HANNAN GULAM HUSSAIN CHAUGULE Vs. STATE OF GOA

JUDGEMENT

(1.) By the order bearing No. 14/11/88-HD G) dated 3rd November, 1988 purportedly made in the exercise of the powers under section 3(1) of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act. 1974, the State Government directed Shri Gulam Hussain Chaugule, alias, Gulam Hussain Shaikh alias Baba to be detained at the Central jail, Aguada, a resident of Bandra Bombay with a view to preventing him from abetting the smuggling of goods. This order was served on Shri Gulam Hussain Chaugule, here in after called the Detenu on 5th November, 1988 while he was in judicial custody pursuant of the cancellation of the bail earlier granted to him. By the present petition, the petitioner who is the son of the detenu challenges the order of detention dated 3rd November, 1988 on several grounds Though as many as ten grounds have been taken in the petition, grounds No. (iv) and (x) were not urged at the time of hearing. We have heard learned Counsel for the petitioner as also the learned Public Prosecutor at length. Elaborate arguments were urged and a plethora of authorities cited but in our view this petition could be disposed of on the first ground.

(2.) The petitioner sets out that the detenu was apprehended on 4th October, 1988 on the easmable ground that he was at the relevant time establishing contact over walkie talkie with an Arab Dhow which had brought in contraband namely silver ingots on the high seas of the Aguada Light House. He was produced before the Chief Judicial Magistrate at Margao on 7th October, 1988 and the remand application prayed for custody for a period of 12 days; that the same having been granted by the Chief Judicial Magistrate on 10th October, 1988 an application was presented for bail seeking release of the Detenu. However an order came to be passed on that application on 18th October, 1988 by the Chief Judicial Magistrate, Margao, remanding the detenu for a period of seven days in the Intensive Care Unit of the Goa Medical College, Panaji after which he was directed to be released on bail in the sum of Rs. 2 lakhs with sureties attendant with certain conditions set out in the Order. The Bali Bond was accordingly furnished by the detenu and the detenu was ordered to be released. On or about 24th October, 1988 the Customs authorities moved the Court of Sessions for cancellation of the bail under section 439(2) Cri.P.C. and on hearing the parties on 29th October, 1988 an order was made by the learned Sessions Judge cancelling the bail granted to the detenu with the result the detenu was taken in judicial custody as from the pronouncement of the order by the Addl. Sessions Judge. Undoubtedly the impugned order of detention was served on the detenu while he was in judicial custody.

(3.) It has been therefore urged in ground No. (i) now that the impugned order of detention made by the Detaining Authority is de hors the application of mind as nowhere in the grounds of detention awareness of the fact that the detenu is in judicial custody is found nor the grounds of detention considered as to whether despite the fact that the detenu was in judicial custody there were any reasons much less compelling reasons to clamp down preventive detention when detenu was already effectively prevented from including in prejudicial activities on abetting the smuggling of goods. The thrust in the ground therefore appears to be that once the detenu is incarcerated and was already in judicial custody and if the Detaining Authority was bent on taking the detenu under preventive detention the Detaining Authority is bound to have shown awareness of the fact that the detenu was already in custody and at the same time spelling out reasons justifying the issue of the impugned order of detention. And when these two factors of awareness and compelling reasons are absent in the grounds the impugned order of detention must be held to suffer from the vice of non-application of mind and therefore must be held to be invalid and quashed accordingly.