JUDGMENT
D.K. Jain, J.
(1) The petitioner was detained by virtue of an order passed on 12 January 1993 by the Lt. Governor of National Capital Territory of Delhi in exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA).
(2) On 6 June 1992 the petitioner, holder of an Indian passport, arrived from Dubai and after completing immigration formalities, opted to walk through the green channel but at the exit gate he was intercepted by an Air Customs Officer and was diverted for screening of his baggage. On examination he was found to be carrying 42 pieces of Gold of 24 carat purity, collectively weighing 500 grams valued at Rs.2,57,500 (M.V.), concealed in brickets of handles of the suitcase and briefcase, in a compact powder box and in a digital alarm clock, belonging to him and these were seized. His passport, air ticket, baggage tags etc. were also impounded. Petitioner’s statement was recorded under Section 108 of the Customs Act, 1962, wherein he is alleged to have admitted the recovery and seizure of the afore noted Gold.
(3) A scrutiny of petitioner’s passport revealed that he had gone abroad for very short durations ranging from 3 days to 6 days on 14 July 1990 (Singapore), 8 August 1990 (Dubai), 29 December 1991 (Dubai) and 3 June 1992 (Dubai). He was arrested and produced in the Court of Addl. Chief Metropolitan Magistrate, New Delhi (for short the Acmm, New Delhi) on 7 June 1992, who remanded him to judicial custody till 20 June 1992, which was further extended up to 10 July 1992. While he was in jail, he made an application dated 25 June 1992 in the Court of Acmm, New Delhi for grant of bail, which was allowed subject to certain conditions on 29 June 1992 and he was released on the same date. A complaint under Sections 132 and 135(1)(a) of the Customs Act was also filed against the petitioner on 2 July 1992 in the Court of Acmm, New Delhi; the Magistrate took cognizance; summoned the petitioner and it appears from the proceedings sheet (annexed to the writ petition) that the petitioner was granted bail on the same date and the trial proceeded.
(4) On these facts the detaining authority viz., the Lt. Governor, came to the conclusion that the petitioner had inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented, he is likely to indulge in smuggling activities in future. He thus felt satisfied that with a view to prevent the petitioner from smuggling, engaging in transporting, concealing and keeping smuggled goods, it was necessary to detain the petitioner and accordingly made the detention order.
(5) It appears that at the pre-detention stage, the petitioner filed a writ petition in the High Court of Punjab & Haryana, seeking quashing of the detention order and the High Court stayed the operation of the detention order till further orders. The writ petition was ultimately dismissed on 13 December 1993, with liberty to the petitioner to challenge his detention after service of grounds of detention on him.
(6) At this stage it may be noticed that between the period from 2 July 1992, the date when the complaint under Sections 132 and 135(1)(a) of the Customs Act had been filed and 9 August 1994, there were 8 effective hearings in the trial court and the petitioner appeared in Court only twice. All this while he was on bail on his personal bond but suddenly, without any cogent reason, he chose to get his bail bond cancelled and for being taken into judicial custody. Interestingly, the reason given in the application seeking cancellation of the bail bond was “that the applicant has learnt that an order of detention is pending against him for execution” when the petitioner had already challenged the detention order himself in the Punjab & Haryana High Court more than a year ago. The order made by the Court at his initiative and in the presence of the Public Prosecutor is self- explanatory and is reproduced below: “26.8.94Present : Accused Kuldip Singh Along with Shri U.K.Sharma, Advocate. P.P. : Sh. Satish Aggarwal. Accused has moved an application for cancellation of bail bond. He wants to surrender although Nbw has not been issued against accused but since the accused has prayed for cancellation of his personal bond. Therefore his personal bond is cancelled. Accused is taken into J.C. Put up on 9.9.1994 for consideration of charge. Till then accused is remanded to J.C. The date 26.9.1994, is cancelled. sd/- 26.8.1994.”
(7) Thus, when the order of detention was served on him on 30 August 1994, the petitioner was in judicial custody.
(8) The petitioner claims to have made a representation on 5 October 1994 to the Central Government to which no reply was received. He moved another representation before the Advisory Board on 27 October 1994 but the same was rejected on 17 November 1994. The petitioner claims to have made yet another representation on 29 October 1994 to the Central Government, to which again no reply is stated to have been received by the petitioner and thereafter the present writ petition was filed on 17 December 1994.
(9) Although in the writ petition the detention of the petitioner has been challenged on various grounds, but before us, Ms. Sangeeta Bhayana, learned counsel for the petitioner has urged only two grounds, viz., (i) the detention of the petitioner is illegal because the detaining authority has failed to take into account a vital fact that before the said order of detention was served on him, he was already in judicial custody and there was no satisfaction recorded by the detaining authority to the effect that there was a possibility of petitioner’s release and the likelihood of his involving himself again in the prejudicial activities, (ii) there is un-explained long delay on the part of the Central Government in disposing of the representations dated 5 October 1994 and 29 November 1994, inasmuch as the same were rejected on 22 December 1994 and 7 February 1995 respectively. In support of the first proposition, reliance is placed on the judgment of the Supreme Court in Binod Singh v. District Magistrate, Dhanbad,Bihar & Ors., 1986 Scc (Crl.) 490 and two recent Bench decisions of this Court in Kimti Lal Sethi v. Lt. Governor & Others, (Crl. Writ Petition No.547/94, decided on 23 November 1994) and Darshan Singh v. Union of India (Crl. Writ Petition No.851/94, decided on 9 February 1995).
(10) In the affidavit filed on behalf of the detaining authority – respondent No.2, it has been stated that since the petitioner chose to surrender before the Acmm, New Delhi on a date which was not the actual date of hearing of the case, the fact of his surrender on 26 August 1994 was not within the knowledge of the detaining authority and hence this aspect could not be taken into consideration. It is further stated in the affidavit and it is also the submission of Mr. P.S.Sharma, learned counsel for the detaining authority that the petitioner’s surrender before the Court of Acmm, New Delhi was a clever device to hoodwink the authorities and, therefore, the decision of the Supreme Court in Binod Singh’s case (supra) and two aforenoted decisions of this Court are not applicable being distinguishable.
(11) Having regard to the proceedings in the Court of Acmm, New Delhi, extracted above, we have little doubt that the purported surrender of the petitioner on 26 August 1994 was stage managed with an ulterior motive to derive some mileage out of it and infact we are surprised to note that even counsel for the Customs was made a party to it. It is indeed intriguing as to how in the absence of any order on the application of the petitioner seeking cancellation of his bail bond, counsel for the Customs could put in appearance in the Court on 26 August 1994 when infact the case was to come up for appearance and framing of charge on 26 September 1994 and further having put in appearance in the Court why the counsel did not inform the Customs authorities about petitioner’s surrender. Though we have nothing on record to doubt the bona fides of the counsel for the Customs in not informing the Customs authorities for which he was appearing, this laxity has led to the vital aspect of surrender being not put on record for consideration of the detaining authority. If apprised about it, the detaining authority could have considered the matter afresh in the light of the detenu being in judicial custody at the appropriate time. Undoubtedly again, there has been lack of coordination between the detaining authority and those entrusted with the execution of the detention “order. When the authorities took steps to serve the order of detention on the petitioner on 30 August 1992 they were in any case aware that he was in judicial custody and that is how the detention order was served on him in jail but still the authorities concerned failed to inform the sponsoring/detaining authority about the factum of petitioner being in judicial custody. This is a matter of concern and we should expect the authorities concerned to look into it with the seriousness it deserves to plug loopholes at all levels, as in the recent past it has come to the notice of the Courts that such modus operandi is being adopted by other detenus as well.
(12) The lack of “co-ordination” between the prosecutor/customs authorities appearing in the Criminal Court and the detaining authority, has been noticed by the Supreme Court in M.Ahamedkutty v. Union of India, (1990) 2 S.C.C. Page 1. In that case the tention order was belatedly served on the petitioner and a contention was raised that the petitioner was appearing in the Criminal Court on certain dates and still the detention order was not served and the detention is to be quashed on the ground of undue delay in execution of the detention order. In that context the Supreme Court referred to lack of “co-ordination” between the prosecutor/customs authorities on the one hand and the detaining authority on the other and observed that the delay occurring on that account could not be treated as undue. The Court observed: “WE may pause here to point out that the circumstances in the present case seem to indicate a certain degree of lack of coordination between the detaining authorities and those entrusted with the execution of the detention order. This is clearly seen from two circumstances in the present case. Though the detention order was sent for service on June 27, 1988, a reminder was issued only on July 19, 1988. Apparently, the Superintendent of Police was finding it difficult to trace the detenu but he did not report this immediately and mentioned it to the detaining authority only on July 27, 1988. He was obviously not aware that, under the terms of the bail order the detenu had to report every week at the customs office. If he had reported his difficulty earlier or if the detaining authority had apprised him of the terms of the bail order, it would have been possible to have had the detention order served earlier. These communication gaps should, we think, be avoided since it is of the very essence of a detention order to have it served at the earliest. While we have accepted the explanation tendered in the present case for this delay, we would like the State to ensure that such delays do not occur as, apart from giving the detenus a ground for attacking the detention order, such delay really tends to frustrate and defeat the very purpose of preventive detention”.
But in the present case the detenu was not at large but was on bail and had surrendered in Criminal Court. It is true that there was no coordination between the cus toms/prosecutor and the detaining authority, but that question apart, the more important factor is the fact that detenu came under judicial custody and that was not noticed by the detaining authority.
(13) It is not an abstract proposition of law that a person in judicial custody cannot be detained under COFEPOSA. There may be circumstances, as noticed in Abdul Sathar Ibrahim Manik v. Union of India, and Veeramani v. State of Tamil Nadu, to make a detention order against a person in judicial custody. In such cases, the detaining authority must be satisfied that there are circumstances present on the record to show that the said person presently in judicial custody would act prejudicially if he is not detained. In the case of a person in judicial custody, the detaining authority ordering his detention should be aware of the fact that he is actually in custody and has reason to believe, on the basis of reliable material that there is a possibility of his being released and that on being so released, the detenu would in all probabilities indulge in prejudicial activities. If the authority passes an order to this effect after recording the satisfaction, the Supreme Court held, the same cannot be struck down.
(14) In the instant case, however, the fact remains that when the detention order was made on 12 January 1993, the petitioner was on bail, while on the day when the detention order was served on him on 30 August 1994 he was in judicial custody because of the purported surrender on 26 August 1994 but the detaining authority did not have the occasion to consider the fact that when the detention order was served on the petitioner he was not on bail but in judicial custody. Under these circumstances it was incumbent for the detaining authority to consider and satisfy itself whether there was reasonable likelihood of the detenu being released by the Criminal Court and if so, whether he would again involve himself in prejudicial activities under the COFEPOSA. Admittedly this was not done. In our opinion, the ratio of the decision of the Supreme Court in Binod Singh’s case (supra) squarely applies to the facts in hand and on that ground the detention of the petitioner is liable to be set aside.
(15) In Binod Singh’s case the order of detention was passed on 2 January 1986 but was served on or about 11 January 1986, when the detenu was in jail. The detenu in that case had surrendered on 10 January 1986 and this fact was not considered by the detaining authority before the detention order was served on the detenu. Thus that was also a case where at the time when the detention order was passed, the detenu was not in custody while by the time the detention order was served, the detenu was in custody, he having surrendered one day anterior to the service of the detention order. The Supreme Court quashed the detention order on the ground that at the time the detention order was served, there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release.
(16) Thus, according to the judgment of the Supreme Court, if the detenu is taken into custody between the date of the order of detention and the date on which the order is served on him, it is necessary for the detaining authority to re-consider the fact that the detenu is in detention in the case in a Criminal Court and whether his detention under the Cofeposa would still be necessary. If that was not done, the earlier detention order could not be enforced against the detenu. The same view was expressed in the aforenoted two Bench decisions of this Court in Kimti Lal’s case and Darshan Singh’s case (supra), following Binod Singh’s case.
(17) Since we have accepted the first contention of learned counsel for the petitioner, it is unnecessary to deal with the second above noted contention.
(18) Consequently we allow the writ petition, quash further detention of the petitioner under Order dated 12 January 1993 and direct that the petitioner shall be released forthwith, if not required to be detained in any other case.
(19) We may, however, clarify that our quashing the detention of the petitioner under the Cofeposa, will not affect detenu’s detention under the criminal case filed under Sections 132 and 135(1)(a) of the Customs Act. If, however, the detenu is released on bail in the said criminal case, the matter of service of detention order under the Cofeposa on the aforesaid material may be re-considered by the appropriate authority in accordance with law.
(20) The operative part of this order will be communicated to the jail authorities for compliance.