LexABDUL SATHAR IBRAHIM MANIK ETC versus UNION OF INDIA AND ORS.
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.. ~ 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. G 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. 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
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