LexBABY DEVASSY CHULLY @ BOBBY versus UNION OF INDIA & ORS.
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[2012] 9 S.C.R. 515 BABY DEVASSY CHULLY @ BOBBY v. UNION OF INDIA & ORS. (Criminal Appeal No. 866 of 2008) OCTOBER 12, 2012 [P. SATHASIVAM AND RANJAN GOGOi, JJ.] A B Conservation of Foreign Exchange and Prevention of Smuggling Acitivties Act, 1974 - s. 3(1) - Arrest of detenu under Customs Act - Granted bail in the case - But did not C avail of the same - While in jail, detention order under COFEPOSA - Writ Petition challenging detention order - High Court dismissing the petition - On appeal, held: Detention order was necessary in view of the facts of the case - Detenu was having bail order and thus there was possibility D of his coming out and indulge in prejudicial activities - It is subjective satisfaction of Determining Authority to invoke order of detention - Customs Act, 1962. Res Judicata - Petition u/Art. 226 challenging detention E order - Earlier petition u/Art. 32 challenging the same detention dismissed - Whether petition u/Art. 226 barred by res judicata - Held: Doctrine of res judicata would be inapplicable to cases where the two forums have separate and independent jurisdictions - Res Judicata also not applicable in the instant case because in the petition u!Art. F 226, additional grounds were raised. Practice and Procedure - Preventive detention for one year - Petition challenging the detention - High Court reserving the order and pronouncing the same after 5 months G - Held: In a matter affecting personal liberty of a citizen, it is duty of the courts to take all endeavours and efforts for an early decision - Courts to give priority for disposal of the matters relating to personal liberty. 515 H 516 SUPREME COURT REPORTS [2012] 9 S.C.R. A Appellant-accused and five co-accused were arrested in respect of smuggling of diesel oil on the basis of the statements of the co-accused. The co-accused subsequently retracted from their statements. The appellant-accused was granted bail on 12.4.2005, but he B did not avail of the same. On 3.5.2005 detention order was passed against him u/s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Appellant-accused filed writ petition under Article 226 of the Constitution challenging the c detention order. The petition was dismissed by High Court. In appeal to this Court, the appellant (detenu) contended that there was no compelling reason to detain him as on the date of detention order, he was in jail; that D reliance on the retraction statement of the co-accused by the Detaining Authority without adverting to their confessional statement, vitiates the detention order. Detaining Authority contended that the writ petition E under Article 226 was barred by res judicata as the same detention was challenged in a writ petition under Article 32 and the same was dismissed by this Court. Dismissing the appeal, the Court F HELD: 1. The right to liberty is guaranteed by Article 21 of the Constitution of India. At the same time, Article 22(3)(b) of the Constitution permits preventive detention. It is the subjective satisfaction of the Detaining Authority whether a person has to be detained for a particular G period of time or not. In the impugned grounds of detention, the Detaining Authority has narrated all the reasons for passing the detention order detaining the appellant with a view to prevent him from abetting the smuggling of goods in future. [Paras 7 and 8] [524-B-D] H BABY DEVASSY CHULLY @ BOBBY v. UNION OF 517 INDIA & ORS. Rekha vs. State of Tamil Nadu Through Secretary to A Governmentand Anr. (2011) 5 SCC 244: 2011 (4) SCR 7 40 - referred to. 2. The Detaining Authority was conscious of all relevant aspects and passed the impugned order of 8 detention in order to prevent the appellant from abetting the smuggling of goods in future. It is true that though the detenu was granted bail on 12.04.2005, for the reasons best known to him, he did not avail such benefit and continued to be in jail on the date of the detention, C i.e., 03.05.2005. It is true that this aspect has not been mentioned in the detention order, however, on the other hand, it is not in dispute that the grounds of detention which forms part of the Detention Order clearly mention the details about the bail order dated 12.04.2005 and non- availing of the same on the date of detention order. [Paras D 9 and 10] [524-F-H; 526-B] 3. If a person concerned is in custody and t
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