Siddiqui Khalid Ahmad Vs. Union of India (Uoi) and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/697828
SubjectCriminal
CourtDelhi High Court
Decided OnApr-16-1990
Case NumberCrl. Writ Petition No. 100 of 1990
Judge P.K. Bahri, J.
Reported in1990(28)LC580(Delhi)
AppellantSiddiqui Khalid Ahmad
RespondentUnion of India (Uoi) and ors.
DispositionPetition allowed
Cases ReferredSanjeev Kumar Agarwal v. Union of India and Ors.
Excerpt:
detention grounds must be disclosed. subjective satisfaction of detaining authority not based on cogent material must be discarded. cofeposa act: section 3(1). - - 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 detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, 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 him from engaging in such activities.p.k. bahri, j.1. the petitioner has been detained vide order dated september 20, 1989, passed under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (for short 'cofeposa act') with a view to preventing the petitioner from smuggling goods. in this petition challenging the detention order various grounds have been urged in support of the petition but it is not necessary to refer to all those grounds as this petition is liable to succeed on a very short point.2. it has been urged on behalf of the petitioner that the petitioner was in judicial custody at the time the detention order was passed and his two bail applications stood rejected and there was no other material mentioned in the grounds of detention which could enable the detaining authority to reach the subjective satisfaction that the petitioner is likely to be released on bail in the near future and thus, the order of detention is vitiated on this score alone.3. in dhartnendra suganchand chelawat v. union of india and ors. : 1990crilj1232 , the law has been now summarised by the supreme court in para 21 as follows:the decisions referred to above led to the conclusion 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 detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu 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 detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, 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 him from engaging in such activities. this ratio of law has been again approved by the supreme court in the case of sanjeev kumar agarwal v. union of india and ors. jt 1990 (2) sc 62. in this case the grounds of detention indicated that the bail application of the co-detenus stood pending at the time the detention order was made and the detaining authority had recorded the subjective satisfaction on the aforesaid material that nothing prevented the petitioner also from moving a bail application and getting himself released on bail. the supreme court found that such subjective satisfaction being based on material cannot be questioned.4. in the present case, the facts are different. the grounds of detention show that the petitioner was arrested on june 29, 1989 and was remanded to judicial custody till july 13, 1989 and his bail application dated july 10, 1989, was rejected and another application dated july 17, 1989 was also rejected by the additional sessions judge and no bail application of the petitioner was pending at the time the detention order was passed, still the detaining authority had recorded the subjective satisfaction to the effect that the petitioner was, no doubt, already in judicial custody but the possibility of his filing a fresh bail application and getting enlarged on bail could not be ruled out. it is true that in law nothing prevents an accused from moving one application after another bail application but the grounds of detention must disclose some material from which the subjective satisfaction could be reached by the detaining authority that the detenu is likely to be released on bail in the near future. in the present case, the fact that two bail applications of the petitioner already stood rejected, so the possibility of the petitioner being released on bail in the near future was very much remote. the subjective satisfaction reached by the detaining authority that the petitioner is likely to be released on bail in the near future appears to be based on no cogent material mentioned in the grounds of detention. hence the order of detention stands vitiated.5. i allow the petition, make the rule absolute and quash the detention order and direct that the petitioner be released from jail, if not required to be detained in any other case.
Judgment:

P.K. Bahri, J.

1. The petitioner has been detained vide order dated September 20, 1989, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') with a view to preventing the petitioner from smuggling goods. In this petition challenging the detention order various grounds have been urged in support of the petition but it is not necessary to refer to all those grounds as this petition is liable to succeed on a very short point.

2. It has been urged on behalf of the petitioner that the petitioner was in judicial custody at the time the detention order was passed and his two bail applications stood rejected and there was no other material mentioned in the grounds of detention which could enable the detaining authority to reach the subjective satisfaction that the petitioner is likely to be released on bail in the near future and thus, the order of detention is vitiated on this score alone.

3. In Dhartnendra Suganchand Chelawat v. Union of India and Ors. : 1990CriLJ1232 , the law has been now summarised by the Supreme Court in para 21 as follows:

The decisions referred to above led to the conclusion 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 detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu 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 detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, 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 him from engaging in such activities.

This ratio of law has been again approved by the Supreme Court in the case of Sanjeev Kumar Agarwal v. Union of India and Ors. JT 1990 (2) SC 62. In this case the grounds of detention indicated that the bail application of the co-detenus stood pending at the time the detention order was made and the detaining authority had recorded the subjective satisfaction on the aforesaid material that nothing prevented the petitioner also from moving a bail application and getting himself released on bail. The Supreme Court found that such subjective satisfaction being based on material cannot be questioned.

4. In the present case, the facts are different. The grounds of detention show that the petitioner was arrested on June 29, 1989 and was remanded to judicial custody till July 13, 1989 and his bail application dated July 10, 1989, was rejected and another application dated July 17, 1989 was also rejected by the Additional Sessions Judge and no bail application of the petitioner was pending at the time the detention order was passed, still the detaining authority had recorded the subjective satisfaction to the effect that the petitioner was, no doubt, already in judicial custody but the possibility of his filing a fresh bail application and getting enlarged on bail could not be ruled out. It is true that in law nothing prevents an accused from moving one application after another bail application but the grounds of detention must disclose some material from which the subjective satisfaction could be reached by the detaining authority that the detenu is likely to be released on bail in the near future. In the present case, the fact that two bail applications of the petitioner already stood rejected, so the possibility of the petitioner being released on bail in the near future was very much remote. The subjective satisfaction reached by the detaining authority that the petitioner is likely to be released on bail in the near future appears to be based on no cogent material mentioned in the grounds of detention. Hence the order of detention stands vitiated.

5. I allow the petition, make the rule absolute and quash the detention order and direct that the petitioner be released from jail, if not required to be detained in any other case.