TRUWORK BEKELE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) SMT. Truwork Bekele, who is a national and citizen of Ethiopia and the mother of the detenu, Nahusenay Getachew, who is also a national and citizen of Ethiopia has filed instant petition to get quashed the order of detention passed by respondent No.2 C. D. Singh, Principal Secretary to the Government of Maharashtra, Home Department (P. D.), Mantralaya dated 31st October 1995 with a view to preventing him from smuggling gold into India. The said order has been served upon the detenu on 1-11-1995 accompanied by grounds of detention with a list of the documents. Thereafter a declaration under S. 9 (1) of COFEPOSA Act came to be made on 5-12-1995 by respondent No.6, Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. In that behalf, opinion of the advisory board has been obtained and in pursuance of the aforesaid declaration, respondent No.1 has confirmed the order of detention. The detenu is employed as pilot in Ethiopian Airlines.

(2.) ON 24-9-1995 Ethiopian Airlines Flight No. ET. 670 arrived from Addis Ababa at Sahar airport, Santacruz, Bombay. ON suspicion, search of the said aircraft was taken and it resulted in the recovery of crude gold blocks, rounded strips of crude gold pieces, crude gold cross and crude gold chains of different sizes collectively weighing 24,600 grams. valued at Rs. 96,25,242/- (International Market Value) and Rs. l,18,57,200/- (Local Market Value) from the cockpit of the said aircraft and the same was seized under panchanama on the reasonable belief that the gold was smuggled into India and was liable to confiscation under the Customs Act, 1962. At the time of panchanama, the ground engineer of the said aircraft by name Shri Naushat Mohd. Khudabaksh was present and on enquiry, he disclosed that the detenu had reentered the cockpit hurriedly after disembarkation from the aircraft and locked himself in the said cockpit for about 3-4 minutes. ON coming out when the ground engineer, Khudabaksh asked the detenu the reason for reboarding the aircraft, the latter replied that he had gone to make an entry in the log book as there was some defect in the aircraft. Thereupon the Customs Officers in presence of panchas and the Station Manager found on inspection of the log book that no defects were entered in the relevant column. When the detenu was questioned in presence of panchas, he confessed that he had actually reentered the cockpit to hide the gold there as he feared apprehension by the Customs Authorities. Thereafter when the statement of the detenu was recorded under S. 108 of the Customs Act, 1962, he disclosed that one Mrs. Amelmal gave the same gold to him and the same was to be delivered to the contact man in India by name Harish, who was supposed to contact the detenu on phone at Taj Mahal hotel and fix the mode of delivery. Not that all gold was to be delivered to Harish, but part of it was to be handed over to him and Mrs. Amelmal was to decide as to how the remaining gold was to be disposed. The detenu had undertaken this job for monetary consideration of US $ 333 per kilogram of gold equivalent to 2500 Ethiopian BIRR in Addis Ababa, after successful delivery of the contraband in India. The detenu admitted knowledge, possession and concealment of the gold under his seat in the cockpit of the aircraft. He also made a disclosure that on earlier occasion he had successfully carried the gold which was collected by Mr. Harish for which he received US $ 999 equivalent to 7500 Ethiopian BIRR from Mrs. Amelmal as monetary consideration in Addis Ababa. The detenu also admitted that after disembarkation of all the passengers and the captain as well as the crew members he tied the cloth belt containing gold approximately 15 kgs. and put the pouch containing gold approximately 9 kgs. in his bag. After he stepped out from the aircraft and moving a few steps he decided to go back to the aircraft and being scared ultimately concealed the gold under the seat in the cockpit of the aircraft. The statements of the captain, crew members and others were also recorded under S. 108 of the Customs Act, 1962.

(3.) GROUND No.4 (viii) in the petition reads as under : " The Petitioner says and submits that in para 7 of the grounds of detention, though the detaining authority has shown his awareness that the detenu was in judicial custody, when the detaining authority issued the impugned order of detention; yet the detaining authority has failed to have brought to bear on his mind and has failed to have considered and has failed to have recorded his satisfaction to the effect as to whether there was any reliable material placed before him and as to whether on the basis of such reliable material; the detaining authority had reason to believe (a) that there was an imminent likelihood of the bail order being passed by the Court granting bail to the detenu especially as his applications for bail were twice rejected by the Court i. e. on 27-9-1995 and on 11-10-1995 for the reasons set out in the said orders passed by the Court and, thus, in fact, there was no imminent likelihood of the detenu getting released on bail and (b) whether on getting released on bail the detenu in all probability would still indulge in the alleged prejudicial activities and whether the detaining authority felt it essential to detain the detenu to prevent him from so doing on account of compelling reasons. The Petitioner says and submits that the detaining authority ought to have brought to bear on his mind and ought to have considered in depth that as the detenu's passport had been taken over by the Customs authorities; which vital fact ought to have been brought to the notice of the detaining authority; and as a result the detenu was not in a position at all to travel and indulge in any such alleged prejudicial activities. The Petitioner says and submits that the detaining authority instead of addressing himself on the aforesaid vital counts and recording his satisfaction on the aforesaid vital issues; the recording of which was a condition precedent; before the detaining authority wielding his extraordinary power of preventive detention; proceeded to clamp down preventive detention on the detenu. The Petitioner says and submits that the detaining authority having failed to have considered and arrived at his decision on the aforesaid vital issues; by recording his satisfaction in the manner as stated hereinabove, the satisfaction arrived at by the detaining authority to incarcerate the detenu despite the detenu being in judicial custody on the date when the impugned order of detention was issued against him; is severely impaired resulting in vitiating the impugned order of detention. " To this ground, the reply in the return of respondent No.2 dated 3rd August 1996 is in the following terms :- " With reference to para 4 (viii) of the petition, I say that I was well aware of the fact that the application for bail of the detenu had been rejected by the Court and that he was in custody at the time of passing of the order of Detention. I say that looking to the gravity of the offence in which the detenu was involved, the manner of its commission and the attendant circumstances, I was satisfied about the potentiality and the propensity of the detenu to continue to indulge in prejudicial activities in future. I say that I had issued the Order of Detention on the basis of rational prognosis of the future behaviour of the detenu. I say that I had also borne in mind the fact that there was every likelihood of the detenu obtaining bail on various grounds, including medical grounds, and that his release on bail could not (sic) ruled out. It was in these circumstances, that I had arrived at my subjective satisfaction that there was compelling necessity to detain the detenu with a view to preventing him from indulging in prejudicial activities in future. I say that while arriving at my subjective satisfaction, I had borne in mind and applied the principles laid down by the Hon'ble Supreme Court of India for issuance of the Order of Detention against the detenu who was in judicial custody. I was satisfied that there was an imminent likelihood of the detenu being released on bail and that upon being so released he would continue to indulge in prejudicial activities unless he was preventively detained. I deny that my satisfaction was impaired in the circumstances alleged and/or that the Order of Detention is vitiated as alleged or at all. " GROUNDs No.7 and 8 in the grounds of detention in regard to these aspects run as under : "7.You were arrested on 26-9-95 and produced before the Chief Metropolitan Magistrate, Bombay, on the same day who remanded you to judicial custody till 11-10-95. You filed a retraction application and made a plea for bail before the C. M. M. Bombay on 26-9-95. The customs authorities have submitted rebuttal reply on 29-9-95. The C. M. M. rejected your bail plea on 27-9-95. You again applied for bail on 11/10/95 and 19/10/95 which were also rejected by C. M. M. on 11/10/95 and 19/10/95. The period of your judicial custody has been extended by the C. M. M. Bombay till 2-11-95. 8.It is seen from the above that you are involved in transporting, concealing and smuggling of gold into India for monetary consideration. You had earlier smuggled gold in India also. I am satisfied that it is necessary to detain you under the provisions of the COFEPOSA Act, 1974 to prevent you from indulging in such prejudicial activities in future. " Reading of ground No.7 above would go to show that the detaining authority was aware of the fact that the detenu thrice applied for grant of bail to Chief Metropolitan Magistrate, Bombay and all those applications were rejected on 27-9-1995, 11-10-1995 and 19-10-1995 and that the judicial custody of the detenu was extended till 2-11-1995. GROUND No.8 of the grounds of detention would go to show that the detaining authority was aware of earlier act of the detenu of smuggling gold into India, which is based on the statement of the detenu himself, and that he was involved in transporting, concealing and smuggling of gold into India for monetary consideration. There is, however, no reference in ground No.7 as to how there was real likelihood of the detenu being released on bail and there is no statement of the detaining authority in ground No.8 that the detenu was likely to engage himself in prejudicial activities in future, if released on bail. The question as to whether and in what circumstances an order of preventive detention can be passed against a person who is already in custody came up before the Supreme Court for consideration in numerous decisions starting from Rameshwar Shaw V. District Magistrate Burdwan (1964) 4 SCR 921. The latest decision on the point would be found in Surya Prakash Sharma Vs. State of U. P. 1995 Cri. L. J. 2657. In this decision, Their Lordships after referring to Rameshwar Shaw's case supra) and Dharmendra Suganchand Chelawat's case, AIR 1990 SC 1196, reproduced the statement of law in Rameshwar Shaw's case as :- " The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. " So also in Kamarunnissa Vs. Union of India. AIR 1991 SC 1640, the Supreme Court in paragraph 13 of the judgment on the relevant aspect held :- ". . . . . . . in the case of a person in custody, a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released, he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority possess an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. " Applying the aforesaid test, it is to be noted that in paragraph 7 of the grounds of detention, the detaining authority only showed his awareness that three bail applications of the detenu were rejected by the Chief Metropolitan magistrate and that the Judicial remand of the detenu was only upto 2-11-1995. When bail applications of the detenu have been successively rejected on three occasions, it is not understood how the detaining authority still felt that there was real likelihood of the detenu being released on bail. so also the detaining authority only stopped by saying that the custodial remand of the detenu was only upto 2-11-1995 but has not said anything further. In this context, the observations of the Supreme Court in Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 can usefully be quoted. The Supreme Court in that decision observed :- " In the grounds of detention the detaining authority has only mentioned the fact that the appellant has been remanded to judicial custody till October 13, 1988. The grounds of detention do not show that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13, 1988, and the appellants would be released from custody on October 13, 1988. Nor is there any material in the grounds of detention which may lend support to such an apprehension. On the other hand we find that the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention on October 11, 1988. " Equally in the present case the grounds of detention do not show that the detaining authority apprehended that further remand would not be granted after 2nd November 1995 or that the detenu would be released from custody on that day. This is particularly so when three applications for bail moved by the detenu came to be successively rejected by the Chief Metropolitan magistrate. we are satisfied that there was no material before respondent No.2 to arrive at subjective satisfaction that there was real likelihood of detenu being released on bail. Equally on other aspect viz. , engaging in similar prejudicial activities after release on bail, there is absolutely no statement made by the detaining authority in the grounds of detention (GROUND No.8) that the detenu is likely to engage himself in smuggling gold into India. In GROUND No.4 (viii) referred to above, it is averred that the detenu's passport has been taken over by the Customs authorities and therefore, he was not in a position to travel and indulge in any such prejudicial activities. The detaining authority has nowhere made reference to this aspect of the matter. It is to be noted that the detenu is a pilot working in Ethiopian Airlines and without passport it would have been difficult for him to go to Ethiopia and smuggle gold into India. Thus in the absence of any statement in the grounds of detention that the detenu was likely to engage himself in prejudicial activities after release from custody and there being no cogent material to show that he was likely to so engage himself, the subjective satisfaction arrived at by the detaining authority on this count can also be said to be without any basis.