Rafique C. Mohammed v. The State of Maharashtra and 2 Ors

Heard learned counsel for the Petitioner and the learned A.P.P.,for the State.

The petition has been filed by the brother of the detenue 2wp-1371-09 who has been detained by an order dated 24.4.2009 passed by the Detaining Authority under the provisions of COFEPOSA Act. The order was executed on 28.4.2009. After the petition was admitted, the respondents have filed their counter affidavits. We have gone through

the record and we have also heard the learned counsel for the petitioner and the learned A.P.P., for the State. The learned counsel for the petitioner has raised several grounds to challenge the grounds of detention, but we feel that this petition can be disposed of on the basis that the Detaining Authority in the grounds of detention had not mentioned any compelling reason to pass the order of detention, although the Detaining Authority was aware that the detenue was in custody on the date when she passed the order of detention.

In para 12 of the grounds of detention the detaining authority mentioned that “you were arrested on 3.2.2009 and at present you are in judicial custody”. This ground has specifically been taken as ground No.1 in the writ petition and it has been replied by the Detaining Authority in para 6 of her reply. In reply, the detaining authority has stated that whatever was required to be stated by her in the grounds of detention as mentioned in para 14 of the grounds of detention. We have seen para 19. Paragraph 14 does not make any mention of any compelling reason for passing the order of detention. Paragraph 14 3wp-1371-09 says :-

From the prevailing circumstances, it is apparent that you have knowingly been involved in the prejudicial activity. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in prejudicial activities. I am satisfied that, unless detained, you are likely to continue to engage in aforesaid prejudicial activities in future also, and therefore it is necessary to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to prevent you in future from abetting the smuggling of goods and dealing in smuggled goods.

The learned A.P.P., has drawn our attention to the Judgment of the Supreme Court in the case of Noor Salman Makani vs. Union of India and Ors (1994) (1) SCC 381. We have already considered this judgment in earlier Writ Petition being Criminal Writ Petition No. 1196/2009 and we are of the opinion that this judgment is by two Judge Bench, whereas the earlier Judgment of three Judge Bench of the Supreme Court and therefore that judgment is binding precedent. In earlier Judgment of this Court notice has been taken of various judgments of the Supreme Court including the judgment in the case of Dhermendra Suganchand Chelawat vs. Union of India reported in A.I.R. 1990 S.C. 1196. This Judgment came in similar fact situation and in para 19 of the judgment, the Supreme Court held:- 4wp-1371-09 “...that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii)there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent from engaging in such activities”.

If we go by this judgment, we find that the Detaining Authority was aware of the fact that Detenue was already in detention but she did not mention any compelling reasons justifying detention 5wp-1371-09 despite the fact that the detenue was already in detention. The Supreme Court has laid down these two conditions for an order of detention to uphold when it is passed when the detenue is already in custody. In the same judgment the Supreme Court has also defined “compelling reason” and accordingly the Detaining Authority should have cogent material before it to get satisfied that the detenue was likely to be released from the custody in near future and in case of his release it was likely that he would indulge in prejudicial activities.

The petition is allowed. The order of detention is quashed and set aside. Rule is made absolute in terms of prayer clause (a). The respondents are directed to release the detenue forthwith, if not required in any other case. The writ petition is disposed of accordingly. (BILAL NAZKI,J)

(A.R.JOSHI,J)