detenu has a right under Article 22(6) of the Constitution to

be afforded the earliest opportunity of making a

representation against the order of detention. That

constitutional right includes within its compass the right to

be furnished with adequate particulars of the grounds of the

detention order. And, if their constitutional right is violated,

they have every right to come to this Court under Article 32

complaining that their detention is bad as violating their

fundamental right. As to what the Advisory Board might do

in the exercise of its jurisdiction is not the concern of this

Court.”

7.In the above observation, this Court has specifically laid down

that even though a representation is pending before the Advisory

Board, the writ petition under Article 32 of the Constitution is

maintainable before this Court. In the circumstances, we may

proceed to dispose of the writ petition on merits.”

17.In the backdrop of the reasons and judicial precedents discussed

above, and the examination of the grounds of detention in the light

thereof, we have no option but to hold that, paragraph 7 and other

paragraphs of the impugned detention orders dated 01.07.2019 do not

meet the criteria and ratio enunciated in the decisions of the Hon’ble

Supreme Court inRekha(supra)andT.V. Sravanan(supra),

inasmuch as, there is a clear lapse and failure on the part of the

Detaining Authority, to examine and consider the germane and

relevant question relating to the imminent possibility of the detenus

W.P.(CRL.) 1840/2019 Page 22 of 23

being granted bail, while recording its subjective satisfaction and

passing the detention orders. The same are, therefore, unsustainable

and liable to be set aside and quashed. We also hold that, the non-

placement of the relevant material, in the form of Anand’s retraction

petition and its non-consideration by the Detaining Authority, also

vitiates the detention order, in terms of the decision of the Hon’ble

Supreme Court inDeepak Bajaj vs. State of Maharashtra and

Anotherreported as(2008) 16 SCC 14and in particular paragraph 31

thereof, wherein it is observed as under:-

“31.Most of the retractions were made to DRI, and it belongs to

the same department as the sponsoring authority, who is the

Additional Director, Revenue Intelligence. Hence, it was the duty

of DRI to have communicated these retractions of the alleged

witnesses to the sponsoring authority, as well as the detaining

authority. There is no dispute that these retractions were indeed

made by persons who were earlier said to have made confessions.

These confessions were taken into consideration by the detaining

authority when it passed the detention order. Had the retractions of

the persons who made these confessions also been placed before

the detaining authority it is possible that the detaining authority

may not have passed the impugned detention order. Hence, in our

opinion, the retractions of the confessions should certainly have

been placed before the detaining authority, and failure to place

them before it, in our opinion, vitiates the detention order.”

18.We resultantly set aside and quash the impugned order Nos.PD-

12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA

dated 01.07.2019 and further direct that, the concerned detenus be

released forthwith, if not required to be detained in any other case, in

W.P.(CRL.) 1840/2019 Page 23 of 23

accordance with law.

19.The writ petition is allowed and disposed of accordingly. The

pending applications also stand disposed of. There shall be no order

as to costs.

SIDDHARTH MRIDUL

(JUDGE)

BRIJESH SETHI

(JUDGE)

AUGUST 02, 2019

dn