UNION OF INDIA v. ANKIT ASHOK JALAN

Judgment

[2019] 14 S.C.R. 169 169 UNION OF INDIA THROUGH JOINT SECRETARY (COFEPOSA), MINISTRY OF FINANCE, NEW DELHI v. ANKIT ASHOK JALAN (Criminal Appeal No. 1746 OF 2019) NOVEMBER 22, 2019 [UDAY UMESH LALIT, INDIRA BANERJEE AND M. R. SHAH, JJ.] Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Passing of detention order in case of person already in judicial custody – Subjective satisfaction of the Detaining Authority– One ‘A’ carrying 8 Kgs. of gold of foreign origin valued at Rs.2.71 crores approx. intercepted by the Directorate of Revenue Intelligence, Kolkata Zonal Unit – He indicated that he was engaged by the detenus – Detenus apprehended – Bail rejected– Remanded to judicial custody– Detention orders passed by the Detaining Authority– Writ petition filed by the respondent challenging the detention orders against his father and brother (detenus)– High Court quashed and set aside the detention orders – In appeal by both the parties and writ petitions filed by various writ petitioners, held: Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future – Detention orders show the application of mind by the Detaining Authority – Detenus were granted bail by the Court on the very date the orders of detention were quashed by the High Court, therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified – Further, when the detention orders were passed by the Detaining Authority, neither the Sponsoring Authority nor even 169 A B C D E F G H 170 SUPREME COURT REPORTS [2019] 14 S.C.R. the Detaining Authority was aware of any retraction petition of ‘A’ – No occasion and/or reason for the Detaining Authority to consider his retraction statement – Thus, it cannot be said that on non- consideration of A’s retraction petition, the detention orders were vitiated – High Court erred in interfering with the subjective satisfaction of the Detaining Authority – Impugned judgment set aside – Detention orders of the respective detenus restored – Detenus be taken into custody forthwith by the Detaining Authority – In view of the judgment in Criminal Appeal arising from SLP (Criminal) No.

7010/2019, no merit found in the present writ petitions – Customs Act, 1962 – s.104, 108 – Constitution of India – Arts.22(5), 32. Disposing of the matters, the Court HELD: 1.1 The Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future. Even if a person is in judicial custody, he can be detained under the relevant provisions of the concerned Act, like COFEPOSA etc. However, there must be a proper application of mind and the Detaining Authority must have been subjectively satisfied on considering the relevant material that there is a reason to believe that there is a real possibility of detenus being released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities.

In the recent decision, Supreme Court in Dimple Happy Dhakad observed and held (i) that the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody; (ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority A B C D E F G H UOI THR.

JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW DELHI v. ANKIT ASHOK JALAN 171 that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority. The detention orders show the application of mind by the Detaining Authority based on the material available on record, facts and circumstances of the case, nature of activities and propensity of the detenus indulging in such activities. Therefore, in the facts and circumstances of the case, the High Court has erred in setting aside the detention orders on the ground stated hereinabove, namely, that 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. [Paras 8.1, 8.2] [187-D-H; 188-A-C] Rameshwar Shaw v.

District Magistrate AIR 1964 SC 334 : [1964] SCR 921 – followed.