JUDGMENT

K. JAYACHANDRA REDDY, J.:—Common questions arise for consideration in these two writ petitions filed under Article 32 of the Constitution of India seeking writ of habeas corpus for quashing the orders of detention and for immediate release of the detenus. First, we shall deal with Writ Petition (Crl.) No. 105 of 1991.

Writ Petition (Crl.) No. 105 of 1991

The petitioner-detenu is a.. reign national being a resident of Republic of Maldives. On 25-10-90 he landed at Trivendrum Airport from Male and was moving towards the exitgate of the Customs Import Baggage Hall. He was intercepted by the Air Customs Officers and on examination he was found to be carrying 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of the red colour suit-case belonging to the petitioner. His passport and other documents were also seized. The petitioners statement was recorded under Section 108 of the Customs Act, 1.962 wherein he is alleged to have confessed the guilt. After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivendrum and was remanded to judicial custody for a period of 14 days. Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While he was in jail he made an application for granting of bail under Section 437, Cr.P.C. on 29-10-90 but it was rejected on 2-11-90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. While the petitioner was confined in jail an order of detention was passed under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short) by the Secretary to the Government, Government of Kerala, Home (SSA) Department on 7-11-90 and the same was served on the petitioner on 8-11-90. The grounds of detention along with the list Of documents annexed thereto were served in time. The petitioner made a representation and it was rejected.

2-3. It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized, there was no compelling necessity for such a detention. It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted. The next main and important submission is that the copies of the bail application filed by him and the order refusing bail, which are relevant documents, were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non-application of mind and the petitioner also is denied a reasonable opportunity under Article 22(5) of the Constitution of India.

4. We see no force in the first submission namely that there was no compelling necessity for passing the detention order. It is true that when the detention order was passed on 7-11-1990 the detenu was in jail and his bail application also was rejected and his passport also was seized. But the detaining authority has mentioned in the grounds that "I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out. Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail". Therefore it cannot be said that the detaining authority did not apply his mind to this aspect. It is entirely within his subjective satisfaction whether there are such compelling circumstances or not. He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also. The learned Counsel appearing for the petitioner relied on a judgment of this Court in Dharmendra Suganchand Chelawat V. Union of India, (1990) 1 SCC 746, wherein it is observed that an order of detention can be validly passed against a person in custody and for that p