Holding

A detention order under COFEPOSA is valid even for a person already in custody if the authority is aware of the custody and is satisfied, on cogent material, of a real likelihood of release and potential for prejudicial activity; non‑supply of bail documents does not affect the order where they were not relied upon.

Summary

The petitioners, foreign nationals arrested for allegedly smuggling gold biscuits, were denied bail and subsequently detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). They challenged the detention, arguing that there was no compelling necessity since they were already in custody, that there were no antecedents, and that the bail application and its refusal were not supplied to the detaining authority or to them, violating Article 22(5) of the Constitution. The Court held that a detention order can validly be passed against a person already in custody if the authority is aware of the custody and is satisfied, on material facts, that the detainee is likely to be released and may engage in prejudicial activity; the authority’s awareness and the material regarding potential smuggling satisfied this test. The Court further ruled that non‑supply of bail documents does not invalidate the detention where those documents were not relied upon by the detaining authority. Consequently, the writ petitions were dismissed.

Issues considered

Whether a detention order under COFEPOSA can be validly passed against a person already in judicial custody.
Whether the detaining authority must be aware of the detainee's custody and have compelling material justifying detention.
Whether failure to supply the bail application and order refusing bail to the detainee or to the detaining authority violates Article 22(5) and invalidates the detention.
Whether a solitary smuggling incident without antecedents can constitute a compelling reason for preventive detention.

Legislation cited

Code of Criminal Procedure, 1973s. 437
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Constitution of Indias. Article 22(5)
Customs Act, 1962s. 104, s. 108, s. 111, s. 113, s. 2(e)

Subjects

preventive detentionCOFEPOSAArticle 22(5)bailforeign nationalsmugglingdetention ordersubjective satisfaction

Judgment

ABDUL SATHAR IBRAHIM MANIK ETC. A
v.
UNION OF INDIA AND ORS.

OCTOBER 8, 1991

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.] B

Conservatioli of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 1974:

S.3(1)--Detenu in jail-Bail application rejected-Dete11tion C
order~ompe/ling 11ecessity for-Detennination of-Whether withi11 the
subjective satisfaction of detaining authority.

Co11stitution of India, 1950:

Arl. 22(5)--Deteiltio11 order-No11 supply of bail applicatio11 a11d order D
refusing bail to dete11u-Detemt's right to a reaso11able opporllmity--Whether
.. ~
affected.
The petitioners - foreign nationals found to be carrying gold
biscuits of foreign origin - were arrested by the Customs authorities.
Their applications for grant of bail under s. 437 Cr.P.C. were rejected. E
Thereafter orders of their detention were passed under s. 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act. The grounds of detention alongwith the· lists of documents annexed
·"",."' thereto were served in time. The petitioners made representations which
~·~ F
In the writ petitions under Article 32 of the Constitution, the
petitioners before this Court contended that there was no compelling
necessity for their detention under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act as they were in jail and their
bail applications were rejected and passports seized; that the provisions of G
the Act were not attracted, as each of the incidents in the case of the
respective petitioners was solit.ary and there were no anticidents showing
their involvement in the like incidents; that there was non-application of
mind by the detaining authority as copies of the bail applications and the
orders refusing bail which were relevant documents were neither placed
H
435
436 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A before the detaining authority nor were supplied to them. On behalf of one
of the petitioners it was also contended that there was no application of
mind by the detaining authority inasmuch as the order of detention
mentioned only smuggling and once the detenu is in jail, his passport
being seized he could no more indulge in smuggling.

B Dismissing the writ petitions, this Court,

HELD: 1.1 A detention order can validly be passed even in the case
of a person who is already in custody. In such a case, it must appear from
the grounds that the authority was aware that the detenu.was already in
C custody. (451-F]

1.2 When such awareness is there then 1.t should further«appear from
the grounds that there was enough material necessitating the detention of
the person in custody. This aspect depends upon various considerations
and facts and circumstances of each case. If there is a. possibility of his
D being released and on being so released he is likely to indulge in
prejudicial activity then that would be one such compelling necessity to
pass the detention order. The order cannot be quashed on the gro'1nd that
the proper course for the authority was to oppose the bail and that if bail
is granted notwithstanding such opposition the same can be questioned
E before a higher Court. [451G-H, 452 A]

Dlaannendra Suga11c/1a11d Chelawat & A11r. v. Union of India & Ors.,
1990 1 SCC 746; Abdul Razak Abdul Walaab Sheikh v. S.N. Sinha, Com-
missioner of Police, Alamedabad & Anr., (1989) 2 SCC 222, referred to.
Rameslawar Shah v. District Magistrate, Burdwan, (1964) 4 SCR 921, fol·
F lowed.

N. Meera Rani v. Government of Tamil Nadu & Anr., (1989] 4 SCC
418; Sanjoy Kumar Aggarwal v. Union of India & Ors., (1990] 3 SCC 309
and Kamanmnissa etc. v. Union of India & A11r., AIR 1991 SC 1640, relied
on.
G 2.1 If the detenu has moved for bail then the application and the
order thereon refusing bail even if not placed before the detaining
authority it does not amount to suppression of relevant material. The
question of non-application of mind and satisfaction being impaired does
not arise as long as the detaining authority was aware-of the fact that the
H detenu was in actual custody. [452 B]
ABDUL SATIIAR v. U. 0.1 437

2.2 Accordingly the non-supply of the copies or bail application or A
the order refusing bail to the detenu cannot affect the detenu's right or
being afforded a reasonable opportunity guaranteed under Article 22(5) or
the Constitution, when it is clear that the authority has not relied or
referred to the same. [452-C]

2.3 When the detaining authority has nterely referred to them in the B
naaTation or events and has not relied upon them, failure to supply bail
application and order refusing bail will not cause any prejudice to the
detenu in making an effective representation. Only when the detaining
authority has not only referred to but also relied upon them in arriving at
the necessary satisfaction then failure to supply these documents, may, in c
certain cases depending upon the facts and circumstances, amount to
violation or Article 22(5) of the Constitution of India. Whether in a given
case the dttaining authority has casually or passingly referred to these
documents or also relied upon them depends upon the facts and the
grounds, which aspect can be examined by the Court. [452 C-E]
D
2.4 In a case where detenu is released on bail and is at liberty at the
time of passing the order of detention, then the detaining authority has to
necessarily rely upon them as that would be a vital ground for ordering
detention. In such a case the bail application and the order granting bail
should necessarily be placed before the authority and the copies should E
. also be supplied to the detenu. (452 E-F]

M. Ahmedkutty v. Union of India & Anr., (1990) 2 SCC 1;
Ramachandra A. Kamat v. Unicn of India. (1980) 2 SCC 270; Framces
Coralie Mullin v. W.C. Khambra. (1980) 2 SCC 275; Icclm Devi Choraria v.
Union of India. (1980] 2 SCC 531; Pritam Nath Hoon v. Union of India F
(198(1) 4 SCC 525; Lallubltai Jobibhai Patel v. Union of India, (1981) 2
SCC 427; Tushar Thakker v. Union of India (1980) 4 SCC 499; Kirti Kumar
Chaman Lal Kimdalia v. Union of India (1981) 2 SCC 436; Ana Carolina
D'Souza v. Union of I11dio (1981) Supp. SCC 53(10); Mst. L.M.S. Ummu
Saleema v. Shri B.B. Gujaral & Anr., (1981) 3 SCC 317; Abdul Sattar Abdul
Kadar Shaikh v. Union of I11dia & Ors., (1990) 1 SCC 480 and Sayed Farooq G
Mohammad v. Union of India & Anr., JT (1990) 3 SC 102, referred to.

3. It is entirely within the subjective satisfaction of the detaining
authority whether or not there were compelling circumstances to detain
the person concerned. [p. 440 EJ H
438 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A 4.1 In the instant case, in the counter affidavit it was stated that the
period of remand to the judicial custody was to expire the next day after
the detention. Therefore, there was every likelihood of the detenu's moving
for bail and getting released on bail. These materials showed that the
detaining authority was not only aware that the detenus were in jail but
B also noted the circumstances on the basis of which he was satisfied that
they were likely to come out on bail· and continue to indulge in the
smuggling activities. [453 ·B-C]

As mentioned in the grounds of detention, there was relevant
material on the basis of which the detaining authority was satisfied that
C there was compelling necessity to pass the detention orders. It, therefore,
cannot be said that there were no compelling reasons justifying the
detention despite the fact that detenus were already in custody. [443 C,
453 CJ

4.2 Failure to supply the bail applications and the orders refusing
D bail did not in any manner prejudice the detenus from making
. representations particularly when they were fully aware of the contents of
the applications made by them and also the refusal Qrders. However, when
they are not referred to or relied upon, the non supply does. not affett the
detention. [453 C-D]
E
5.1 Even a solitary incident may speak volumes about the
potentialities of the detenu and merely on the ground that there were no
antecedents the detention order cannot be quashed. The authorities
cannot and may not in every ease salvage the antecedents but even a
solitary incident may manifest the potentialities of a detenu in the
F activities of smuggling. [p. 443 D-E]
·.
5.2 The potentialities of the detenu as gathered from his act of
smuggling form basis for detention. It is difficult to comprehend precisely
the manner in which a detenu ·with certain potentialities may likely to
G indulge in the activities of smuggling. It is for the detaining authority to
derive the necessary satisfaction on the basis of the materials placed
before him. (p. _455 B-C]

5.3 In. the instant case, in the grounds of detention, the manner in
which the gold biscuits were concealed was mentioned and that itself
·H · suggested that the detenus must have been indulging in smuggling

•
AHUUL SATIIAR v. U.. 0.1 (REDDY,J.) 439

activities. [p. 443 B-CJ A
--{ ORIGINAL JURISDICTION: Writ Petition (Crl.) Nos. 105 & 106
of 1991.

(Under Article 32 of the Constitution of India.)

Harjinder Singh and R.N. Joshi for the Petitioners. B
AK. Ganguli, Ms. Kitty Kumar Manglarn, Ms. A. Subhashini and
T.T. Kunhikannan for the Respondents.

The Judgment of the Court was delivered by
c
K. JAYACHANDRA REDDY, J. Common ·questions arise for con-
sideration in these two writ petitions filed under Article 32 of the Constitu-
tion of India seeking writ of habeas corpus for quashing the orders of
detention and for immediate release of the detenus. First, we shall deal
with Writ Petition (Crl.) No. 105of1991.
D
Writ Petition (Cr/.) No. 105 of 1991

The petitioner-detenu is a foreign national being a resident of
Republic of Maldives. On 25.10.90 he landed at Trivendrum Airport from
Male and was moving towards the exit gate of the Customs Import Baggage
Hall. He was intercepted by the Air Customs Officers and on examination E
• he was found to be carrying 50 gold biscuits of foreign origin which were
seized from either side of the handle inside the lock system of he red-
colour suit-case belonging to the petitioner. His passport and otL...:r docu-
ments were also seized. The petitioner's statement was recorded under
Section 108 of the Customs Act, 1%2 wherein he is alleged to have con-
fessed the guilt. After the arrest he was produced in the Court of Chief F
Judicial M1gistrate, Trivendrum and was remanded to judicial custody for
a period of 14 days. Thereafter he was shifted to the Court of the Addition-
al Chief Judicial Magistrate (Economic Offences), Ernakulam. While he
was in jail he made an application for granting of bail under Section 437
Cr.P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief
Judicial Magistrate (Economic Offences), Ernakulam. While the petitioner G
was confined in jail an order of detention was passed under Section 3(1) of
the Conservation of Foreign Exchange & Prevention of Smuggling Ac-
tivities Act, 1974 ('COFEPOSA Act') for short) . by the Secretary to the
Government, Government of Kerala, Home (SS A) Department on 7.11.90
and the same was served on the petitioner on 8.11.90. The grounds· of
H
440 SUPREME COURT REPORTS [1991) SUPP. 1 S. C.R.

A detention alongwith the list of documents annexed thereto were served in
time. The petitioner made a representation and.it was rejected.

It is submitted that since his bail application has been rejected and
since he was in jail and his passport was also seized, there was no compell-
ing necessity for such a detention. It is also contended that no antecedents
B are there showing his involvement in such in('.idents and this was .the
solitary incident, therefore the provisions of the Act are not attracted. The
next main and important submission is that the copies of the bail applica-
tion filed by him and the order refusing bail, which are relevant documents,
were suppressed and not placed before the detaining authority nor they
were supplied to the detenu and therefore there is non application of mind
C and the petitioner also is denied a reasonable opportunity under Article
22(5) of the Constitution of India.

We see no force in the first submission namely that there was no
compelling necessity for passing the detention order. It is true that when
the detention order was passed on 7.11.1990 the detenu was in jail and his
D bail application also was rejected and his passport also was seized. But the
detaining authority has mentioned in the grounds that "I am aware that you
are under judicial custody and possibility of your release on bail in the near
future cannot be ruled out. Also. nothing prevents you from moving bail
.application in the jurisdictional court and getting released on bail." There-
E fore it cannot be said that the detaining authority did not apply his mind to
this aspect. It is entirely within his subjective satisfaction whether there are
1>.uch compelling circumstances or not. He has noted that though the
detenu was in jail there is likelihood of bis being released and therefore it is
clear that he has applied his mind to this aspect also. The learned counsel
appearing for the petitioner relied on a judgment of this Court in Dhar-
F mendra ~uganclia11d Chelawat and Anr. v. Union of India and Others (1990]
1 sec 746 wherein it is observed that an order of detention can be validly
passed against a person in custody and for that purpose it is necessary that
the grounds of detention must show that the detaining authority was aware
of the fact that the detenu was already in detention and there were com-
pelling reasons justifying such detention and that there should be cogent
G ma_terial on the basis of which the detaining authority may be satisfied that
there are competling reasons such as that the.detenu is likely to be released
from custody in the near future and the nature of the antecedents and
activities of the detenu which indicate that he is likely to indulge in such
activities if released and therefore it is necessary to detain him in order to
H prevent him from engaging in such activities. But we may observe that whcit
ABDUL SATIIAR v. U .. 0. I [REDDY, J.) 441

would be the compelling reasons in the context would depend on the facts A
of each case. In this case the allegation is that 50 gold biscuits of foreign
origin were found in either side of the handle inside the lock system of the
suitcase. This itself manifests the expertise of the carrier in smuggling. The
detaining authority was aware that the detenu was in custody but he was
satisfied that there is every likelihood of his being released on bail and he is
likely to indulge in such smuggling activities. It is mentioned in the counter- B
affidavit that the remand period of the detenu was to expire on 10.11.90
and that was also a ground which impelled the detaining authority to think
that he was likely to be released on bail. This was the material before the
detaining authority on the basis of which he was satisfied that there were
compelling reasons to pass the detention order. Having carefully con-
sidered the submission of the learned counsel we are unable to say that c
there were no compelling reasons.

Learned counsel also relied on the judgment of this Court in Abdul
Razak Abdul Wahab Sheikh v. S.N. Sinha, Commissf'oner of Police, Ah-
medabad and Another (1989] 2 SCC 222. That was a case of public order
D
- -~.
and after referring to some of the earlier decisions including the decision
of the Constitution Bench in Rameshwar Slzaw v. District Magistrate,
Burdwan, (1964] 4 SCR 921, this Court considered the contention i.e. since
the detenu was in custody at the time of service of the order of detention
there was no material to disclose necessitating the detention. It was held thus:
"On a consideration of the aforesaid decisions the principle E
that emerges is that there must be awareness in the mind of the
detaining authority that the detenu is in custody at the time of
service of the order of detention on him and cogent relevant
materials and fresh facts have been disclosed which necessitate
the making of an order of detention. In this case, the detenu
was in jail custody in connection with a criminal case and the F
order of detention was served on him in jail. It is also evident
that the·application for bail filed by the detenu was rejected by
the Designated Court on May 13, 1988. It is also not disputed
that no application for bail was made for release of the detenu
before the order of detention was served on him on May 23,
1988. It appears that in the grounds of detention there is a G
statement that at present you are in jail yet "there are full
possibilities that you may be released on bail in this offence
also." This statement clearly shows that the detaining authority
was completely unaware of the fact that no application for bail
was made on behalf of the detenu for his release before the
Designated Court and as such the possibility of his coming out H

-
'
442 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A on bail was ·non-existent. This fact of non-awareness of the
detaining authority, in our opinion, clearly establishes that the
subjective satisfaction was not arrived at by the detaining
authority on consideration of relevant materials. There is also
nothing to show from the grounds of detention nor any fresh
facts have been disclosed after the detention order dated
B January 25, 1988 was set aside by the Advisory Board on
· March 13, 1988, on the basis of which the detaining authority
could come to his subjective satisfaction. that the detenu, if
released on bail will indulge in acts prejudicial to the main-
tenance of public order and as such an order of detention is
imperative."
c Having so observed the Division Bench referred to various criminal
cases pending against the detenu at the relevant time and noted that some
of the cases having nothing to do with the maintenance of public order and
then held that:
"Thesaestatements do not disclose any activity after March 14,
1988 or any activity of the time when the deteliu was a free
D person. Considering all these facts and circumstances we are
eonstrained to hold that there has been no subjective u.tisfac-
tion by· the detaining authority on a consideration of the
relevant materials on the basis of which the iiµpugned order of
detention has been clamped on the detenu. It also appears that
the detenu was in detention as well as in jail custody for about ·
E ·· three years except released on parole for short periods.fl ·
The Division Bench finally concluded thus:
.''It is highlighted iri this connection that in the .affidavit-in-
reply filed by respondent 1, the detaining authority, he tµerely
denied the specific averments made in para 3(111) that no act
F .prejudicial to the maintenance.of law and order on the part of
.the detenu is alleged to have been committed by the detenu ·
between March 14. to April 13, 1988 etc. without specifically
_denying those.statements. In this background, a mere bald state~
·ment that the detenu who is in jail custody is likely to be released
G on· bail and thete are full possibilities that he may continue the
above offensive activities without reference to. any patticular case
or acts does not show on iheface of the order of detention that
there has been subjective satisfaction by the detaining authoiity in
·.making the ordeiof detention in question." ·
H (emphasis supplied)
ABDUL SATHAR v. U. O. I [REDDY, J.] 443

From the above passages it can be seen that this Court categorically A
held that aperson in custody can be detained. There must be awareness in
the mind of the detaining authority that the detenu is in custody·and that
there should be cogent and relevant material showing that there is a com-
pelling necessity to detain him. Since that was a case of public order, the
learned Judges proceeded to consider the nature of the cases that were
pending and ultimately on the facts and circumstances of the case held that B
the absence of a reference to any one of such recent cases would show that
the subjective satisfaction has not been arrived at properly. This reasoning
cannot be applied to the facts of this case. In the grounds, the manner in
which the gold biscuits were concealed is mentioned and that itself sug-
gests that the detenu must have been indulging in smuggling activities. So
there was relevant material on the basis of which the detaining authority C
was satisfied that there was compelling necessity to pass the detention
order.

The next submission is that there were no antecedents and that this
being the solitary incident the detention is unwarranted. It is again a ques-
tion of satisfaction of the detaining authority on the basis of the material D
placed .before it. Even a solitary incident which has been detected may
speak volumes about the potentialities of the detenu and merely on the .
ground that there were no antecedents the detention order cannot be
quashed. The authorities cannot and may not in every case salvage the
antecedents but as noted above even a solitary incident may manifest the
potentialities of a detenu in the activities of smuggling. E
The next and main submission is that there was suppression of vital
documents namely bail application· and the order refusing bai~ which are
'y relevant documents, and had those documents been placed bdore the
detaining authority they might have influenced the mind of the detaining
authority one way or the other. Alternatively it is also contended that ir- p
respective of the fact whether they were placed before the authority or
not the copies thereof ought to have been supplied to the petitioner pari-
passu the grounds of detention and that failure to supply the same has
deprived the petitioner of an opportunity of making an effective repre-
sentation and therefore the detention as such is illegal and violative of
Article 22(5) of the Constitution of India. There is no dispute that the G
detenu moved for bail under Section 437 Cr.P.C. on 29.10:9o before the
Additional Chief Judicial Magistrate (Economic Offences),·Ernakulam
and by an order· dated 2.11.90 the bail application was rejected. The
first grievance of the petitioner is that these two documents were not
placed before the detaining authority and they were suppressed,. In
support of this plea reliance is placed on the grounds wherein the H
444 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A detaining authority has stated that he was aware that the petitioner was in
judicial custody and possibility of his release on bail in the near future
cannot be ruled out. It is submitted that this statement itself shows that the
detaining authority was not aware that a bail application in fact was made
and the same has been rejected and the only inference that can be drawn is
that these relevant documents were suppressed and not placed before the
B detaining authority. In the cotinter-affidavit filed by the seco~d respondent,
State of Kerala, it is categorically denied that the bail application and the
order refusing bail were suppressed from the detaining authority and that
at the time of sponsoring the petitioner's name the copies of the bail ap-
plication and the order refusing bail were not made available to the
Department and therefore they were not placed before the authority. From
C these averments, one of the questio.as that arise for consideration is
whether the failure to supply these two documents to the detenu or altema·
tively whether the failure to place the bail application and the order refus-
ing bail before the detaining authority does in any way affect the detention
order. The learned counsel in this context sought to place reliance on some
of the judgments of this Court. In M. Ahmedkutty v. Union of India and
D another, [1990) 2 sec 1, the contention was that the bail application and
the order granting bail which were relied upon by the detaining authority
were not supplied to the detenu and therefore the detention was illegal. A >----- -
Division Bench of this Court noticed that in the grounds it was clearly
mentioned that the detenu was remanded to judicial custody and was sub-
sequently released on bail. Therefore these documents were in fact placed
E before the detaining authority and were relied upon by it and therefore the
non-supply of these .relevant · documents to the detenu disabled him to
make an effective representation. Therefore there was violation of Article
22(5) of the Constitution. In arriving at this conclusion, the Division Bench
relied on several other deeisions and observed ·that ·all the documents ·
F relied upon by the detaining authority must be pari-passu supplied to the
detenu. In the instant case, the facts are different. In the counter- affidavit
it is clearly stated that the bail application and the order refusing bail were
not there before the sponsoring authority. Therefore they were not placed
before the detaining authority. The grounds do not disclose that the detain-
ing authority has relied upon any of these two documents. On the other
band as already noted the detaining authority mentioned· in the grounds
G that it was aware .that the detenu was in custody but there is every
likelihood of his being released on bail.

This itself shows that these documents were not before the authority.
therefore it cannot be said that the documents referred to and relied upon
H in the grounds were not supplied to the detenu and the ratio in .
ABDUL SATHAR v. U. 0. I [REDDY, J.] 445

Ahmedkutty's case, (1990) 2 sec 1 on this aspect does not apply to the facts A
in the instant case. It is not necessary to refer to in detail various decisions
of this Court wherein it has been clearly laid down that the documents
referred to or relied upon in the grounds of detention only are to be
supplied. This has been settled by a long line of decisions: Ramachandra A.
Kamat v. Union of India (1980) 2 SCC 270, Frances Coralie Mullin v. W.C.
Khambra, (1980) 2 SCC 275, Ichhu Devi Choraria v. Union_ of India, (1980) B
4 SCC 531, Pritam Nath Hoon v. Union of India, (1980) 4 SCC 525, Tushar
Thakker v. ·Union of India, (1980] 4 SCC 499, Lallubhai Jobibliai Patel v.
Union of India, (1981] 2 SCC 427, [(jrti Kumar Chaman Lal Kundalia v.
Union of India (1981] 2 SCC 436, andAna Carolina D'Souza v. Union of · ·
India (1981] Supp. SCC 53 (1)
At this juncture it is also necessary to note that s.uch of those docu-
c
ments which are not material and to which a casual or passing reference is
made in the grounds, need not be supplie~. In Mst. L.M.S. Ummu Saleema
v. Shri B.B. Gujaral and another, (1981] 3 SCC 317 after referring to some
of the earlier decisions of this Court, it was held thus:
"It is, therefore, clear that every failure to furnish copy of a D
document to which reference is made in the grounds of deten-
tion is not an infringement of Article 22(5), fatal to the order of
detention. It is only failure to furnish copies of such documents
as were relied upon by the detaining authority, making it dif-
ficult for the detenu ·to make an effective representation, that
amounts to a violation of the fundamental rights guaranteed by E
Article 22(5). In our view it is u°'necessary to furnish copies of
documents to which casual or passing reference may be made
in the course of narration of facts and which are not relied
upon by the detaining authority in making the order of deten-
tion."
It will therefore be seen that failure to supply each and every docu- F
ment merely referred to and not relied upon will not amount to infringe-
ment of the rights guaranteed under Article 22(5) of the Constitution. We
may of course add that whether the document is casually or passingly
referred to or whether it has also formed the material for arriving at the
subjective satisfaction, depends upon the facts and grounds in each case. In G
the instant case we are satisfied that these two documents were not placed
before the detaining authority nor they were referred to or relied upon.

The learned counsel, however, proceeded to submit that even assum-
. ing that these documents were not relied upon or referred to by the detain-
ing authority yet the failure to place these relevant documents before the
H
446 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A detaining authority amounted to suppression and therefore there was non
application of mind and that the detention order passed without looking
into such relevant material is invalid. In Ahmedkutty's case no doubt there
is an observation haVing regard. to the facts therein that non consideration ·
of the bail application and the order of releasing would amount to non-ap-
plication of mind and that would affect the detention order. The Division
B Bench m~de these observations while considering the contention that th~
order granting bail arid the bail application, though referred to, were not
relied upon. It is not laid down clearly as a principle that in all cases non
consideration of the bail applicatic.m and the order refusing bail would
automatically affect the detention. The relevant observations in this context
made by this Court inAhmedkutty's case may be.noted:
c
"If in the instant case the bail order on condition of the detenu 's report-
ing to the customs authorities was not considered the detention order itself
would have_ been affected. Therefore, it cannot be held that while passing
the detention order the bail order was not relied on by the detaining
authority. In S. Gurdip Singh v. Unioli of India, [1981) 1SCC419, following
D. Iclihu Devi Choraria v. Union of India, (1980) 4 SCC 531 and Shalini Soni v.
Union of India, [1980) 4 SCC 544 it was reiterated that if the documents
which fomied the basis of the order of detemion were not served on the detenu
along with the grounds of detention, in the eye of law there would be no
service of the grounds of detention and that circumstance would vitiate his
detention and make it void ab initio." ·
E
(emphasis supplied).

It is further observed in this case that: ·

"Considering the facts in the instant case, the bail application
F and the bail order were vital materials for consideration. If
those were not considered the satisfaction of the detaining
authority itself would hl!ve been impaired, and if those had
been considered, they would be documents relied on by the
detaining authority though not specifically· mentioned in the
annexure to the order of detention and those ought to have
G formed part of the documents supplied to the detenu with the
grounds of detention and without them the grounds themselves
could not be said to have been complete. We have, therefore,
no alternative but to hold that it amounted to denial of the
detenu's. right to make an effective representation and that it
resulted in Violation of Article 22(5)of the Constitution of India
H
ABDUL SA1HAR v. U. 0. I [ REDDY,J.] 447

rendering the continued detention of the detenu illegal and A
entitling the detenu to be set at liberty in this case." .

(emphasis supplied)

Placing considerable reliance on this passage, the learned counsel con-
tended inter alia th~ in the instant case from other point of view namely (i) B
if the bail application and the order refusitig bail were not considered or
(ii) if considered the non-supply of the copies of the same to the detenu
would affect the detention order. In other words, according to him, non-
consideration of these two documents by the detaining authority would
itself affect the satisfaction of the detaining authority. If on the other hand
they are taken into consideration and relied upon the non-supply of the C
· same to the detenu would result in violation of Article 22(5) of the Con-
stitution rendering the detention invalid. We are unable to agree with' the
learned oounsel. We are satisfie_d that the above observations made by the
Division Bench of this Court do not lay down such legal principle in
general and a careful examination of the entire discussion would go to
show that these ouservations were made while rejecting the contention that D
the bail application and the order granting bail though referred to in the
grounds were not relied upon and therefore need not be supplied. The
case is distinguishable for the reason that the Division Bench ·has par-
ticularly taken care to mention that "Co11sideri11g the facts ...... the bail ap-
plication and tlze bail order were vital materials". In that view these
observations were made. Further that was a case where the detenu was E
released on bail and was not in custody. This was a vital circumstance
which the authority had to consider and rely before passing the detention
order and therefore they had to be supplied.

Now we shall consider the other submission regarding the non-supp-
ly of the bail application and the order refusing bail to the detenu and its F
effect. According to the learned counsel these two documents formed
relevant material and irrespective of the fact whether they were placed
before the detaining authority or not they ought to have been supplied to
the detenu and failure to do so has caused prejudice in making an effective
representation. We are unable to agree. In Abdul Sattar Abdul Kadar
Shaikh v. Union of India and Others [1990] I SCC 480 it is observed thus: G
"In fact the bail applications were filed by the detenu himself
and he was very much aware of the contents of those bail ap-
plications and the orders made thereon. T71ese documents were
not relied upon by the detaining authority. When a request is
made by the detenu for supply of these bail applications and H
448 SUPREME COURT REPORTS (1991] SUPP. 1 S. C.R.

A orders refusing thereon are made, the court inter a/ia has to
look into the question whether the detenu is in any way handicapped
in making an effective representation by such refusal. No
authority has been placed before us which goes to the extent of
holding that a mere non-supply of any document whatever its
nature may be, to the detenu per se amounts to the denial of an
B . opportunity underArticle 22(5)." ·

(emphasis supplied).

In Syed Farooq Mohammed v. Union of India and Another, JT (1990)
3SC 102 this Court considered precisely the same question and it was
C observed thus:
"The third ground of challenge is that the relevant document
i.e. bail application of the petitioner and order made there on
which might have been considered by the detaining authority
were not supplied to the petitioner and as such his right of
making effective representation guaranteed under Article
D 22(5) of the Constitution of India has been seriously
prejudiced. This ground is without any substance because first·
ly there is nothing to show from the grounds of detention that
the rejectio11 of this bail applicatio11 by the Sessions Judge,
Greater Bombay on January 5, 1990 was co11sidered by tlte
detaining authority before passing the impugned order of dete11-
E tio11 and as such this being not referred to in the groimds of
detention, the documents had not been supplied to the
petitioner, and it, therefore, cannot be urged that non-supply
of this document prejudiced the petitioner in making effective
representation against the order of detention. Article 22(5) of
the Constitution, undoubtedly, mandates that all the relevant
documents referred to in the grounds of detention and which
F are considered by the detaining authority in coming to his sub-
jective satisfaction for clamping an order of detention are to be
supplied to the detenu. The said document was not considered
by the detaining authority in coming to his subjective satisfac·
tion and in making the impugned order of detention. The non-
furnishing to the detenu of the said document i.e. the bail
G application and the order passed thereon, does not affect in
any manner whatsoever the deteriu's right to make an effective
representation in compliance with the provisions of Article
22(5) of the Constitution of India. This ground, therefore, is
wholly untenable."
(emphasis supplied)
ABDUL SATIIAR v. U. 0. I [REDDY, J. J 449

From the above discussion it emerges that even if the bail application A
--r .and the order refusing bail are not placed before the detaining authority or
even if placed, if the detaininig authority does not refer to or rely upon or .
has failed to take them into consideration, that by itself does not lead to an
inference that there was suppression of relevant material or in the alterna-
tive that there was non application of mind or that subjective satisfaction
was impaired. When .these documents are neither referred to nor relied B
upon, there is no need to supply the same to the detenu.

As already noted, in all such cases where the detenu was in custody
at the time of passing an order of detention what is strictly required js
whether .the detaining authority was aware of the fact that the detenu was
in custody and if so was there any material to show that there were com- C
pelling reasons to order detention inspite of his being in custody. These
aspects assume importance because of the fact that a person who is already
in custody is disabled from indulging in any prejudicial activities and as
such the detention order may not normally be necessary. Therefore the law
requires that these two tests have to be satisfied, in the case of such deten-
tion of a person in custody. ) D
The Constitution Bench in Ramesliwar Shaw's case held thus:
".......Whether the detention of the said person would be neces-
sary after he is released from jail, and !f the authority is
bonafide satisfied that such detention is necessary, he can
make a valid order of detention a few days. before the person is E
Ukely to be released.
xx xx xx
Therefore, we are satisfied that the ,question as to whether an
order of detention can be passed against a person who is in
detention or in jail, will always have to be determined in the F
circumstances of each case."
Following the above principles, another Bench of three Judges of this
Court in N. Meera Rani v. Govemment of Tamil Nadu a11d A11other, [1989]
4 sec 418 after reviewing the various other decisions, it was observed that
"A review of the above decisions reaffirms the position which was settled by
the decision of a Constitution Bench in Ra11,1eshwear Shaw's case and that G
none of the·observations made in any subsequent case can be construed at
variance with the principle indicated in Rameshwar Shaw's case." Having
so observed the Bench summarised the principle th'us:

"Subsisting custody of the detenu by itself does not invalidate
H
450 SUPREME COURT REPORTS [1991) SUPP. 1 S. C.R.

A an order of his preventive detention and the decision must
depend on the facts of the particular ~e; preventive detention
being neeessary to prevent the detenu from acting in any man-
ner prejudicial to the security of the State or the maintenance
of public order etc. ordinarily it is not needed when the detenu
is already in custody; the .detaining authority must show its
B awareness to the. fact of subsisting custody of the detenu and
take that factor into account while making the order; but even
so, if the detaining authority is reasonably satisfied on cogent
material that there is likelihood of his release and in view of his
antecedent activities which are proximate in point of time he
must be detained in order to prevent him from indulging in
c sucQ prejudicial activities, the .detention .order can be validly
made even in anticipation to operate on his release. This ap-
pears to us, to be the correct legal position."

In Clielawtit's case after examining the various decisions of this Court
dealing with preventive detention of a person in custody, it is held thus:
D ''The decisions referred to above lead to the conclusion that an
order for detention can be validly passed against a person in
custody and for that purpose it is necessary that the grounds of
detention must show that (i) the detaining authority was aware
of the fact that the detenu is already in detention; and (ii) there
were compelling reasons justifying such detention despite the
E fact that the detenu is already in detention. The expression
"compelling reasons~ in the context of making an order for
detention , of a person already in custody implies that there
must be cogent material before the detaining authority on the
basis of which it may be satisfied that (a) the detenu is likely to
be released from custody in the near future, and (b) taking into
F account the nature of the· antecedent activities of the detenu, it
is likely that after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him in order
to prevent him from engaging in such actiVities."
· In Sa11j0y Kumar Aggarwal v. U11io11 oj India and Others [1990) 3 SCC
G 309 after reviewing all the relevant cases including Clrelawat's case, this
Court observed as under:

"It could thus be seen that no decision of this Court has gone to
the eXtent of holding that no order of detention can validly be
passed against a person in custody under any circumstances.
H Therefore the facts and circumstances of each case have to be
I ABDUL SA1HAR. v. 1..!.0.l [REDDY,J.) 451
taken into consideration in the context of considering the order A
""""" of detention passed in the case oJ a detenu who is already in
jail.· We have already, in the instant case, referred to the
grol1nds and the various circumstances noted by the detaining
authority and we are satisfied that the detention order cannot
be quashed on this ground."
B
.In a very recent judgment of; this Court in Kamarunnissa etc.• v.
Union of India and Another., AIR· 1991 SC 1640 all the above mentioned
~ . decisions dealing with the detention of a person in custody have· been
reviewed and it is finally held as under:

"From the catena of decisions referr.ed to above it seems clear
to us that even in the case of a person in custody a detention
c
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) thatthere is a real possibility of his being
released on bail, and (b) that.on being so released he would in D
~-~ 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 authoritywas to oppose the bail
and if bail is granted notwithstanding such opposition to ques- E
tion it before a higher Court."

.--,,.... Having.· regard to the various above-cited decisions on the- points
often raised we find it appropriate to set down our conclusions as under:

(1) A detention order can validly be passed even in the case of a F
person who is already in custody. In such a case, it must appear from the
grounds that the authority was aware that the detenu was already in cus-
tody.

(2) When such awareness is there then it should further appear from ·
the grounds that there was enough material necessitating the detention of G
1' .---( the person in custody. This aspect depends. upon various considerations
and facts and circumstances of each case. If there is a possibility of his
being released and on being so released he is likely to indulge in prejudicial
activity then that would be one such compelling necessity to pass the deten-
tion order. The order cannot be quashed on the ground that the proper
course for the authority was to oppose the bail and that if bail is granted H
452 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A notwithstanding such opposition the same can be questioned before a
higher Court.
(3) If the detenu .has moved for bail then the application and the .
order thereon refusing bail even if not placed before the detaining
authority it does not amount to suppression of relevant material. The ques·
B tio.n of non·application of mind and satisfaction being impaired does not ·
arise a5 long as the detaining authority was aware of the fact that the
detenu was in actual custody. · '

(4) Accordingly the non·supply of the copies of bail application or
the order refusing bail to the detenu cannot affect the detenu's right of
C being afforded a reasonable· opportunity guaranteed under Article 22(5)
when it is clear that the authority has not relied or referred to the same. ·

(5) When the detaining authority has merely referred to them in the
narration of events ·and has not relied upon them, failure to supply bail
application and order refusing bail will not cause any prejudice to the
D detenu .in making an effective representation. Only when the detaining
authority has not only referred to but also relied upon them in arriving at
the necessary satisfaction then failure to supply these documents, may, in
certain cases depending upon the facts and circumstances amount to viola-
tion of Article 22(5) of the Constitution of India. Whether in a giyen case
the detaining authority has casually or passingly referred to these docu-
E ments or also relied upon them depends upon the facts and the grounds,
which a,spect can b~ examined by the Court.

.· (6) In a case. where detenu is released on bail and is at liberty at the
time of passfog ·the order 9f detention, then the detaining authority has to ~-,.

necessarily rely upon them ·as that would be a vital ground for ordering
F detention. In such· a case the bail application and the order granting bail
should necessarily .be placed before the authority and the copies showd
also be supplied to'the de.tenu.

Bearing in mind the principles laid down in the above mentioned
case; we shall nowexamirie the facts in the case before us. The detaining
. G authority in Ground Nos. 3 and 4 has stated as under:

"3. You were arrested under Section 104 of the Customs Act,
1962 by the Superintendent on 26.10.90. You were produced
before the Chief Judicial Magistrate, Trivandrum on the. same
H day. The Magistrate remanded you to judicial custody.· ·
ABDUL SATIIAR v. U. 0.1 [REDDY, J.) 453

4. I am aware that you are under judicial custody and pos- A
sibility of your release· on bail in the near future cannot be
ruled out. Also nothing prevents you from moving bail applica-
tion in the jurisdictional court and getting release on bail."

In the counter-affidavit, it is stated that the period of remand to the
judicial custody was to expire the next day after his detention. Therefore B
there WaS every likelihood of his moving for bail and getting released On
bail. These materials show that the detaining authority was not only aware
· that the detenu was in jail but a~o noted the circumstances on the basis of
which he was satisfied that the 1ctetenu was likely to come out on bail and
continue to indulge himself in thb smuggling activities. It, therefore, cannot
be said that there were no co~pelling reasons justifying the detention c
despite the fact that the detenu ~~already in cu:;tody. Likewise the failure
to supply the bail application and the order refusing bail does not in any
manner prejudice the detenu from making a representation particularly
when he was fully aware of the contents of application made by himself and
also the refusal order. However, when they are not referred to or relied
upon the non supply does not affect the detention. D
These are all the submissions made by the learned counsel for the
petitioner and we do not see any merit in any of them. Accordingly the
Writ Petition is dismissed.

Writ Petition (Criminal) No. 106 of 1991 E
In this Writ Petition also the petitioner is a foreign national, being
resident of Republic of Maldives. On 25.10.90 he landed at Trivandrum
Airport from Male. After customs clearance the petitioner proceeded to
Hotel Geeth at Trivandrum and while he was staying there, some officers
of Customs came to the room and conducted a search. Nothing was F
recovered. But the officers took the petitioner by force to the Customs
Import Baggage Hall and it is alleged that on examination, 30 gold biscuits
of foreign origin were seized from either side of the handle inside the lock
system of the blue colour suitcase which is alleged to be of petitioner. The
petitioner's passport and other documents were also seized by the Air
Customs Officer, Trivandrum. The petitioner's statement was recorded G
under Section 108 of the Customs Act, 1962 wherein he is alleged to have
confessed the guilt. After the arrest he was produced in the Court of Chief
Judicial Magistrate, Trivandrum and was remanded to judicial custody for
a period of 14 days. Thereafter he was shifted to the Court of the Addition-
al Chief Judicial Magistrate (Economic Offences), Ernakulam. While he.
was in jail he made an application for grant of bail under Section 473 Cr. H
454 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief
Judicial Magistrate (Economic Offences), Ernakulam. While the petitioner
was in jail, an order of detention was passed under Section 3(1) of the
COFEPOSA Act by the Secretary to the Government, Govt. of Kerala,
Home (SSA) Department, on 7.11.90 and the same was served on the
petitioner on 8.11.90. The grounds of detention alongwith the list of docu-
B ments annexed thereto were served in time. Th~ petitioner made a repre- ·
sentation stating that since his bail application has been rejected and since
he was in jail and his passport was also seized, there is no compelling
necessity for such a detention. He also stated that no antecedents are there
showing his being involved in such incidents and this was the solitary inci-
dent, therefore the provisions of the Act are not attracted.
c
The same points as in Writ Petition (Criminal) No. 105 of 1991 are
raised in this petition also. We have negatived all the contentions in the
above case.

One another submission of the learned counsel for the petitioner is
D that in the case of this petitioner the detention order mentions only smug-
gling and that when once the detenu is in jail and when his passport is.
seized, he can no more indulge in smuggling and therefore according to the ;i._ ..
learned counsel, there is non application of mirid. In this context he reiied .
on the definition of "smuggling". :

E Section 2( e) of the COFEPOSA Act defines "smuggling" thus: ·

"2. Definitions - In this Act, unless the context otherwise re-
quires, -

xx xx xx
F (e) "smuggling" has the same meaning as in clause (39) of Sec-
tion 2 of the Customs Act, 1962, and all its grammatical varia-
tions and cognate expressions shall be construed accordingly."

Clause (39) of Section 2 of the Customs Act, 1962 define~ "smug-
gling" thus: '
G
-..2. Definitions- In this Act, unless the context otherwise re-
quires, -

.XX xx xx

H (39) "smuggling" in relation to any goods means any act or
ABDUL SATQAR v. U. 0. I [REDDY, J.) 455

omission which will render such goods liable to confiscation A
under section 111 or section 113."

Sections 111 and 113 of the Customs Act provide for confiscation
of improperly imported goods and exported goods respectively. The sub-
mission of the learned counsel is that the petitioner being in custody in
India can no more indulge in smuggling and therefore the detention on B
the ground that he is likely to indulge in smuggling is non-existent. We
see no force in this submission. The potentialities of the detenu as gathered
from his act of smuggling that form basis for detention. It is difficult to
comprehend precisely the manner in which such a detenu with such poten-
tialities may likely to indulge in the activities of smuggling. It is for the
detaining authority to derive the necessary satisfaction on the basis of the C
materials placed before him.

In the result this Writ Petition is also dismissed.

RP Petitions dismissed.