KAMARUNNISSA ETC. ETC.versusUNION OF INDIA AND ORS.

                    KAMARUNNISSA ETC. ETC.
                                                                            A
                                    v.
                   UNION OF INDIA AND ORS.

                        SEPTEMBER 14, 1990

           [A.M. AHMADI AND S.C. AGRAWAL, JJ.]                              B

     Preventive Detention: Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974-Section 3-Detention
order-Can be passed against the person in custodv-Non-supply of
documents on demand-No hard and fast rule can be laid down-
Detenu must show that non-supply of documents has impaired his right C
to make an effective and purposeful representation.

     Declaration-Non-supply of documents-If documents-Relied
upon for the purpose of declaration are same as supplied to the detenu
alongwith the detention order-It is unnecessary to supply these afresh.
                                                                            D
      Detention Order-Detenu in custody-Subjective satisfaction-
Detenu charged with 'bailable' offence-Whether expression 'bailable'
used in the grounds of detention disclosed non-application of mind?
Context in which expression 'bailable' was used it cannot be said that
there was non-application of mind.                     .
                                                                            E
       The petitioners are the wives of three detenus who had been
 detained under an order dated 10th November, 1989 passed under sub-
 section (1) of section 3 of the Conservation of Foreign Exchange and
 Prevention of Smuggling Activities Act, 1974 against each of them with
 a view to preventing them from smuggling goods' - The order of detention
·as well as the grounds of detention dated November IO, 1989 were           F
 served on the three detenus on 21st November, 1989 while they were
 already in jail custody on remand following their arrest at the Sahar
 International Airport on October 5, 1989 when on suspicion they were
 searched which resulted in the recovery of diamonds, precious stones and
foreign currency which they had planned to smuggle out. Thereafter on
December 20, 1989 a declaration under section 9(1) of the Act was           G
passed in respect of each detenu which was served on them within the
time allowed by law_ Thereupon the wives of all the three detenus filed
separate habeas corpus writ petitions in the High Court of Bombay.
Four contentions .were raised before the High Court namely, (I) since
the detenus were in custody their detention was unwarranted; (2) the
detaining authori.ty had betrayed non-application of mind by describing     H

                                   4:57
    458          SUPREME COURT REPORTS                  [ 1990] Supp. 1 S.C.R.

    the offence as 'bailable'; (3) the representation of the detenus dated
A
    18th December, 1989 had not been disposed of promptly and there was
    inordinate delay; and (4) the authorities had failed to supply certain
    crucial documents called for by the detenus thereby depriving them of
    the opportunity of making an effective representation. The High Court
    negatived all the contentions and dismissed the writ petitions.
B
           Against that the wives of the detenus have filed Special Leave Peti·
    tions and also separate writ petitions under Article 32 of the Constitu-
    tion raising several contentions including those negatived by the High Court.

         Dismissing all the Special Leave Petitions and Writ Petitions and
    upholding the view taken by the High Court this, Court,
c          HELD: Even in the case of a person in custody a detention order
    can validly be passed (I) if the authority passing the order is aware of
    the fact that he is actually in custody; (2) if he has reason to believe on
    the basis of reliable material placed before him (a) that there is a real
    possibility of his being released on bail, and (b) that on being so released
D   he would in all probability indulge in prejudicial activity; and (3) if it is
    felt essential to detain him to prevent him from so doing. [278F ·G]

          It is not sufficient to say that the detenu was not supplied the
    copies of the documents in time on demand but it must further be shown
    that non-supply has impaired the detenu's right to make an effective and
E   purposeful representation. [281B I

          Demand of any and every document, however irrelevant it may
    be, merely on the ground that there is a reference thereto in the grounds
    of detention, cannot vitiate an otherwise legal detention order. No hard
    and fast rule can be laid down in this behalf but what is essential is that
F   the detenu must show that failure to supply the documents before the
    meeting of the Advisory Board had impaired or prejudiced his right,
    however slight or insingificant it may be. [281B·Cl

         Vijay Narain Singh v. State of Bihar, [1984] 3 S.C.C. 14;
    Dharmendra Suganchand Chelawat v. Union of India, [1990) I S.C.C.
G   746; Ramesh Yadav v. District Magistrate E.T., [1985) 4 S.C.C. 232;
    Sura) Pal Sahu v. State of Maharashtra, [1986) 4 S.C.C. 378; Binod
    Singh v. District Magistrate, Dhanbad, [1986) 4 S.C.C. 416; Abdul
    Wahab Sheikh v. S.N. Sinha, [1989) 2 S.C.C. 222; Meera Rani v. State
    of Tamil Nadu, [1989) 4 S.C.C. 418; Shashi Aggarwal v. State of Uttar
    Pradesh, [1988] I S.C.C. 436; Anand Prakash v. State of Uttar
H   Pradesh, [1990] I S.C.C. 291; Sanjay Kumar Aggarwal v. Union of
                 KAMARUNNJSSA v. U.0.J. [AHMADI, J.[                 459

India, [1990] 3 S.C.C. 309; Gurdip Singh v. Union of India & Ors., [1989]   A
Crl. L.J. NOC 41 Delhi and Nand Kishore Purohit v. Home Secretary,
Maharashtra, [1986] 2 Bombay C.R. 25 referred to.

     CRIMINAL APPELLATE JURISDICTION: Writ Petition
(Criminal) Nos. 757, 759 & 760 of 1990
                                                                            B
      (Under Article 32 of the Constitution of India.)

      N. Devarajan and V. Krishnamurthy for the Petitioners .
                                                         •
     Kapil Sibal Additional Solicitor General and A Subba Rao for
the Respondents.                                                            C

      The Judgment of the Court was delivered by

      AHMADI, J.Three persons, namely,_ (I) M.M. Shahul Hameed
@Gani Aslam, (2) Haja Mohideen @Shahul Hameed Asarudeen and
(3) Naina Mohammed@ Raja Mohd. Zafar were intercepted by the                D
officers of Department of Revenue Intelligence on 5th October, 1989
at the Sahar International Airport, Bombay, as they were suspq.:ted to
be involved in smuggling activities. They were escorted to the office of
Directorate of Revenue Intelligence, Waldorf, Colaba, Bombay,
where they were interrogated. On interrogation it was found that
M.M. Shahul Hameed was to board flight No. CX-750 to Hongkong               E
while the other two were to proceed to Dubai by Emirate Flight No.
E-510 on that day. The said three persons were searched. Two balloon
covered rolls secreted in the rectum of M.M. Shahul Hameed were
removed and were found to contain diamonds and precious stones
weighing about 905.70 carats and 77.37 carats, respectively. The said
diamonds and precious stones valued at about Rs. 70 lacs were               F
attached under a Panchnama. In addition to the same foteign currency
of the value of Rs. IO, 706 was also recovered and attached. His pass-
port was also seized.      .

      The other two persons were found to have swallowed 100
capsules each containing foreign currency of the total value of             G
Rs.6,99,930. The capsules were extracted from their persons and the
currency was recovered and attached under a Panchnama. In addition
thereto foreign currency of the value of Rs. 1,466.50 was also found on
their person during their search and the same too was attached and
seized. Their passports were also seized.
                                                                            H
    460         SUPREME COURT REPORTS               [1990] Supp. I S.C.R.

          All the aforesaid three persons belonged to Village Nambootha-
A   lai of District Ramnath, Tamilnadu. Their statements were recorded
    on the same day i.e. 5th October, 1989. M.M. Shahul Hameen dis-
    closed that his cousin Kasim, owner of a film company at Madras, had
    offered him a sum of Rs.4,000 for smuggling diamonds, etc., to Hong-
    kong. On his agreeing, he was trained and was sent to Bombay with
B   one Mohammad who was to introduce him to Mohideen and Rahim
    who were supposed to entrust him wit~ the diamonds, etc .. to be
    carried to Hongkong. Accordingly he came to Bombay with the said
    Mohammad and was duly introduced to the aforesaid two persons at a
    flat in Chembur where he stayed. The said Mohideen and Rahim
    arranged for his passport and ticket and gave him two rolls wrapped in
    balloons containing diamonds, etc., on the night of 4th October, 1989
c   for being carried to Hongkong. As per the training he had received .. he
    concealed these balloons in his rectum before leaving for the Airport
    to catch the flight to Hongkong. In addition to the same he was given a
    paper on which something was scribbled in Arabic. In the course of his
    interrogation he admitted the recovery and seizure of diamonds and
D   precious stones and also gave the description of Kasim and Rahim. On
     12th October. 1989 he wrote a letter retracting his statement made on
    5th October, 1989. However, in his further statement recorded on 19th
    October, 1989 he admitted that his signature was obtained on the
    letter of 12th October, 1989 without disclosing the contents thereof to
    him and that his earlier statement of 5th October, 1989 was both
E   voluntary and correct. Incidentally the statement of retraction was
    rejected by the Deputy Director of Revenue Intelligence on 20th
    October, 1989.

          The other two persons whose statements were also recorded on
    5th October, 1989 disclosed that they were both working at a Tea shop
F   in Madras and knew Mohideen and Rahim who too were working with
    them. Rahim had suggested that they would be paid Rs.2,000 each if
    they were willing to smuggle foreign currency to Dubai by swallowing
    capsules containing the same. On their agreeing they too were trained
    and were then taken to Bombay where they were lodged in Vimi
    Lodge at Bhindi Bazar. On 4th October, 1989 they were given air
G   tickets fortravel to Dubai and 100 capsules each containing foreign
    currency. They swallowed the capsules and left by taxi for the Airport
    in the early hours of 5th October, 1989. They too were given a paper
    containing some scribbling in Arabic by Mohideen and Rahim. While
    they were waiting to catch their flight, they were intercepted as stated
    earlier. Both of them also signed letters dated 12th October, 1989
H   retracting their statements made under Section 108 of the Customs
                KAMARUNNJSSA v. U.0.J. [AHMADI, J.]                  461

Act, 1962 on 5th October, 1989. However, in their subsequent state-
                                                                            A
ment of 19th October, 1989 they admitted that they were not aware of
the contents of the letter of 12th October, 1989. They further admitted
that what they had disclosed on 5th October, 1989 was bpth voluntary
and correct. Their statements of retraction were also rejected by the
Deputy Director of Revenue Intelligence on 20th October, 1989.
                                                                            B
      All the three aforesaid persons were produced before the
learned Additional Chief Metropolitan Magistrate, Esplanade,
Bombay on 6th October, 1989. They were taken on remand by the
police for investigation. Barring M.M. Shahul Hameed, the other two
had preferred applications for bail which were kept for hearing initially
on 27th October, 1989 but the date was later extended upto 16th
November, 1989. Their co-accused, Kasim was arrested on 6th                 c
October, 1989 and was produced before the Additional Chief
Metropolitan Magistrate, Egmore, Madras. He too was taken on
remand. On 19th October, 1989 he too had preferred a bail application
which was kept pending as' the investigation was in progress. Since the
period of remand was extended from time to time in the case of all the      D
aforesaid four persons finally upto 16th November, 1989, the bail
applications were also fixed for hearing on that date.

      Jn the meantime on 10th November, 1989 the Joint Secretary to
the Government of India in the Ministry of Finance,-Department of
Revenue, passed an order under sub-section (1) of Section 3 of the          E
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter called 'the Act') directing the deten-
tion of all the three persons 'with a view to preventing him from
smuggling goods'. They were directed to be detained in the Central
Prison, Bombay. This order of detention, though passed on 10th
November, 1989 was in fact served on the three detenus on 21st              F
November, 1989, i.e., after a lapse of about 11 days. The grounds of
detention dated 10th November, 1989 were also served on the three
detenus on the same day. Thereafter the Additional Secretary to 1'1e
Government of India in the Ministry of Finance, Department of
Revenue, made a declaration concerning the three detenus dated 20th
December, 1989 under sub-section (1) of section 9 of the Act after          G
recording a satisfaction that they were likely to smuggle goods. out of
and through Bombay Airport, an area highly vulnerable to smuggling
within the meaning of Explanation 1 to that section. This declaration
was served on the detenus within the time allowed by law. Thereupon.
the wives of all the. three detenus filed separate habeas corpus writ
petitions under Article 226 of the Constitution in the High Court of        H
    462         SUPREME COURT REPORTS               [ 1990] Supp. I S.C.R.

A Bombay on 19th January. 1990. These writ petitions were numbered
  66, 67 and 68 of 1990. Four contentions were raised before the High
  Court, namely, (1) since the detenus were in custody their detention
  was unwarranted; (2) the detaining authority had betrayed non-
  application of mind by describing the offence with which the detenus
  were charged as 'bailable'; (3) the representation of the detenus dated
B 18th December, 1989 had not been disposed of promptly and there was
  inordinate delay; and (4) the authorities had failed to supply certain
  crucial documents called for by the detenus thereby depriving them of
  the opportunity of making an effective representation. All the three
  petitions came up for hearing before a Division Bench of the High
  Court on 21st March, 1990. The High Court rejected all the four
C contentions and dismissed the writ petitions. The said dismissal has led
  to the filing of Special Leave Petitions (Criminal) Nos. 731, 732 & 733
  of 1990. Besides filing the said special leave petitions under Article 136
  of the Constitution, the wives of the detenus have also filed separate
  Writ Petitions (Criminal) Nos. 757, 759 and 760 of 1990 under Article
  32 of the Constitution. We have heard the three special leave petitions
D as well as 'the three writ petitions together and we proceed to dispose
  them of by this common judgment.

        The learned counsel for the petitioners raised several conten-
  tions including the contentions negatived by the High Court of
  Bombay. It was firstly contended that the detenus had made represen-
E tations on 18th December, 1989 which were rejected by the communi-
  cation dated 30th January, 1990 after an inordinate delay. The rep-
  resentations dated 18th December, 1989 were delivered to the Jail
  Authorities on 20th December, 1989. The Jail Authorities despatched
  them by registered post. 23rd, 24th and 25th of December, 1989 were
  non-working days. The representations were received by the COFE-
F POSA Unit on 28th December, 1989. On the very next day i.e 29th
  December, 1989 they were forwarded to the sponsoring authority for
  comments. 30th and 31st December, 1989 were non-working days.
  Similarly 6th and 7th January, 1990 were non-work_ing days. The com-
  ments of the sponsoring authority were forwarded to the COFEPOSA
  Unit on 9th January,_ 1990. Thus it is obvious that the sponsoring
G authority could not have received the representations before 1st
  January, 1990. Between 1st January, 1990 and 8th January, 1990 there
  were two non-working days, namely, 6th and 7th January, 1990 and,
  therefore, the sponsoring authority can be said to have offered the
  comments within the four or five days available to it. It cannot, there-
  fore, be said that the sponsoring authority was guilty of inordinate
H delay. The contention that the views of the sponsoring authority were
                      KAMARUNNJSSA v. U.0.1. {AHMADI, J.]                    463

    totally unnecessary and the time taken by that authority could have
                                                                                    A
    beeri saved does not appeal to us because consulting the authority
    which initiated the proposal can never be said to be an unwarranted
    exercise. After the COFEPOSA Unit received the comments of the
    sponsoring authority it dealt with the representations and rejected
    them on 16th January, 1990. The comments were despatched on 9th
    January, 1990 and were received by the COFEPOSA Unit on 11th                    B
    January, 1990. The file was promptly submitted to the Finance Minis-
    ter on the 12th; 13th and 14th being non-working days, he took the
    decision to reject the representations on 16th January, 1990. The file
    was received back in the COFEPOSA Unit on 17th January, .1990 and
    the Memo of rejection was despatched by the post on 18th January,
    1990. It appears that there was postal delay in the receipt of the com-
    munication by the detenus but for that the detaining authority cannot           c
    be blamed. It is,. therefore, obvious from the .explanation given in the
    counter that there was no delay on the part dttbe detaining authority
    in dealing with 'the representations of the detenus. Our attention was
    drawn to the case law in this behalf but we do not consider it necessary
    to refer to the same as the question of delay has to be answered in the         D
    facts and circumstances of each case. Whether or not the delay, if any,
    is properly explained would depend on the facts of each case and in the


-   present case we are satisfied that there was no delay at all as is appa-
    rent from the facts narrated above. We, therefore, do not find any
    merit in this submission.
                                                                                    E
           It was next submitted by the learned counsel for the petitioners
    that there was no compelling reason for the detaining authority to pass
    the impugned orders of detention as the detenus were already in
    custody on the date of the passing of the detention orders as well as the
    service thereof. Besides, he submitted, it is apparent from the aver-
    ments in paragraph 15 of the grounds of detention that the concerned            F
    authority was labouring under a misconception that the detenus were
    charged with a 'bailable' offence which betrays total non-application of
    mind·. He further submitted that the delay in the service of the deten-
    tion orders discloses that there was no urgency about ordering deten-
    tion. Taking the last limb of the argument first, we may refer to the
    counter filed in the writ petitions in this behalf. Therein it is stated that   G
    after the detention orders were signed on 10th November, 1989, it was
    realised that certain documents which were not in Tamil language
    would have to be translated. The services of a professional translator
    were requisitioned. Between 10th and 21st November, 1989 there were
    five holidays on I Ith, 12th, 13th, 18th & 19th. As soon as the transla-
    tions were ready and received by the Department, the police autho-              H
    464         SUPREME COURT REPORTS                [ 1990] Supp. 1 S.C.R.

    rities were directed on 20th November, 1989 to execute the detention
A
    orders. This was done on 21st November, 1989. Thus the time taken
    between 10th and 2 lst November, 1989, excluding 5 holidays, was only
    of six days during which all the documents were got translated in Tamil
    language and were served on the detenus along with grounds of deten- ·
    tion. These facts clearly show that the time taken in the service of the
B   detention orders cannot be attributed to lack of sense of urgency on
    the part of the authorities but it was to get the documents translated in
    Tamil language before they were supplied to the detenus. Under the
    circumstances we do not see any delay which would vitiate the deten-
    tion orders.

           It is indeed true that in paragraph 15 of the grounds of detention
c   the detaining authority has averred that the detenus are charged with a
    bailable offence. After setting out the fact that two of the detenus had
    made an application for bail in the Bombay Court and their co-accused
    Kasim had made a similar application in the Madras Court, the autho-
    rity proceeds to state as under:
D
                "Though you are in judicial custody but can be released on
                bail any time as the offence with which you have been
                charged is bailable in which case you may indulge in similar
                prejudicial activities.

E   It is necessary to bear in mind the context in which the expression
    'bailable' is used. In the counter filed by the Joint Secretary who
    passed the detention orders and prepared the grounds for detention it
    is stated that his past experience in such cases was that normally and
    almost as a matter of rule courts grant bail after the investigation is
    completed. ft was in this background, says the officer, that he used the
F   expression 'bailable'. We may reproduce his exact words from the
    counter:

               "It is also submitted that the word bailable which has not
               been used in the legal sense, it was intended to convey that.
               normally in such cases one gets bail and in that context, the
G              word 'bailable' was used".

    Proceeding further it is averred in the counter that even in non-
    bailable offences the Sessions Court and the High Court are e_mpowered
    to grant bail. He was, therefore, of the view that in such cases courts
    normally grant bail. It was in this background that he used the word
H   bailable in the grounds of detention.
                KAMARUNNISSA v. U.0.1. [AHMADI, J.J               465

      Mr. Sibbal the learned Additional Solicitor General, contended A
that the expression bailable was used in the backdrop of the fact that
two of the detenus and Kasim had already applied for bail. The court
had not rejected their applications but had adjourned them as the
investigation was in progress. That gave rise to the belief that bail
would be granted. His normal experience also was that in such cases
courts ordinarily granted bail on the conclusion of the investigation. B
He, therefore, loosely described the offence as bailable and did not
use that word in the technical sense of section 2(a) of the Code of
Criminal Procedure. The High Court also pointed out that even in
respect of non-bailable offences it is generally open to the Sessions
Court and the High Court to release the accused on bail. It further
points out that it is equally open to the Magistrate to release the
accused on bail after a period of two months. In the circumstances the c
High Court was of the opinion that the use of the expression 'bailable'
cannot lead one to the conclusion that there was no application of
mind. We are inclined to think that having regard to the background in
which this expression is used in paragraph 15 of the grounds of deten-
tion and bearing in mind the explanation and the fact that in such cases D
courts normally grant bail, it cannot be said that the use ·of the said
expression discloses non-application of mind. It was then submitted
that the detenu M.M. Shahul Hameed had not applied for bail and,
therefore, there was no question of his being released on bail. We do
not think that there is any merit in this submission for the simple
reason that if the co-accused are released on bail he too could seek E
enlargement on bail at any time. Therefore, the possibility of all the
detenus being released on bail was a real one and not an imaginary
one. This was based on past experience which is re-inforced by the
observations of the High Court that even in non-bailable cases courts
of Sessions and High Court do grant bail. The second limb of the
contention is, therefore, clearly devoid of merit.                       F

      Counsel for the detenus, however, vehemently argued that since
the detenus were in custody, there was no compelling necessity to pass
the detention orders for the obvious reason that while in custody they
were not likely to indulge in any prejudicial activity such as smuggling.
In support of this contention reliance was placed on a host of decisions G
of this Court beginning with the case of Vijay Narain Singh v. State of
Bihar, [1984] 3 SCC 14 and ending with the case of Dharmendra
Suganchand Che/awat v. Union of India, [1990] 1 SCC 746. It is neces-
sary to bear in mind the fact that the grounds of detention clearly
reveal that the detaining authority was aware of the fact that the
detenus were apprehended while they were about to board the flights H
    466          SUPREME COURT REPORTS                 [1990] Supp. 1 S.C.R.

    to Hongkong and Dubai on 5th October, 1989. He was also aware that
A
    the detenu M.M. Shahul Hameed had secreted diamonds and precious·
    stones in his rectum while the other two detenus had swallowed JOO
    capsules each containing foreign currency notes. He was also aware of
    the fact that all the three detenus were produced before the Additional
    Chief Metropolitan Magistrate, Espalande, Bombay and two of them
B   had applied for bail. He was also conscious of the fact that the hearing
    of the bail applications was postponed because investigation was in
    progress. His past experience was also to the effect that in such cases
    courts ordinarily enlarge the accused on bail. He was also aware of the
    fact that the detenu M.M. Shahul Hameed had not applied for bail.
    Conscious of the fact that all the three detenus were in custody, he
    passed the impugned orders of detention on 10th November, 1989 as
c   he had reason to believe that the detenus would in all probability
    secure bail and if they are at large, they would indulge in the same
    prejudicial activity. This inference of the concerned officer cannot be
    described as bald and not based on existing material since the manner
    in which the three detenus·were in the process of smuggling diamonds
D   and currency notes was itself indicative of they having received train-
    ing in this behalf. Even the detenus in their statements recorded on 5th
    October, 1989 admitted that they had embarked on this activity after
    receiving training. The fact that one of them secreted diamonds and
    precious stones in two balloon rolls in his rectum speaks for itself.
    Similarly the fact that the other two detenus had created cavities for
E   secreting as many as JOO capsules each in their bodies was indicative of
    the fact that this was not to be a solitary instance. All the three detenus
    had prepared themselves for indulging in smuggling by creating
    cavities in their bodies after receiving training. These were not ordi-
    nary carriers. These were persons who had prepared themselves for a
    long term smuggling programme and, therefore, the officer passing the
F   detention orders was justified in inferring that they would indulge in
    similar activity in future because ·they were otherwise incapable of
    earning such substantial amounts in ordinary life. Therefore, the criti-
    cism that the officer had. jumped to the conclusion that the detenus
    would indulge in similar prejudicial activity without there being any
    material on record is not justified. It is in this backdrop of facts that we
G   must consider the contention of the learned counsel for the detenus
    whether or not there existed compelling circumstances to pass the
    impugned orders of detention. We are inclined to think, keeping in
    view the manner in which these detenus received training before they
    indulged in the smuggling activity, this was not a solitary effort, they
    had in fact prepared themselves for a long term programme. The deci-
    sions of this Court to which our attention was drawn by the learned
                 KAMARUNNISSA v. U.0.1. [AHMADI, J.]                   467

counsel for the petitioners lay down in no uncertain terms that deten-
                                                                              A
tion orders can validly be passed against detenus who are in jail, pro-
vided the officer passing the order is alive to the fact of the detenus
being in custody and there is material on record to justify his conclu-
sion that they would indulge in similar activity if set at-liberty. we.will
now consider the case law in brief. ·
                                                                           B
       In Vijay Narain Singh (supra) this Court stated that the law of
preventive det.ention being a drastic and hard law must be strictly
construed and should not ordinarily be used for clipping the wings of
an accused if criminal prosecution would suffice, So also in Ramesh
Yadav v. District Magistrate ET, [1985] 4 SCC 232 this Court stated
that ordinarily a detention order should not be passed merely on the
ground that the detenu who was carrying on smuggling activities was c
likely to be enlarged on bail. In such cases the proper course would be
to oppose the bail application and if granted, challenge the order in the
higher forum but not circumvent it by passing an order of detention
merely to supersede the bail order. In Suraj Pal Sahu v. State of
Maharashtra, [1986] 4 SCC 378 the same principle wasreiterated. In D
Binod Singh v. District Magistrate, Dhanbad, [1986] 4 SCC 416 it was
held that if a person is in custody and there is no imminent possibility
of his being released therefrom, the power of detention should not
ordinarily be exercised. There must be cogent material before the
officer passing the detention order for inferring that the detenu was
likely to be released on bail. This inference must be drawn from mate- E
rial on record and must not be the ipse dixit of the officer passing the
detention order. Eternal vigilance on the part of the authority charged
with the duty of maintaining law and order and public order is the price
which the democracy in this country extracts to protect the funda-
mental freedoms of the citizens. This Court, therefore, emphasized
that before passing a detention order in respect of the person who is in F
jail the concerned authority must satisfy himself and that satisfaction
must be reached on the basis of cogent material that there is a real
possibility of the detenu being released on bail and further if released
on bail the material on record reveals that he will indulge in prejudicial
activity if not detained. That is why in Abdul Wahab Sheikh v. S.N.
Sinha, [1989] 2 SCC 222 this Court held that there must be awareness G
in the mind of the detaining authority t·hat the detenu is in custody at·
the time of actual detention and that cogent and relevant material
disclosed the necessity for making an order of detention. In that case
the detention order was quashed on the ground of non-application of
mind as it was found that the detaining authority was unaware that the
detenu's application for being released on bail was rejected by the H
    468          SUPREME COURT REPORTS                 [ 1990] Supp. 1 S.C.R.

    designated Court. In Meera Rani v. State of Tamil Nadu, [1989] 4 SCC
A
    418 the case law was examined in extenso. This Court pointed out that
    the mere fact that the detenu was in custody was not sufficient to
    invalidate a detention order and the decision must depend on the facts
    of each case. Since the law of prev'entive detention was intended to
    prevent a detenu from acting in any manner considered prejudicial
B   11nder the law. ordinarily it need not be resorted to if the detenu is in
    custody unless the detaining authority has reason to believe that the
    subsisting custody of the detenu may soon terminate by his being
    released on bail and having regard to his recent antecedents he is likely
    to indulge in similar prejudicial activity unless he is prevented from
    doing so by an appropriate order of preventive detention. In Shashi
    Aggarwal v. State of Uttar Pradesh, [1988] SCC 436 it was emphasized
c   that the possibility of the court granting bail is not sufficient nor is a
    bald statement that the detenu would repeat his criminal activities
    enough to pass an order of detention unless there is credible informa-
    tion and cogent reason apparent on the record that the detenu, if
    enlarged on bail, would act prejudicially. The same view was reitera-
D   ted in Anand Prakash v. State of Uttar Pradesh, [1990] I SCC 291 and
    Dharmendra's case (supra). Jn Sanjay Kumar Aggarwal v. Union of
    India, [1990] 3 SCC 309 the detenu who was in jail was served with a
    detention order as it was apprehended that he would indulge in pre-
    judicial activities on being released on bail. The contention that the
    bail application could be opposed, if granted, the same could be
E   questioned in a higher forum, etc., was negatived on the ground that it
    was not the law that no order of detention could validly be passed
    against a person in custody under any circumstances.

           From the catena of decisions referred to above it seems clear to
     us that .even in the case of a person in custody a detention order can
f    validly be passed (1) if the authority passing the order is aware of the
    fact that he is actually in custody; (2) if he has reason to believe on the
    basis of reliable material placed before him (a) that there is a real
    possibility of his being released on bail, and (b) that on being so
    released he would in all probability indulge in prejudicial activity and
    (3) if it is felt essential to detain him to prevent him from so doing. If
G   the authority passes an order after recording his satisfaction in this
    behalf, such an order cannot. be struck down on the ground that the
    proper course for the authority was to oppose the bail and if bail is
    granted notwithstanding such opposition, to question it before a
    higher court. What this court stated in the case of Ramesh Yadav
    (supra) was that ordinarily a detention order should not be passed
H   merely to pre-empt or circumvent enlargement on bail in cases which
                    KAMARUNNISSA v. U.0.L !AHMADI, ll                   469

    are essentially criminal in nature and c.an .be dealt with under the
    ordinary law. It seem~ to us well settled that even in a case where a      A
    person is in custody, if the facts and circumstances of the case so
    demand, resort can be had to the law of preventive detention. This
    seems to be quite clear from the case law discussed above and there is
    no need to refer to the High Court decisions to which our attention was
    drawn since they do not hold otherwise. We. therefore, find it difficult   B
    to accept the contention of the counsel for the petitioners that there
    was no valid and compelling reason for passing the impugned orders of
    detention because the detenus were in custody.          ·

          Counsel for the petitioners next submitted that while making the
    representation dated 18th December, 1989 the detenus had requested
    for the supply of copies of the declarations made by them before the
                                                                               c
    customs authorities at the Bombay Airport before boarding their
    respective flights and for copies of the search warrants mentioned in
    the grounds of detention. It was stated that the detenus needed these
    documents for the purpose of making a representation. While reject-
    ing their representation by the memorandum of 18th January, 1989 the       D
    detenus were informed that the sponsoring authority was requested to
    supply the copies of search authorisations to the detenus. The peti-
    tioners complained fhat despite this communication the sponsoring
    authority did not supply copies of the search authorlsarions-whereupon
    another letter dated 6th Febr~ary, 1990 was written to the detaining
    authority asking for the said documents. By the memorandum of 14th         E
    February, 1990, the detenus were informed that the Deputy Direcwr
    of Revenue Intelligence. Bombay, was requested to supply the docu-
    ments asked for by the detenus. In response to the same the detenus
    were supplied copies of the search warrants but not copies of the
    declarations made to the customs officers at the airport. It is further
    complained that this delay had resulted in depriving the detenus of        F
    their valuable right to make an effective representation against the
    impugned detention orders. The High Court while dealing with this
    contention came to the conclusion that the declarations made by the
    detenus at the airport were neither relied on nor referred to in the
    grounds of detention. As regards the search authorisations, it may be
    pointed out that although there is a mention of the premises searched      G


-   in the grounds of detention, the incriminating material found has
    neither been used not made the basis for formulating the grounds of
    detention. Mere reference to these searches by way of completing the
    narration cannot entitle the detenus to claim copies of the search
    authorisations. The High Court, therefore, rejected this contention by
    observing as under:                                                        H
    470          SUPREME COURT REPORTS                [!990] Supp. 1 S.C.R.

                "We fail to understand how the Detaining Authority can
A
                be compelled to give documents which were not relied
                upon while arriving at the subjective satisfaction. We are
                also unable to appreciate how the declaration made by the
                detenu before proceedings to board the aircraft has any
                relevance while considering whether the order of detention
B               should be passed to prevent the detenu from indulging in
                any prejudicial activities in future. In our judgment, the
                complaint that some documents which according to the
                detenu were relevant for making representation were not
                furnished by the Detaining Authority and, therefore, the
                order or the continuation of the detention is bad. is without
                any substance."
c
      In the counter it is specifically mentioned that 'these documents were
      not placed before the detaining authority nor the detaining authority
      has relied upon those documents while issuing the detention order'.
      The detenus would have been entitled to any document which was
D     taken into consideration while formulating the grounds of detention
      but mere mention of the fact that certain searches were carried out in
      the course of investigation, which have no relevance to the detention
      of the detenus, cannot cast an obligation on the detaining authority to
     supply copies of those documents. Much less can an obligation be cast
     on the detaining authority to supply copies of those documents in
E    Tamil language. In the peculiar circumstances of the present petitions
      we are of the opinion that the view taken by the High Court cannot be
      assailed. Reliance was, however, placed on a decision of the Delhi
      High Court in Gurdip Singh v. Union of India & Ors., Criminal Writ
      No. 257 of 1988 decided on 7th October. 1988 (1989 Crl. L.J. NOC 41
    . Delhi) wherein Malik Sharief-ud-din, J. observed that the settled legal
F     position was that all the documents relied upon for the purpose of
      ordering detention ought to be supplied pari passu with the grounds of
      detention to the detenu and documents not relied upon but casually
      referred to for the purpose of narration of facts were also to be sup-
      plied to the detenu if demanded. Where documents of the latter cate-
      gory are supplied after the meeting of the Advisory Board is over it
G     was held that that would seriously impair the detenu's right to make an
       effective and purposeful representation which would vitiate the deten-
       tion. Counsel for the petitioners, therefore, submitted that in the pre-
       sent case also since the search authorisations were supplied after the
       meeting of the Advisory Board, the detention orders stood v_itiated.
       But in order to succeed it must be shown that the search authonsatJons
                                                                                  -
H      had a bearing on the detention orders. If, merely an incidental refe-
                               •
               KAMARUNNISSA v. U.0.1. [AHMADI. J.J                  471

rence is made to some part of the investigation concerning a co- A
accused in the grounds of detention which has no relevance to the case
set up against the detenu it is difficult to understand how the detenus
could contend that they were deined the right to make an effective
representation. It is not sufficient to say that the detenus were not
supplied the copies of the documents in time on demand but it must
further be shown that the non-supply has impaired the detenu's right B
to make an effective and purposeful representation. Demand of any or
 every document, however irrelevant it may be for the concerned
 detenu, merely on the ground that there is a reference thereto in the
 grounds of detention, cannot vitiate an otherwise legal detention
 order. No hard and fast rule can be laid down in this behalf but what is
 essential is ihat the detenu must show that the failure to supply the c
 documents before the meeting of the Advisory Board had impaired or
 prejudiced his right, however slight or insignificant it may be. In the
 present case, except stating that the documents ·wer~ not supplied
 before the meeting of the Advisory Board, there is no pleading that it
 had resulted in .t.he impairment of his right nor could counsel for the
 petitioners po'int out any such prejudice. We are, therefore, of the D
 opinion that the view taken by the Bombay High Court in this behalf is
 unassailable.

       The declaration under section 9(1) dated 20th December, 1989 is
.challenged on the ground that the second respondent failed to forward
 the copies of the document on which he placed reliance for arriving at     E
 the subject to satisfaction that the detenu were likely to smuggle goods
 out of and through Bombay Airport, an area highly vulnerable to
 smuggling as defined in Explanation I to section 9( I) of the Act. Now
 if we turn to paragraph 2 of the declaration it becomes evident that the
 second respondent merely relied on the grounds of detention and the
 material in support thereto which had already been served on the           F
·detenu and nothing more .. Counsel for the petitioners relying on a
 decision of the Bombay High Court in Nand Kishore Purohit v. Home
 Secretary, Maharashtra, [1986]2 Bombay C.R. 25, however urged that
 it was obligatory for the second respondent to supply the grounds of
 detention and the accompanying documents 'afresh' if the declaration
 was based thereon. We are afraid we cannot subscribe to this point of      G
 view. If the documents relied on for the purpose of framing a declara-
 tion under section 9(1) are the very same which were earlier supplied
 to the detenu along with the grounds of detention under section 3(1),
we fail to see what purpose would be served by insisting that those very
 documents should be supplied afresh. Such a view would only result in
 wasteful· expenditure and avoidable duplication. We do not think that      H
    472          SUPREME COURT REPORTS                [ 1990] Supp. 1 S.C.R.

A   we would be justified in quashing the declaratton made under section
    9( I) of the Act on such a hyper-technical ground. We, therefore, do
    not see any merit in this contention.

          There are a few other minor grounds on which the detention
    orders are challenged. These may stated to be rejected. Firstly, it was
B   contended that under section 3(1) of the Act a detention order can be
    passed on one or more of the five grounds set out in clauses (i) to (v)
    thereof. Since the impugned orders make no mentio[l of the cluase
    number on which they are founded they are bad in law. The detention
    orders clearly state that the power is being exercised with a view to
    preventing the smuggling of goods referrable to clause (i) of the sub-
    section. Merely becasue the number of that clause is not mentioned, it
c   can make no difference whatsoever. So also we see no merit in the
    contention that the value of goods seized varies in the grounds of
    detention from that mentioned in the panchnama or apprisal report.
    How that has prejudiced the detenus is difficult to comprehend in the
    absence of any material on record. The submission that the declaration
D   under section 9(1) was required to be communicated within five weeks
    from the date of its making is not specifically raised in the writ peti-
    tions nor was it argued before the High Court. We were, however, told
    that the declaration was communicated in the first week of January
    1990, a statement which was not contested on behalf of the petitioners.
    In fact the submission was not pursued after this fact was disclosed. We
E   also see no merit in it. Lastly, it was said that the authority had failed
    to take notice of the retraction of the statement recorded under section
    108 of the Customs Act, 1962. In fact there is a specific reference to
    the retraction letter dated 12th October, 1989 and the subsequent
    letter of 19th October, 1989, wherein the detenus stated that they had
    signed the letter of 12th October, 1989 without knowing the contents
F   thereof and had in fact not disowned their earlier statement of 5th
    October, 1989. It is clear from the above that this challenge is also
    without substance.

          These were the only contentions urged at the hearing of the
    special leave petitions as well as the writ petitions. As we do not see
G   any merit in any of these contentions we disniiss the special leave
    petitions as well as the writ petitions and discharge the rule in each
    case.

    R.N.J.                                 SLPs and Writ Petition dismissed.
                                                                                  I
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