IMPORTANT POINT
There is no bar on passing detention orders in respect of a person in custody, provided, there is application of mind and subjective satisfaction of the Detaining Authority that there is a reason to believe that there is a real possibility of detenues being released on bail and that on being so released the detenues will in all probability indulge in prejudicial activities.

JUDGMENT :

M.R. SHAH, J.

Leave granted in Special Leave Petition (Criminal) No. 7010 of 2019.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.08.2019 passed by the High Court of Delhi at New Delhi in Writ Petition (Criminal) No. 1840 of 2019, by which the High Court has allowed the said writ petition preferred by the respondent herein and has quashed and set aside the detention orders bearing Nos. PD12001/34/2019COFEPOSA and PD12001/35/2019COFEPOSA dated 1.7.2019, the Union of India through the Detaining Authority has preferred the present appeal. Feeling aggrieved and dissatisfied with the aforesaid impugned judgment and order passed by the High Court, even the detenu has preferred the special leave petition challenging the aforesaid impugned judgment and order, inasmuch as on grounds ‘C’, ‘D’, ‘E’, ‘F’ and ‘G’ raised in the main writ petition before the High Court, having not been decided one way or the other, while allowing the writ petition of the original writ petitioner on the first two grounds, i.e., grounds ‘A’ & ‘B’.

2.1 Writ Petition (Criminal) Nos. 204/2019, 206/2019 and 209/2019 have been preferred by the respective writ petitioners under Article 32 of the Constitution of India for an appropriate writ, direction or order declaring that the disjunctive ‘or’ in Section 13 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘COFEPOSA Act’) shall be read as ‘and’ so that only those actions which are actually done in good faith would be protected under the said Section, to enable the respective petitioners to take such further action against the Detaining Authority, as may be permissible in law.

2.2 At the outset, it is required to be noted that so far as the respective writ petitioners of writ petitions are concerned, though detention orders qua them have been set aside by the High Court, still the respective petitioners have prayed for the aforesaid reliefs.

Criminal Appeal @ SLP (Criminal) No.7010/2019 and SLP(Criminal) No. 7013 of 2019

3. The facts of the case in nutshell are as follows:

That 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. That 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 IndoBhutan border at Jaigaon from an unknown person, to be transported and delivered to Kolkata and Delhi. That 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 of Quest Mall, 33, Syed Amir Ali Avenue, Park Circus, Beck Bagan Row, Kolkata, West Bengal – 700017 and taken to the latter’s office. That the detenus’ self-incriminating confessions were purportedly obtained under Section 108 of the Customs Act, 1962 (hereinafter referred to as the ’Act’) and they were formally shown as arrested on 11.06.2019 under the provisions of Section 104 of the Act. That thereafter the detenus were produced before the Court of Judicial Magistrate on 12.06.2019.

3.1 That vide order dated 12.06.2019 in Misc. 67/2019, the learned Chief Metropolitan Magistrate, Kolkata rejected the prayer of bail made on behalf of the detenus and remanded them to judicial custody till 18.06.2019.

3.2 That while the detenus were in custody, the detention orders were rendered by the Detaining Authority on 01.07.2019. The detention orders were served on both the detenus on 02.07.2019. The detenus have been served with the relied upon documents with the list of documents on 04.07.2019.

3.3 That the detenus filed their representations dated 07.07.2019, under Article 22(5) of the Constitution of India read with Section 3(3) o