SIDDIQUI KHALID AHMAD Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has been detained vide order dated September 20, 1989, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) with a view to, preventing the petitioner from Smuggling goods. In this petition challenging the detention order, various grounds have been urged in support of the petition but it is not necessary to refer to all those grounds as this petition is liable to succeed on a very short point.

(2.) IT has been urged on behalf of the petitioner that the petitioner was in judicial custody at the time the detention order was passed and his two bail applications stood rejected and there was no other material mentioned in the grounds of detention which could enable detaining authority to reach the subjective satisfaction that the petitioner is likely to be released on bail in the near future and thus the order of detention is vitiated on this score alone.

(3.) IN the present case, the facts are different. The grounds of detention show that the petitioner was arrested on June 29, 1989 and was remanded to judicial custody till July 13, 1989 and his bail application dt. 10-7-1989, was rejected and another application dated 17.7.1989, was alto rejected by the Additional Sessions Judge and no bail application of the petitioner was pending at the time the detention order was passed, still the detaining, authority had recorded the subjective satisfaction to the effect that the petitioner was, no doubt, already in judicial custody but the possibility of his filing a fresh bail application and getting enlarged on bail could not be ruled out. It is true that in law nothing prevents an accused from moving one application after another bail application but the grounds of detention must disclose some material from which the subjective satisfaction could be reached by the detaining authority that the detenu is likely to be released on bail in the near future. In the present case, the fact that two bail applications of the petitioner already stood rejected, the possibility of the petitioner being released on the bail in the near future was very much remote. The subjective satisfaction reached by the detaining authority that the petitioner is likely to be released on bail in the near future appears to be based on no cogent material mentioned in the grounds of detention. Hence, the order of detention stands vitiated.