{"id":171454,"date":"1990-09-14T00:00:00","date_gmt":"1990-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamarunnissa-etc-etc-vs-union-of-india-and-ors-on-14-september-1990"},"modified":"2017-08-17T11:06:23","modified_gmt":"2017-08-17T05:36:23","slug":"kamarunnissa-etc-etc-vs-union-of-india-and-ors-on-14-september-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamarunnissa-etc-etc-vs-union-of-india-and-ors-on-14-september-1990","title":{"rendered":"Kamarunnissa Etc. Etc vs Union Of India And Ors on 14 September, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kamarunnissa Etc. Etc vs Union Of India And Ors on 14 September, 1990<\/div>\n
Equivalent citations: 1991 AIR 1640, \t\t 1990 SCR Supl. (1) 457<\/div>\n
Author: Ahmadi<\/div>\n
Bench: Ahmadi, A.M. (J)<\/div>\n
           PETITIONER:\nKAMARUNNISSA ETC. ETC.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT14\/09\/1990\n\nBENCH:\nAHMADI, A.M. (J)\nBENCH:\nAHMADI, A.M. (J)\nAGRAWAL, S.C. (J)\n\nCITATION:\n 1991 AIR 1640\t\t  1990 SCR  Supl. (1) 457\n 1991 SCC  (1) 128\t  JT 1990 (4)\t  7\n 1990 SCALE  (2)485\n CITATOR INFO :\n C\t    1991 SC2261\t (12)\n\n\nACT:\n    Preventive\tDetention: Conservation of Foreign  Exchange\nand  Prevention of Smuggling Activities\t Act,  1974--Section\n3--Detention  order--Can  be passed against  the  person  in\ncustody---Non-supply  of  documents on demand--No  hard\t and\nfast rule can be laid down-Detenu must show that  non-supply\nof documents has impaired his right to make an effective and\npurposeful representation.\n    Declaration--Non-supply\t of\t documents--\t  If\ndocuments--Relied  upon for the purpose of  declaration\t are\nsame  as  supplied  to the detenu  alongwith  the  detention\norder--It is unnecessary to supply these afresh.\n    Detention Order--Detenu in custody--Subjective satisfac-\ntion-Detenu  charged  with  `bailable'\tof  offence--Whether\nexpression  `bailable'\tused  in the  grounds  of  detention\ndisclosed non-application of mind? Context in which  expres-\nsion  `bailable' was used it cannot be said that  there\t was\nnon-application of mind.\n\n\n\nHEADNOTE:\n    The\t petitioners are the wives of three detenus who\t had\nbeen  detained\tunder  an order dated  10th  November,\t1989\npassed under subsection (1) of section 3 of the Conservation\nof  Foreign Exchange and Prevention of Smuggling  Activities\nAct,  1974  against each of them with a view  to  preventing\nthem  from smuggling goods'. The order of detention as\twell\nas  the\t grounds of detention dated November 10,  1989\twere\nserved\ton  the three detenus on 21st November,\t 1989  while\nthey were already in jail custody on remand following  their\narrest at the Sahar International Airport on October 5, 1989\nwhen  on suspicion they were searched which resulted in\t the\nrecovery  of diamonds, precious stones and foreign  currency\nwhich they had planned to smuggle out. Thereafter on  Decem-\nber 20, 1989 a declaration under section 9(1) of the Act was\npassed\tin respect of each detenu which was served  on\tthem\nwithin\tthe time allowed by law. Thereupon the wives of\t all\nthe  three detenus filed separate habeas corpus\t writ  peti-\ntions  in  the High Court of Bombay. Four  contentions\twere\nraised\tbefore the High Court namely, (1) since the  detenus\nwere  in  custody their detention was unwarranted;  (2)\t the\ndetaining authority had betrayed non-application of mind  by\ndescribing\n458\nthe  offence  as 'bailable'; (3) the representation  of\t the\ndetenus\t dated 18th December, 1989 had not been disposed  of\npromptly and there was inordinate delay; and (4) the author-\nities had failed to supply certain crucial documents  called\nfor by the detenus thereby depriving them of the opportunity\nof making an effective representation. The High Court  nega-\ntived all the contentions and dismissed the writ petitions.\n    Against that the wives of the detenus have filed Special\nLeave  Petitions  and  also separate  writ  petitions  under\nArticle\t 32 of the Constitution raising several\t contentions\nincluding those negatived by the High Court.\n    Dismissing\tall  the Special Leave\tPetitions  and\tWrit\nPetitions  and\tupholding the view taken by the\t High  Court\nthis, Court,\n    HELD:  Even in the case of a person in custody a  deten-\ntion order can validly be passed (1) if the authority  pass-\ning  the order is aware of the fact that he is\tactually  in\ncustody;  (2)  if he has reason to believe on the  basis  of\nreliable material placed before him (a) that there is a real\npossibility  of his being released on bail, and (b) that  on\nbeing  so  released he would in all probability\t indulge  in\nprejudicial  activity;\tand (3) if it is felt  essential  to\ndetain him to prevent him from so doing. [278F-G]\n    It\tis  not sufficient to say that the  detenu  was\t not\nsupplied  the copies of the documents in time on demand\t but\nit  must further be shown that non-supply has  impaired\t the\ndetenu's right to make an effective and purposeful represen-\ntation. [281B]\n    Demand of any and every document, however irrelevant  it\nmay  be,  merely  on the ground that there  is\ta  reference\nthereto\t in  the  grounds of detention,\t cannot\t vitiate  an\notherwise  legal detention order. No hard and fast rule\t can\nbe  laid down in this behalf but what is essential  is\tthat\nthe  detenu must show that failure to supply  the  documents\nbefore\tthe  meeting of the Advisory Board had\timpaired  or\nprejudiced his right, however slight or insignificant it may\nbe. [281B-C]\n    Vijay  Narain Singh v. State of Bihar,  [1984] 3  S.C.C.\n14; Dharmendra Suganchand Chelawat v. Union of India,<\/a> [1990]\n1  S.C.C.  746; Ramesh Yadav v.\t District  Magistrate  E.T.,<\/a>\n[1985] 4 S.C.C. 232; Suraj Pal Sahu v. State of Maharashtra,<\/a>\n[1986]\t4  S.C.C. 378; Binod Singh v.  District\t Magistrate,\nDhanbad,<\/a>  [1986]  4 S.C.C. 416; Abdul  Wahab  Sheikh  v.S.N.\nSinha,\t[1989]\t2 S.C.C. 222; Meera Rani v. State  of  Tamil\nNadu, [1989] 4 S.C.C. 418; Shashi Aggarwal v. State of Uttar\nPradesh,  [1988]  1 S.C.C. 436; Anand Prakash  v.  State  of\nUttar Pradesh, [1990] 1 S.C.C. 291; Sanjay Kumar Aggarwal v.\nUnion of<\/a>\n459\nIndia, [1990] 3 S.C.C. 309; Gurdip Singh v. Union of India &\nOrs.,<\/a> [1989] Crl. L.J. NOC 41 Delhi and Nand Kishore Purohit\nv.  Home  Secretary, Maharashtra, [1986] 2  Bombay  C.R.  25\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL  APPELLATE JURISDICTION: Writ Petition  (Crimi-
\nnal) Nos. 757,759 & 760 of 1990
\n(Under Article 32 of the Constitution of India.)
\nN. Devarajan and V. Krishnamurthy for the Petitioners.
\n    Kapil Sibal Additional Solicitor General and A Subba Rao
\nfor the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nAHMADI,\t J.Three persons, namely, (1) M.M. Shahul  Hameed  @
\nGani Asiam, (2) Haja Mohideen @ Shahul Hameed Asarudeen\t and
\n(3)  Naina Mohammed @ Raja Mohd. Zafar were  intercepted  by
\nthe  officers of Department of Revenue Intelligence  on\t 5th
\nOctober, 1989 at the Sahar International Airport, Bombay, as
\nthey were suspected to be involved in smuggling\t activities.
\nThey  were escorted to the office of Directorate of  Revenue
\nIntelligence,  Waldorf,\t Colaba,  Bombay,  where  they\twere
\ninterrogated. On interrogation it was found that M.M. Shahul
\nHameed was to board flight No. CX-750 to Hongkong while\t the
\nother two were to proceed to Dubai by Emirate Flight No. E-5
\n10  on that day. The said three persons were  searched.\t Two
\nballoon covered rolls secreted in the rectum of M.M.  Shahul
\nHameed\twere removed and were found to contain diamonds\t and
\nprecious  stones  weighing  about 905.70  carats  and  77.37
\ncarats, respectively. The said diamonds and precious  stones
\nvalued at about Rs.70 lacs were attached under a  Panchnama.
\nIn addition to the same foreign currency of the value of Rs.
\n10,706\twas  also recovered and attached. His  passport\t was
\nalso seized.\n<\/p>\n
    The\t other two persons were found to have swallowed\t 100
\ncapsules each containing foreign currency of the total value
\nof  Rs.6,99,930.  The  capsules were  extracted\t from  their
\npersons and the currency was recovered and attached under  a
\nPanchnama. In addition thereto foreign currency of the value
\nof Rs. 1,466.50 was also found on their person during  their
\nsearch\tand  the  same too was attached\t and  seized.  Their
\npassports were also seized.\n<\/p>\n
460<\/span><\/p>\n
    All\t the  aforesaid three persons  belonged\t to  Village
\nNamboothalai  of District Ramnath, Tamilnadu.  Their  state-
\nments were recorded on the same day i.e. 5th October,  1989.
\nM.M. Shahul Hameed disclosed that his cousin Kasim, owner of
\na film company at Madras, had offered him a sum of  Rs.4,000
\nfor smuggling diamonds, etc., to Hongkong. On his  agreeing,
\nhe was trained and was sent to Bombay with one Mohammad\t who
\nwas to introduce him to Mohideen and Rahim who were supposed
\nto  entrust  him with the diamonds, etc., to be\t carried  to
\nHongkong. Accordingly he came to Bombay with the said Moham-
\nmad and was duly introduced to the aforesaid two persons  at
\na  fiat\t in Chembur where he stayed. The said  Mohideen\t and
\nRahim arranged for his passport and ticket and gave him\t two
\nroll  wrapped in balloons containing diamonds, etc., on\t the
\nnight of 4th October, 1989 for being carried to Hongkong. As
\nper  the training he had received, he concealed\t these\tbal-
\nloons in his rectum before leaving for the Airport to  catch
\nthe flight to Hongkong. In addition to the same he was given
\na  paper on which something was scribbled in Arabic. In\t the
\ncourse\tof  his interrogation he admitted the  recovery\t and
\nseizure\t of diamonds and precious stones and also  gave\t the
\ndescription  of\t Kasim and Rahim. On 12th October,  1989  he
\nwrote a letter retracting his statement made on 5th October,
\n1989.  However,\t in his further statement recorded  on\t19th
\nOctober, 1989 he admitted that his signature was obtained on
\nthe  letter  of 12th October, 1989  without  disclosing\t the
\ncontents  thereof to him and that his earlier  statement  of
\n5th  October, 1989 was both voluntary and correct.  Inciden-
\ntally the statement of retraction was rejected by the Deputy
\nDirector of Revenue Intelligence on 20th October, 1989.
\n    The other two persons whose statements were also record-
\ned on 5th October, 1989 disclosed that they were both  work-
\ning at a Tea shop in Madras and knew Mohideen and Rahim\t who
\ntoo  were working with them. Rahim had suggested  that\tthey
\nwould be paid Rs.2,000 each if they were willing to  smuggle
\nforeign currency to Dubai by swallowing capsules  containing
\nthe  same. On their agreeing they too were trained and\twere
\nthen taken to Bombay where they were lodged in Vimi Lodge at
\nBhindi Bazar. On 4th October, 1989 they were given an  tick-
\nets  for  travel to Dubai and 100 capsules  each  containing
\nforeign\t currency. They swallowed the capsules and  left  by
\ntaxi  for  the Airport in the early hours  of  5th  October,
\n1989. They too were given a paper containing some scribbling
\nin Arabic by Mohideen and Rahim. While they were waiting  to
\ncatch their flight, they were intercepted as stated earlier.
\nBoth  of them also signed letters dated 12th  October,\t1989
\nretracting  their statements made under Section 108  of\t the
\nCustoms
\n461<\/span>
\nAct, 1962 on 5th October, 1989. However, in their subsequent
\nstatement of 19th October, 1989 they admitted that they were
\nnot  aware  of the contents of the letter of  12th  October,
\n1989. They further admitted that what they had disclosed  on
\n5th  October,  1989 was both voluntary\tand  correct.  Their
\nstatements  of retraction were also rejected by\t the  Deputy
\nDirector of Revenue Intelligence on 20th October, 1989.
\n    All the three aforesaid persons were produced before the
\nlearned\t   Additional\tChief\t Metropolitan\t Magistrate,
\nEsplanade.  Bombay on 6th October, 1989. They were taken  on
\nremand by the police for investigation. Barring M.M.  Shahul
\nHameed,\t the other two had preferred applications  for\tbail
\nwhich  were kept for hearing initially on 27th October\t1989
\nbut  the date was later extended upto 16th  November,  1989.
\nTheir  co-accused, Kasim was arrested on 6th October.\t1989
\nand  was produced before the Additional\t Chief\tMetropolitan
\nMagistrate,  Egmore, Madras. He too was taken on remand.  On
\n19th  October, 1989 he too had preferred a bail\t application
\nwhich was kept pending as the investigation was in progress.
\nSince the period of remand was extended from rime to time in
\nthe case of all the aforesaid four persons finally upto 16th
\nNovember,  1989, the bail applications were also  fixed\t for
\nhearing on that date.\n<\/p>\n
      In  the  meantime\t on 10th November,  1989  the  Joint
\nSecretary  to  the Government of India in  the\tMinistry  of
\nFinance,  Department of Revenue, passed an order under\tsub-
\nsection\t (1)  of Section 3 of the  Conservation\t of  Foreign
\nExchange  and Prevention of Smuggling Activities  Act.\t1974
\n(hereinafter  called ‘the Act’) directing the  detention  of
\nall  the three persons ‘with a view to preventing  him\tfrom
\nsmuggling  goods’. They were directed to be detained in\t the
\nCentral\t Prison.  Bombay. This order  of  detention,  though
\npassed\ton  10th November. 1989 was in fact  served  on\t the
\nthree detenus on 21st November, 1989. i.e., after a lapse of
\nabout 11 days. The grounds of detention dated 10th November,
\n1989 were also served on the three the same day.  Thereafter
\nthe  Additional Secretary to the Government of India in\t the
\nMinistry  of Finance, Department of Revenue made a  declara-
\ntion concerning the three detenus dated 20th December  1989,
\nunder sub-section (1) of section 9 of the Act after  record-
\ning  a satisfaction that they were likely to  smuggle  goods
\nout of and through Bombay Airport. an area highly vulnerable
\nto  smuggling  within the meaning of Explanation 1  to\tthat
\nsection.  This declaration was served on the detenus  within
\nthe  time  allowed by law. Thereupon. the wives of  all\t the
\nthree  detenus filed separate habeas corpus  writ  petitions
\nunder Article 226 of the Constitution in the High Court of
\n462<\/span>
\nBombay\ton  19th January. 1990. These  writ  petitions\twere
\nnumbered 66, 67 and 68 of 1990. Four contentions were raised
\nbefore the High Court, namely, (1) since the detenus were in
\ncustody\t their detention was unwarranted; (2) the  detaining
\nauthority had betrayed nonapplication of mind by  describing
\nthe  offence with which the detenus were charged  as  ‘bail-
\nable’;\t(3)  the representation of the\tdetenus\t dated\t18th
\nDecember,  1989 had not been disposed of promptly and  there
\nwas inordinate delay; and (4) the authorities had failed  to
\nsupply\tcertain crucial documents called for by the  detenus
\nthereby\t depriving  them  of the opportunity  of  making  an
\neffective  representation. All the three petitions  came  up
\nfor  hearing  before a Division Bench of the High  Court  on
\n21st  March,  1990.  The High Court rejected  all  the\tfour
\ncontentions  and  dismissed  the writ  petitions.  The\tsaid
\ndismissal  has led to the filing of Special Leave  Petitions
\n(Criminal)  Nos. 73 1,732 & 733 of 1990. Besides filing\t the
\nsaid  special leave petitions under Article 136 of the\tCon-
\nstitution, the wives of the detenus have also filed separate
\nWrit Petitions (Criminal) Nos. 757,759 and 760 of 1990 under
\nArticle\t 32  of the Constitution. We have  heard  the  three
\nspecial leave petitions as well as the three writ  petitions
\ntogether  and we proceed to dispose them of by\tthis  common
\njudgment.\n<\/p>\n
    The\t learned counsel for the petitioners raised  several
\ncontentions including the contentions negatived by the\tHigh
\nCourt  of Bombay. It was firstly contended that the  detenus
\nhad  made representations on 18th December, 1989 which\twere
\nrejected by the communication dated 30th January, 1990 after
\nan  inordinate delay. The representations dated 18th  Decem-
\nber,  1989  were delivered to the Jail Authorities  on\t20th
\nDecember,  1989.  The Jail Authorities\tdespatched  them  by
\nregistered post. 23rd, 24th and 25th of December, 1989\twere
\nnon-working  days. The representations were received by\t the
\nCOFEPOSA  Unit on 28th December, 1989. On the very next\t day
\ni.e 29th December, 1989 they were forwarded to the  sponsor-
\ning  authority\tfor comments. 30th and 31st  December,\t1989
\nwere  non-working days. Similarly 6th and 7th January,\t1990
\nwere  non-working days. The comments of the  sponsoring\t au-
\nthority were forwarded to the COFEPOSA Unit on 9th  January,
\n1990. Thus it is obvious that the sponsoring authority could
\nnot  have received the representations before  1st  January,
\n1990. Between 1st January, 1990 and 8th January, 1990  there
\nwere two non-working days, namely, 6th and 7th January, 1990
\nand, therefore, the sponsoring authority can be said to have
\noffered the comments within the four or five days  available
\nto  it.\t It cannot, therefore, be said that  the  sponsoring
\nauthority  was\tguilty of inordinate delay.  The  contention
\nthat the views of the sponsoring authority were
\n463<\/span>
\ntotally\t unnecessary  and the time taken by  that  authority
\ncould have been saved does not appeal to us because consult-
\ning the authority which initiated the proposal can never  be
\nsaid to be an unwarranted exercise. After the COFEPOSA\tUnit
\nreceived  the comments of the sponsoring authority it  dealt
\nwith the representations and rejected them on 16th  January,
\n1990. The comments were despatched on 9th January, 1990\t and
\nwere  received by the COFEPOSA Unit on 11th  January,  1990.
\nThe  file was promptly submitted to the Finance Minister  on
\nthe 12th; 13th and 14th being non-working days, he took\t the
\ndecision  to  reject the representations  on  16th  January,
\n1990.  The  file was received back in the COFEPOSA  Unit  on
\n17th January, 1990 and the Memo of rejection was  despatched
\nby the post on 18th January, 1990. It appears that there was
\npostal\tdelay  in the receipt of the  communication  by\t the
\ndetenus\t but  for  that the detaining  authority  cannot  be
\nblamed. It is, therefore, obvious from the explanation given
\nin  the counter that there was no delay on the part  of\t the
\ndetaining  authority in dealing with-the representations  of
\nthe detenus. Our attention was drawn to the case law in this
\nbehalf\tbut we do not consider it necessary to refer to\t the
\nsame  as  the question of delay has to be  answered  in\t the
\nfacts  and  circumstances of each case. Whether or  not\t the
\ndelay,\tif  any, is properly explained would depend  on\t the
\nfacts of each case and in the present case we are  satisfied
\nthat there was no delay at all as is apparent from the facts
\nnarrated above. We, therefore, do not find any merit in this
\nsubmission.\n<\/p>\n
    It\twas  next submitted by the learned counsel  for\t the
\npetitioners  that  there was no compelling  reason  for\t the
\ndetaining authority to pass the impugned orders of detention
\nas  the detenus were already in custody on the date  of\t the
\npassing\t of  the  detention orders as well  as\tthe  service
\nthereof.  Besides,  he submitted. it is\t apparent  from\t the
\naverments  in paragraph 15 of the grounds of detention\tthat
\nthe concerned authority was labouring under a  misconception
\nthat  the  detenus were charged with  a\t ‘bailable’  offence
\nwhich  betrays\ttotal non-application of  mind.\t He  further
\nsubmitted  that\t the delay in the service of  the  detention
\norders\tdiscloses that there was no urgency  about  ordering
\ndetention.  Taking the last limb of the argument  first,  we
\nmay refer to the counter filed in the writ petitions in this
\nbehalf. Therein it is stated that after the detention orders
\nwere  signed  on 10th November, 1989, it was  realised\tthat
\ncertain\t documents  which were not in Tamil  language  would
\nhave to be translated. The services of a professional trans-
\nlator  were requisitioned. Between 10th and  21st  November,
\n1989  there were five holidays on 11th, 12th, 13th,  18th  &
\n19th. As soon as the translations were ready and received by
\nthe Department, the police autho-\n<\/p>\n
464<\/span><\/p>\n
rities\twere directed on 20th November, 1989 to execute\t the
\ndetention orders. This was done on 21st November, 1989, Thus
\nthe time taken between 10th and 21st November. 1989. exclud-
\ning  5 holidays, was only of six days during which  all\t the
\ndocuments  were\t got translated in Tamil language  and\twere
\nserved on the detenus along with grounds of detention. These
\nfacts clearly show that the time taken in the service of the
\ndetention  orders cannot be attributed to lack of  sense  of
\nurgency on the part of the authorities but it was to get the
\ndocuments  translated  in Tamil language  before  they\twere
\nsupplied  to the detenus. Under the circumstances we do\t not
\nsee any delay which would vitiate the detention orders.
\n    It is indeed true that in paragraph 15 of the grounds of
\ndetention  the\tdetaining  authority has  averted  that\t the
\ndetenus\t are charged with a bailable offence. After  setting
\nout the fact that two of the detenus had made an application
\nfor bail in the Bombay Court and their co-accused Kasim\t had
\nmade a similar application in the Madras Court, the authori-
\nty proceeds to state as under:\n<\/p>\n
“Though\t you are in judicial custody but can be released  on
\nbail  any  time\t as the offence with  which  you  have\tbeen
\ncharged is bailable in which case you may indulge in similar
\nprejudicial activities.\n<\/p>\n
It  is\tnecessary to bear in mind the context in  which\t the
\nexpression  bailable’ is used. In the counter filed  by\t the
\nJoint Secretary who passed the detention orders and prepared
\nthe grounds for detention it is stated that his past experi-
\nence in such eases was that normally and almost as a  matter
\nof  rule courts grant bail after the investigation  is\tcom-
\npleted. It was in this background, says the officer, that he
\nused  the expression ‘bailable’. We may reproduce his  exact
\nwords from the counter:\n<\/p>\n
“It  is also submitted that the word bailable which has\t not
\nbeen used in the legal sense, it was intended to convey that
\nnormally  in such cases one gets bail and in  that  context,
\nthe word ‘bailable’ was used”.\n<\/p>\n
Proceeding further it is averred in the counter that even in
\nnonbailable  offences the Sessions Court and the High  Court
\nare empowered to grant bail. He was, therefore, of the\tview
\nthat  in  such cases courts normally grant bail. It  was  in
\nthis  background  that\the used the  word  bailable  in\t the
\ngrounds of detention.\n<\/p>\n
465<\/span><\/p>\n
    Mr.\t Sibbal\t the learned Additional\t Solicitor  General,
\ncontended  that\t the  expression bailable was  used  in\t the
\nbackdrop  of the fact that two of the detenus and Kasim\t had
\nalready\t applied for bail. The court had not rejected  their
\napplications but had adjourned them as the investigation was
\nin progress. That gave rise to the belief that bail would be
\ngranted.  His normal experience also was that in such  cases
\ncourts\tordinarily  granted bail on the\t conclusion  of\t the
\ninvestigation. He, therefore, loosely described the  offence
\nas bailable and did not use that word in the technical sense
\nof section 2(a) of the Code of Criminal Procedure. The\tHigh
\nCourt also pointed out that even in respect of\tnon-bailable
\noffences it is generally open to the Sessions Court and\t the
\nHigh Court to release the accused on bail. It further points
\nout that it is equally open to the Magistrate to release the
\naccused on bail after a period of two months. In the circum-
\nstances\t the High Court was of the opinion that the  use  of
\nthe expression ‘bailable’ cannot lead one to the  conclusion
\nthat  there was no application of mind. We are\tinclined  to
\nthink  that  having regard to the background in\t which\tthis
\nexpression is used in paragraph 15 of the grounds of  deten-
\ntion  and bearing in mind the explanation and the fact\tthat
\nin such cases courts normally grant bail, it cannot be\tsaid
\nthat  the use of the said expression discloses\tnon-applica-
\ntion  of mind. It was then submitted that the  detenu\tM.M.
\nShahul Hameed had not applied for bail and, therefore, there
\nwas  no\t question of his being released on bail. We  do\t not
\nthink  that  there is any merit in this submission  for\t the
\nsimple reason that if the co-accused are released on bail he
\ntoo  could seek enlargement on bail at any time.  Therefore,
\nthe  possibility of all the detenus being released  on\tbail
\nwas  a real one and not an imaginary one. This was based  on
\npast experience which is re-inforced by the observations  of
\nthe  High  Court that even in non-bailable cases  courts  of
\nSessions  and High Court do grant bail. The second  limb  of
\nthe contention is, therefore, clearly devoid of merit.
\n    Counsel for the detenus, however, vehemently argued that
\nsince  the detenus were in custody, there was no  compelling
\nnecessity  to  pass  the detention orders  for\tthe  obvious
\nreason that while in custody they were not likely to indulge
\nin any prejudicial activity such as smuggling. In support of
\nthis  contention reliance was placed on a host of  decisions
\n01′ this Court beginning with the case of Vijay Narain Singh
\nv. State of Bihar, [1984] 3 SCC 14 and ending with the\tcase
\nof Dharmendra Suganchand Chelawat v. Union of India,<\/a>  [1990]
\n1 SCC 746. It is necessary to bear in mind the fact that the
\ngrounds\t of  detention\tclearly reveal\tthat  the  detaining
\nauthority was aware of the fact that the detenus were appre-
\nhended while they were about to board the flights
\n466<\/span>
\nto  Hongkong  and Dubai on 5th October, 1989.  He  was\talso
\naware  that the detenu M.M. Shahul Hameed had secreted\tdia-
\nmonds and precious stones in his rectum while the other\t two
\ndetenus\t had swallowed 100 capsules each containing  foreign
\ncurrency  notes. He was also aware of the fact that all\t the
\nthree  detenus\twere produced before  the  Additional  Chief
\nMetropolitan  Magistrate, Espalande, Bombay and two of\tthem
\nhad applied for bail. He was also conscious of the fact that
\nthe  hearing of the bail applications was postponed  because
\ninvestigation was in progress. His past experience was\talso
\nto  the effect that in such cases courts ordinarily  enlarge
\nthe accused on bail. He was also aware of the fact that\t the
\ndetenu\tM.M.  Shahul Hameed had not applied for\t bail.\tCon-
\nscious of the fact that all the three detenus were in custo-
\ndy,  he\t passed\t the impugned orders of\t detention  on\t10th
\nNovember, 1989 as he had reason to believe that the  detenus
\nwould  in  all probability secure bail and if  they  are  at
\nlarge, they would indulge in the same prejudicial  activity.
\nThis inference of the concerned officer cannot be  described
\nas bald and not based on existing material since the  manner
\nin which the three detenus were in the process of  smuggling
\ndiamonds  and currency notes was itself indicative  of\tthey
\nhaving received training in this behalf. Even the detenus in
\ntheir statements recorded on 5th October, 1989 admitted that
\nthey had embarked on this activity after receiving training.
\nThe  fact  that one of them secreted diamonds  and  precious
\nstones in two balloon rolls in his rectum speaks for itself.
\nSimilarly  the fact that the other two detenus\thad  created
\ncavities for secreting as many as 100 capsules each in their
\nbodies was indicative of the fact that this was not to be  a
\nsolitary instance. All the three detenus had prepared  them-
\nselves\tfor indulging in smuggling by creating\tcavities  in
\ntheir bodies after receiving training. These were not  ordi-
\nnary  carriers.\t These were persons who had  prepared  them-
\nselves\tfor a long term smuggling programme and,  therefore,
\nthe  officer passing the detention orders was  justified  in
\ninferring  that\t they would indulge in similar\tactivity  in
\nfuture because they were otherwise incapable of earning such
\nsubstantial amounts in ordinary life. Therefore, the  criti-
\ncism that the officer had jumped to the conclusion that\t the
\ndetenus would indulge in similar prejudicial activity  with-
\nout there being any material on record is not justified.  It
\nis  in\tthis  backdrop of facts that we\t must  consider\t the
\ncontention of the learned counsel for the detenus whether or
\nnot  there  existed  compelling circumstances  to  pass\t the
\nimpugned  orders  of detention. We are\tinclined  to  think,
\nkeeping\t in view the manner in which these detenus  received
\ntraining  before  they indulged in the\tsmuggling  activity,
\nthis  was not a solitary effort, they had in  fact  prepared
\nthemselves for a long term programme. The decisions of\tthis
\nCourt to which our attention was drawn by the learned
\n467<\/span>
\ncounsel\t for the petitioners lay down in no uncertain  terms
\nthat detention orders can validly be passed against  detenus
\nwho  are in jail, provided the officer passing the order  is
\nalive to the fact of the detenus being in custody and  there
\nis  material on record to justify his conclusion  that\tthey
\nwould indulge in similar activity if set at*liberty. We will
\nnow consider the case law in brief.\n<\/p>\n
    In Vijay Narain Singh (supra) this Court stated that the
\nlaw  of\t preventive detention being a drastic and  hard\t law
\nmust be strictly construed and should not ordinarily be used
\nfor clipping the wings of an accused if criminal prosecution
\nwould  suffice; So also in Ramesh Yadav v.  District  Magis-
\ntrate ET, [1985] 4 SCC 232 this Court stated that ordinarily
\na detention order should not be passed merely on the  ground
\nthat the detenu who was carrying on smuggling activities was
\nlikely\tto  be enlarged on bail. In such  cases\t the  proper
\ncourse would be to oppose the bail application and if grant-
\ned, challenge the order in the higher forum but not  circum-
\nvent it by passing an order of detention merely to supersede
\nthe  bail order. In Suraj Pal Sahu v. State of\tMaharashtra,<\/a>
\n[1986] 4 SCC 378 the same principle was reiterated. In Binod
\nSingh  v. District Magistrate, Dhanbad,<\/a> [1986] 4 SCC 416  it
\nwas  held  that if a person is in custody and  there  is  no
\nimminent  possibility of his being released  therefrom,\t the
\npower of detention should not ordinarily be exercised. There
\nmust  be  cogent  material before the  officer\tpassing\t the
\ndetention order for inferring that the detenu was likely  to
\nbe  released  on  bail. This inference must  be\t drawn\tfrom
\nmaterial  on  record and must not be the ipse dixit  of\t the
\nofficer\t passing the detention order. Eternal  vigilance  on
\nthe part of the authority charged with the duty of maintain-
\ning  law and order and public order is the price  which\t the
\ndemocracy in this country extracts to protect the  fundamen-
\ntal freedoms of the citizens. This Court, therefore,  empha-
\nsized  that before passing a detention order in\t respect  of
\nthe  person  who  is in jail the  concerned  authority\tmust
\nsatisfy himself and that satisfaction must be reached on the
\nbasis of cogent material that there is a real possibility of
\nthe detenu being released on bail and further if released on
\nbail the material on record reveals that he will indulge  in
\nprejudicial  activity if not detained. That is why in  Abdul
\nWahab Sheikh v.S.N. Sinha, [1989] 2 SCC 222 this Court\theld
\nthat  there must be awareness in the mind of  the  detaining
\nauthority  that\t the  detenu is in custody at  the  time  of
\nactual\tdetention  and\tthat cogent  and  relevant  material
\ndisclosed the necessity for making an order of detention. In
\nthat  case the detention order was quashed on the ground  of
\nnon-application\t of mind as it was found that the  detaining
\nauthority  was\tunaware that the  detenu’s  application\t for
\nbeing released on bail was rejected by the
\n468<\/span>
\ndesignated  Court,  In Meera Rant’ v. State of\tTamil  Nadu,
\n[1989]\t4  SCC 418 the case law was examined  in  extension.
\nThis  Court pointed out that the mere fact that\t the  detenu
\nwas in custody was not sufficient to invalidate a  detention
\norder  and  the decision must depend on the  facts  of\teach
\ncase. Since the law of preventive detention was intended  to
\nprevent a detenu from acting in any manner considered preju-
\ndicial under the law. ordinarily it need not be resorted  to
\nif  the detenu is in custody unless the detaining  authority
\nhas  reason  to believe that the subsisting custody  of\t the
\ndetenu may soon terminate by his being released on bail\t and
\nhaving\tregard\tto his recent antecedents he  is  likely  to
\nindulge\t in similar prejudicial activity unless he  is\tpre-
\nvented\tfrom doing so by an appropriate order of  preventive
\ndetention.  In\tShashi Aggarwal v. State of  Uttar  Pradesh,
\n[1988] SCC 436 it was emphasized that the possibility of the
\ncourt  granting bail is not sufficient nor is a bald  state-
\nment  that the detenu would repeat his\tcriminal  activities
\nenough to pass an order of detention unless there is  credi-
\nble  information  and cogent reason apparent on\t the  record
\nthat the detenu, if enlarged on bail, would act prejudicial-
\nly.  The same view was reiterated in Anand Prakash v.  State
\nof  Uttar  Pradesh, [1990] 1 SCC 291 and  Dharmendra’s\tcase
\n(supra). In Sanjay Kurnar Aggarwal v. Union of India, [1990]
\n3  SCC\t309  the detenu who was in jail was  served  with  a
\ndetention order as it was apprehended that he would  indulge
\nin  prejudicial\t activities on being released on  bail.\t The
\ncontention  that the bail application could be\topposed,  if
\ngranted,  the  same could be questioned in a  higher  forum,
\netc.,  was negatived on the ground that it was not  the\t law
\nthat no order of detention could validly be passed against a
\nperson in custody under any circumstances.\n<\/p>\n
    From the catena of decisions referred to above it  seems
\nclear  to us that even in the case of a person in custody  a
\ndetention  order can validly be passed (1) if the  authority
\npassing\t the order is aware of the fact that he is  actually
\nin custody; (2) if he has reason to believe on the basis  of
\nreliable material placed before him (a) that there is a real
\npossibility  of his being released on bail, and (b) that  on
\nbeing  so  released he would in all probability\t indulge  in
\nprejudicial  activity  and (3) if it is\t felt  essential  to
\ndetain\thim to prevent him from so doing. If  the  authority
\npasses\tan  order after recording his satisfaction  in\tthis
\nbehalf,\t such an order cannot be struck down on\t the  ground
\nthat  the proper course for the authority was to oppose\t the
\nbail and if bail is granted notwithstanding such opposition,
\nto question it before a higher court. What this court stated
\nin  the case of Ramesh Yadav (supra) was that  ordinarily  a
\ndetention  order should not be passed merely to pre-empt  or
\ncircumvent enlargement on bail in cases which
\n469<\/span>
\nare  essentially  criminal in nature and can be\t dealt\twith
\nunder  the  ordinary law. It seems to us well  settled\tthat
\neven  in a case where a person is in custody, if  the  facts
\nand  circumstances of the case so demand. resort can be\t had
\nto  the law of preventive detention. This seems to be  quite
\nclear from the case law discussed above and there is no need
\nto refer to the High Court decisions to which our  attention
\nwas  drawn since they do not hold otherwise. We,  therefore.
\nfind  it difficult to accept the contention of\tthe  counsel
\nfor  the petitioners that there was no valid and  compelling
\nreason for passing the impugned orders of detention  because
\nthe, deronus were in custody.\n<\/p>\n
    Counsel  for the petitioners next submitted\t that  while
\nmaking\tthe  representation dated 18th\tDecember.  1989\t the
\ndetenus had requested for the supply of copies of the decla-
\nrations\t made by them before the customs authorities at\t the
\nBombay Airport before boarding their respective flights\t and
\nfor  copies of the search warrants mentioned in the  grounds
\nof  detention. It was stated that the detenus  needed  these
\ndocuments for the purpose of making a representation.  While
\nrejecting  their  representation by the memorandum  of\t18th
\nJanuary. 1989 the detenus were informed that the  sponsoring
\nauthority  was\trequested  to supply the  copies  of  search
\nauthorisations\tto the detenus. The  petitioners  complained
\nthat despite this communication the sponsoring authority did
\nnot  supply  copies of the search  authorisations  whereupon
\nanother\t letter dated 6th February, 1990 was written to\t the
\ndetaining  authority asking for the said documents.  By\t the
\nmemorandum of 14th February, 1990, the detenus were informed
\nthat  the Deputy Director of Revenue  Intelligence.  Bombay,
\nwas  requested\tto  supply the documents asked\tfor  by\t the
\nderonus.  In response to the same the detenus were  supplied
\ncopies of the search warrants but not copies of the declara-
\ntions  made  to the customs officers at the airport.  It  is
\nfurther complained that this delay had resulted in depriving
\nthe  detenus  of their valuable right to make  an  effective
\nrepresentation\tagainst the impugned detention\torders.\t The
\nHigh  Court while dealing with this contention came  to\t the
\nconclusion that the declarations made by the detenus at\t the
\nairport\t were  neither\trelied on nor  referred\t to  in\t the
\ngrounds of detention. As regards the search  authorisations,
\nit  may be pointed out that although there is a\t mention  of
\nthe  premises  searched\t in the grounds\t of  detention,\t the
\nincriminating material found has neither been used nor\tmade
\nthe  basis  for formulating the grounds of  detention.\tMere
\nreference to these searches by way of completing the  narra-
\ntion  cannot  entitle  the detenus to claim  copies  of\t the
\nsearch\tauthorisations. The High Court, therefore,  rejected
\nthis contention by observing as under:\n<\/p>\n
470<\/span><\/p>\n
“We  fail to understand how the Detaining Authority  can  be
\ncompelled to give documents which were not relied upon while
\narriving at the subjective satisfaction. We are also  unable
\nto appreciate how the declaration made by the detenu  before
\nproceedings  to board the aircraft has any  relevance  while
\nconsidering whether the order of detention should be  passed
\nto  prevent  the detenu from indulging\tin  any\t prejudicial
\nactivities  in future. In our judgment, the  complaint\tthat
\nsome  documents which according to the detenu were  relevant
\nfor making representation were not furnished by the  Detain-
\ning Authority and, therefore, the order or the\tcontinuation
\nof the detention is bad, is without any substance.”
\nIn  the\t counter it is specifically  mentioned\tthat  ‘these
\ndocuments were not placed before the detaining authority nor
\nthe  detaining\tauthority has relied  upon  those  documents
\nwhile  issuing the detention order’. The detenus would\thave
\nbeen entitled to any document which was taken into consider-
\nation  while formulating the grounds of detention  but\tmere
\nmention\t of the fact that certain searches were carried\t our
\nin  the course of investigation, which have no relevance  to
\nthe  detention of the detenus, cannot cast an obligation  on
\nthe detaining authority to supply copies of those documents.
\nMuch less can an obligation be cast on the detaining author-
\nity  to supply copies of those documents in Tamil  language.
\nIn  the peculiar circumstances of the present  petitions  we
\nare  of\t the opinion that the view taken by the\t High  Court
\ncannot\tbe  assailed.  Reliance was, however,  placed  on  a
\ndecision of the Delhi High Court in Gurdip Singh v. Union of
\nIndia  & Ors., Criminal Writ No.<\/a> 257 of 1988 decided on\t 7th
\nOctober,  1988 (1989 Crl. L.J. NOC 41 Delhi)  wherein  Malik
\nSharief-ud-din, J. observed that the settled legal  position
\nwas  that all the documents relied upon for the\t purpose  of
\nordering detention ought to be supplied pari passu with\t the
\ngrounds of detention to the detenu and documents not  relied
\nupon  but casually referred to for the purpose of  narration
\nof facts were also to be supplied to the detenu if demanded.
\nWhere  documents of the latter category are  supplied  after
\nthe  meeting of the Advisory Board is over it was held\tthat
\nthat  would seriously impair the detenu’s right to  make  an
\neffective and purposeful representation which would  vitiate
\nthe  detention.\t Counsel  for  the  petitioners,  therefore,
\nsubmitted  that\t in the present case also since\t the  search
\nauthorisations were supplied after the meeting of the  Advi-
\nsory  Board,  the detention orders stood  vitiated.  But  in
\norder to succeed it must be shown that the search authorisa-
\ntions  had a bearing on the detention orders. If, merely  an
\nincidental refe-\n<\/p>\n
471<\/span><\/p>\n
rence is made to some part’ of the investigation  concerning
\na  coaccused in the grounds of detention which has no  rele-
\nvance to the case set up against the detenu it is  difficult
\nto  understand how the detenus could contend that they\twere
\ndenied the right to make an effective representation. It  is
\nnot sufficient to say that the detenus were not supplied the
\ncopies\tof the documents in time on demand but it must\tfur-
\nther be shown that the non-supply has impaired the  detenu’s
\nright  to make an effective and\t purposeful  representation.
\nDemand\tof any or every document, however irrelevant it\t may
\nbe for the concerned detenu, merely on the ground that there
\nis  a reference thereto in the grounds of detention,  cannot
\nvitiate an otherwise legal detention order. No hard and fast
\nrule  can be laid down in this behalf but what is  essential
\nis that the detenu must show that the failure to supply\t the
\ndocuments  before  the\tmeeting of the\tAdvisory  Board\t had
\nimpaired  or prejudiced his right, however slight or  insig-
\nnificant it may be. In the present case, except stating that
\nthe  documents were not supplied before the meeting  of\t the
\nAdvisory Board, there is no pleading that it had resulted in
\nthe impairment of his right nor could counsel for the  peti-
\ntioners point out any such prejudice. We are, therefore,  of
\nthe opinion that the view taken by the Bombay High Court  in
\nthis behalf is unassailable.\n<\/p>\n
    The declaration under section 9(1) dated 20th  December,
\n1989 is challenged on the ground that the second  respondent
\nfailed\tto  forward the copies of the document on  which  he
\nplaced reliance for arriving at the subject to\tsatisfaction
\nthat  the  detenu were likely to smuggle goods\tout  of\t and
\nthrough\t Bombay Airport, an area highly vulnerable to  smug-
\ngling  as  defined in Explanation 1 to section 9(1)  of\t the
\nAct.  Now  if we turn to paragraph 2 of the  declaration  it
\nbecomes evident that the second respondent merely relied  on
\nthe grounds of detention and the material in support thereto
\nwhich  had  already been served on the\tdetenu\tand  nothing
\nmore.  Counsel for the petitioners relying on a decision  of
\nthe Bombay High Court in Nand Kishore Purohit v. Home Secre-
\ntary,  Maharashtra,  [2986]2 Bombay C.R. 25,  however  urged
\nthat  it was obligatory for the second respondent to  supply
\nthe  grounds  of detention and\tthe  accompanying  documents
\n‘afresh’  if  the  declaration ‘was based  thereon.  We\t are
\nafraid\twe  cannot subscribe to this point of view.  If\t the
\ndocuments relied on for the purpose of framing a declaration
\nunder  section\t9(2) are the very same\twhich  were  earlier
\nsupplied  to the detenu along with the grounds of  detention
\nunder  section\t3(1), we fail to see what purpose  would  be
\nserved\tby  insisting that those very  documents  should  be
\nsupplied afresh. Such a view would only result in  wasteful.
\nexpenditure and avoidable duplication. We do not think that
\n472<\/span>
\nwe would be justified in quashing the declaration made under
\nsection\t 9(1) of the Act on such a  hyper-technical  ground.
\nWe, therefore, do not see any merit in this contention.
\n    There are a few other minor grounds on which the  deten-
\ntion orders are challenged. These may stated to be rejected.
\nFirstly, it was contended that under section 3(1) of the Act
\na  detention order can be passed on one or more of the\tfive
\ngrounds\t set  out in clauses (i) to (v) thereof.  Since\t the
\nimpugned  orders  make no mention of the  clause  number  on
\nwhich  they are rounded they are bad in law.  The  detention
\norders clearly state that the power is being exercised\twith
\na  view to preventing the smuggling of goods  referrable  to
\nclause\t(i) of the subsection. Merely because the number  of
\nthat  clause  is not mentioned, it can\tmake  no  difference
\nwhatsoever.  So also we see no merit in the contention\tthat
\nthe value of goods seized varies in the grounds of detention
\nfrom  that mentioned in the panchnama or  appraisal  report.
\nHow that has prejudiced the detenus is difficult to  compre-
\nhend  in the absence of any material on record. The  submis-
\nsion that the declaration under section 9(1) was required to
\nbe  communicated  within  five weeks from the  date  of\t its
\nmaking is not specifically raised in the writ petitions\t nor
\nwas it argued before the High Court. We were, however,\ttold
\nthat  the declaration was communicated in the first week  of
\nJanuary 1990, a statement which was not contested on  behalf
\nof  the petitioners. In fact the submission was not  pursued
\nafter  this fact was disclosed. We also see no merit in\t it.
\nLastly,\t it was said that the authority had failed  to\ttake
\nnotice\tof  the retraction of the statement  recorded  under
\nsection\t 108  of the Customs Act, 1962. In fact there  is  a
\nspecific  reference  to\t the retraction\t letter\t dated\t12th
\nOctober,  1989\tand the subsequent letter of  19th  October,
\n1989,  wherein the detenus stated that they had\t signed\t the
\nletter\tof 12th October, 1989 without knowing  the  contents
\nthereof and had in fact not disowned their earlier statement
\nof  5th October, 1989. It is clear from the above that\tthis
\nchallenge is also without substance.\n<\/p>\n
    These were the only contentions urged at the hearing  of
\nthe  special leave petitions as well as the writ  petitions.
\nAs  we do not see any merit in any of these  contentions  we
\ndismiss\t the  special leave petitions as well  as  the\twrit
\npetitions and discharge the rule in each case.\n<\/p>\n
R.N.J.\t\t     SLPs and Writ Petition dismissed.\n473<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kamarunnissa Etc. Etc vs Union Of India And Ors on 14 September, 1990 Equivalent citations: 1991 AIR 1640, 1990 SCR Supl. (1) 457 Author: Ahmadi Bench: Ahmadi, A.M. (J) PETITIONER: KAMARUNNISSA ETC. ETC. Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT14\/09\/1990 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-171454","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKamarunnissa Etc. 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