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2014 (12) TMI 1363
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....round case. The High Court held that the satisfaction arrived at by the detaining authority that there is real or imminent possibility of the detenu being enlarged on bail is vitiated in law. 4. Assailing the impugned order, Mr. L. Nageshwara Rao, learned senior counsel appearing for the appellants, submitted that the detention of the detenu on the solitary ground case cannot be held to be erroneous and even on solitary ground the detenu can be detained in custody if sufficient materials on record are available to the satisfaction of the authority concerned. Learned counsel relied upon the decision of this Court in Shiv Ratan Makim vs. Union of India, (1986) 1 SCC 404, and Union of India & Anr. vs. Chhaya Ghosal & Anr., (2004) 10 SCC 97. 5. Mr. Rao then submitted that the High Court has not appreciated the law in holding that the subjective satisfaction arrived at by the detaining authority that there is a real or imminent possibility of the detenu being enlarged on bail and if he is released on bail, he would indulge in such activities which would be prejudicial to the security of the State. In this connection, learned senior counsel relied upon Constitution Bench judgment of th....
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....s available in Trichy. In that view of the matter there is no need for the detenu to undergo the remaining period of detention. 10. We have heard the learned counsel appearing for the parties and perused the orders passed by the Detaining Authority and the High Court. 11. The Habeas Corpus Writ Petition under Article 226 of the Constitution of India was filed by the respondent No.1, the wife of the detenu. The order of detention was primarily based on the information received by the Sub-Inspector of Police Q. Branch, CID, Trichy, who went to TVS toll gate, Trichy along with his force and detenu was arrested and confessional statement was recorded which lead to seizure of incriminating articles containing official secrets relating to Indian Defence Forces and other articles. The Inspector of Police 'Q' Branch CID, Karur received those incriminating and other articles along with the special report and registered a case in Crime No.1 of 2012 under Sections 3,4, and 9 of Official Secrets Act, 1923 read with Section 120(B) IPC. Later on the detenu was produced before the Court of Judicial Magistrate No.2, Trichy and was remanded to judicial custody and his remand was periodica....
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....vided must be meticulously complied with. 14. In the instant case, as noticed above, the High Court quashed the order of detention mainly on the ground that the detenu was in remand in connection with the solitary ground case when there was no material before the detaining authority to show that either the detenu himself or his relatives are taking steps to file application for bail in the solitary ground case. In our opinion, the view taken by the High Court while passing the impugned order cannot be sustained in law. This point was considered by this Court in the case of Union of India & Anr. vs. Chhaya Ghosal & Anr., (2004) 10 SCC 97, and observed:- "23. So far as the finding of the High Court that there was only one incident is really a conclusion based on erroneous premises. It is not the number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran into crores of rupees, as alleged by the detaining authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The a....
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....hat the petitioner was engaged in the business of purchase and sale of foreign marked gold and that this incident in which he was caught was not a solitary incident. The facts stated by the petitioner in his written statement could legitimately give rise to the inference that the petitioner was a member of a smuggling syndicate and merely because only one incident of smuggling by the petitioner came to light, it did not mean that this was the first and only occasion on which the petitioner tried to smuggle gold. There can be no doubt that having regard to the nature of the activity and the circumstances in which the petitioner was caught smuggling gold and the facts set out by him in his written statement, the second respondent was justified in reaching the satisfaction that the petitioner was engaged smuggling gold and that with [pic]a view to preventing him from smuggling gold, it was necessary to detain him. 16. Mr. Gowthaman, learned counsel appearing for the respondent vehemently argued that on the date of passing the detention order no bail was sought for by the detenu hence the detaining authority while passing the impugned order must be satisfied that the detenu was likely....
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....ting offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surround....
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....n view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released." 18. Having regard to the law discussed hereinabove, the impugned order passed by the High Court quashing the order of detention on solitary ground case is erroneous in law. 19. Admittedly, the detenu was confined in jail since 16.9.2012. The detention order was passed on 5.12.2012, after about three months from the date of arrest, and the said order of detention was finally quashed by the High Court by passing the impugned order on 26.4.2013. The question, therefore, that needs to be considered is as to whether if the impugned order passed by the High Court is quashed, can the detenu be then asked to undergo the remaining period of detention. In this regard Mr. Rao relied upon the Constitution Bench judgment of this Court in Sunil Fulchand Shah vs. Union of India and Others, (2000) 3 SCC 409, and fairly submitted that it is for the detaining authority to consider the matter afresh. Relevant paragraphs from the judgmen....
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....est of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. ......... .......... 5. That parole does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instructions, prescribe otherwise. 6. The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or not the detenu should be made to surrender to undergo the remaining period of detention, would depend upon a variety of factors and in particular on the question of lapse of time between the date of detention, the order of the High Court, and the order of this Court, setting aside the order of the High ....
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.... Passage of time in all cases cannot be a ground not to send the detenu to serve remainder of the period of detention. It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the present order." [pic]6. A reading of the above quoted paragraphs would reveal that when an order of a court quashing the detention is set aside, the remittance of the detenu to jail to serve out the balance period of detention does not automatically follow and it is open to the detaining authority to go into the various factors delineated in the judgments aforequoted so as to find out as to whether it would be appropriate to send the detenu back to serve out the balance period of detention. In this view of the matter, we are of the opinion that the detaining authority must be permitted to re-examine the matter and to take a decision thereon within a period of 3 months from the date of the supply of the ....