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PETITIONER: VIJAY KUMAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT24/02/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR  934            1988 SCC  (2)  57  JT 1988 (1)   448        1988 SCALE  (1)443  CITATOR INFO :  RF         1989 SC 764  (20)  R          1990 SC1196  (16)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974-Challenging detention under.

HEADNOTE: %      This appeal  was directed  against the  judgment of the High Court  whereby the  High Court  had dismissed  the writ petition of  the appellant,  challenging the validity of his detention under  the  Conservation  of  Foreign  Exchange  & Prevention of Smuggling Activities Act, 1974 (’The Act’).      The  Directorate  of  Revenue  Intelligence  (DRI)  had information that  the  appellant  was  engaged  in  receipt, storage and  disposal of smuggled goods on a large scale. On a specific  information received  on March  11,  1987,  that large quantity  of gold  had been  received by the appellant and stored  at his  instance in  various premises,  the  DRI mounted a  discreet surveillance  in  the  vicinity  of  the appellant’s residence,  and seized  100 foreign-marked  gold biscuits from  Uttam  Chand,  a  milk  vendor.  Uttam  Chand disclosed that  the said  gold had  been given to him by the appellant. He  also disclosed  that the  appellant had given him 300  gold biscuits,  and the remaining 200 gold biscuits had been  taken away from him by Raj Kumar alias Chhotu, the servant of  the appellant.  Raj Kumar alias Chootu disclosed that he  had delivered  the said  200 gold  biscuits to  one Bhuramal  Jain.   A  search  of  Bhuramal  Jain’s  residence resulted in  the recovery  of the  said 200  gold  biscuits. Thus, 300  smuggled gold  biscuits were  seized by  the  DRI officers on March 11. 1987.      A provisional order of detention of the appellant dated April 1.  1987  was  passed  by  the  respondent  No.2,  the detaining authority, under section 3(1) of the Act, and duly communicated to  the appellant  along with  the  grounds  of detention dated April 1, 1987 by the detaining authority.      The case  of the appellant was referred to the Advisory Board constituted  under sub-clause  (a) of  clause  (4)  of Article 22 of the Con- 43

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stitution of  India for  its opinion,  whereupon  the  Board submitted its  report dated  May 13,  1987, and  the Central Govt. by  its order  dated June 24, 1987, in exercise of its powers  under   section  8(f)  of  the  Act,  confirmed  the detention of the appellant, etc.      At this  stage, it  might be  mentioned that before the order of  detention was  passed by  the detaining authority, the appellant  had been  arrested on  a charge under section 135 of the Customs Act, 1962.      The appellant  challenged the  order  of  detention  as confirmed by  the Central  Government  by  a  writ  petition before the  High Court  which dismissed  the  same.  Similar detention orders  having been  passed in respect of the said Uttam Chand,  Bhuramal Jain and Raj Kumar alias Chhotu, they had also  challenged  their  detentions  by  writ  petitions before the  High Court  and the  High Court  had by the same judgment under  appeal  allowed  their  writ  petitions  and quashed the orders of detention. The appellant then appealed to this court for relief by special leave .      Dismissing the appeal, the Court, ^      HELD: Per Murari Mohon Dutt, J.      It was  not correct to say (as contended by counsel for the appellant) that the detaining authority was not aware of the fact  that the  appellant was  already in detention on a charge under  section 135  of the Customs Act. The detaining authority was  fully aware  of the fact of the arrest of the appellant as was evident from paragraph 13 of the grounds of detention.  It  is  not  necessary  that  in  the  order  of detention such  awareness of  the detaining authority has to be indicated. It is enough if it appears from the grounds of detention that  the detaining authority is aware of the fact that the detenu is already in detention. [5lC-E]      It was  true that  in Uttam Chand’s case, the detaining authority had  proceeded on  the basis  that the offence for which he  had been  arrested and  detained, was  a  bailable offence. But  the  question  whether  or  not  a  particular offence for  which a detenu has been detained, is a bailable or non-bailable  offence, does  not have  any bearing on the question of  passing an  order of  detention. Even though an offence is a non-bailable one, an accused may be enlarged on bail. Again,  an offence  for which  a detenu  has been  put under detention, may be a bailable offence. [5lE-F] 44      On a conspectus of a number of decisions of this Court. the Court  was of  the view  that when  a detenu  is already under detention  for an  offence, whether  bailable or  non- bailable,   the   detaining   authority   will   take   into consideration the  fact of  detention of the detenu, and, as laid down  by this Court in Smt. Sashi Aggarwal. v. State of U.P. (Writ  Petition (Crl.)  No. 735  of 1987 disposed of on 11.1.1988), there  must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention  on the  charge of a criminal offence. There must  be  material  for  such  compelling  reasons  and  the material or  compelling reasons must appear from the grounds of detention  that will  be communicated  to the  detenu. In other words,  two facts  must appear  from  the  grounds  of detention, namely  (i) awareness  of the detaining authority of the fact that the detenu is already in detention, and (2) there must  be compelling reasons justifying such detention, despite the fact that the detenu is already under detention. [52F-H: 53A]      In this  case, the  Court  was  unable  to  accept  the contention  of  the  appellant  that  there  had  been  non-

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application of  mind  by  the  detaining  authority  to  the relevant facts.  The detaining authority besides being aware of the fact that the appellant was already in detention, had taken into  consideration the  relevant facts before passing the impugned  order of  detention under  the Act,  which was apparent   from   the   grounds   of   detention.   In   the circumstances, the  contention that  the impugned  order  of detention should  be struck  down  on  the  ground  of  non- application  of   mind  by   the  detaining  authority,  was rejected. [53C-D]      It appeared from the observation made by the High Court that the  appellant, without  making any  prayer before  the Advisory Body  for the  examination of  his witnesses or for giving him assistance of his friend, started arguing his own case, which  in all  probability, had given an impression to the members  of the  Advisory Board that the appellant would not examine  any witness.  The appellant  should have made a specific prayer  before the  Advisory Board  that  he  would examine witnesses,  who were standing outside. The appellant had not  made any  such request to the Advisory Board. There was no  reason  for  not  accepting  the  statement  of  the detaining authority that the appellant had been permitted by the Advisory  Board to have the assistance of an advocate or a friend  at the  time of hearing, but the appellant had not availed himself of the same. In the circumstances, the court did not think that there was any substance in the contention of the appellant that the Advisory Board had acted illegally and in violation of the principles of natural justice in not examining the  witnesses produced  by the  appellant at  the meeting of the Advisory Board and in not 45 giving permission to the appellant to have the assistance of his friend. [54H; 55A-C]      The appellant  contended that  both the  Government and the detaining authority made unreasonable delay in disposing of the  representations made by his wife and by himself, and that the  representations were  not considered independently inasmuch as  the same  were disposed  of after  the Advisory Board submitted  its report, and in view of the above facts, the order of detention was illegal and invalid. [55D-E]      In regard to the representation of the appellant’s wife dated  11.4.1987,  it  appeared  from  paragraph  2  of  the additional affidavit of Mr. S.K. Choudhary, Under Secretary, Ministry of  Finance, Department of Revenue, New Delhi, that comments from  the DRI were received by the senior Technical officer on  28.4.1987. He could not take action on 28.4.1987 as hearing of the appellant’s case before the Advisory Board was fixed  on that  date. He placed the matter with his note before the  detaining authority  on 30.4.87. It was apparent that the  Senior Technical  officer dealt  with  the  matter immediately on  getting the  comments from the DRI and there was delay  in putting  up the  matter before  the  detaining authority  or   the  Government,   as  the  case  might  be. [55F, H; 56D, E]      It was  submitted on  behalf of  the appellant that the detaining  authority  had  no  jurisdiction  to  reject  the representation when  it was  meant for  the Government.  Mr. Kuldip Singh,  Additional Solicitor General pointed out on a reference to  record that  the detaining  authority had  not rejected  the  representation  but  only  commented  "merits rejection". The Court could not accept the contention of the appellant that  the said  comment of the detaining authority had influenced  the mind of the Minister, who had considered the representation  on behalf  of the  Government, and  that there was  no necessity  for  getting  a  comment  from  the

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detaining authority.  Unless the  comments of  the  relevant authorities are  placed before  the  Minister,  it  will  be difficult for  him to  properly consider the representation. There was  no substance  in the  contention that any comment from the detaining authority would influence the mind of the Government. Such  assumption  was  without  foundation.  The contention was rejected. [56H; 57A-D]      As regards  the representation  dated 23.4. 1987 of the appellant to  the detaining  authority, it  was rejected  as stated in  the said  additional affidavit,  by the detaining authority on 4.5.87, and the Additional 46 solicitor-General pointed  out with reference to the records that file  had not  been forwarded to the Minister after the rejection of  the representation by the detaining authority. In the  Court’s opinion,  nothing turned  on the  fact  that after the  representation had  been rejected,  the  relevant file had  been sent  to the  Minister for his consideration. The Court  was also told by the Additional Solicitor General that the report of the Advisory Board was dated May 13, 1987 and both  the representations  had been  disposed of  by the detaining authority  and the Government on May 6, 1987, that is, much  before the  report of  the Advisory  Board. It was apparent that  as the report of the Advisory Board was dated May 13,  1987, there was no foundation for the contention of the appellant  that the consideration of the representations had been  influenced by  the report  of the  Advisory Board. [57D-H; 58A-B]      As regards  the appellant’s  grievance that  he was not supplied with the copies of the documents relied upon by the detaining authority  along with  the grounds  of  detention, there was no factual foundation in the complaint made by the appellant that  he had  not been  supplied with the relevant documents along with the grounds of detention. [58D]      The contention of the appellant that the Government had not applied  its mind while confirming his detention for the maximum period  of one  year as  prescribed in section 10 of the Act,  was, in  the Court’s opinion, devoid of any merit. Section 10  does not  provide that  in imposing  the maximum period  of  detention,  any  reason  has  to  be  given.  In confirming the  order of  detention, it  may  be  reasonably presumed that the Government has applied its mind to all the relevant facts,  and if  it imposes  the maximum  period  of detention, it  cannot be  said that  the Government  has not applied its  mind to  the period of detention. Under section lt of the Act, a detention order may, at any time be revoked or modified  by the  Government. The court did not think, in the  circumstances,   that  the  detenu  was  in  the  least prejudiced or that there had been non-application of mind by the Government to the question of period of detention of the detenu. [58E-H: 59A]      The judgment of the High Court was affirmed. [59B]      Per K. Jagannatha Shetty, J. (concurring)      The first  question was  as to the legality of an order of detention of a person who was already in custody. The Law Report contains  several decisions  on this  point and  they furnish an instructive lesson for both l l sides. In all the cases, there is, however, one uniform principle stated 47 and reiterated.  It is  this: the  detaining authority  must have awareness  of the  fact that  the detenu  is already in custody  and   yet  for  compelling  reason  his  preventive detention is found necessary. [59C-D]      The  question   now  raised  was  what  should  be  the compelling reason justifying the preventive detention if the

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person was  already in jail and where one should find it? Is it from  the grounds  of detention or apart from the grounds of detention? [59D-E]      It was  urged that apart from the grounds of detention, there must be some other material disclosed to the detaining authority that  if the detenu was released on bail, he would again carry  on the  prejudicial activity.  His Lordship did not think that the contention was sound. There cannot be any other material  which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and connected facts  therein. The  satisfaction of the detaining authority can not be reached on extraneous matters. The need to put a person under preventive detention depends only upon the grounds  of detention.  The activities of the detenu may not be isolated or casual. They may be continuous or part of a transaction  or racket  prejudicial to the conservation or augmentation of foreign exchange. Then, there may be need to put the  person under  preventive detention, notwithstanding the fact that he is under custody in connection with a case. There could  not, however,  be any  uniform principle  to be applied in  this regard.  Each case  had to be judged on its own facts  and grounds  of detention.  If  the  grounds  are germane, it  would be perfectly legitimate exercise of power to make an order of detention. [59E-G: 60B-C]      In this  case, having  regard  to  the  nature  of  the grounds furnished  to  the  detenu,  there  was  hardly  any justification to  find fault  with the  order  of  detention [60C]      The next  aspect  which  needed  to  be  clarified  was whether it was necessary for the concerned authority to give special reasons  for directing the detention for the maximum period prescribed  under the Act. It was urged that it was a must for  the concerned  authority to  give special reasons, and if  no such reasons were given, then, it amounted to non - application of the mind. The Court was unable to subscribe to this  view. It  was against the purpose and scheme of the COFEPOSA Act.  The order  made under  section 3(1) is in the nature of  an interim order. It is subject to the opinion of the Advisory  Board under  section 8(f) of the COFEPOSA Act. If the  Advisory Board  reports that there is in its opinion sufficient cause  for  the  detention  of  the  person,  the concerned 48 authority may  confirm and  continue the  detention  of  the person for  such period as it thinks fit. The expression "as it thinks fit" in section 8(f) of the Act indicates that the concerned authority  after considering  the  report  of  the Advisory  Board  may  fix  any  period  for  detention.  The authority is  not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under  section 10.  The opinion  of the  Advisory Board and  the grounds  of detention  are the only basis for confirming and continuing the detention. Section 11 provides for revocation or modification of the detention order at any time. When  the power to revoke the order of detention could be exercised  at any  time, it  is  not  necessary  for  the authority to  articulate special  reasons for continuing the detention for  any period  much less  for the maximum period prescribed under the Act. [60D-E, G-H; 61E-G]      Rameshwar Shaw v. District Magistrate Burdwan, [1964] 4 SCR 921; Ramesh Yadav v. District magistrate, Etah, [1985] 4 SCC 232;  Suraj Pal  Sahu v.  State of Maharashtra, [1986] 4 SCC 378;  391, Smt.  Sashi Aggarwal  v. State of U.P., (writ petition (Crl.) No. 735 of 1987 disposed of by this court on 11.1.1988)  and   Bharat  v.   District  magistrate,  [1985]

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Criminal Law Journal, 1976, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 9 of 1988.      From the  Judgment and  order dated  19. 10.  87 in the High Court of Delhi in Criminal Petition No. 239 of 1987.      D.D. Thakur,  Harjinder Singh  and N  Malhotra for  the Appellant.      Kuldip Singh,  Additional Solicitor General, C.V. Subba Rao and Hemant Sharma for the Respondents.      The following Judgments of the Court were delivered:      DUTT, J.  This appeal  by  special  leave  is  directed against the  judgment of  the Delhi  High Court  whereby the High Court  dismissed the  writ petition  of  the  appellant challenging  the   validity  of   his  detention  under  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as ’the Act’.      Information was  received in the Directorate of Revenue Intelligence  (for  short  ’DRI’)  that  the  appellant  was engaged in receipt, 49 storage and disposal of smuggled gold on a large scale. On a specific information  received on  March 11, 1987 that large quantity of  gold had  been received  by the  appellant  and stored at  his instance in various premises, the DRI mounted a discreet  surveillance in the vicinity of the residence of the appellant.  Shorn of  all details, it may be stated that 100 foreign  marked gold  biscuits, each weighing 10 Totals, were  seized  from  Uttam  Chand,  a  milk  vendor.  It  was disclosed by  Uttam Chand  that the said gold had been given to  him  by  the  appellant.  He  also  disclosed  that  the appellant had given him 300 gold biscuits. The remaining 200 gold biscuits  were taken away from Uttam Chand by Raj Kumar alias Chhotu,  the servant of the appellant. Raj Kumar alias Chhotu, however,  disclosed that  he had  delivered the said 200 gold biscuits to one Bhuramal Jain of E/19, Ashok Vihar, Phase-I, New  Delhi. The search of the residence of Bhuramal Jain resulted  in the  recovery of  the said 200 biscuits of foreign marked gold from a zipper bag.      It is  the case  of the  detaining authority  that  the appellant Vijay  Kumar had,  at the  instance of  one  Dubai based smuggler  Mohideen, agreed  to receive  and dispose of smuggled foreign  marked gold biscuits in Delhi, which would be supplied  to him  by two  men of  Mohideen, named Chandra Bhan and  M.P., for  a monetary consideration. It is alleged that  pursuant   to  that  arrangement,  the  appellant  had received in  all 1150  biscuits of foreign marked gold of 10 Tolas each  from the  said Chandra Bhan and M.P. between the end of  January 1987  and March  7, 1987.  A  part  of  this quantity  of   smuggled  gold  was’  alleged  to  have  been delivered by the appellant to one Prakash Luniya and another part of  it was,  from time to time, stored by the appellant in the residence of Uttam Chand, who had been engaged by the appellant to  store such  smuggled gold  on  behalf  of  the appellant for  a monetary  consideration. As stated already, 300 smuggled  gold biscuits  were seized by the DRI officers on March  11, 1987. These 300 gold biscuits each weighing 10 Tolas,  that   is,  in   all  3000  Tolas,  were  valued  at Rs.92,33,620.      A provisional order of detention of the appellant dated April 1,  1987 was passed by the respondent No. 2, Mr. Tarun Roy, Joint Secretary to the Government of India, Ministry of

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Finance, Department  of Revenue,  New Delhi,  the  detaining authority, under  section 3(1)  of the  Act, with  a view to preventing the  appellant from dealing in the smuggled goods otherwise than  by engaging in transporting or concealing or keeping smuggled  goods. The  order  of  detention  and  the grounds of 50 detention both dated April 1, 1987 were duly communicated to the appellant by the detaining authority.      The case  of the appellant was referred to the Advisory Board constituted  under sub-clause  (a) of  clause  (4)  of Article 22  of the  Constitution of  India for  its  opinion whether there  was sufficient cause for the detention of the appellant. The Advisory Board, after hearing the petitioner, submitted  its  report  dated  May  13,  1987.  The  Central Government by  its order dated June 24, 1987, in exercise of its powers  conferred by  section 8(f) of the Act, confirmed the detention  of the  appellant  and  directed  that  under section 10  of the Act the appellant would be detained for a period of  one year from the date of his detention, that is, from April 2, 1987.      At this  stage, it  may be stated that before the order of detention  was passed  by the  detaining  authority,  the appellant Vijay Kumar was arrested on a charge under section 135 of the Customs Act, 1962.      Being aggrieved  by the order of detention as confirmed by the Central Government, the appellant challenged the same by filing  a writ  petition before the Delhi High Court and, as  stated  already,  the  High  Court  dismissed  the  writ petition. Hence this appeal by special leave      Before considering  the contentions  of the parties, it may be stated here that similar detention orders were passed in respect  of the  said Uttam  Chand, Bhuramal Jain and Raj Kumar alias Chhotu. They also challenged their detentions by filing writ  petitions before the Delhi High Court. The High Court, however,  by the  same judgment  under appeal allowed their writ petitions and quashed the orders of detention.      It is urged by Mr. Thakur, learned Counsel appearing on behalf of  the appellant,  that the  detaining authority was obliged to  consider before  passing the  order of detention that the  detenu was  already in detention on a charge under section 135  of the  Customs Act, but there is no indication in the  order of  detention that such consideration was made or that the detaining authority was aware that the appellant was already  under detention.  It is submitted that as there has been  non-application of mind by the detaining authority as to  the said fact of detention, the order of detention is illegal and invalid.      Further, it  is submitted  by the  learned Counsel that      while the 51 offence under  section 135  of the  Customs Act  is  a  non- bailable  one,  the  detaining  authority  proceeded  on  an erroneous assumption  that  the  offence  was  bailable.  In support of  that contention,  the learned  Counsel has drawn our attention  to the  fact, as  recorded by the High Court, that the detaining authority stated in his counter-affidavit that he was aware at the time of passing the detention order that Uttam Chand was in jail, but there was every likelihood of his  being released  from  jail,  as  the  offence  under section 135  of the  Customs Act  was a  bailable one. It is urged by  the learned  Counsel that  the detaining authority was not  at all  justified in passing the order of detention on such assumption.      It is  not correct  to say that the detaining authority

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was not  aware of the fact that the appellant was already in detention on  a charge under section 135 of the Customs Act. Indeed, in  paragraph 13 of the grounds of detention, it has been categorically  noticed by  the detaining authority that Bhuramal Jain,  Uttam Chand,  Narender Kumar,  Raj Kumar and the appellant were all arrested by the DRI officers on March 13,  1987   and  produced   before  the   Additional   Chief Metropolitan Magistrate,  New  Delhi.  Thus,  the  detaining authority was  fully aware  of the fact of the arrest of the appellant.  It  is  not  necessary  that  in  the  order  of detention such  awareness of  the detaining authority has to be indicated. It is enough if it appears from the grounds of detention that  the detaining authority is aware of the fact that the detenu is already in detention.      lt is  true that  in Uttam  Chand’s case, the detaining authority proceeded  on the basis that the offence for which he was  arrested  and  detaining  was  a  bailable  offence. Although  there  is  no  such  statement  of  the  detaining authority in regard to the appellant, it may be assumed that he was also of the impression that the offence under section 135 of the Customs Act, for which the appellant was arrested and detained  in jail,  was a  bailable  offence.  But,  the question whether  or not  a particular  offence, for which a detenu has  been detained,  is a  bailable  or  non-bailable offence, does  not, in  our opinion, have any bearing on the question of  passing an  order of  detention. Even though an offence is a non-bailable one, an accused may be enlarged on bail. Again,  an offence  for which  a detenu  has been  put under detention,  may be  a bailable  offence. It  has  been observed  by  this  Court  in  Rameshwar  Shaw  v.  District Magistrate, Burdwan,  [1964] 4 SCR 921 that whether an order of detention  can be  against a  person who  is  already  in detention or  in jail,  will always have to be determined in the facts  and circumstances  of each case. Again, in Ramesh Yadav v. District Magis- 52 trate, Etah,  [1985] 4  SCC 232  it has  been ruled  by this Court that merely on the ground that an accused in detention as an  under-trial prisoner was likely to get bail, an order of detention  under the  National Security  Act, should  not ordinarily be passed.      The position  has been  made clear in Suraj Pal Sahu v. State of  Maharashtra, [1986]  4 SCC  378. While reiterating the principles  of law  laid down  in  Ramesh  Yadav’s  case (supra), this  Court further  observes where the offences in respect of  which the  detenu is accused are so inter-linked and continuous  in character  and are  of such  nature  that these affect  continuous maintenance  of essential  supplies and thereby  jeopardize the  security  of  the  State,  then subject to  other conditions being fulfilled, a man being in detention would  not detract from the order being passed for preventive detention.      In a recent decision in Smt. Sashi Aggarwal v. State of U. P.,  Writ Petition  (Crl.) No. 735 of 1987 disposed of on 11.1.1988, this Court has made a review of all the decisions on the  point. One  of us,  (Jagannatha Shetty, J.) speaking for the Court observed as follows:           "Section 3  of the  National Security Act does not           preclude the  authority from  making an  order  of           detention against  a person while he is in custody           or in  jail, but  the relevant facts in connection           with the  making of  the order  would make all the           difference in  every case.  The  validity  of  the           order of  detention has  to  be  judged  in  every           individual case  on its  own facts.  There must be

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         material apparently  disclosed  to  the  detaining           authority in  each case  that the  person  against           whom an  order of  preventive detention  is  being           made  is   already  under   custody  and  yet  for           compelling reasons,  his preventive  detention  is           necessary."      On a  conspectus of  the above decisions, we are of the view that  when a  detenu is  already under detention for an offence, whether  bailable or  non-bailable,  the  detaining authority will  take into  his  consideration  the  fact  of detention  of   the  detenu  and,  as  laid  down  in  Sashi Aggarwal’s case (supra), there must be compelling reasons to justify his  preventive detention  in spite of the fact that he is  already under  detention on  a charge  of a  criminal offence. There  must be material for such compelling reasons and the  material or compelling reasons must appear from the grounds of  detention  that  will  be  communicated  to  the detenu. In  other words,  two facts  must  appear  from  the grounds of detention, namely, (1) awareness of the detaining 53 authority  of  the  fact  that  the  detenu  is  already  in detention  and   (2)  there   must  be   compelling  reasons justifying such  detention, despite the fact that the detenu is already under detention.      In the  instant case,  it has been already noticed that the detaining  authority was  aware of  the  fact  that  the appellant was  arrested and  produced before  the Additional Metropolitan Magistrate, New Delhi. The grounds of detention also disclosed  compelling reasons that the appellant should be preventively  detained under  the Act  in  spite  of  his detention on  a charge under section 135 of the Customs Act. It is  not the  case of  the appellant  that the  grounds of detention do  not disclose  compelling reasons. All that has been urged on behalf of the appellant is that there has been non-application of  mind by  the detaining  authority of the fact of  detention of the appellant. We are, however, unable to accept  the contention  made on  behalf of  the appellant that there has been non-application of mind by the detaining authority to  the relevant  facts. The  detaining authority, besides being  aware of  the fact  that  the  appellant  was already in  detention,  has  taken  into  consideration  the relevant  facts   before  passing   the  impugned  order  of detention under  the Act, which is apparent from the grounds of detention.  In the circumstances, the contention that the impugned order  of detention  should be  struck down  on the ground  of   non-application  of   mind  by   the  detaining authority, is rejected.      It is  next contended  on behalf  of the appellant that the Advisory  Board acted  contrary  to  the  principles  of natural justice  in  not  examining  the  witnesses  of  the appellant whom  the appellant  wished to examine in rebuttal of the allegations made in the grounds of detention and also in not  considering the request of the appellant to have the assistance of his friend before the Advisory Board. In order to consider  this contention,  a few facts may be stated. On April 29,1987, the Advisory Board held its meeting. On April 27,  1987,  the  appellant  made  a  representation  to  the Advisory Board.  In that  representation, it has been stated by the  appellant "I  want to  produce in  rebuttal  of  the allegations made against me, Shri Raj Kumar, Uttam Chand and Shri Narender as my witnesses. They are present and they may be examined  in rebuttal  of the allegations made against me in the  grounds of detention." A copy of this representation dated 23.4.1987  was filed  before  the  Advisory  Board  on 29.4.1987. This fact has not been denied in the affidavit of

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the respondents.      It is submitted by the learned Counsel of the appellant that  when   there  is   a  specific   prayer  in  the  said presentation that the appellant 54 would like  to examine  certain witnesses  who were  present outside, the  Board room, the Advisory Board acted illegally and in violation of the principles of natural justice in not giving  the   appellant  an   opportunity  to   examine  the witnesses. Further,  it is submitted that the Advisory Board should  have   also  allowed   the  appellant  to  have  the assistance of  his friend,  who was also waiting outside the Board room,  in defending  the appellant before the Advisory Board. Affidavits  of the  said witnesses  and also  of  the friend, who  was to  assist the appellant, were filed before the High  Court in  support of the allegation that they were all present and waiting outside the Board room.      Mr.  Tarun   Roy,  the  detaining  authority,  filed  a counter-affidavit wherein  he stated  that the appellant did not ask  for the  examination of  these witnesses  though he stated so in his representation regarding the examination of the witnesses.  The appellant  himself  explained  his  case before the  Advisory Board and kept silent as to whether his witnesses were  present outside  or whether he would like to examine them  in rebuttal  of the  charges made against him. Further, it  is stated  in the  affidavit that the appellant did not bring his friend with him to assist him, although he had stated  in his representation that he might be permitted the assistance  of an  advocate or  a friend  at the time of hearing. The allegations of the appellant that he was denied his right to examine witnesses or the assistance of a friend have been stated by the detaining authority in his affidavit as totally  false. It has been also averred by the detaining authority in  his affidavit that the appellant was permitted by the  Advisory Board to have the assistance of an advocate or a  friend at  the time  of hearing, but the appellant did not avail himself of the same.      A similar  contention was raised before the High Court. The High  Court, after  referring to  the affidavit  of  the detaining authority, has observed that it was for the detenu at the  time of hearing to submit to the Advisory Board that his witnesses,  who were  present outside  the  Board  room, should be  examined, and  that he  should  also  be  allowed assistance of  his friend.  Referring to  the report  of the Advisory Board dated May 13, 1987, the High Court points out that while  the appellant  Vijay Kumar,  Raj Kumar and Uttam Chand appeared  in person,  Bhuramal Jain was represented by his Counsel  before the  Advisory Board.  The Advisory Board did consider the representation of Vijay Kumar and heard him and also the co-detenus      It appears  from the observation made by the High Court that the  appellant, without  making any  prayer before  the Advisory Board for 55 the  examination   of  his   witnesses  or  for  giving  him assistance of  his friend,  started arguing  his  own  case, which in  all probability,  had given  an impression  to the members of  the Advisory  Board that the appellant would not examine any  witness.  The  appellant  should  have  made  a specific prayer  before the  Advisory Board  that  he  would examine witnesses, who were standing outside. The appellant, however, did  not make  any such  request  to  the  Advisory Board. There is no reason for not accepting the statement of the detaining  authority that the appellant was permitted by the Advisory  Board to have the assistance of an advocate or

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a friend  at the  time of hearing, but the appellant did not avail himself  of the  same. In the circumstances, we do not think that  there is any substance in the contention made on behalf of  the  appellant  that  the  Advisory  Board  acted illegally and  in violation  of the  principles  of  natural justice in  not examining  the  witnesses  produced  by  the appellant at  the meeting  of the  advisory Board and in not giving permission to the appellant to have the assistance of his friend.      The  appellant’s   wife  sent  a  representation  dated 11.4.1987 to  the Government  and the  appellant also sent a representation dated  23.4.1987 to  the detaining authority. It  is  the  contention  of  the  appellant  that  both  the Government and  the detaining  authority  made  unreasonable delay in  disposing  of  the  representations.  It  is  also complained that  the  representations  were  not  considered independently inasmuch  as the  same were  disposed of after the Advisory  Board submitted  its report.  It is  submitted that in  view of  the above  facts, the  order of  detention turns out to be illegal and invalid and should be quashed.      In regard to the representation of the appellant’s wife dated 11.4.1987,  we may  refer to  the additional affidavit affirmed by  Mr. S.K.  Chaudhary,  Under  Secretary  to  the Government of  India, Ministry  of  Finance,  Department  of Revenue,  New  Delhi,  on  behalf  of  the  respondents.  In paragraph 2  of the  additional affidavit it has been stated as follows:           "I submit that in the above case, the petitioner’s           wife’s representation dated 11.4.1987 was received           by the office of the Ministry of State for Finance           on 21.4.1987 and from that office, it was received           in COFEPOSA  Unit on 22.4.1987, on which date, the           comments   from   the   Directorate   of   Revenue           Intelligence were  called for.  The comments  from           the said Directorate were received on 27.4.1987 at           5.35 p.m. These comments were received by 56           the Senior  Technical officer  on  28.4.1987.  He,           however, could not take action on 29.4.1987 as the           hearing of  the petitioner’s case was fixed before           the  Advisory  Board  on  that  date.  The  Senior           Technical officer put his note on 30.4.1987 to the           Detaining Authority.  The Detaining Authority was,           however, on  leave on 1.5.1987 and 2nd May and 3rd           May 1987,  being holidays, the Detaining Authority           passed   orders    on   4.5.1987   rejecting   the           representation  of   the  petitioner’s   wife  and           forwarded the  file to  the Minister  of State for           Finance for  his consideration  on behalf  of  the           Central  Government.  The  Minister  rejected  the           representation  on   6.5.1987  and  the  file  was           received in  the section  concerned  on  7.5.1987.           Thereafter, the  memo regarding  rejection of  the           representation was issued on 8.5.1987."      It appears  from paragraph 2 of the affidavit extracted above that comments from the DRI were received by the Senior Technical officer  on 28.4.1987. He, however, could not take action on  29.4.1987 as  hearing of the appellant’s case was fixed  before   the  Advisory   Board  on   that  date  and, accordingly, he placed the matter with his note on 30.4.1987 before the  detaining authority. Mr. Thakur, Counsel for the appellant, demurs to the dealing of the matter by the Senior Technical  officer   and  not  by  the  detaining  authority himself. We do not think that any objection can be raised on this account.  It is  apparent  that  the  Senior  Technical

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officer dealt  with the  matter immediately  on getting  the comments from  the DRI so that there was no delay in putting up  the   matter  before  the  detaining  authority  or  the Government, as  the case may be. Whatever steps he had taken must have  been on behalf of the detaining authority and for expedition. Although  he received the comments on 28.4.1987, he could not take action on 29.4.1987, as the hearing of the appellant’s case was fixed before the Advisory Board on that date. It can be reasonably inferred from this statement that it was  necessary for  the Senior  Technical officer  to  be present before  the Advisory Board with the relevant records and, consequently,  a day’s  delay in  putting up the matter before the detaining authority was quite justified.      It is, however, complained that when the representation was made  to the  Government, it was not at all justified on the  part   of  the   detaining  authority   to  reject  the representation.  In   other  words,  it  is  submitted,  the detaining  authority  had  no  jurisdiction  to  reject  the representation when  it was  meant for the Government. It is true  that  the  said  S.K.  Chaudhary  has  stated  in  his affidavit that the detaining 57 authority rejected  the representation  of  the  appellant’s wife by  his order  dated 4.5.1987.  Mr. Kuldip  Singh,  the learned Additional Solicitor General, however, points out on a reference  to the record, that the detaining authority did not reject  the representation,  but only  commented "merits rejection." Thus,  a wrong  statement has  been made  in the affidavit. Even  though the  position is  altered, yet it is submitted by  the learned Counsel for the appellant that the comment of  the detaining  authority "merits  rejection" had influenced the  mind of  the Minister,  who  considered  the representation on  behalf of the Government. Counsel further submits that  there was  no necessity  for getting a comment from the  detaining authority inasmuch as any comment by him against  the   detenu  would   influence  the  mind  of  the Government. We  are unable  to accept the contention. In our view, unless  the comments  of the  relevant authorities are placed before  the Minister, it will be difficult for him to properly consider  the representation. There is no substance in the  contention  that  any  comment  from  the  detaining authority would  influence the  mind of the Government. Such assumption is without any foundation. The contention in this regard is, accordingly, rejected.      As regards  the representation  dated 23.4.1987  of the appellant to  the detaining  authority, it  appears from the statement  made  in  paragraph  3  of  the  said  additional affidavit that  it was rejected by him on 4.5.1987. There is a further  statement that after such rejection, the file was forwarded to  the Minister  of State  for  Finance  for  his consideration on  behalf of  the Central  Government and the Minister rejected  the representation  on  6.5.1987.  It  is contended by  Mr. Thakur, learned Counsel for the appellant, that as  the representation  was addressed  to the detaining authority, there was no necessity for forwarding the file to the Minister  after the  representation was  rejected by the detaining  authority.   The  learned   Additional  Solicitor General, however,  points out with reference to the records, that the  file was  not forwarded  to the Minister after the rejection of  the representation by the detaining authority. There was,  therefore, a  mistake in  the statement  made in paragraph  3  of  the  said  additional  affidavit.  In  our opinion, nothing  turns out  on  the  fact  that  after  the representation was  rejected the  relevant file  was sent to the Minister for his consideration.

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    We are  also told  by the  learned Additional Solicitor General that  the report  of the Advisory Board is dated May 13, 1987  and both  the representations  were disposed of by the detaining  authority and  the Government on May 6, 1987, that is, much before the report of the 58 Advisory Board  and, as  such, there  is no  question of the consideration of  the representations  of the  appellant and his wife  being influenced  by the  report of  the  Advisory Board. It  is apparent  that as  the report  of the Advisory Board is  dated May 13, 1987, there is no foundation for the contention of  the appellant  that the  consideration of the representations was influenced by the report of the Advisory Board.      It is  urged by  the  appellant  that  he  was  greatly prejudiced as  he was  not supplied  with the  copies of the documents that were relied upon and taken into consideration by  the   detaining  authority  along  with  the  ground  of detention and that such documents, as asked for by him, were given to  him only  on 20.5.1987 and, therefore, there was a delay of  28 days.  A similar contention was advanced before the High  Court. According to the respondents, the documents were all  supplied to  the appellant  with  the  grounds  of detention. In  his representation,  the appellant  had asked for four documents and the High Court was satisfied that all these four  documents had,  in fact,  been supplied  to  the appellant. Accordingly,  it has  been observed  by the  High Court that  the appellant  cannot make  any  grievance  that these documents  were supplied  to him only on 20.5.1987 and not  along   with  the   grounds  of  detention.  There  is, therefore, no  factual foundation  in the  complaint made by the appellant  that he  was not  supplied with  the relevant documents along with the grounds of detention.      The last  point that  has been  urged on  behalf of the appellant is  that the  Government has  not applied its mind while confirming  the detention  of the  appellant  for  the maximum period  of one  year from  the date  of detention as prescribed in  section 10  of the  Act. It is submitted that some reason should have been given why the maximum period of detention is  imposed on  the appellant. This contention, in our opinion,  is devoid  of any merit. Section 10 of the Act provides, inter  alia, that the maximum period for which any person may  be detained  in pursuance of any detention order shall be  a period of one year from the date of detention or the specified  period. Section  10 does  not provide that in imposing the  maximum period of detention, any reason has to be given.  In confirming  the order  of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period  of detention,  it cannot  be said  that  the Government has  not applied  its mind  as to  the period  of detention. In  any event,  under section  11 of  the Act,  a detention order  may, at any time, be revoked or modified by the Government.  In the  circumstances, we do not think that the detenu  was in  the least  prejudiced or  that there has been 59 non-application of mind by the Government to the question of period of  detention of  the detenu.  This contention of the appellant also  fails. No other point has been urged in this appeal.      For the  reason aforesaid,  the judgment  of  the  High Court is affirmed and the appeal is dismissed.      JAGANNATHA SHETTY,  J. I  agree respectfully  with  the Judgment of  my learned  brother M.M.  Dutt, J., but I add a

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few words of my own on the ever recurring question.      The first question is as to the legality of an order of detention of  the person who was already in custody. The Law Report contains  several decisions  on this  point and  they furnish an  instructive lesson  for both  sides. In  all the cases, there  is, however,  one uniform principle stated and reiterated. It  is this:  The detaining  authority must have awareness of  the fact that the detenu is already in custody and yet  for compelling  reason his  preventive detention is found necessary.      The  question   now  raised   is  what  should  be  the compelling reason justifying the preventive detention if the person is  already in  jail and where one should find it? Is it from  the grounds  of detention or apart from the grounds of detention?  It was  urged that  apart from the grounds of detention there must be some other material disclosed to the detaining authority  that if  the detenu is released on bail he would again carry on the prejudicial activities.      I do  not think  that the  contention is  sound.  There cannot be  any other  material  which  can  enter  into  the satisfaction of  the detaining  authority,  apart  from  the grounds of  detention and  the connected facts there in. The satisfaction of the detaining authority cannot be reached on extraneous  matters.  The  need  to  put  the  person  under preventive  detention  depends  only  upon  the  grounds  of detention. The  activities of the detenu may not be isolated or casual.  They may  be continuous or part of a transaction of racket prejudicial to the conservation or augmentation of foreign exchange.  Then there  may be need to put the person under preventive detention, notwithstanding the fact that he is under  custody in  connection with  a case.  As  said  by Sabyasachi Mukharji,  J. in  Suraj  Pal  Sahu  v.  State  of Maharashtra, [1986] 4 S.C. 378 at 391.                "...But where the offence in respect of which           the detenu  is  accused  are  so  interlinked  and           continuous in 60           character and are of such nature that these affect           continuous maintenance  of essential  supplies and           thereby jeopardize the security of the State, then           subject to other conditions being fulfilled, a man           being in  detention would  not  detract  from  the           order being passed for preventive detention."      There cannot,  however, be  any uniform principle to be applied in  this regard.  Each case  has to be judged on its own facts  and on  its own  grounds  of  detention.  If  the grounds  are   germane  it  would  be  perfectly  legitimate exercise of power to make an order of detention.      In the instant case, having regard to the nature of the grounds furnished  to the  detenu I  agree with  my  learned brother, that  there is  hardly any  justification  to  find fault with the order of detention.      The next  aspect which needs to be clarified is whether it is  necessary for the concerned authority to give special reasons for  directing the  detention for the maximum period prescribed under  the Act.  It was,  urged that it is a must for the  concerned authority to give special reasons. And if no  such   reasons  are   given,  then  it  amounts  to  non application of  the mind. The decision of the Madhya Pradesh High  Court,   (Gwalior  Bench)   in  Bharat   v.   District Magistrate, 1986  Criminal Law Journal, 1976 was relied upon in support  of the  contention. There it was observed (at p. 186).           "We did  not find  in the records consideration of           relevant circumstances  that obtained  on the date

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         when the  confirmation was  made in  each case. No           reasons  are   given  as   to  why  the  authority           concerned  considered  it  necessary  to  continue           detention in  each  case  for  maximum  period  of           twelve months.  Whether the objective sought to be           fulfilled in  each  case  could  be  subserved  by           fixing the  period of  continued detention  for  a           lesser period was not at all considered. We are  unable to  subscribe to this view. It is against the purpose and scheme of the COFEPOSA Act. The order made under Section 3(1)  is in  the nature  of an  interim order. It is subject to  the opinion  of the Advisory Board under Section 8(f) of the COFEPOSA Act which provides: 61 8. Advisory Board                For the  purposes of sub-clause (a) of clause           (4) and  sub clause  (c) of clause (7), of Article           22 of the Constitution:                          xxx xxx xxx xxx xxx                              xxx xxx xxx                                  xxx           (f) in  every case  where the  Advisory Board  has           reported that  there is  in its opinion sufficient           cause  for   the  detention   of  a   person,  the           appropriate Government  may confirm  the detention           order and  continue the  detention of  the  person           concerned for  such period as it thinks fit and in           every case  where the  Advisory Board has reported           that there  is in  its opinion no sufficient cause           for the  detention of  the person  concerned,  the           appropriate Government  shall revoke the detention           order  and   cause  the   person  to  be  released           forthwith. "      If the  Advisory Board  reports that  there is  in  its opinion sufficient  cause for  the detention  of the person, the  concerned   authority  may  confirm  and  continue  the detention of  the person  for such  period as it thinks fit. The expression "as it thinks fit" in Section 8(f) of the Act indicates that the concerned authority after considering the report  of  the  Advisory  Board  may  fix  any  period  for detention. The authority is not required to give any-special reason either  for fixing a shorter period or for fixing the maximum period  prescribed under  Section 10. The opinion of the Advisory Board and the grounds of detention are the only basis for  confirming and  continuing the detention, for any period, even  upto the maximum period prescribed. Section 11 provides for  revocation of  detention order.  The detention order may at any time be revoked or modified. When the power to revoke  the order  of detention could be exercised at any time, it  is not  necessary for  the authority to articulate special reasons  for continuing the detention for any period much less for the maximum period prescribed under the Act. S.L.                                  Appeal dismissed. 62