Holding

A detention order may be validly passed against a person already in custody if the authority is aware of the custody and is satisfied, on cogent material, that the detainee is likely to engage in prejudicial activity upon release.

Summary

Sanjeev Kumar Aggarwal was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act while already in judicial custody on remand. He challenged the detention on the grounds that the detaining authority had not considered his existing custody, had not applied its mind to his representations, and that the order was served beyond the five‑day period prescribed by Section 3(3). The Supreme Court held that a preventive detention order can be validly issued against a person already in custody if the authority is aware of the custody and is satisfied, on cogent material, that the detainee is likely to resume prejudicial activity upon release. The Court found that the authority had noted the possibility of bail and the detainee’s prior involvement in gold smuggling, thereby satisfying the "compelling reasons" test, and accepted the translation delay as a valid reason for the service delay. Consequently, the petition was dismissed.

Issues considered

Whether a preventive detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act can be validly passed against a person already in judicial custody.
Whether the detaining authority applied its mind to the detainee’s representations and the material before it.
Whether the delay of eleven days in serving the detention order violated Section 3(3) of the Act.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Acts. 3(1), s. 3(3)

Subjects

preventive detentionjudicial custodydetention orderbailsmugglingforeign exchangeSection 3(1)Article 22(5)delay in serviceapplication of mind

Judgment

SANJEEV KUMAR AGGARWAL
A
v.
UNION OF INDIA AND OTHERS

APRIL 4, 1990

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

Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act-Section 3( 1)-Detention order in case of detenu already
in jail-Passing of-Whether permissible and when valid.

c The petitioner was detained under Section 3( l) of the Conserva-
tion of Foreign Exchange and Prevention of Smuggling Activities Act by
an order dated 13. 7 .1989. The facts leading to his arrest and detention
are:

D On 7. 7 .1989 officers of Directorate of Revenue Intelligence New
Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan
and three others were present. On search of the car no recovery was
made on the spot, but later on when the car was thoroughly rummaged
in presence of two independent witnesses and the occupants of the car,
206 foreign marked gold biscuits of ten tolas each were recovered from
E the cavities of the car meant for fitting speakers in the rear portion of
the car. The occupants did not give any explanation for the possession
of the said gold biscuits. However on personal search of Mahesh, a slip
was recovered which contained a telephone number and Mahesh
Kumar in his statement admitted that he was to hand over the smug-
gled goods to one Vijay Kumar. Mahesh Kumar admitted that he was
F visiting Dubai frequently to bring consumer goods and ornaments for
being sold in the local market. According to him one Avtar Singh who
was engaged in smuggling of foreign gold biscuits, agreed to sell the
gold biscuits. to Mahesh Kumar on commission. He also gave some
details about Avtar Singh. Similarly Vijay Kumar also made a state-
ment. From these statements it is also revealed that petitioner Sanjeev
G Kumar Aggarwal had made arrangements for selling the gold biscuits.
The residential premises of the petitioner was searched and he was
taken into custody. The petitioner made a statement before the officers
of the Directorate or Revenue Intelligence. On the basis of the material
the detaining authority passed an order of detention on 13. 7.1989 which
was served on the petitioner on 24.7.1989. The grounds of detention
H were also served on the petitioner in time.

318
S.K. AGGARWAL v. U.0.1. & ORS. 319

The petitioner challenged his detention by means of a writ petition
A
before the Delhi High Court, and having remained unsuccessful, he
filed this petition for Special Leave to Appeal against the order of the
Delhi High Court dismissing his writ petition.

Before this Court two main points have been urged viz., (i) that there
is a total non-application of mind by the detaining authority inasmuch as he B
has failed to note that the petitioner was in jail, and that there was no
possibility of his being released, and the failure to consider this aspect
on the part of the detaining authority renders his detention invalid; and
(ii) that the detaining authority has not applied his mind properly in
rejecting his representation and that there was delay ir. serving the
detention order on him.
c
Dismissing the petition, this Court,

--:..L HELD: Whether an order of detention can be passed agains< a
person who is in detention or in jail, will always have to be determined
in the circumstances of each case. D

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. [326B]

Section 3(3) of the Act lays down that for the purpose of Article E
22( 5) of the Constitution the order should be served as soon as possible
but ordinarily not later than five days and in exceptional circumstances
and for reasons to be recorded in writing, not later than fifteen days
from the date of detention. [3208]

In the instant case from the record it was submitted that it took F
quite sometime for translating the documents to Hindi and Gurmukhi,
and the Court is satisfied that there are valid and sufficient reasons for
delay in serving the detention order. [327C-D]

Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, Commisioner
of Police, Ahmedabad & Anr., [1989] 2 S.C.C. 222; Binod Singh v. G
District Magistrate, Dhanbad, [1986] 4 S.C.C. 416; Vijay Kumar v.
State of Jammu & Kashmir, [1982] 2 S.C.C. 43; Ramakrishna Rawat v.
District Magistrate, Jabalpur, [1975] 4 S.C.C. 164; Smt. Shashi Aggar-
wal v. State of U.P. & Ors., [1988] 1 S.C.C. 436; Ramesh Yadav v.
District Magistrate, Etah & Ors., [1985] 4 S.C.C. 232; Rameshwar
Shaw v. District Magistrate Burdwan, A.J.R. 1964, S.C. 334; Alijan H
320 SUPREME COURT REPORTS [1990] 2 S.C.R.

A Mian v. District Magistrate, Dhanbad, [1983] 4 S.C.C. 301; N. Meera
Rani v. <invernmenr of Tamil Nadu & Anr., [1989] 4 S.C.C. 418: Shri
Dharmendra Suganchand Chelawat etc. v. Union of India & Ors., J.T.
1990 1 S.C. 184: Sat Pal Manchanda v. M.L. Wndhawan & Ors., Crl.
Writ No. 333 of 1986, decided by Delhi High Court on 30.10.1986.

B CRIMINAL APPELLATE JURISDICTION: S.L.P. (Cri-
minal) No. 2485 of 1989.

From the Judgment and Order dated 12.12.1989 of the Delhi
High Court in C.W.P. 589 of 1989.

Harjinder Singh and R.N. Joshi for the Petitioner.
c
Soli J. Sorabjee, P.K. Goswamy, Udai Lalit, C.V.S. Rao, P.
Parrneshwaran and Sushma Suri for the Respondents.
__ j-
The Judgment of the Court was delivered by
D
REDDY, J. This is a petition under Article 136 of the Constitu-
tion of India against tbe judgment and order of the High Court of
Delhi dismissing the writ petition filed on behalf of the detenu chal-
lenging the detention. Notice was given and after hearing counsel for
both the parties at length the matter is being disposed of at the admis-
E sion stage.

The detenu was detained under Section 3(1) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activites Act
(hereinafter referred to as 'the Act') by an order dated 13.7.89. On
7 .6.89 Officers of Directorate of Revenue Intelligence, New Delhi
F intercepted a Maruti Car in which one Mahesh Kumar Chauhan and
three others were present but no recovery was effected on the spot.
But later on the Car was thoroughly rummaged in presence of two
independent witnesses and the occupants of the car and 206 tore1gn
_,,__ -
marked gold biscuits of ten tolas each were recovered from the
cavities of the car meant for fitting speakers in the rear portion of the
G car. The occupants did not give any explanation for the possession of
gold biscuits. On personal search of Mahesh, a slip was recovered
which contained a telephone number and Mahesh Kumar .in his state-
ment admitted that he was to hand over the smuggled goods to one
Vi jay Kumar. The premises of these two peoples were searched and a
receipt of token tax in respe,ct of the car was recovered. Mahesh
H Kumar admitted that he was visiting Dubai frequently to bring con-
S.K. AGGARWAL v. U.0.1. & ORS. [REDDY, l.J 321

sumer goods and gold ornaments for being sold in the local market.
One Avtar Singh who was engaged in smuggling of foreign gold
biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commis-
sion. He· also gave some more details about Avtar Singh. Similarly
Vijay Kumar also made a statement. From these statements it is also
revealed that petitioner herein Sanjeev Kumar Aggarwal had made
arrangements for selling the gold biscuits. The residential premises of B
the petitioner was searched and he was taken into custody. The of·
ficers of the Directorate of Revenue Intelligence questioned me
petitioner and he gave a statement. On the basis of this material the
detaining authority passed an order of detention on 13.7.89 and the
same was served on 24.7.89. The grounds were also served in time.

The learned counsel submitted that there is a total non-applica- c
tion of mind by the detaining authority inasmuch as he was failed to
note that the detenu was in jail and that there is no possibility of his
being released and the failure on the part of the detaining authority to
consider the same renders the detention invalid. It is true that the
petitioner was in judicial custody in connection with criminal proceed- D
ings. An application was filed in the court of A.C.M.M. Delhi for
extending the remand and the remand was granted upto 6.7.89. Hcw-
ever, two detenus who figured as co-accused in that criminal proceed-
ings were also in the judicial custody and on their behalf an application
for bail was filed. As mentioned in the grounds of detention the
detaining authority has noted these circumstances. In paragraph No. E
16 it is mentioned that:

'I am aware that all of you are under judicial custody and
possibility of your release on bail in near future cannot be
ruled out. Also nothing prevents Mahesh Kumar Chauhan,
Vi jay Kumar Dharne and you from moving bail application F
and getting release on bail."

Then in paragraph No. 24 it is mentioned thus:

"From the foregoing facts and circumstances and state-
ments recorded in this connection as disclosed :1erein G
above, it is evident that you have engaged yourself in abet-
ting the smuggling of goods unless prevented you will con-
tinue to do so in similar manner or otherwise in future
when released or. bail."

The further submission of the learned counsel is that the petitioner H
322 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

A alongwith two others were in judicial custody and they were further
remanded upto 20. 7.1989 and no bail application was filed or pending
as on the date of passing orders of detention. Therefore it must neces-
sarily be inferred that there is no awareness on the detaining authority
of this aspect. Reliance is placed on some of the decisions of Supreme
Court of India in this context.
B
In Abdul Razak Abdul Waha/J Sheikh v. S. N. Sinha, Commis-
sioner of Police, Ahmadabad and Anr., I1989] 2'SCC 222 it is held that
there must be awareness in the mind of the detaining authority that the
detenu is in custody at the time of service of order of detention and
that cogent and relevant material and fresh facts have been disclosed
c necessitating making of an order of detention. In the course of the
judgment it is noted that the d~taining authority also was not aware
that application for bail filed on behalf of the detenu was rejected by
the designated court and therefore, there was no application of mind.

In Binod Singh v. District Magistrate, Dhanbad, [1986] 4 SCC
D 416 it is laid down "If a man is in custody and there is no imminent
possibility of his being released, the power of preventive detention
should not be exercised. In the instant case when the actual order of
detention was served upon the detenu, the detenu was in jail. There is
no indication that this factor or the question that the said detenu might
be released or that there was such a possibility of his release, was taken
E into consideration by the detaining authority proper! y and serious! y
before the service of the order."

In Vijay Kumar v. State of Jammu and Kashmir, [1982] 2 SCC 43
the detention order was quashed because it did not give the slightest
indication that the detaining authority was aware that the detenu was
F already in jail. But in the case before us the detaining authority has
noted in the grounds that the petitioner alongwith other two co-
accused have been remanded to judicial custody and the bail applica-
tion was filed on behalf of the other two detenues and there is every
likelihood of the petitioner also being released on bail and as such the
possibility cannot be ruled out. The other material relied upon by the
G detaining authority in apprehending that the detenus are likely to be
released on bail is that their remand to the judicial custody was upto
20.7.89 and that the other two co-accused have also filed bail applica-
tions and they were pending and that this material is sufficient to
indicate that petitioner also may file bail application and is likely to be
released on bail.
H
S.K. AGGARWAL v. U.0.1. & ORS. [REDDY, J.] 323

We have carefully examined the material relied upon by the
A
detaining authority in this regard and we are of the opinion that it
cannot be said that there was no awareness in the mind of the detaining
authority about the detenu being in custody and that if he is released
on bail he is likely to indulge in the prejudicial activities. At this
juncture we may also notice another decision of the Supreme Court. In
Ramakrishna Rawat v. Disctrict Magistrate, Jabalpur, [1975] 4 SCC B
164, the detention order was upheld since the custody was obviously of
a short duration and on the basis of the antecedent activities of the
detenu in the proximate past, the detaining authority could reasonably
reach its subjective satisfaction in respect of the detenu that he was in
custody.

The learned counsel, however, submitted that in case the bail c
application is filed, the same can be opposed or even if enlarged the
same can be questioned in a higher court and that a mere bald statement
that the person would repeat his criminal activities after release
would not be enough. In Smt. Shashi Aggarwal v. State of V.P. and
Ors., [1988] 1SCC436it is observed: D

"The possibility of the court granting bail may not be suffi-
cient. Nor a bald statement that the person would repeat

-
his criminal activities would be enough. There must also be
credible information or cogent reasons apparent on the re-
')..._ cord that the detenu, if enlarged on bail, would act prejudi- E
cially to the interest of public order."

This is a case of detention on the ground of likelihood of disruption of
public order by the detenu. The detention order shows. that the order
had been made only on the sole ground that the detenu was trying to
come out on bail. F

.~ Learned counsel also relied upon the decision in Ramesh Yadav
v. District Magistrate, Etah & Ors., [1985] 4 SCC 232 wherein it is
observed:

"Merely on the ground that an accused in detention as an G
under trial prisoner was likely to get bail, an order of
detention under the National Security Act should not ordi-
narily be passed. If the .apprehension of the detaining
authority was true, the bail application had to be opposed
and in case bail was granted, challenge against that order in
the higher forum had to be raised." H
324 SUPREME COURT REPORTS [1990] 2 S.C.R.

But as already held in the instant case the detaining authority was not
A only aware that the detenu was in jail but also noted the circumstances
on the basis of which he was satisfied that the detenu was likely to
come out on bail and continue to engage himself in the smuggling of
goods. Therefore the detention was not ordered on the mere ground
that he is likely to be released on bail but on the ground that the
B detaining authority was satisfied that the detenu was likely to indulge
in the same activities if released on bail. At this stage it is useful to
refer to another important decision rendered by the Constitution
Bench in Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964
SC 334, wherein the detention order was served while the detenu was
in custody. The detenu was in jail by virtue of a remand order. The
Constitution Bench considered the effect of the detenu's subsisting
C detention and it was indicated that the detenu's subsisting detention
did not by itself invalidate the detention order but fa~"ls and circum-
stances justifying the order of preventive detention notwithstanding
his custody were necessary to sustain such an order. It is observed in
the said case that:
-~·
D
"Whether the detention of the said person would be neces-
sary after he is released from jail, and if the authority is
bona fide satisfied that such detention is necessary, he can
make a valid order of detention a few days before the
person is likely to be released. The antecedent history and
E the past conduct on which the order of detention would be /~
based would, in such a case, oe proximate in point of time
ana would have a rational connection with the conclusion
drawn by the amhority that the detention of the person
atter his release is necessary . . . . "

p It was further observed that:

"Therefore. we are satisfied that the questton as to whether ~ -
an order of detention can be passed against a person who is
in detention or m 1a1l, will always have to be determined in
the circumstances of each case."
G
'!he principles lrua down by the Constitution Bench are follwed in a
number of subsequent decisions.

In A/ijan Mian v. District Magistrate, Dhanbaa, [1983] 4 SCC 301
the detention order was upheld even though the detenu was in jail
H custody on the date of passing of the detention order because the
S.K. AGGARWAL v. U.0.1. & ORS. [REDDY, J.J 325

detention order showed that the detaining authority was alive to the
fact yet it was satisfied that if the detenu was enlarged on bail, which A
was quite likely, he could create problems of public order.

In N. Meera Rani v. Government of Tamil Nadu & Anr., [1989] 4
sec 418 all these earlier cases have been referred to extensively and
the conclusions are deduced as follows: B

"Subsisting custody of the detenu by itself does not invali-
date an order of his preventive detention and the decision
must depend on the facts of the particular case, preventive
detention being necessary to prevent the detenu from act-
ing in any manner prejudicial to the security of the State or
to the maintenance of the public order etc. ordinarily it is c
not needed when the detenu is already in custody; the de-
taining authority must show its 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 detain-
ing authority is reasonably satisfied on cogent material that D
there is likelihood of his release and in view of his antece-
dent activities which are proximate in pint of time he must
be detained in order to prevent him from indulging in such
prejudicial activities, the detention order can be validly
made even. in anticipation to operate on his release. This
appears to us, to be the correct legal position." E
In one of the latest judgments of this Court in Shri Dharmendra
Suganchand Che/awat etc. v. Union of India and Ors .. JT 1990 1 SC
184, once again all the authoritative pronouncements including that of
f. the Constitution Bench in Rameshwar Shaw's case are referred to and
the Bench which consisted of three Judges observed thus: F

"The decisions referred to above Jed 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 G
detention; and (ii) there were compelling reasons justifying
such detention despite the fact that the detenu is already in
detention. The expression "compelling reasons" in the con-
text 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 H
326 SUPREME COURT REPORTS [1990] 2 S.C.R.

A satisfied that (a) the detenu is likely to be released from
custody in the near future and (b) taking into account the
nature of the antecedent activities of the detenu, it is likely
that after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him in
B order to prevent him from engaging in such activities."

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. Therefore the
facts and circumstances of each case have to be taken into considera-
tion in the context of considering the order of detention passed in the
c case of a detenu who is already in jail. We have already, in the instant
case, referred to the grounds and the various circumstances noted by
the detaining authority and we are satisfied that the detention order
cannot be quashed on this ground.

Learned counsel, however, strongly relied on Smt. Shashi Aggar-
D wal's case and Ramesh Yadav's case and contended that in the instant
case also the bail application could be opposed if moved or if enlarged
the same can be questioned in a higher court and on that ground the
detention order should be held to be invalid. In N. Meera Rani's case a
Bench of three Judges noted the above observations in Smt. Shashi
Aggarwal's case and Ramesh Yadav's case and it is said that they were
E made on the facts of those particular cases and the Bench also
observed thus:

"A review of the above decisions reaffirms the position
which was settled by the decision of a Constitution Bench
in Rameshwar Shaw case. The conclusion about validity of
F the detention order in each case was reached on the facts of
the particular case and the observations made in each of
them have to be read in the context in which they are made.
None of the observations made in any subsequent case can
be construed at variance with the principle indicated in
Rameshwar Shaw case for the obvious reason that all sub-
G sequent decisions were by benches comprised of lesser
number of judges. We have dealt with this matter at some
length because an attempt has been made for some time to
construe some of the recent decisions as modifying the
principle enunciated by the Constitution Bench in Ramesh-
war Shaw's case."
H
S.K. AGGARWAL v. U.0.1. & ORS. !REDDY, J.] 327

As a matter of fact, in Shri Dharmendra Suganchand Chelawat's, case
there is a reference to Smt. Shashi Aggarwal's, case and Ramesh A
Yadav's, case and a Bench of three Judges folowing the decision of the
Constitution Bench in Rameshwar Shaw's Case, laid down the above
principles which we have already referred to. Therefore we see no
force in the submission.
B
The next submission of the learned counsel is that the detaining
authority has not applied his mind properly in rejecting the representa-
tion made by the detenu. It is submitted that in Annexure X-3, an
application sent by Vijay Kumar, the co-detenu, it is clearly men-
tioned that his statement was recorded under torture and duress.
Likewise in Annexure X-4, a petition filed in the Court of A.C.M.M.
New Delhi, it is complained that the statement was recorded under c
torture and duress. According to the learned counsel, this petition as
well as the medical reports of the Doctors who examined Vi jay Kumar
have not been referred to and considered by the authority while reject-
ing the representation. Reliance is also placed on a judgment of the
Delhi Hig~ Court in Sat Pal Manchanda v. M.L. Wadhawan and Ors., D
(Criminal Writ No. 333 of 1986) decided on 30.10.86. In that case it is
held that all the relevant material should be taken into consideration
by the detaining authority while disposing of the representation. But in
the instant case the circumstances are different. As a matter of fact, it
is referred in paragraph 15 of the grounds that a telegram dated 8.6.89
was received in the Ministry of Finance alleging that the detenu was E
picked up by the DRI officers and that the allegations made therein
were found false and baseless. In paragraph 17, it is also mentioned
that the detenu alongwith his accomplices retracted from their state-
ment dated 8.6.89. It can therefore be seen that the detaining autho-
rity has considered the allegations that the detenu was manhandled
etc. At any rate, the detaining authority has clearly noted that the F
detenu has retracted from the alleged statement, therefore it can not
).. be said that there is non-application of miud in this regard, namely, in
considering the representation. The same principle applies to the
Advisory Board also. According to the submissions of the learned
counsel, these documents were not placed before the Advisory Board
in its meeting on 18.9.89. Whatever statement was made by the G
petitioners on 22.6.89 prior to the detention and the grounds clearly
disclose that there was retraction. It must also be noted in this context
that in the grounds in paragraph 10 also it is mentioned that a telegram
was .received on 9.6.8'1 afleging about the wrongful arrest and .extrac-
tion of the statements and the. detaining .authority has also taken note
of the allegations made against the DRI officers which were found to H
328 SUPREME COURT REPORTS I 1990] 2 S.C.R.

A be false and baseless. The same material was there before the Advi-
sory Board. Therefore there is no force in this submission.

It is lastly submitted that there was 11 days delay in serving the
detention order. It is true that the order of detention was passed on
13.7.89, but the same was served on 24.7.89. According to the learned
B counsel, there is a violation of Section 3(3) of the Act. The said provi-
sion lays down that for the purpose of Article 22(5) of the Constitu-
tion, the order should be served as soon as possible but ordinarily not
later than five days and in exceptional circumstances and for reasons to
be recorded in writing, not later than fifteen days from ·the date of
detention. Learned .counsel for the State submitted that firstly the +-
c point of delay was not taken up in the special leave petition, therefore
he had no opportunity to counter the same. However, from the record
he submitted that it took quite sometime for translating the documents
to Hindi and Gurumukhi. We have seen the documents filed before us
and we are satisfied that there are valid and sufficient reasons for delay )..,
D in serving the detention order. - '

Thus, we find no merit in anyone of the submissions. The peti-
tion is, therefore, dismissed.

N.V.K. Petition dismissed.

E