IMPORTANT POINT
There was Compelling necessity for passing the order of detention even though petitioner was already in judicial custody and the order was not passed for the collateral purpose to frustrate the grant of bail and was thus not punitive in nature.

JUDGMENT

L.M. Sharma, J. -The petitioner has challenged his order of detention made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA). He filed an application under Article 226 of the Constitution before the Delhi High Court, being Writ Petition No. 219 of 1987, which was dismissed by the judgment dated 29-10-1987, impugned in the S.L.P. (Crl.) 3115 of 1987. He has also filed an application directly before this Court under Article 32 of the, Constitution which has been registered as Criminal Writ Petition No. 830 of 1987.

2. In January, 1987, on receipt of a confidential information by the Directorate of Enforcement, Delhi Zone, New Delhi, that a group of persons were engaged in illegal activities causing remittances of large amounts of money to foreign countries, an inquiry was instituted. It appeared that the remittances were ostensibly made for import of certain goods on the basis of forged documents and actually goods were not received from outside.

Information collected in the course of inquiry disclosed that a number of persons were engaged in the criminal activities and were operating through five Indian firms and a number of foreign firms in Hong Kong and Singapore; On 20-2-1987, one Sita Ram Aggarwal, associate of the petitioner, disclosed during his interrogation, facts which indicated that the petitioner was the main person directing the illegal activities. The petitioner was apprehended in a hotel in Calcutta on 2-4-1987 and, on being questioned, made certain statements. He was formally arrested the next day and was produced before the Additional Chief Metropolitan Magistrate, New Delhi, who remanded him to judicial custody till 13-4-1987. Sita Ram Aggarwal, the aforesaid associate of the petitioner was in the meantime enlarged on interim bail, which was extended after expiry of the initial period, and, according to the case of the respondents, the detaining authority apprehended that the petitioner also was likely to be released on bail on 13-4-1987. In this background the impugned order of detention was passed and served on him. The application for bail by the petitioner which bad already been filed was actually allowed the same day, i.e. on 13-4-1987. After his representation against the detention order was rejected, the petitioner moved the Delhi High Court for a writ of habeas corpus which was dismissed by the order dated 29-10-1987 challenged in the special leave petition. The Writ Petition No. 830 of 1987 was filed before this Court on 9-11-1987. Both the cases are being disposed of by this judgment.

3. When the cases were placed for preliminary bearing before us, we directed notice to be issued only on two of the grounds taken by the petitioner, namely, whether there was compelling necessity for passing the order as the petitioner was already in judicial custody, and whether the order was passed for the collateral purpose to frustrate the grant of bail and was punitive in nature.

4. The learned counsel for the petitioner has contended that the impugned order amounts to double detention of the petitioner as he was already in jail when the detention order was made. Relying upon several decisions of this Court it was argued that it was essential for the detaining authority to have been aware of the fact that the petitioner was already in jail and was likely to be released on bail and further he had to be satisfied that compelling necessity existed for the detention. It is said that none of these conditions is satisfied.

5. Mr. Kuldip Singh, the learned Additional Solicitor General appearing on behalf of the respondents said that there cannot be any manner of doubt that the detaining authority was fully aware of the fact that the petitioner was already in custody and that he was likely to be released on bail on 13-4-1987. Besides, relying on the counter affidavit, the learned counsel placed before us the original