COFEPOSA: Detention Order Can Be Passed Even If A Person Is In Judicial Custody: SC [Read Judgment]

The Supreme Court has observed that even if a person is in judicial custody, he can be detained Detention Laws like COFEPOSA.

While setting aside the order of the Delhi High Court that had quashed detention of some persons under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [COFEPOSA], the bench of Justice Uday Umesh Lalit, Justice Indira Banerjee and Justice MR Shah noted that such a detention is valid provided there must be an application of mind by the Detaining Authority that:

(i) the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody;
(ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and
(iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority.

In this case [Union of India vs. Ankit Ashok Jalan], reliance was placed on the judgment in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, which observed that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. It was submitted that even otherwise the Judgment  in Rekha (supra) has been delivered by three Judges Bench and the decision in the case of Dimple Happy Dhakad (supra) (in which a different view was taken) has been delivered by two Judges Bench. It was submitted that in any case, in the present case, as such no bail application of the detenus was pending before any court.

Addressing these contentions, the bench said:

Now so far as the reliance placed upon the decisions of this Court in the cases of Rekha (supra) and T.V. Sravanan (supra) by the learned counsel appearing on behalf of the detenus is concerned, at the outset, it is required to be noted that on the facts and circumstances of the case, narrated hereinabove, the aforesaid decisions shall not be of any assistance to the detenus and/or, as such, the same shall not be applicable to the facts of the case on hand. Even in the case of Rekha (supra), the decision of the Constitution Bench of this Court in the case of Rameshwar Shaw (supra) was not placed before the Court for consideration and therefore this Court had no occasion to consider the said decision. It is also required to be noted that even after considering the decision of this Court in the case of Rekha (supra), which has been heavily relied upon by the learned counsel appearing on behalf of the detenus, in the case of Dimpy Happy Dhakad (supra), this Court has observed that even if a person is in judicial custody, he can be put on a preventive detention provided there must be an application of mind by the Detaining Authority that (i) the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody; (ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and (iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority.

The Court further noted that the detenus were granted bail by the Court on the very date the orders of detention were quashed by the High Court. Therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified, said the bench while setting aside the High Court order. 

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