Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 866 OF 2008
Baby Devassy Chully @ Bobby .... Appellant(s)
Versus
Union of India & Ors. .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal is directed against the final judgment and
order dated 16.03.2006 passed by the High Court of
Judicature at Bombay in Criminal Writ Petition No. 1500 of
2005 whereby the High Court dismissed the petition filed by
the appellant herein.
2) Brief facts:
(a) According to the appellant, the Directorate of Revenue
Intelligence (DRI), Mumbai Zonal Unit, Mumbai, received an
intelligence that one sea-faring vessel by name M.T. AL
SHAHABA (a motor tanker) carrying approximately 700 metric
1Page 2
tons (MT) of Diesel Oil of foreign origin is arriving into Indian
Customs Waters on or around 20
th
or 21
st December, 2004 and
the said diesel oil would be smuggled into India. The officers of
the DRI, Mumbai, therefore, kept surveillance in that area and
on 21.12.2004, the officers spotted the said vessel. They
noticed two self propelled barges and two dumb barges each
towed by a tow boat were around the said vessel. They also
noticed that pipes were attached from the said vessel to the
barges and oil was being pumped into the barges from the
vessel. The officers of the DRI boarded the said vessel and
took control of the same. The vessel and barges were found to
be of Mumbai coast within the Indian territorial waters. When
the officers made enquiry with the Captain of the vessel -
Fouad Ahmed Al Manie, he informed that the vessel was
carrying High Speed Diesel (HSD) from Muscat. The Captain
was not holding any legal documents for import of the said
diesel oil into India. The Captain informed the officers that he
has already discharged around 250 MTs of oil from the vessel
into three barges before they boarded the vessel. The officers,
therefore, brought the said vessel and barges to the P and V
Anchorage of Port Trust, Mumbai. Two independent panchas
2Page 3
were brought and detailed inventory was prepared and after
conducting search of the said vessel and barges, panchnamas
were drawn. The officers of the DRI seized the said diesel oil
weighing about 770 MTs, worth Rs. 2 crores, under the
Customs Act, 1962.
(b) During the course of investigation, the officers came to
know the name of the appellant-detenu and one Chand as the
persons behind the said smuggling. On 22/23.12.2004, the
statement of the Captain of the vessel was recorded wherein he
stated that he was asked by his master to take the vessel to
the Indian Coast and to deliver the consignment to one Bobbythe detenu in India. On the same day, the statement of Sayyed
Hussain Madar @ Chand was also recorded wherein he, inter
alia, stated that he was to purchase the said Diesel Oil brought
by Bobby in India and sell the same.
(c) During the course of follow-up action of the said seizure
of the vessel, the officers of the DRI, Mumbai seized about
5.127 MTs of previously smuggled diesel oil stored in two
barges at Reti Bunder, Belapur and arrested Chand, Captain
Fouad Ahmed Al Manie, Shaikh Ahmedali, Murugan
Murugeshan and Sadiq Anwar under Section 104 of the
3Page 4
Customs Act, 1962 on 23.12.2004 and were produced before
the Addl. CMM, Esplanade, Mumbai on 24.12.2004 and were
later released on bail on 09.02.2005. However, subsequently,
all of them retracted their statements. On 04.03.2005,
residential premises of the appellant-Bobby were searched and
finally he was traced on 14.03.2005. On the same day, he
moved an anticipatory bail application in the Sessions Court,
Mumbai which was rejected on 24.03.2005. On 24.03.2005,
the statement of Bobby was recorded under Section 108 of the
Customs Act, 1962. On the basis of his statement, the officers
arrested the appellant on 25.03.2005. On 12.04.2005, he was
granted bail by the Addl. CMM, Mumbai but he did not avail of
the same. On 03.05.2005, the Joint Secretary to the
Government of India, after considering the appellant’s high
propensity and potentiality to indulge in prejudicial activities
and with a view to prevent him from abetting the smuggling of
goods in future, passed the detention order against him under
Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as “the COFEPOSA Act”).
4Page 5
(d) Being aggrieved by the said order, on 02.06.2005, the
appellant filed Criminal Writ Petition No. 1500 of 2005 before
the Bombay High Court. The High Court, finding no substance
in the writ petition, by impugned judgment dated 16.03.2006,
dismissed the same.
(e) Aggrieved by the said judgment, the appellant has filed
this appeal by way of special leave before this Court. On
09.05.2008, leave was granted.
3) Heard Mr. K.K. Mani, learned counsel for the appellant,
Mr. K. Swami, learned counsel for respondent Nos. 1 & 2 and
Ms. Asha Gopalan Nair, learned counsel for Respondent No.4-
State.
4) Mr. K.K. Mani, learned counsel for the appellant, after
taking us through the detention order dated 03.05.2005 and
the grounds of detention as well as the impugned order of the
High Court dismissing the writ petition raised the following
contentions:
(i) inasmuch as on the date of passing of the detention
order, i.e., 03.05.2005, the appellant was in jail, in that event
there is no compelling necessity to detain him under the
provisions of the COFEPOSA Act ;
5Page 6
(ii) the Detaining Authority failed to take note of relevant
aspect, i.e., the detenu was in custody, hence, the Detention
Order is liable to be quashed on the ground of non-application
of mind; and
(iii) the Detaining Authority relied upon the retraction
statement of co-accused without adverting to their confessional
statement which vitiates the detention order.
5) Mr. K. Swami, learned counsel for respondent Nos. 1 & 2-
Detaining Authority, submitted as under:-
(i) taking note of prejudicial activities and with a view to
prevent the appellant from involving/abetting the smuggling of
goods, the Detaining Authority rightly invoked the provisions of
the COFEPOSA Act;
(ii) all the procedural safeguards have been strictly adhered
to by the Detaining Authority; and
(iii) all the points raised by the learned counsel for the
appellant before this Court had already been considered and
negatived by the High Court, hence, there is no ground for
interference.
6Page 7
6) We have carefully considered the rival contentions,
perused the detention order, grounds of detention and all the
connected materials.
7) At the foremost, Mr. K.K. Mani, learned counsel for the
appellant pressed into service the decision of this Court in
Rekha vs. State of Tamil Nadu Through Secretary to
Government and Anr., (2011) 5 SCC 244. He very much
relied on paragraph 29 of the said decision which reads as
under:
“29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No
such law exists in the USA and in England (except during
war time). Since, however, Article 22(3)(b) of the Constitution
of India permits preventive detention, we cannot hold it
illegal but we must confine the power of preventive detention
within very narrow limits, otherwise we will be taking away
the great right to liberty guaranteed by Article 21 of the
Constitution of India which was won after long, arduous and
historic struggles. It follows, therefore, that if the ordinary
law of the land (the Penal Code and other penal statutes) can
deal with a situation, recourse to a preventive detention law
will be illegal.”
We are conscious of the fact that the right to liberty is
guaranteed by Article 21 of the Constitution of India. At the
same time, Article 22(3)(b) of the Constitution permits
preventive detention. Keeping the above principles in mind, let
7Page 8
us consider whether the impugned detention order is
sustainable in law or not.
8) In a series of decisions, this Court has held that it is the
subjective satisfaction of the Detaining Authority whether a
person has to be detained for a particular period of time or not.
In the impugned grounds of detention, the Detaining Authority
has narrated all the reasons for passing the detention order
detaining the appellant with a view to prevent him from
abetting the smuggling of goods in future.
9) With regard to non-application of mind, Mr. K.K. Mani,
learned counsel for the appellant pointed out that on the date
of passing of the detention order, i.e., 03.05.2005, the detenu
was in prison though he was granted bail on 12.04.2005, he
had not availed the same and continued in prison on the date
of order. According to him, this aspect was not reflected in the
detention order which, according to him, vitiates the detention
on the principle of non-application of mind. It is true that
though the detenu was granted bail on 12.04.2005, for the
reasons best known to him, he did not avail such benefit and
continued to be in jail on the date of the detention, i.e.,
03.05.2005. It is true that this aspect has not been mentioned
8Page 9
in the detention order, however, on the other hand, it is not in
dispute that the grounds of detention which forms part of the
Detention Order dated 03.05.2005 clearly mention the details
about the bail order dated 12.04.2005 and non-availing of the
same on the date of detention order, i.e., 03.05.2005. In this
regard, learned counsel for the appellant relied on a decision of
this Court in Binod Singh vs. District Magistrate, Dhanbad,
Bihar & Ors., (1986) 4 SCC 416 wherein the contention of the
petitioner therein was that the order of preventive detention
could only be justified against a person in detention if the
Detaining Authority was satisfied that his release from
detention was imminent and the order of detention was
necessary for putting him back in jail. He also contented that
the service of order of detention on the petitioner while he was
in jail was futile and useless since such an order had no
application under Section 3(2) of the National Security Act,
1980. While considering the said claim, this Court, in
paragraph 7, held as under:
“7. It is well settled in our constitutional framework that
the power of directing preventive detention given to the
appropriate authorities must be exercised in exceptional
cases as contemplated by the various provisions of the
different statutes dealing with preventive detention and
should be used with great deal of circumspection. There
9Page 10
must be awareness of the facts necessitating preventive
custody of a person for social defence. If a man is in custody
and there is no imminent possibility of his being released,
the power of preventive detention should not be
exercised……..”
10) It is clear that if a person concerned is in custody and
there is no imminent possibility of his being released, the rule
is that the power of preventive detention should not be
exercised. In the case on hand, it is not in dispute that on
12.04.2005 itself, the competent Court has granted bail but
the appellant did not avail such benefit. In other words, on the
date of the detention order, i.e., 03.05.2005, by virtue of the
order granting bail even on 12.04.2005, it would be possible
for the detenu to come out without any difficulty. In such
circumstances, while reiterating the principle of this Court
enunciated in the above decision and in view of the fact that
the detenu was having the order of bail in his hand, it is
presumed that at any moment, it would be possible for him to
come out and indulge in prejudicial activities, hence, the said
decision is not helpful to the case of the appellant. In view of
the above circumstances and of the fact that the Detaining
Authority was aware of the grant of bail and clearly stated the
same in the grounds of detention, we reject the contra
arguments made by the learned counsel for the appellant. On
1Page 11
the other hand, we hold that the Detaining Authority was
conscious of all relevant aspects and passed the impugned
order of detention in order to prevent the appellant from
abetting the smuggling of goods in future.
11) For the same reason, the other contention, namely, that
no compelling necessity to pass the order of detention is to be
rejected. As a matter of fact, learned counsel for the Detaining
Authority took us through various grounds/details/materials
adverted to in the impugned order and we are satisfied that it
cannot be claimed that there was no compelling necessity to
pass the order of detention. We have already pointed out that
it is the subjective satisfaction of the Detaining Authority
whether the order of detention is to be invoked or not.
Accordingly, we reject the above contention also.
12) The next contention, namely, the Detaining Authority
relied on the retraction statement of co-accused without
looking into their confession, it is argued by the learned
counsel for the appellant that without adverting to confessional
statement of the co-accused, reliance based upon the
retraction statement is not maintainable. It is true that in
1Page 12
paragraph 10 of the grounds of detention, the Detaining
Authority has stated as under:-
“Chand, Capt. Fouad Ahmed and Sadruddin B. Khan
have retracted their statements after arrest before the
Magistrate. However, a rebuttal to these retractions was
filed before the Magistrate. No correspondence has been
received from the said persons or the Advocate’s on the
rebuttal filed by DRI.”
It is equally true that there is no reference to confessional
statement of the co-accused. As rightly pointed out by the
learned counsel for respondent Nos. 1 & 2 that what the
Detaining Authority has stated in paragraph 10, extracted
above, is only mere reference or narration of fact for
completion of the proceedings. In other words, we are satisfied
that it is not relied upon statement/document as claimed by
the learned counsel for the appellant. No doubt, by drawing
our attention to the decision in A. Sowkath Ali vs. Union of
India & Ors., (2000) 7 SCC 148, Mr. K.K. Mani, learned
counsel for the appellant contended that both the confessional
and retraction statements ought to have been placed and
furnished to the appellant. In the said decision, this Court has
held that the confessional statement and the retraction
statement both constituting a composite relevant fact should
have been placed. It was further held that if any one of the
1Page 13
two documents alone is placed, without the other, it would
affect the subjective satisfaction of the Detaining Authority.
Therefore, it was held that non-placement of the retraction
affects the subjective satisfaction of the Detaining Authority.
There is no quarrel as to the proposition, in fact, the
sponsoring authority has to place all the relevant documents
before the Detaining Authority. We reiterate that all the
documents which are relevant, which have bearing on the
issue, which are likely to affect the mind of the Detaining
Authority should be placed before it. Further, a document
which has no link with the issue cannot be construed as
relevant. In the case on hand, we have already observed that
what the Detaining Authority has stated in paragraph 10 of the
grounds is only a mere reference and no reliance can be based
on the same. However, it is not in dispute that the appellantdetenu was supplied even the retraction statement referred to
in paragraph 10 along with the grounds of detention. In such
circumstance, this contention is also rejected.
13) Learned counsel appearing for respondent Nos. 1 & 2 has
brought to our notice that on earlier occasion, i.e., 27.02.2006,
the present appellant challenged the very same detention order
1Page 14
by way of filing a writ petition being W.P.(Crl.) No. D-5620 of
2006 under Article 32 of the Constitution before this Court.
By order dated 06.03.2006, this Court dismissed the said
petition, hence, according to the learned counsel for the
respondents, the appellant is debarred from filing the present
appeal against the dismissal of the writ petition by the High
Court of Bombay. Similar issue was considered by this Court
relating to filing of Habeas Corpus petition under Article 32 of
the Constitution of India in Kirit Kumar Chaman Lal
Kundaliya vs. Union of India & Ors. (1981) 2 SCC 436
wherein this Court held in paragraph 10 as under:
“10. ……………….The doctrine of finality of judgment or
the principles of res judicata are founded on the basic
principle that where a Court of competent jurisdiction has
decided an issue, the same ought not allowed to be agitated
again and again. Such a doctrine would be wholly
inapplicable to cases where the two forums have separate
and independent jurisdictions. In the instant case, the High
Court decided the petition of the detenu under Article 226
which was a discretionary jurisdiction whereas the
jurisdiction to grant relief in a petition under Article 32 filed
in the Supreme Court is guaranteed by the Constitution and
once the court finds that there has been a violation of Article
22(5) of the Constitution, then it has no discretion in the
matter but is bound to grant the relief to the detenu by
setting aside the order of detention. The doctrine of res
judicata or the principles of finality of judgment cannot be
allowed to whittle down or override the express
constitutional mandate to the Supreme Court enshrined in
Article 32 of the Constitution. In a recent decision in the
case of Santosh Anand v. Union of India, (1981) 2 SCC 420
this Court has pointed out that the concept of liberty has
now been widened by Maneka Gandhi case (1978) 1 SCC 248
1Page 15
where Article 21 as construed by this Court has added new
dimensions to the various features and concepts of liberty as
enshrined in Articles 21 and 22 of the Constitution. For
these reasons, therefore, we overruled the preliminary
objection taken by the respondents.”
In view of the same and in the light of the additional grounds
raised and also of the fact that the issue relates to personal
liberty of a citizen, we reject the objection of the respondents
and hold that the present appeal cannot be dismissed on the
grounds of res judicata.
14) Before winding up, it is our duty to refer one factual
aspect pointed out by the learned counsel for the appellant. It
is seen that immediately after passing of the detention order on
03.05.2005, a writ petition under Article 226 of the
Constitution of India was filed before the High Court of
Bombay on 02.06.2005. It is the claim of the appellant that
after hearing all the parties, the High Court reserved its orders
on 24.10.2005 and according to the learned counsel for the
appellant, the High Court pronounced its orders only on
16.03.2006, i.e., nearly after a period of 5 months. He pointed
out that because of the same, the detenu could not know the
fate of his petition for a period of 5 months when the detention
period was for one year.
1Page 16
15) By this appeal, we remind all the High Courts that in a
matter of this nature affecting the personal liberty of a citizen,
it is the duty of the Courts to take all endeavours and efforts
for an early decision. In the case on hand, we feel that keeping
the writ petition pending after hearing the parties and
compelling the detenu to wait for 5 months to know the result
of his petition, cannot be accepted. We request all the High
Courts to give priority for the disposal of the matters relating to
personal liberty of a citizen, particularly, when the detention
period is for one year or less than a year and, more so, after
hearing the parties, the decision must be known to the affected
party without unreasonable delay.
1Page 17
16) In the light of the above discussion, we are unable to
accept any of the contentions raised by the appellant.
Consequently, the appeal fails and the same is dismissed.
...…………….…………………………J.
(P. SATHASIVAM)
..…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
OCTOBER 12, 2012.
1
