1998 ALL MR (Cri) 1348
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

N. ARUMUGHAM, J.

Satish Ratilal Rawal Vs. Union Of India & Ors.

Criminal Writ Petition No.816 of 1997

19th August, 1998

Petitioner Counsel: Mr.S.L. MANESHINDE
Respondent Counsel: Mr.R.M. AGARWAL, Mr.R.L. PATIL

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), S.3(1) - Detention under - Detenu on bail when order was passed - Detenu surrendering to judicial custody two days prior to service of order - Detaining authority not considering the fact of his being in custody and of real danger of his being released from custody - Held continued detention of detenu was not justified.

AIR 1986 SC 2090; 1998 Cri LJ 1837, 1995 Cri LJ 3737 Rel on. (Para 3)

Cases Cited:
AIR 1986 SC 2090 [Para 3]
AIR 1986 SC 2086 [Para 5,6,8]
1995 Cr LJ 3737 [Para 6]
1998 Cr LJ 1837 [Para 6]
Cri.W.P.No.1235/87 dt.26/2/1988 [Para 6]
Cri.W.P.No.26/90 dt.11/4/1990 [Para 6]


JUDGMENT

VISHNU SAHAI, J.:- Through this petition preferred under Article 226 of the Constitution of India, the petitioner (detenue) has impugned the order dated 27th June 1997, passed by Mr.Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi detaining him under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detention order along with the grounds of detention bearing the said date was contemporaneously served on the petitioner on 10.7.1997.

2. We have heard Mr.S.L. Maneshinde for the petitioner, Mr.R.M. Agarwal for respondents 1 and 2 and Mr.R.L.Patil APP for respondents 3 and 4.

3. Since this petition deserves to be allowed on a legal ground namely, that although the detenue at the time of the passing of the detention order was on bail but since at the time of its execution was in judicial custody, having surrendered, to his bail two days earlier, and awareness of this fact, as also of the real danger of his being released has not been shown by the Detaining Authority and hence the detention order was vitiated in law, we are not adverting to his prejudicial activities contained in the grounds of detention. In this connection it would be necessary to refer to paragraph 6 of the decision of the Supreme Court rendered in the case of Binod Singh Vs. District Magistrate, Dhanbad, Bihar and ors. (AIR 1986 SC 2090) wherein it has been observed thus:

"6. In this case there were grounds for the passing of the detention order but after that the detenue has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenue was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenue under the Act is not justified."

4. A perusal of the said paragraph would show that where the detenue has surrendered for whatever reasons and at the time of the service of the detention order was in custody and there was no proper consideration of this fact or of a real danger of his being released, the detention order would be vitiated.

In that case the detenue had surrendered in a case under section 302 IPC and the return filed by the District Magistrate reflected that the surrender was made to frustrate the service of the detention order. Inspite of the said averment since awareness referred to above was not shown by the authorities the detention order was quashed.

5. In the instant case it is common ground between counsel for the parties that although at the time when the detention order was passed the detenue was on bail but at the time of its execution he was in judicial custody, having surrendered to his bail. That being the position it was necessary for the authorities to show the awareness mentioned in paragraph 6 of AIR 1986 SC 2086 (supra), but the same has not been done. Although the detaining authority has filed a return but in the same he has not averred to the real danger of the detenue being released in near future and resorting to prejudicial activities. Consequently the impugned detention order would have to be quashed.

6. We feel it relevant to point out that the said decision of the Supreme Court (AIR 1986 SC 2086 (Supra) was followed in a Division Bench decision of the Delhi High Court, rendered in the case of Kuldip Singh Vs. Union of India (1995 Cr.L.J. P.3737). A perusal of para 14 of the said decision would show that while the detenue was in judicial custody the detention order had been served upon him but the detaining authority did not specify whether there was a reasonable likelihood of his being released and if released whether he would involve himself in prejudicial activities under the COFEPOSA. In that view of the matter relying upon AIR 1986 SC 2086 (supra) the Delhi High Court quashed the detention order detaining the detenue under COFEPOSA.

In a very recent decision (1998 Cr LJ Page 1837) rendered in the case of Manjit Singh Dhillon Vs. Union of India and ors. a learned single Judge of the Punjab and Haryana High Court, in paragraph 23, has held that although when the service of the detention order was made on the detenue he was in judicial custody, having surrendered just two days prior to the service, but as the detaining authority did not take into consideration this fact and did not satisfy itself whether it was still imperative to detain him under COFEPOSA Act, his detention was unsustainable and it quashed the detention order.

The ratio laid down in the said cases has also been laid down in two Division Bench decisions of our court viz.

i) Cr. Writ Petition No.1235 of 1987 (Mrs.Rukhsana Abdul Majeed Ali Mohammed Vs. Tarun Roy and ors.) decided on 26th February, 1988, and

ii) Criminal Writ Petition No.26 of 1990 (Chemmala Mohammed Mustafa Vs. Shri L. Hmingliana and ors.) decided on 11th April, 1990 by the Nagpur Bench of this court.

In both these decisions the ratio laid down in AIR 1986 SC 2086 (supra) has been followed.

7. In our view the decisions referred to above would have a blanket application to the instant case.

8. Mr.R.M. Agarwal learned counsel for respondents 1 and 2 strenuously urged that the petitioner was on bail when the detention order was issued and with a ploy to frustrate it in law he surrendered to the same on 8.7.1997, i.e. two days prior to its service. He urged that since the law would not allow the petitioner to take advantage of his own wrong it would be inequitable for us to hold that the detention order would stand vitiated on the said ground.

We have considered Mr.R.M. Agarwal's submission but we regret that in the teeth of the ratio laid down in AIR 1986 SC 2086 (supra) and the other decisions mentioned earlier it would not be possible for us to accept the same.

9. Mr.R.M. Agarwal made some other submissions but we do not think that they are relevant in the context of the legal point on which we are allowing this petition. Hence we are not adverting to them.

10. For the said reasons, in our view, the impugned detention order dated 27th June 1996 passed by the respondent no.2, a true copy of which has been filed as Exhibit "A" to the petition, is quashed and the petitioner Satish Ratilal Rawal who is in custody is directed to be released forthwith unless required in some other case.

Rule is made absolute.

Petition allowed.