SUPREME COURT OF INDIA
S. Ratnavel Pandian & K. Jayachandra
Reddy, JJ.
Shri Abdul Sattar Ibrahim Manik -Petitioner
versus
Union of India and Ors. -Respondents
with
Shri Ibrahim Shareef M. Madhafushi-Petitioner
versus
Union of India and Ors. -Respondents
Writ Petitions (Criminal) Nos. 105 of 1991 and 106 of 1991
Decided on 8-10-1991

IMPORTANT POINT
Even if the bail application of detenu and Court's order refusing bail are not placed before detaining authority that by itself does not lead to an inference that there was suppression of relevant material or in the alternative that there was non-application of mind or that subjective satisfaction was impaired.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 L- Section 3(i) - Detention order under - Constitution of India - Art. 32 - Detention order challenged under - Detenu already in jail - His bail application was rejected and passport seized still detained - Grounds of detention showing that detaining authority was aware that detenue was in jail - Contention that there was no compelling necessity for such a detention - Whether there is any force in this contention? (No)

       Held: That what would be the compelling reasons in the context would depend on the facts of each case. In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase. This itself manifests the expertise of the carrier in smuggling. The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likelihood of his being released on bail and he is likely to indulge in such smuggling activities. It is mentioned in the counter-affidavit that the remand period of the detenu was to expire on 10-11-1990 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail. This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order. Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons. (Para 4)

       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1) - Detention order under - Based on solitary instance of smuggling of' gold biscuits Whether unwarranted? (No)

       Held: Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed. The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling. (Para 6)

       (iii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974- Section 3(i) - Detention order under - Detenu already in custody - Bail application moved and rejected - Neither bail application nor order refusing bail placed before detaining authority - Whether itself leads to an inference that there was suppression of relevant material or in the alternative that there was non-application of mind? (No) - These documents not supplied to detenu - Whether infringes his right of A 22 (5) of Constitution? (No)

       Held: From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired. When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu. (Para 12)

       Further held: In the counter-affidavit, it is stated that the period of remand to the judicial custody was to expire the next day after his detention. Therefore there was' every likelihood of his moving for bail and getting released on bail. These materials show that the detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to indulge himself in the smuggling activities. It, therefore, cannot be said that there/were no compelling reasons justifying the detention despite the fact that the detenu is already in custody. Likewise the failure to supply the bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order. However, when they are not referred to or relied upon the non supply does not affect the detention. (Para 19)

       (iv) Detention order - Detenu already in custody - Bail application moved and rejected - When a detention order can be passed val. idly in such a case? Question of non-application of mind and satisfaction being impaired in case bail application and order of Court as it if not placed before detaining authority - Effect of non-supply of their copies to detenu - Case law - Conclusions deducible from it.

       Held: Having regard to the various above-cited decisions on the points often raised we find it appropriate to set down our conclusions as under:

       (1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.

       (2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher court.

       (3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the getaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

       (4) Accordingly toe non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.

       (5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.

       (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. (Para 18)

       (v) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Detention order under, with a view to preventing him from smuggling - Detenu already in jail- His passport also seized - No possibility to indulge in smuggling - Whether detention order suffers from vice of non-application of mind in such a case? (No)

       Held: The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non-existent. We see no force in this submission. The potentialities of the detenu as gathered from his act of smuggling that form basis for detention. It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling. It is for he detaining authority to derive the necessary satisfaction on the basis of the materials placed before him. (Para 24)