TaxTMI 
TaxTMI 
2019 (9) TMI 433
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....rother Amit Jalan (hereinafter referred to as 'the detenus') respectively, and to set them at liberty forthwith. 2. The facts as are relevant for the adjudication of the present proceeding are briefly encapsulated as follows:- (i) 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. (ii) 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 Indo-Bhutan border at Jaigaon from an unknown person, to be transported and delivered to Kolkata and Delhi. (iii) 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. (iv) The detenus' self-incriminating confessions were purported....
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....n the grounds that:- (a) Despite the detenus already being in judicial custody, when the same was rendered; and there being no imminent possibility of their being released on bail; nor any material relied upon therein to raise an apprehension that they may be so released in the near future - since no bail application was pending - the same are ex facie illegal and without any basis; and (b) The RUD's have not been perused by the Detaining Authority, inasmuch as, the retraction petition of the said Anand, which is a vital document, has neither been placed before the Detaining Authority nor considered by it, in accordance with law; the document purported to be a copy of the 'retracted petition' in respect of the said Anand, placed at Sl.No.30 of the list of RUD, is actually the latter's bail application, and thus the subjective satisfaction is sham, erroneous and incomplete; and, therefore, violative of the detenus' right to effective representation as mandated and guaranteed by the Constitution, by law. . 4. In order to buttress his submissions, Mr. Vikram Chaudhri, learned Senior Counsel has placed reliance on the following decisions:- (i) T.V. Sravana....
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....etropolitan Magistrate, Kolkata after hearing the accused from time to time was pleased to remand both of you to Judicial Custody, till 2.07.2019 and both of you are presently lodged at Presidency Correctional Home, Kolkata. xvii. Petition have been filed on behalf of you i.e. Shri Ashok Kumar Jalan and Shri Amit Jalan before the Ld. Chief Metropolitan Magistrate, Kolkata, retracting their statements given before DRI officers. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxi. It is on record vide letter F.No.T-23/7/Cal/95/Part dated 24.06.2019 of the Joint Director, Office of the Special Director, Eastern Region, Enforcement Directorate, Kolkata that you i.e. Shri Ashok Kumar Jalan alias Pappu Jalan S/o Late Madan Lal Jalan was detained in Presidency Jail on 2.10.1994 under COFEPOSA Act, 1974 vide Detention Order No.673/160/94 dated 22.09.1994. Subsequently the detention order was quashed by Hon'ble Calcutta High Court and you i.e. Ashok Kumar Jalan were released from jail on 23.12.1994. In another case a Detention Order No.673/14/2002 - Cus VII dated 20.05.2002 under COFEPOSA Act, 1974 was issued against you i.e. Shri Ashok Kumar Jalan alias Pappu a....
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....ty of the country and that unless prevented you i.e. Shri Ashok Kumar Jalan will continue to do so. Further considering the nature and gravity of offence in an organized manner in which you i.e. Shri Ashok Kumar Jalan have engaged yourself in such prejudicial activities and your role therein, all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future, I am satisfied that there is a need to prevent you i.e. Shri Ashok Kumar Jalan from smuggling goods. Hence, you i.e. Shri Ashok Kumar Jalan ought to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 with a view to preventing you from smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods in terms of Section 3(1) of the COFEPOSA Act, 1974. 6. I am aware that prosecution under Section 135 of the Customs Act, 1962 may be launched against you and adjudication proceedings are also likely to be initiated soon, which are however, punitive in nature and independent of the preventive detention provided under the CO....
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....orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order. 8. It has been held in T.V. Sravanan v. State [(2006) 2 SCC 664 : (2006) 1 SCC (Cri) 593] , A. Shanthiv. Govt. of T.N. [(2006) 9 SCC 711 : (2006) 3 SCC (Cri) 371] , Rajesh Gulati v. Govt. of NCT of Delhi[(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] , etc. that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. These decisions appear to have followed the Constitution Bench decision in Haradhan Saha v. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] wherein it has been observed: (SCC p. 209, para....
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....he Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 FG) " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. 26. It was held in Union of India v. Paul Manickam [(2003) 8 SCC 342 : 2004 SCC (Cri) 239] that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities....
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....rao Punjabrao Gawande [(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital. 36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4) "4. ... May be that the detenu is a smuggler whose tribe (and ....
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.... in similar cases bails are granted by the Principal Sessions Court after a lapse of time. If he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public order." 7. The question is whether on the basis of such material, an order of detention was justified, even though the appellant was in custody on the date of issuance of the order of detention. The principle in this regard is well settled. In Rameshwar Shaw v. District Magistrate, Burdwan [(1964) 4 SCR 921 : AIR 1964 SC 334 : (1964) 1 Cri LJ 257] this Court observed: (SCR pp. 929-30) "[12.] As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. ... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have ....
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....ehalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court." xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 12. The order of detention itself notices the fact that the appellant had moved an application for grant of bail before the Principal Sessions Court which was rejected on 17-11-2004. The appellant had moved another bail application before the High Court which was withdrawn on 3-12-2004. The detaining authority noticed that the appellant had not moved any bail application subsequently but it went on to state that there was imminent possibility of the appellant coming out on bail by filing another bail application before the Sessions Court or the High Court since in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed on 15-12-2004 i.e. merely 12 days after the dismissal of the bail application by the High Court. There is nothing on record to show that the appellant had made any preparation for filing a bail application, or that another bail applicat....
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....cient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13-12-2005." 14. From a conjoint reading of the above extracted paragraphs, as well as, the decisions of Co-ordinate Benches of this Court in Navpreet Kaur Chadha (supra) and Sandhya Jain (supra), it is clear, categorical and unequivocal that the settled position of law is that when the detenus are in judicial custody and there is no imminent possibility of their release on bail and even no bail applications are pending, the power of preventive detention ought not to be exercised. 15. The decision of the Hon'ble Supreme Court in Dimple Happy Dhakad (supra), relied upon on behalf of the Detaining Authority, does not come to their aid, inasmuch as, it was clearly expressed by the Hon'ble Supreme Court in that case as well that the satisfaction of the Detaining Authority, that the detenu may be released on bail, cannot be the mere ipse dixit of the Detaining Authority, and that the Guideline No.24 (Part-A of Don's) of the 'Hand Boo....
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.... to what the Advisory Board might do in the exercise of its jurisdiction is not the concern of this Court." 7. In the above observation, this Court has specifically laid down that even though a representation is pending before the Advisory Board, the writ petition under Article 32 of the Constitution is maintainable before this Court. In the circumstances, we may proceed to dispose of the writ petition on merits." 17. In the backdrop of the reasons and judicial precedents discussed above, and the examination of the grounds of detention in the light thereof, we have no option but to hold that, paragraph 7 and other paragraphs of the impugned detention orders dated 01.07.2019 do not meet the criteria and ratio enunciated in the decisions of the Hon'ble Supreme Court in Rekha (supra) and T.V. Sravanan (supra), inasmuch as, there is a clear lapse and failure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while recording its subjective satisfaction and passing the detention orders. The same are, therefore, unsustainable and liable to be set aside and qua....