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PETITIONER: KAMARUNNISSA ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/09/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) AGRAWAL, S.C. (J)

CITATION:  1991 AIR 1640            1990 SCR  Supl. (1) 457  1991 SCC  (1) 128        JT 1990 (4)     7  1990 SCALE  (2)485  CITATOR INFO :  C          1991 SC2261  (12)

ACT:     Preventive  Detention: Conservation of Foreign  Exchange and  Prevention of Smuggling Activities  Act,  1974--Section 3--Detention  order--Can  be passed against  the  person  in custody---Non-supply  of  documents on demand--No  hard  and fast rule can be laid down-Detenu must show that  non-supply of documents has impaired his right to make an effective and purposeful representation.     Declaration--Non-supply      of      documents--      If documents--Relied  upon for the purpose of  declaration  are same  as  supplied  to the detenu  alongwith  the  detention order--It is unnecessary to supply these afresh.     Detention Order--Detenu in custody--Subjective satisfac- tion-Detenu  charged  with  ‘bailable’  of  offence--Whether expression  ‘bailable’  used  in the  grounds  of  detention disclosed non-application of mind? Context in which  expres- sion  ‘bailable’ was used it cannot be said that  there  was non-application of mind.

HEADNOTE:     The  petitioners are the wives of three detenus who  had been  detained  under  an order dated  10th  November,  1989 passed under subsection (1) of section 3 of the Conservation of  Foreign Exchange and Prevention of Smuggling  Activities Act,  1974  against each of them with a view  to  preventing them  from smuggling goods’. The order of detention as  well as  the  grounds of detention dated November 10,  1989  were served  on  the three detenus on 21st November,  1989  while they were already in jail custody on remand following  their arrest at the Sahar International Airport on October 5, 1989 when  on suspicion they were searched which resulted in  the recovery  of diamonds, precious stones and foreign  currency which they had planned to smuggle out. Thereafter on  Decem- ber 20, 1989 a declaration under section 9(1) of the Act was passed  in respect of each detenu which was served  on  them within  the time allowed by law. Thereupon the wives of  all the  three detenus filed separate habeas corpus  writ  peti- tions  in  the High Court of Bombay. Four  contentions  were raised  before the High Court namely, (1) since the  detenus

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were  in  custody their detention was unwarranted;  (2)  the detaining authority had betrayed non-application of mind  by describing 458 the  offence  as ’bailable’; (3) the representation  of  the detenus  dated 18th December, 1989 had not been disposed  of promptly and there was inordinate delay; and (4) the author- ities had failed to supply certain crucial documents  called for by the detenus thereby depriving them of the opportunity of making an effective representation. The High Court  nega- tived all the contentions and dismissed the writ petitions.     Against that the wives of the detenus have filed Special Leave  Petitions  and  also separate  writ  petitions  under Article  32 of the Constitution raising several  contentions including those negatived by the High Court.     Dismissing  all  the Special Leave  Petitions  and  Writ Petitions  and  upholding the view taken by the  High  Court this, Court,     HELD:  Even in the case of a person in custody a  deten- tion order can validly be passed (1) if the authority  pass- ing  the order is aware of the fact that he is  actually  in custody;  (2)  if he has reason to believe on the  basis  of reliable material placed before him (a) that there is a real possibility  of his being released on bail, and (b) that  on being  so  released he would in all probability  indulge  in prejudicial  activity;  and (3) if it is felt  essential  to detain him to prevent him from so doing. [278F-G]     It  is  not sufficient to say that the  detenu  was  not supplied  the copies of the documents in time on demand  but it  must further be shown that non-supply has  impaired  the detenu’s right to make an effective and purposeful represen- tation. [281B]     Demand of any and every document, however irrelevant  it may  be,  merely  on the ground that there  is  a  reference thereto  in  the  grounds of detention,  cannot  vitiate  an otherwise  legal detention order. No hard and fast rule  can be  laid down in this behalf but what is essential  is  that the  detenu must show that failure to supply  the  documents before  the  meeting of the Advisory Board had  impaired  or prejudiced his right, however slight or insignificant it may be. [281B-C]     Vijay  Narain Singh v. State of Bihar,  [1984] 3  S.C.C. 14; Dharmendra Suganchand Chelawat v. Union of India, [1990] 1  S.C.C.  746; Ramesh Yadav v.  District  Magistrate  E.T., [1985] 4 S.C.C. 232; Suraj Pal Sahu v. State of Maharashtra, [1986]  4  S.C.C. 378; Binod Singh v.  District  Magistrate, Dhanbad,  [1986]  4 S.C.C. 416; Abdul  Wahab  Sheikh  v.S.N. Sinha,  [1989]  2 S.C.C. 222; Meera Rani v. State  of  Tamil Nadu, [1989] 4 S.C.C. 418; Shashi Aggarwal v. State of Uttar Pradesh,  [1988]  1 S.C.C. 436; Anand Prakash  v.  State  of Uttar Pradesh, [1990] 1 S.C.C. 291; Sanjay Kumar Aggarwal v. Union of 459 India, [1990] 3 S.C.C. 309; Gurdip Singh v. Union of India & Ors., [1989] Crl. L.J. NOC 41 Delhi and Nand Kishore Purohit v.  Home  Secretary, Maharashtra, [1986] 2  Bombay  C.R.  25 referred to.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Writ Petition  (Crimi- nal) Nos. 757,759 & 760 of 1990 (Under Article 32 of the Constitution of India.) N. Devarajan and V. Krishnamurthy for the Petitioners.

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   Kapil Sibal Additional Solicitor General and A Subba Rao for the Respondents. The Judgment of the Court was delivered by AHMADI,  J.Three persons, namely, (1) M.M. Shahul  Hameed  @ Gani Asiam, (2) Haja Mohideen @ Shahul Hameed Asarudeen  and (3)  Naina Mohammed @ Raja Mohd. Zafar were  intercepted  by the  officers of Department of Revenue Intelligence  on  5th October, 1989 at the Sahar International Airport, Bombay, as they were suspected to be involved in smuggling  activities. They  were escorted to the office of Directorate of  Revenue Intelligence,  Waldorf,  Colaba,  Bombay,  where  they  were interrogated. On interrogation it was found that M.M. Shahul Hameed was to board flight No. CX-750 to Hongkong while  the other two were to proceed to Dubai by Emirate Flight No. E-5 10  on that day. The said three persons were  searched.  Two balloon covered rolls secreted in the rectum of M.M.  Shahul Hameed  were removed and were found to contain diamonds  and precious  stones  weighing  about 905.70  carats  and  77.37 carats, respectively. The said diamonds and precious  stones valued at about Rs.70 lacs were attached under a  Panchnama. In addition to the same foreign currency of the value of Rs. 10,706  was  also recovered and attached. His  passport  was also seized.     The  other two persons were found to have swallowed  100 capsules each containing foreign currency of the total value of  Rs.6,99,930.  The  capsules were  extracted  from  their persons and the currency was recovered and attached under  a Panchnama. In addition thereto foreign currency of the value of Rs. 1,466.50 was also found on their person during  their search  and  the  same too was attached  and  seized.  Their passports were also seized. 460     All  the  aforesaid three persons  belonged  to  Village Namboothalai  of District Ramnath, Tamilnadu.  Their  state- ments were recorded on the same day i.e. 5th October,  1989. M.M. Shahul Hameed disclosed that his cousin Kasim, owner of a film company at Madras, had offered him a sum of  Rs.4,000 for smuggling diamonds, etc., to Hongkong. On his  agreeing, he was trained and was sent to Bombay with one Mohammad  who was to introduce him to Mohideen and Rahim who were supposed to  entrust  him with the diamonds, etc., to be  carried  to Hongkong. Accordingly he came to Bombay with the said Moham- mad and was duly introduced to the aforesaid two persons  at a  fiat  in Chembur where he stayed. The said  Mohideen  and Rahim arranged for his passport and ticket and gave him  two roll  wrapped in balloons containing diamonds, etc., on  the night of 4th October, 1989 for being carried to Hongkong. As per  the training he had received, he concealed  these  bal- loons in his rectum before leaving for the Airport to  catch the flight to Hongkong. In addition to the same he was given a  paper on which something was scribbled in Arabic. In  the course  of  his interrogation he admitted the  recovery  and seizure  of diamonds and precious stones and also  gave  the description  of  Kasim and Rahim. On 12th October,  1989  he wrote a letter retracting his statement made on 5th October, 1989.  However,  in his further statement recorded  on  19th October, 1989 he admitted that his signature was obtained on the  letter  of 12th October, 1989  without  disclosing  the contents  thereof to him and that his earlier  statement  of 5th  October, 1989 was both voluntary and correct.  Inciden- tally the statement of retraction was rejected by the Deputy Director of Revenue Intelligence on 20th October, 1989.     The other two persons whose statements were also record- ed on 5th October, 1989 disclosed that they were both  work- ing at a Tea shop in Madras and knew Mohideen and Rahim  who

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too  were working with them. Rahim had suggested  that  they would be paid Rs.2,000 each if they were willing to  smuggle foreign currency to Dubai by swallowing capsules  containing the  same. On their agreeing they too were trained and  were then taken to Bombay where they were lodged in Vimi Lodge at Bhindi Bazar. On 4th October, 1989 they were given an  tick- ets  for  travel to Dubai and 100 capsules  each  containing foreign  currency. They swallowed the capsules and  left  by taxi  for  the Airport in the early hours  of  5th  October, 1989. They too were given a paper containing some scribbling in Arabic by Mohideen and Rahim. While they were waiting  to catch their flight, they were intercepted as stated earlier. Both  of them also signed letters dated 12th  October,  1989 retracting  their statements made under Section 108  of  the Customs 461 Act, 1962 on 5th October, 1989. However, in their subsequent statement of 19th October, 1989 they admitted that they were not  aware  of the contents of the letter of  12th  October, 1989. They further admitted that what they had disclosed  on 5th  October,  1989 was both voluntary  and  correct.  Their statements  of retraction were also rejected by  the  Deputy Director of Revenue Intelligence on 20th October, 1989.     All the three aforesaid persons were produced before the learned    Additional   Chief    Metropolitan    Magistrate, Esplanade.  Bombay on 6th October, 1989. They were taken  on remand by the police for investigation. Barring M.M.  Shahul Hameed,  the other two had preferred applications  for  bail which  were kept for hearing initially on 27th October  1989 but  the date was later extended upto 16th  November,  1989. Their  co-accused, Kasim was arrested on 6th October.   1989 and  was produced before the Additional  Chief  Metropolitan Magistrate,  Egmore, Madras. He too was taken on remand.  On 19th  October, 1989 he too had preferred a bail  application which was kept pending as the investigation was in progress. Since the period of remand was extended from rime to time in the case of all the aforesaid four persons finally upto 16th November,  1989, the bail applications were also  fixed  for hearing on that date.       In  the  meantime  on 10th November,  1989  the  Joint Secretary  to  the Government of India in  the  Ministry  of Finance,  Department of Revenue, passed an order under  sub- section  (1)  of Section 3 of the  Conservation  of  Foreign Exchange  and Prevention of Smuggling Activities  Act.  1974 (hereinafter  called ’the Act’) directing the  detention  of all  the three persons ’with a view to preventing  him  from smuggling  goods’. They were directed to be detained in  the Central  Prison.  Bombay. This order  of  detention,  though passed  on  10th November. 1989 was in fact  served  on  the three detenus on 21st November, 1989. i.e., after a lapse of about 11 days. The grounds of detention dated 10th November, 1989 were also served on the three the same day.  Thereafter the  Additional Secretary to the Government of India in  the Ministry  of Finance, Department of Revenue made a  declara- tion concerning the three detenus dated 20th December  1989, under sub-section (1) of section 9 of the Act after  record- ing  a satisfaction that they were likely to  smuggle  goods out of and through Bombay Airport. an area highly vulnerable to  smuggling  within the meaning of Explanation 1  to  that section.  This declaration was served on the detenus  within the  time  allowed by law. Thereupon. the wives of  all  the three  detenus filed separate habeas corpus  writ  petitions under Article 226 of the Constitution in the High Court of 462 Bombay  on  19th January. 1990. These  writ  petitions  were

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numbered 66, 67 and 68 of 1990. Four contentions were raised before the High Court, namely, (1) since the detenus were in custody  their detention was unwarranted; (2) the  detaining authority had betrayed nonapplication of mind by  describing the  offence with which the detenus were charged  as  ’bail- able’;  (3)  the representation of the  detenus  dated  18th December,  1989 had not been disposed of promptly and  there was inordinate delay; and (4) the authorities had failed  to supply  certain crucial documents called for by the  detenus thereby  depriving  them  of the opportunity  of  making  an effective  representation. All the three petitions  came  up for  hearing  before a Division Bench of the High  Court  on 21st  March,  1990.  The High Court rejected  all  the  four contentions  and  dismissed  the writ  petitions.  The  said dismissal  has led to the filing of Special Leave  Petitions (Criminal)  Nos. 73 1,732 & 733 of 1990. Besides filing  the said  special leave petitions under Article 136 of the  Con- stitution, the wives of the detenus have also filed separate Writ Petitions (Criminal) Nos. 757,759 and 760 of 1990 under Article  32  of the Constitution. We have  heard  the  three special leave petitions as well as the three writ  petitions together  and we proceed to dispose them of by  this  common judgment.     The  learned counsel for the petitioners raised  several contentions including the contentions negatived by the  High Court  of Bombay. It was firstly contended that the  detenus had  made representations on 18th December, 1989 which  were rejected by the communication dated 30th January, 1990 after an  inordinate delay. The representations dated 18th  Decem- ber,  1989  were delivered to the Jail Authorities  on  20th December,  1989.  The Jail Authorities  despatched  them  by registered post. 23rd, 24th and 25th of December, 1989  were non-working  days. The representations were received by  the COFEPOSA  Unit on 28th December, 1989. On the very next  day i.e 29th December, 1989 they were forwarded to the  sponsor- ing  authority  for comments. 30th and 31st  December,  1989 were  non-working days. Similarly 6th and 7th January,  1990 were  non-working days. The comments of the  sponsoring  au- thority were forwarded to the COFEPOSA Unit on 9th  January, 1990. Thus it is obvious that the sponsoring authority could not  have received the representations before  1st  January, 1990. Between 1st January, 1990 and 8th January, 1990  there were two non-working days, namely, 6th and 7th January, 1990 and, therefore, the sponsoring authority can be said to have offered the comments within the four or five days  available to  it.  It cannot, therefore, be said that  the  sponsoring authority  was  guilty of inordinate delay.  The  contention that the views of the sponsoring authority were 463 totally  unnecessary  and the time taken by  that  authority could have been saved does not appeal to us because consult- ing the authority which initiated the proposal can never  be said to be an unwarranted exercise. After the COFEPOSA  Unit received  the comments of the sponsoring authority it  dealt with the representations and rejected them on 16th  January, 1990. The comments were despatched on 9th January, 1990  and were  received by the COFEPOSA Unit on 11th  January,  1990. The  file was promptly submitted to the Finance Minister  on the 12th; 13th and 14th being non-working days, he took  the decision  to  reject the representations  on  16th  January, 1990.  The  file was received back in the COFEPOSA  Unit  on 17th January, 1990 and the Memo of rejection was  despatched by the post on 18th January, 1990. It appears that there was postal  delay  in the receipt of the  communication  by  the detenus  but  for  that the detaining  authority  cannot  be

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blamed. It is, therefore, obvious from the explanation given in  the counter that there was no delay on the part  of  the detaining  authority in dealing with-the representations  of the detenus. Our attention was drawn to the case law in this behalf  but we do not consider it necessary to refer to  the same  as  the question of delay has to be  answered  in  the facts  and  circumstances of each case. Whether or  not  the delay,  if  any, is properly explained would depend  on  the facts of each case and in the present case we are  satisfied that there was no delay at all as is apparent from the facts narrated above. We, therefore, do not find any merit in this submission.     It  was  next submitted by the learned counsel  for  the petitioners  that  there was no compelling  reason  for  the detaining authority to pass the impugned orders of detention as  the detenus were already in custody on the date  of  the passing  of  the  detention orders as well  as  the  service thereof.  Besides,  he submitted. it is  apparent  from  the averments  in paragraph 15 of the grounds of detention  that the concerned authority was labouring under a  misconception that  the  detenus were charged with  a  ’bailable’  offence which  betrays  total non-application of  mind.  He  further submitted  that  the delay in the service of  the  detention orders  discloses that there was no urgency  about  ordering detention.  Taking the last limb of the argument  first,  we may refer to the counter filed in the writ petitions in this behalf. Therein it is stated that after the detention orders were  signed  on 10th November, 1989, it was  realised  that certain  documents  which were not in Tamil  language  would have to be translated. The services of a professional trans- lator  were requisitioned. Between 10th and  21st  November, 1989  there were five holidays on 11th, 12th, 13th,  18th  & 19th. As soon as the translations were ready and received by the Department, the police autho- 464 rities  were directed on 20th November, 1989 to execute  the detention orders. This was done on 21st November, 1989, Thus the time taken between 10th and 21st November. 1989. exclud- ing  5 holidays, was only of six days during which  all  the documents  were  got translated in Tamil language  and  were served on the detenus along with grounds of detention. These facts clearly show that the time taken in the service of the detention  orders cannot be attributed to lack of  sense  of urgency on the part of the authorities but it was to get the documents  translated  in Tamil language  before  they  were supplied  to the detenus. Under the circumstances we do  not see any delay which would vitiate the detention orders.     It is indeed true that in paragraph 15 of the grounds of detention  the  detaining  authority has  averted  that  the detenus  are charged with a bailable offence. After  setting out the fact that two of the detenus had made an application for bail in the Bombay Court and their co-accused Kasim  had made a similar application in the Madras Court, the authori- ty proceeds to state as under: "Though  you are in judicial custody but can be released  on bail  any  time  as the offence with  which  you  have  been charged is bailable in which case you may indulge in similar prejudicial activities. It  is  necessary to bear in mind the context in  which  the expression  bailable’ is used. In the counter filed  by  the Joint Secretary who passed the detention orders and prepared the grounds for detention it is stated that his past experi- ence in such eases was that normally and almost as a  matter of  rule courts grant bail after the investigation  is  com- pleted. It was in this background, says the officer, that he

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used  the expression ’bailable’. We may reproduce his  exact words from the counter: "It  is also submitted that the word bailable which has  not been used in the legal sense, it was intended to convey that normally  in such cases one gets bail and in  that  context, the word ’bailable’ was used". Proceeding further it is averred in the counter that even in nonbailable  offences the Sessions Court and the High  Court are empowered to grant bail. He was, therefore, of the  view that  in  such cases courts normally grant bail. It  was  in this  background  that  he used the  word  bailable  in  the grounds of detention. 465     Mr.  Sibbal  the learned Additional  Solicitor  General, contended  that  the  expression bailable was  used  in  the backdrop  of the fact that two of the detenus and Kasim  had already  applied for bail. The court had not rejected  their applications but had adjourned them as the investigation was in progress. That gave rise to the belief that bail would be granted.  His normal experience also was that in such  cases courts  ordinarily  granted bail on the  conclusion  of  the investigation. He, therefore, loosely described the  offence as bailable and did not use that word in the technical sense of section 2(a) of the Code of Criminal Procedure. The  High Court also pointed out that even in respect of  non-bailable offences it is generally open to the Sessions Court and  the High Court to release the accused on bail. It further points out that it is equally open to the Magistrate to release the accused on bail after a period of two months. In the circum- stances  the High Court was of the opinion that the  use  of the expression ’bailable’ cannot lead one to the  conclusion that  there was no application of mind. We are  inclined  to think  that  having regard to the background in  which  this expression is used in paragraph 15 of the grounds of  deten- tion  and bearing in mind the explanation and the fact  that in such cases courts normally grant bail, it cannot be  said that  the use of the said expression discloses  non-applica- tion  of mind. It was then submitted that the  detenu   M.M. Shahul Hameed had not applied for bail and, therefore, there was  no  question of his being released on bail. We  do  not think  that  there is any merit in this submission  for  the simple reason that if the co-accused are released on bail he too  could seek enlargement on bail at any time.  Therefore, the  possibility of all the detenus being released  on  bail was  a real one and not an imaginary one. This was based  on past experience which is re-inforced by the observations  of the  High  Court that even in non-bailable cases  courts  of Sessions  and High Court do grant bail. The second  limb  of the contention is, therefore, clearly devoid of merit.     Counsel for the detenus, however, vehemently argued that since  the detenus were in custody, there was no  compelling necessity  to  pass  the detention orders  for  the  obvious reason that while in custody they were not likely to indulge in any prejudicial activity such as smuggling. In support of this  contention reliance was placed on a host of  decisions 01’ this Court beginning with the case of Vijay Narain Singh v. State of Bihar, [1984] 3 SCC 14 and ending with the  case of Dharmendra Suganchand Chelawat v. Union of India,  [1990] 1 SCC 746. It is necessary to bear in mind the fact that the grounds  of  detention  clearly reveal  that  the  detaining authority was aware of the fact that the detenus were appre- hended while they were about to board the flights 466 to  Hongkong  and Dubai on 5th October, 1989.  He  was  also aware  that the detenu M.M. Shahul Hameed had secreted  dia-

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monds and precious stones in his rectum while the other  two detenus  had swallowed 100 capsules each containing  foreign currency  notes. He was also aware of the fact that all  the three  detenus  were produced before  the  Additional  Chief Metropolitan  Magistrate, Espalande, Bombay and two of  them had applied for bail. He was also conscious of the fact that the  hearing of the bail applications was postponed  because investigation was in progress. His past experience was  also to  the effect that in such cases courts ordinarily  enlarge the accused on bail. He was also aware of the fact that  the detenu  M.M.  Shahul Hameed had not applied for  bail.  Con- scious of the fact that all the three detenus were in custo- dy,  he  passed  the impugned orders of  detention  on  10th November, 1989 as he had reason to believe that the  detenus would  in  all probability secure bail and if  they  are  at large, they would indulge in the same prejudicial  activity. This inference of the concerned officer cannot be  described as bald and not based on existing material since the  manner in which the three detenus were in the process of  smuggling diamonds  and currency notes was itself indicative  of  they having received training in this behalf. Even the detenus in their statements recorded on 5th October, 1989 admitted that they had embarked on this activity after receiving training. The  fact  that one of them secreted diamonds  and  precious stones in two balloon rolls in his rectum speaks for itself. Similarly  the fact that the other two detenus  had  created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be  a solitary instance. All the three detenus had prepared  them- selves  for indulging in smuggling by creating  cavities  in their bodies after receiving training. These were not  ordi- nary  carriers.  These were persons who had  prepared  them- selves  for a long term smuggling programme and,  therefore, the  officer passing the detention orders was  justified  in inferring  that  they would indulge in similar  activity  in future because they were otherwise incapable of earning such substantial amounts in ordinary life. Therefore, the  criti- cism that the officer had jumped to the conclusion that  the detenus would indulge in similar prejudicial activity  with- out there being any material on record is not justified.  It is  in  this  backdrop of facts that we  must  consider  the contention of the learned counsel for the detenus whether or not  there  existed  compelling circumstances  to  pass  the impugned  orders  of detention. We are  inclined  to  think, keeping  in view the manner in which these detenus  received training  before  they indulged in the  smuggling  activity, this  was not a solitary effort, they had in  fact  prepared themselves for a long term programme. The decisions of  this Court to which our attention was drawn by the learned 467 counsel  for the petitioners lay down in no uncertain  terms that detention orders can validly be passed against  detenus who  are in jail, provided the officer passing the order  is alive to the fact of the detenus being in custody and  there is  material on record to justify his conclusion  that  they would indulge in similar activity if set at*liberty. We will now consider the case law in brief.     In Vijay Narain Singh (supra) this Court stated that the law  of  preventive detention being a drastic and  hard  law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would  suffice; So also in Ramesh Yadav v.  District  Magis- trate ET, [1985] 4 SCC 232 this Court stated that ordinarily a detention order should not be passed merely on the  ground that the detenu who was carrying on smuggling activities was

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likely  to  be enlarged on bail. In such  cases  the  proper course would be to oppose the bail application and if grant- ed, challenge the order in the higher forum but not  circum- vent it by passing an order of detention merely to supersede the  bail order. In Suraj Pal Sahu v. State of  Maharashtra, [1986] 4 SCC 378 the same principle was reiterated. In Binod Singh  v. District Magistrate, Dhanbad, [1986] 4 SCC 416  it was  held  that if a person is in custody and  there  is  no imminent  possibility of his being released  therefrom,  the power of detention should not ordinarily be exercised. There must  be  cogent  material before the  officer  passing  the detention order for inferring that the detenu was likely  to be  released  on  bail. This inference must  be  drawn  from material  on  record and must not be the ipse dixit  of  the officer  passing the detention order. Eternal  vigilance  on the part of the authority charged with the duty of maintain- ing  law and order and public order is the price  which  the democracy in this country extracts to protect the  fundamen- tal freedoms of the citizens. This Court, therefore,  empha- sized  that before passing a detention order in  respect  of the  person  who  is in jail the  concerned  authority  must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenu being released on bail and further if released on bail the material on record reveals that he will indulge  in prejudicial  activity if not detained. That is why in  Abdul Wahab Sheikh v.S.N. Sinha, [1989] 2 SCC 222 this Court  held that  there must be awareness in the mind of  the  detaining authority  that  the  detenu is in custody at  the  time  of actual  detention  and  that cogent  and  relevant  material disclosed the necessity for making an order of detention. In that  case the detention order was quashed on the ground  of non-application  of mind as it was found that the  detaining authority  was  unaware that the  detenu’s  application  for being released on bail was rejected by the 468 designated  Court,  In Meera Rant’ v. State of  Tamil  Nadu, [1989]  4  SCC 418 the case law was examined  in  extension. This  Court pointed out that the mere fact that  the  detenu was in custody was not sufficient to invalidate a  detention order  and  the decision must depend on the  facts  of  each case. Since the law of preventive detention was intended  to prevent a detenu from acting in any manner considered preju- dicial under the law. ordinarily it need not be resorted  to if  the detenu is in custody unless the detaining  authority has  reason  to believe that the subsisting custody  of  the detenu may soon terminate by his being released on bail  and having  regard  to his recent antecedents he  is  likely  to indulge  in similar prejudicial activity unless he  is  pre- vented  from doing so by an appropriate order of  preventive detention.  In  Shashi Aggarwal v. State of  Uttar  Pradesh, [1988] SCC 436 it was emphasized that the possibility of the court  granting bail is not sufficient nor is a bald  state- ment  that the detenu would repeat his  criminal  activities enough to pass an order of detention unless there is  credi- ble  information  and cogent reason apparent on  the  record that the detenu, if enlarged on bail, would act prejudicial- ly.  The same view was reiterated in Anand Prakash v.  State of  Uttar  Pradesh, [1990] 1 SCC 291 and  Dharmendra’s  case (supra). In Sanjay Kurnar Aggarwal v. Union of India, [1990] 3  SCC  309  the detenu who was in jail was  served  with  a detention order as it was apprehended that he would  indulge in  prejudicial  activities on being released on  bail.  The contention  that the bail application could be  opposed,  if granted,  the  same could be questioned in a  higher  forum,

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etc.,  was negatived on the ground that it was not  the  law that no order of detention could validly be passed against a person in custody under any circumstances.     From the catena of decisions referred to above it  seems clear  to us that even in the case of a person in custody  a detention  order can validly be passed (1) if the  authority passing  the order is aware of the fact that he is  actually in custody; (2) if he has reason to believe on the basis  of reliable material placed before him (a) that there is a real possibility  of his being released on bail, and (b) that  on being  so  released he would in all probability  indulge  in prejudicial  activity  and (3) if it is  felt  essential  to detain  him to prevent him from so doing. If  the  authority passes  an  order after recording his satisfaction  in  this behalf,  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. What this court stated in  the case of Ramesh Yadav (supra) was that  ordinarily  a detention  order should not be passed merely to pre-empt  or circumvent enlargement on bail in cases which 469 are  essentially  criminal in nature and can be  dealt  with under  the  ordinary law. It seems to us well  settled  that even  in a case where a person is in custody, if  the  facts and  circumstances of the case so demand. resort can be  had to  the law of preventive detention. This seems to be  quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our  attention was  drawn since they do not hold otherwise. We,  therefore. find  it difficult to accept the contention of  the  counsel for  the petitioners that there was no valid and  compelling reason for passing the impugned orders of detention  because the, deronus were in custody.     Counsel  for the petitioners next submitted  that  while making  the  representation dated 18th  December.  1989  the detenus had requested for the supply of copies of the decla- rations  made by them before the customs authorities at  the Bombay Airport before boarding their respective flights  and for  copies of the search warrants mentioned in the  grounds of  detention. It was stated that the detenus  needed  these documents for the purpose of making a representation.  While rejecting  their  representation by the memorandum  of  18th January. 1989 the detenus were informed that the  sponsoring authority  was  requested  to supply the  copies  of  search authorisations  to the detenus. The  petitioners  complained that despite this communication the sponsoring authority did not  supply  copies of the search  authorisations  whereupon another  letter dated 6th February, 1990 was written to  the detaining  authority asking for the said documents.  By  the memorandum of 14th February, 1990, the detenus were informed that  the Deputy Director of Revenue  Intelligence.  Bombay, was  requested  to  supply the documents asked  for  by  the deronus.  In response to the same the detenus were  supplied copies of the search warrants but not copies of the declara- tions  made  to the customs officers at the airport.  It  is further complained that this delay had resulted in depriving the  detenus  of their valuable right to make  an  effective representation  against the impugned detention  orders.  The High  Court while dealing with this contention came  to  the conclusion that the declarations made by the detenus at  the airport  were  neither  relied on nor  referred  to  in  the grounds of detention. As regards the search  authorisations, it  may be pointed out that although there is a  mention  of the  premises  searched  in the grounds  of  detention,  the

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incriminating material found has neither been used nor  made the  basis  for formulating the grounds of  detention.  Mere reference to these searches by way of completing the  narra- tion  cannot  entitle  the detenus to claim  copies  of  the search  authorisations. The High Court, therefore,  rejected this contention by observing as under: 470 "We  fail to understand how the Detaining Authority  can  be compelled to give documents which were not relied upon while arriving at the subjective satisfaction. We are also  unable to appreciate how the declaration made by the detenu  before proceedings  to board the aircraft has any  relevance  while considering whether the order of detention should be  passed to  prevent  the detenu from indulging  in  any  prejudicial activities  in future. In our judgment, the  complaint  that some  documents which according to the detenu were  relevant for making representation were not furnished by the  Detain- ing Authority and, therefore, the order or the  continuation of the detention is bad, is without any substance." In  the  counter it is specifically  mentioned  that  ’these documents were not placed before the detaining authority nor the  detaining  authority has relied  upon  those  documents while  issuing the detention order’. The detenus would  have been entitled to any document which was taken into consider- ation  while formulating the grounds of detention  but  mere mention  of the fact that certain searches were carried  our in  the course of investigation, which have no relevance  to the  detention of the detenus, cannot cast an obligation  on the detaining authority to supply copies of those documents. Much less can an obligation be cast on the detaining author- ity  to supply copies of those documents in Tamil  language. In  the peculiar circumstances of the present  petitions  we are  of  the opinion that the view taken by the  High  Court cannot  be  assailed.  Reliance was, however,  placed  on  a decision of the Delhi High Court in Gurdip Singh v. Union of India  & Ors., Criminal Writ No. 257 of 1988 decided on  7th October,  1988 (1989 Crl. L.J. NOC 41 Delhi)  wherein  Malik Sharief-ud-din, J. observed that the settled legal  position was  that all the documents relied upon for the  purpose  of ordering detention ought to be supplied pari passu with  the grounds of detention to the detenu and documents not  relied upon  but casually referred to for the purpose of  narration of facts were also to be supplied to the detenu if demanded. Where  documents of the latter category are  supplied  after the  meeting of the Advisory Board is over it was held  that that  would seriously impair the detenu’s right to  make  an effective and purposeful representation which would  vitiate the  detention.  Counsel  for  the  petitioners,  therefore, submitted  that  in the present case also since  the  search authorisations were supplied after the meeting of the  Advi- sory  Board,  the detention orders stood  vitiated.  But  in order to succeed it must be shown that the search authorisa- tions  had a bearing on the detention orders. If, merely  an incidental refe- 471 rence is made to some part’ of the investigation  concerning a  coaccused in the grounds of detention which has no  rele- vance to the case set up against the detenu it is  difficult to  understand how the detenus could contend that they  were denied the right to make an effective representation. It  is not sufficient to say that the detenus were not supplied the copies  of the documents in time on demand but it must  fur- ther be shown that the non-supply has impaired the  detenu’s right  to make an effective and  purposeful  representation. Demand  of any or every document, however irrelevant it  may

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be for the concerned detenu, merely on the ground that there is  a reference thereto in the grounds of detention,  cannot vitiate an otherwise legal detention order. No hard and fast rule  can be laid down in this behalf but what is  essential is that the detenu must show that the failure to supply  the documents  before  the  meeting of the  Advisory  Board  had impaired  or prejudiced his right, however slight or  insig- nificant it may be. In the present case, except stating that the  documents were not supplied before the meeting  of  the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could counsel for the  peti- tioners point out any such prejudice. We are, therefore,  of the opinion that the view taken by the Bombay High Court  in this behalf is unassailable.     The declaration under section 9(1) dated 20th  December, 1989 is challenged on the ground that the second  respondent failed  to  forward the copies of the document on  which  he placed reliance for arriving at the subject to  satisfaction that  the  detenu were likely to smuggle goods  out  of  and through  Bombay Airport, an area highly vulnerable to  smug- gling  as  defined in Explanation 1 to section 9(1)  of  the Act.  Now  if we turn to paragraph 2 of the  declaration  it becomes evident that the second respondent merely relied  on the grounds of detention and the material in support thereto which  had  already been served on the  detenu  and  nothing more.  Counsel for the petitioners relying on a decision  of the Bombay High Court in Nand Kishore Purohit v. Home Secre- tary,  Maharashtra,  [2986]2 Bombay C.R. 25,  however  urged that  it was obligatory for the second respondent to  supply the  grounds  of detention and  the  accompanying  documents ’afresh’  if  the  declaration ’was based  thereon.  We  are afraid  we  cannot subscribe to this point of view.  If  the documents relied on for the purpose of framing a declaration under  section  9(2) are the very same  which  were  earlier supplied  to the detenu along with the grounds of  detention under  section  3(1), we fail to see what purpose  would  be served  by  insisting that those very  documents  should  be supplied afresh. Such a view would only result in  wasteful. expenditure and avoidable duplication. We do not think that 472 we would be justified in quashing the declaration made under section  9(1) of the Act on such a  hyper-technical  ground. We, therefore, do not see any merit in this contention.     There are a few other minor grounds on which the  deten- tion orders are challenged. These may stated to be rejected. Firstly, it was contended that under section 3(1) of the Act a  detention order can be passed on one or more of the  five grounds  set  out in clauses (i) to (v) thereof.  Since  the impugned  orders  make no mention of the  clause  number  on which  they are rounded they are bad in law.  The  detention orders clearly state that the power is being exercised  with a  view to preventing the smuggling of goods  referrable  to clause  (i) of the subsection. Merely because the number  of that  clause  is not mentioned, it can  make  no  difference whatsoever.  So also we see no merit in the contention  that the value of goods seized varies in the grounds of detention from  that mentioned in the panchnama or  appraisal  report. How that has prejudiced the detenus is difficult to  compre- hend  in the absence of any material on record. The  submis- sion that the declaration under section 9(1) was required to be  communicated  within  five weeks from the  date  of  its making is not specifically raised in the writ petitions  nor was it argued before the High Court. We were, however,  told that  the declaration was communicated in the first week  of January 1990, a statement which was not contested on  behalf

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of  the petitioners. In fact the submission was not  pursued after  this fact was disclosed. We also see no merit in  it. Lastly,  it was said that the authority had failed  to  take notice  of  the retraction of the statement  recorded  under section  108  of the Customs Act, 1962. In fact there  is  a specific  reference  to  the retraction  letter  dated  12th October,  1989  and the subsequent letter of  19th  October, 1989,  wherein the detenus stated that they had  signed  the letter  of 12th October, 1989 without knowing  the  contents thereof and had in fact not disowned their earlier statement of  5th October, 1989. It is clear from the above that  this challenge is also without substance.     These were the only contentions urged at the hearing  of the  special leave petitions as well as the writ  petitions. As  we do not see any merit in any of these  contentions  we dismiss  the  special leave petitions as well  as  the  writ petitions and discharge the rule in each case. R.N.J.               SLPs and Writ Petition dismissed. 473