SHYAM SUNDER AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was detained pursuant to a detention order dated 4th of June 1987 passed by Shri S. K. Kohli, Joint Seretary to the Government of India, under section 3(1) of' the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended). The order of detention was passed with a view to preventing him from smuggling goods. This followed an incident dated 25th of March 19"" when one Sushil Kumar Agarwal, Parmeshwar Lal Karel and the petitioner arrived at Calcutta Airport from Hongkong via Bangkok. From all of them the customs authorities recovered some foreign made wrist witches and foreign marked gold. Further, some documents were recoveied showing some account of 13,000 U.S. dollars. From the petitioner the customs authorities recovered three gold biscuits and three wrist watches. The petitioner was arrested on the same day and was produced before the court of the Magistrate on 26th of March 1987 when he was remanded to judicial custody till 10th of April 1987. An application for bail was moved before the High Court of Calcutta which came to be rejected on 1st of April 1987. Another application for bail was rejected by the Magistrate on 24th of April 1987. But, subsequently, in April and May 1987, the petitioner and his accomplice were granted bail by the High Court of Calcutta en certain conditions. I will advert to this aspect of the case at the appropriate place of this order, but at this stage it may be stated that the other two persons furnished bail and came out of jail while the petitioner could not fulfilthe conditions of bail and remained in the judicial Custody It was in the meantime that on 4th of June 1987 the order of detention was passed which was actually served on the petitioner in jail on 8th of June 1987.

(2.) . The contention raised by Mr. Herjinder Singh is that the detaining authority has failed to show his awareness that at the time when the detention order was passed the petitioner was in custody and has further failed to express that despite this awareness there are compelling reasons to pass the detention. order. Mr. Herjinder Siagh urg.-d that in fact what is mentioned in the grounds of detention indicates that the detaining authority Was under the impression that the petitioner has been admitted to bail. He has in this regard invited my attention to para 13 of the grounds of detention in which apart from other things it is stated as under :

(3.) . Mr. Herjinder Singh, therefore. urged that since two persons had already furnished bail and come out of jail the detaining authority was under the impression that the petitioner was not in custody and the very fact tnai the detaining authority has not shown any awareness about the petitioner being in custody vitiates the order of detention as it amounts to double detention. The fact that a person 'is in custody does not by itself take away the jurisdiction cf the detaining authority to pass a detention order. All that is required is that he must show his awareness about the detenu being in custody and still arriving at a subjective satisfaction that it is necessary to detain the detenu. In the present case, I am not in agreement with the contention of Mr. Herjinder Singh that the detaining authorityy has not shown any awareness of the petitioner being in custpdy when the subjective satisfaction was arrived at. In fact, the order of detention is addressed to the petitioner at his residence but in the grounds of detention which are of the even date' he is also shown as care care of Superintendent, Dum Dum central Jail. Dum Dum. This shows that the .letaining authority was fully aware of the fact that the petitioner' was in jail and that is how the grounds of detention together with the detention order has been served on the petitioner in jail. This is how the respondents have explained the whole thing in the counter affidavit.