judgement:
Civil Appeal No. 2891 (NT) of 1977.
Appeal by Certificate from the Judgment and Order dated 15.10.1975 of the Gujarat High Court O.J. Appeal No. 2 of 1975.
B. Datta, P.H. Parekh and J.P. Pathak for the Appellant.
Dushyant Dave, Anip Sachthey and Ashish Verma for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
What is the ambit of the State 's claim to priority in relation to revenues, taxes, cesses and rates, due from a company in liquidation, is the question which stands posed in this appeal by certificate, granted by the High Court of Gujarat, in O.J. Appeal No. 2 of 1975.
The question arises on the frame of section 530(1)(a) of the , as it stood at the relevant time, which is set out below: "In winding up, there shall be paid in priority to all other debts all revenues, taxes, cesses and rates due from the company to the Central or a State Government to a local authority at the relevant date as defined in clause (c) of 530 sub section (8), and having become due and payable within the twelve months next before that date.
And sub section (8)(c) of section 530 says: "The expression 'the relevant date ' means (i) in the case of a company ordered to be wound up compulsorily, the date of appointment (or first appointment) of a provisional liquidator, or if no such appointment was made the date of the winding up order, unless in either case the company had commenced to be wound up voluntarily before that date; and (ii) in any case where sub clause (i) does not apply, the date of the passing of the resolution for the voluntary winding up of the company.
" The appellant company was ordered to be wound up by an order of Court made on June 26, 1967.
The liquidator after obtaining directions of the Court invited the creditors of the company to prove their debts or claims and simultaneously to establish any title they may have to priority under section 530.
Pursuant to this invitation the Sales Tax Officer, Petlad submitted a comprehensive claim in the sum of Rs. 70945.60 as the amount of sales tax plus penalty payable by the company and claimed priority for the whole amount.
The liquidator rejected the claim for priority in its entirety, but admitted claim to the tune of Rs.42143.63 payable as debt paripassu with other unsecured creditors of the company.
The Sales Tax Officer took the matter in appeal before the Company Judge under Rule 164 of the Companies (Court) Rules, 1959 which was heard by D. A. Desai, J. (as he was in the Gujarat High Court).
It was urged on behalf of the Sales Tax Officer that out of the admitted claim in the amount of Rs.42,143.83, the liquidator was in error in not granting priority in payment of debt of Rs.22,280.96 consisting of Rs.11,064.46 being sales tax payable by the company for the period from April 1, 1957 to December 31, 1965, under the Bombay Sales Tax Act and balance of Rs. 11,216.50 being the amount of sales tax payable under the Central Sales Tax Act for the period from July 1, 1957 to December 31, 1965, because the assessment order was made in respect of the aforementioned claim within a period of 12 months next before the relevant date and the notice of demand which made the tax payable was also issued within a period of 12 months next 531 before the relevant date.
It was urged that apart from any other consideration the petitioner is entitled to a priority in payment for the amount of Rs.22,280.96 as the claim was of sales tax which was due on the relevant date and which became due and payable within 12 months next before the relevant date.
It was conceded that balance of the admitted claim in the amount of Rs. 19,862.87 being the amount of sales tax due and payable under the Bombay Sales Tax Act for the period from January 1, 1966 to June 26, 1967, would not be entitled to priority in payment.
It was also conceded that the claim for an amount of Rs. 196.42 had been rightly rejected.
It would appeal that from the claim admitted as payable by the liquidator to the extent of Rs. 42,143.83 priority in payment was claimed for the amount of Rs.22,280.96 on the submission that the claim represented the claim for tax payable to the State Government as it was due on the relevant date and had become due and payable within 12 months next before the relevant date, and therefore, it was entitled to a priority in payment as envisaged by section 530(1)(a) of the .
The learned Judge on interpretation of section 530(1)(a) took the view that the word 'due ' implies or conveys meanings in juxtaposition in which it is used in the two parts of the same clause.
The word 'due ' in the first part of the clause must mean 'outstanding at the relevant date '.
When it occurs in the expression 'having become due ' in the later part of the clause, it means that the event which brought the debt into existence occurred and also it became payable, meaning thereby that its payment could have been enforced against the company within the twelve months before the relevant date, that is, the date of the order of winding up.
Three specific conditions are prescribed in the clause and all the three must co exist and be satisfied in respect of any particular debt for which priority is claimed.
The three conditions are: (i) Debt of the kind mentioned in the clause must be outstanding on the relevant date; (ii) The debt must have become due, in the sense that it must have been incurred at any time within the twelve months next before the relevant date; and (iii) The debt must have payable at any time within the twelve months next before the relevant date.
To conclude, the learned Judge observed that the tax becomes due 532 when taxing event occurrs and not when assessment orders passed and that the claim for priority was rightly negatived by the liquidator because even though amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return, yet it was due for a period much prior to 12 months next before the relevant date and even if it had become payable on the assessment order being made and demand notice being issued, as both the conditions did not co exist and were not satisfied, claim for priority had been rightly nagatived by the official liquidator requiring no interference in his order.
The appeal on that score was rejected but was allowed to the extent of a small amount of Rs.1225.36 being the amount of penalty under the Bombay Sales Tax Act and the Central Sales Tax Act upto the relevant date and the liquidator was directed to admit the said claim over and above the claim admitted by him.
The judgment of the D.R. Desai, J. is reported as Sales Tax Officer, Petlad vs Rajratha Naranbhai Mills Co. Ltd. & Another, [1974] Vol.
An intra Court Appeal was preferred by the Sales Tax Officer, Petlad in the High Court.
In the meantime in another case of Baroda Board & Paper Mills Ltd., a company in liquidation, the Income Tax Officer filed Company Application No. 2 of 1973 before the Company Judge claiming priority in respect of certain dues.
The Company Judge, B. K. Mehta, J. was engaged to determine the same question.
His attention was invited to the decision of D.A. Desai, J. in the instant case.
D.K. Mehta, J. was unable to agree with the conclusion reached by D.A. Desai, J. and hence the matter was referred to a Division Bench to have the entire question decided along with O.J. Appeal No. 2 of 1975.
The division bench of the High Court differed from the view of D.A. Desai, J. by holding that the only meaning that could be assigned to the word 'due ' occuring in the section is 'it must be presently due ' and the words 'due and payable ' mean the same thing, namely, that it must be presently payable.
On this understanding it was held that all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority must be presently payable, that is, that the liability could be enforced as at the relevant date and, secondly, it must have so become presently payable within twelve months immediately preceding the relevant date.
Further regarding sales tax it was held that it becomes due and payable when the tax has been assessed and a notice of demand for payment of that tax is served 533 upon the assessee or the dealer concerned and it is in this sense that the word has to be interpreted.
Taking that view the appeal of the Sales Tax Officer was allowed inasmuch as the sales tax due under the Bombay Sales Tax Act and the Central Sales Tax Act in respect of which the assessment orders were passed within the period of twelve months immediately preceding June 26, 1967 were held to have priority.
The balance amount as dues was directed to rank as ordinary debts without any priority, since the relevant orders were passed after the date of the winding up order.
The claim of the Sales Tax Officer to the recovery of penalty in liquidation proceedings was negatived because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount.
O. J. Appeal No. 2 of 1975 was allowed to this extent.
The Judgment of the High Court is reported as Baroda Board & Paper Mills Ltd. (in Liquidation) vs Income Tax Officer etc., [1976] Vol.
Clash of interpretation of section 530(1)(a) is the cause in this appeal.
We have gone through both the judgments afore referred to very carefully and minutely and have heard learned counsel on the conflicting decisions.
There are wide ranging discussions in the interpretative process relating to the word 'due ' occuring in the earlier part of the provision and the words 'due and payable ' in the later part, and whether they are different expression meant to convey differently or they mean the same thing.
With due respect to the High Court, we feel that relevant and important considerations and material though available, which could go to interpret the section purposively was over looked, and at this juncture we wish to put it to use.
Section 530 of the is the same as section 230 of the Indian Companies Act, 1913.
The old section 230(1)(a) of the Indian Companies Act, 1913 was analogous to Section 261 of the English Companies Act laying down that there shall be priority on certain debts named therein.
In Airedale Garage Co. In re: Anglo South American Bank vs The Company, [1932] Vol.
in the Court of Appeal, Lord Hanworth, Master of Rolls explained the meaning of the provision at page 574 in the following words: "Now section 264 says that in the winding up of a company 'there shall be paid in priority to all other debts ' certain debts, namely, 'parochail or other local rates . .assessed taxes . property or income tax . .wages or salary of any clerk or servant 'during four months next before the 534 relevant date . not exceeding fifty pounds, 'and others, and it is these debts which are to be marshalled and paid in accordance with the priority given to them by section 264.
With regard to local rates it is provided that priority shall be given to 'All parochial or other local rates due from the company at the relevant date ' The relevant date being the date of the appointment of the receiver, in this case, January 28, 1931 'and having become due and payable within twelve months next before that date '.
Those words are put in to restrict the amount for which priority is given.
It is not priority in respect of all the debts for local rates which maybe outstanding at that time; the priority is in respect only of such rates as became due and payable within twelve months before, in this case, January 28, 1931.
" And further at pages 577 78 as follows: "The rate was made on April 1, 1930; at that time it became due and payable.
The alteration that has been made subsequently in September of the year 1931 is to fit into the section to which I have referred, and by that section it is to be deemed to have had effect as from the commencement of the period in respect of which the rate was made.
In those circumstances it seems quite plain that the sum in contest in the present case must be appropriate to that period and that period alone, and, although ascertained at a later date, it nonetheless belongs to and is founded upon the liability to rates during that period and no other.
I find myself, therefore, unable to give a limited meaning to the words, as Eve, J., has done.
I think the words referred to in section 264 of the Companies Act, 'due and payable ', meant to refer to a liability in respect of which there had to be a solution Solvendum in futuro of that particular debt, and that particular debt is now to be deemed to have accrued within the period of the twelve months next before the relevant date." In A. Pamaiya 's the Companies Act, Eleventh Edition, 1988, it has been noticed at page 1320 that Section 530 of the has been largely recast and amended in the light of the following recommendations (exerpted) of the Company Law Committee in paragraph 218 of their Report: 535 "Section 230 of the Act of 1913 deals with the important subject of preferential payment.
The principle underlying this section is that the debts and liabilities enumerated in it should be treated as preferential debts as compared with ordinary unsecured debts.
The right of secured creditors other than debenture holders secured by a floating charge are not affected in any way.
They remain outside the scope of the winding up proceedings and their security remains unaffected by the provisions of this section.
We have set out in the Annexure to our Report the details of our recommendations, which broadly follow the provisions of the English .
Briefly, the more important of these recommendations are as follows: (i) xxxxx (ii) xxxxx (iii) xxxxx In this connection we should like to refer to a memorandum that we received from the Central Board of Revenue, on the question of a priority to be given to crown demands generally and, in particular, to arrears of income tax, super tax and corporation tax.
It was suggested that there should be no time limit for the preferential payment of these crown debts and that section 230 of the Indian should be amended accordingly.
The practical difficulty of giving effect to the suggestion is that it would place a great majority of the unsecured creditors of the company at the mercy of the income tax authorities, inasmuch as, whatever may be the nature of the security on which they may have lent money to a company at the time of the loan, the unforeseeable demands of the income tax authorities on the company without any time limit would rank over the claims of such creditors.
In these circumstances, it may be extremely difficult for the company to raise capital for its working.
In this connection, we would draw attention to the provisions of clause (a) of sub section (1) of section 319 of the English Companies Act, 1948, under which arrears of land tax, income tax, profits tax, excess profits tax or other assessed taxes rank in priority over other debts of a company only if they have been assessed on the company up to a particular date, namely, 5th 536 April or prior to the appointment of the liquidator or resolution for the winding up of the company and do not exceed in amount the whole of one year 's assessment.
It will be noticed that by comparison the provision of clause (a) of sub section (1) of section 230 of the Indian Companies Act, is much wider and gives much more latitude to the income tax authorities for under these provisions, arrears to taxes would rank in priority if they have become due and payable within twelve months next before the date on which they are payable irrespective of whether such taxes have been assessed on the company or not.
We are aware of the large arrears of income and other taxes which are due by many companies, which are in liqudation, but we would venture to think that the remedy for this unsatisfactory situation is not the conferment of preferential rights without limit to the income tax authorities under section 230 of the Indian Companies Act, but the energetic completion of assessment proceedings and vigorous measures for the collection of the assessed taxes.
" In Pennington 's Company Law, Fourth Edition, Chapter 26 titled 'Rules Common to All Liquidations; occuring under the head "Preferential Claim and Payments" at page 768 it is observed as follows: "The Inland Revenue may select the unpaid corporation or income tax for any one year as its preferential claim, and is not restricted to claiming the tax for the most recent year which ended on or before April 5 immediately preceding the relevant date.
Moreover, when there are two or more kinds of unpaid taxes, the Crown may select different years for different taxes, but since advance corporation tax is paid as an advance instalment of the company 's liability for corporation tax for the accounting period in which the advance corporation tax falls due, it would seem that the Inland Revenue may claim preference for both advance corporation tax and mainstream corporation tax only in respect of the same year.
Both benches of the High Court, with due respect, gave to the provision a very wide and varied interpretation and that too on literality and grammaticals seemingly overlooking the legal philosophy which permeats the provision, the same being that the debts due and 537 payable, so as to claim priority, must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be funded during that period and no other.
To put it in simpler words, the State has a priority over debts, liability and obligation of which was born within the time frame of those twelve months and as such due and becoming due and payable within those twelve months next before the relevant date, ascertainable if necessary later, if not already ascertained.
We are in respectful agreement with the interpretation put by the Court of Appeal to section 264 of the English Companies Act in Airedale Garage 's case (supra), analogous as it is to the provision in hand, warranting the same interpretation; more so when any other interpretation would lead to the results feared by the Company Law Committee extracted above.
In such view of the matter, we need not elaborately comment, discuss or demolish, sentence by sentence, the reasoning given buy the single bench as also the division bench of the High Court towards interpreting the provision.
The words 'having become due and payable within 12 months next before the relevant date ' need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses etc.
which may be outstanding at that time and payable.
And further that such priority is in respect only of debts those of which become due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.
For the view above taken, we allow the appeal of the Company in liquidation and direct that liquidator to re examine the claim for priority in accordance with the interpretation of the provision put by us, that is to say, he must first ascertain as to whether the liability to sales tax belongs to and is founded within the period of 12 months next before 26 June, 1967, and as such due and payable but preserving, however, the order of the division bench in relation to the view it has taken about penalties.
In the facts and circumstances of the case, we order that there should be no order as to costs.
R.P. Appeal allowed.

summary:
The appellant company was ordered to be wound up by Court 's order dated 26.6.1967.
The liquidator invited creditors to prove their debts or claims and to establish title, if any to determine priority under s.530(1)(a) of the .
The Sales Tax Officer submitted a comprehensive claim of sales tax plus penalty and claimed priority.
The liquidator rejected the claim for priority in its entirety but admitted a part of it payable as debt with other unsecured creditors.
The Revenue appealed to the High Court contending that the liquidator erred in law in not granting priority to the claim to sales tax payable by the company for the period from 1.4.1957 to 31.12.1965 under the Bombay Sales Tax Act, and for period from 1.7.1957 to 31.12.1965 under the Central Sales Tax Act inasmuch as notice of demand was issued and assessment order was made in respect thereof within a period of 12 months before the relevant date.
The Company Judge, interpreting section 530(1)(a) of the Act, held that tax becomes due when taxing event occurs and not when assessment orders passed; that even though the amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return, yet it was due for a period much prior to 12 months next before the relevant date, and rejected the appeal on that score, but allowed the claim to the extent of a small amount of penalty under the two Sales Tax Acts upto the relevant date.
The Revenue filed an intra court appeal, which along with another referred matter was heard by a Division Bench.
The Division Bench held that sales tax becomes due and payable when the tax has 528 been assessed and notice of demand for its payment is served.
It allowed the claim of priority to the sales tax due under the two Acts, assessment orders in respect of which were passed within the period of 12 months immediately preceding 26.6.1967.
The balance amount was directed to rank as ordinary debts since the relevant orders were passed after the date of winding up order.
The claim of recovery of penalty was negatived, because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount.
Aggrieved, the company filed the present appeal by certificate.
Allowing the appeal, this Court, HELD: 1. Section 530(1)(a) of the provides that State has a priority over debts, liability and obligation of which was born within the time frame of 12 months next before the relevant date and as such due and becoming due and payable within those twelve months, ascertainable, if necessary, later if not already ascertained.
Thus the legal philosophy which permeats the provision is that the debts due and payable, so as to claim priority must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be founded during that period and no other.[536G H, 537 A B] 2.1 The words 'having become due and payable within the twelve months next before the relevant date ' occurring in clause (a) of section 530(1) of the need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses, etc.
which may be outstanding at that time and payable.
And that such priority is in respect only of debts those of which became due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.
[537C E] Airedale Garage Co. In re:Anglo South American vs The Company, [1832] Vol. , referred to.
2.2 Both Benches of the High Court gave to the provision a very wide and varied interpretation and that too on literality and gramaticals.
The Single Judge was not right in taking the view that the word 'due ' in the first part of clause (a) of s.530(1) of the was to mean 'outstanding and payable at the relevant date ' and in the expression ' having become due ' in the later part of the clause meant that the 529 event which brought the debt into existence occurred and also it became payable so as to be enforced against the company within twelve months before the date of order of winding up.
The Division Bench erred in holding that the only meaning that could be assigned to the word 'due ' occurring in the section was 'it must be presently due ' and the words 'due and payable ' meant that it must be presently payable.
[536G, 531D E & 532F G] Sales Tax Officer, Petlad vs Rajratha Naranbhai Mills Co. Ltd. and Another, [1974] Vol.
and Baroda Board & Paper Mills Ltd. (in liquidation) vs Income Tax Officer etc, [1976] Vol.
46 Company cases 25, overruled.
The liquidator was directed to re examine the claim and to ascertain as to whether the liability to sales tax belonged to and was founded within the period of 12 months next before 26 June, 1967, and as such due and payable, but preserving the order of the Division Bench in relation to its view on penalties.
[537E G]


judgement:
grounds of detention, the manner in which the gold biscuits were concealed was mentioned and that itself suggested that the detenus must have been indulging in smuggling 439 activities.
[p. 443 B C] & ORIGINAL JURISDICTION: Writ Petition (Crl.) Nos. 105 & 106 of 1991.
(Under Article 32 of the Constitution of India.) Harjinder Singh and R.N. Joshi for the Petitioners.
A.K. Ganguli, Ms. Kitty Kumar Manglam, Ms. A. Subhashini and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Common questions arise for consideration in these two writ petitions filed under Arti cle 32 of the Constitution of India seeking writ of habeas corpus for quashing the orders of detention and for immedi ate release of the detenus.
First, we shall deal with Writ Petition (Crl.) No. 105 of 1991.
Writ Petition (Crl.) No. 105 of 1991 The petitioner detenu is a foreign national being a resident of Republic of Maldives.
On 25.10.90 he landed at Trivandrum Airport from Male and was moving towards the exit gate of the Customs Import Baggage Hail.
He was intercepted by the Air Customs Officers and on examination he was found to be carrying 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of he red colour suit case belonging to the petitioner.
His passport and other documents were also seized.
The petition er 's statement was recorded under Section 108 of the wherein he is alleged to have confessed the guilt.
After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days.
Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While he was in jail he made an application for granting of bail under Section 437 Cr.
P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While the petitioner.
was confined in jail an order of detention was passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smug gling Activities Act, 1974 ( 'COFEPOSA Act ') for short) by the Secretary to the Government, Government of Kerala, Home (SS A) Department on 7.11.90 and the same was served on the petitioner on 8.11.90.
The grounds of 440 detention alongwith the list of documents annexed thereto were served in time.
The petitioner made a representation and it was rejected.
It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized, there was no compelling necessity for such a deten tion.
It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.
The next main and important submission is that the copies of the bail application filed by him and the order refusing bail, which are relevant documents, were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non application of mind and the petitioner also is denied a reasonable opportunity under Article 22(5) of the Constitu tion of India.
We see no force in the first submission namely that there was no compelling necessity for passing the detention Order.
It is true that when the detention order was passed on 7.11.1990 the detenu was in jail and his bail application also was rejected and his passport also was seized.
But the detaining authority has mentioned in the grounds that "I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.
Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail. ' Therefore it cannot be said that the detaining authority did not apply his mind to this aspect.
It is entirely within his subjective satisfaction whether there are such compelling circumstances or not.
He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also.
The learned counsel appearing for the petition er relied on a judgment of this Court in Dharmendra Sugan chand Chelawat and Anr.
vs Union of India and Others [ ; wherein it is observed that an order of 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 the detaining authority was aware of the fact that the detenu was already in detention and there were compelling reasons justifying such detention and that there should be cogent material on the basis of which the detain ing authority may be satisfied that there are compelling reasons such as that the.
detenu is likely to be released from custody in the near future and the nature of the an tecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities.
But we may observe that what 441 would be the compelling reasons in the context would depend on the facts of each case.
In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase.
This itself manifests the expertise of the carrier in smug gling.
The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likeli hood of his being released on bail and he is likely to indulge in such smuggling activities.
It is mentioned in the counter affidavit that the remand period of the detenu was to expire on 10.11.90 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail.
This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order.
Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons.
Learned counsel also relied on the judgment of this Court in Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commissioner of Police, Ahmedabad and Another ; That was a case of public order and after referring to some of the earlier decisions including the decision of the Constitution Bench in Rameshwar Shaw vs District Magistrate, Burdwan, ; , this Court considered the contention i.e. since the detenu was in custody at the time of service of the order of detention there was no material to disclose necessitating the detention.
It was held thus: "On a consideration of the aforesaid deci sions the principle that emerges is that there must be awareness in the mind of the detain ing authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessi tate the making of an order of detention.
In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail.
It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988.
It is also not disputed that no application for bail was made for release of the detenu before the order of detention was served on him on May 23, 1988.
It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also.
" This state ment clearly shows that the detaining authori ty was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Desig nated Court and as such the possibility of his coming out 442 on bail was non existent.
This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjec tive satisfaction was not arrived at by the detaining authority on consideration of rele vant materials.
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfaction that the detenu, ii released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative." Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases having noth ing to do with the maintenance of public order and then held that: "These statements do not disclose any activity after March 14, 1988 or any activity of the time when the detenu was a free person.
Con sidering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu.
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods." The Division Bench finally concluded thus: "It is highlighted in this connection that in the affidavit inreply filed by respondent 1, the detaining authority, he merely denied the specific averments made in para 3(111) that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between March 14 to April 13, 1988 etc.
without spe cifically denying those statements.
In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibili ties that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjec tive satisfaction by the detaining authority in making the order of detention in question." (emphasis supplied) 443 From the above passages it can be seen that this Court categorically held that a person in custody can be detained.
There must be awareness in the mind of the detaining author ity that the detenu is in custody and that there should be cogent and relevant material showing that there is a compel ling necessity to detain him.
Since that was a case of public order, the learned Judges proceeded to consider the nature of the cases that were pending and ultimately on the facts and circumstances of the case held that the absence of a reference to any one of such recent cases would show that the subjective satisfaction has not been arrived at proper ly.
This reasoning cannot be applied to the facts of this case.
In the grounds, the manner in which the gold biscuits were concealed is mentioned and that itself suggests that the detenu must have been indulging in smuggling activities.
So there was relevant material on the basis of which the detaining authority was satisfied that there was compelling necessity to pass the detention order.
The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted.
It is again a question of satisfaction of the detaining authority on the basis of the material placed before it.
Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed.
The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the poten tialities of a detenu in the activities of smuggling.
The next and main submission is that there was suppres sion of vital documents namely bail application and the order refusing bail, which are relevant documents, and had those documents been placed before the detaining authority they might have influenced the mind of the detaining author ity one way or the other.
Alternatively it is also contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner paripassu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is ille gal and violative of Article 22(5) of the Constitution of India.
There is no dispute that the detenu moved for bail under Section 437 Cr.
P.C. on 29.10.90 before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and by an order dated 2.11.90 the bail application was rejected.
The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed,.
In support of this plea reliance is placed on the grounds wherein the 444 detaining authority has stated that he was aware that the petitioner was in judicial custody and possibility of his release on bail in the near future cannot be ruled out.
It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has been rejected and the only inference that can be drawn is that these relevant documents were suppressed and not placed before the detaining authori ty.
In the counter affidavit filed by the second respondent, State of Kerala, it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner 's name the copies of the bail application and the order refusing bail were not made available to the Department and therefore they were not placed before the authority.
From these averments, one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the failure to place the bail application and the order refusing bail before the detaining authority does in any way affect the detention order.
The learned counsel in this context sought to place reliance on some of the judgments of this Court.
In M. Ahmedkutty vs Union of India and another; , , the contention was that the bail application and the order granting bail which were relied upon by the detaining authority were not supplied to the detenu and therefore the detention was illegal.
A Division Bench of this Court noticed that in the grounds it was clearly men tioned that the detenu was remanded to judicial custody and was subsequently released on bail.
Therefore these documents were in fact placed before the detaining authority and were relied upon by it and therefore the non supply of these relevant documents to the detenu disabled him to make an effective representation.
Therefore there was violation of Article 22(5) of the Constitution.
In arriving at this conclusion, the Division Bench relied on several other decisions and observed that all the documents relied upon by the detaining authority must be pari passu supplied to the detenu.
In the instant case, the facts are different.
In the counter affidavit it is clearly stated that the bail appli cation and the order refusing bail were not there before the sponsoring authority.
Therefore they were not placed before the detaining authority.
The grounds do not disclose that the detaining authority has relied upon any of these two documents.
On the other hand as already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail.
This itself shows that these documents were not before the authority.
Therefore it cannot be said that the docu ments referred to and relied upon in the grounds were not supplied to the detenu and the ratio in 445 Ahmedkutty 's case; , on this aspect does not apply to the facts in the instant case.
It is not necessary to refer to in detail various decisions of this Court where in it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied.
This has been settled by a long line of decisions: Ramachandra A. Kamat vs Union of India ; , Frances Coralie Mullin vs
W.C. Khambra, [19801 2 SCC 275, Ichhu Devi Choraria vs Union of India, ; , Pritam Nath Hoon vs Union of India, ; , Tushar Thakker vs Union of India, , Lallubhai Jobibhai Patel v.union of India; , , Kirti Kumar Chatnan Lal Kundalia vs Union of India , and Ana Carolina D 'Souza v Union of India 1198x1 Supp.
SCC 53 (1) At this juncture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds, need not be supplied.
In Mst.
L.M.S. Ummu Saleema vs Shri B.B. Guja ral and another; , after referring to some of the earlier decisions of this Court, it was held thus: "It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention.
It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effec tive representation, that amounts to a viola tion of the fundamental rights guaranteed by Article 22(5).
In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.
It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under Article 22(5) of the Constitution.
We may of course add that whether the document is casually or passingly referred to or whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case.
In the instant case we are satisfied that these two documents were not placed before the detaining authority nor they were referred to or relied upon.
The learned counsel, however, proceeded to submit that even assuming that these documents were not relied upon or referred to by the detaining authority yet the failure to place these relevant documents before the 446 detaining authority amounted to suppression and therefore there was non application of mind and that the detention order passed without looking into such relevant material is invalid.
In Ahmedkutty 's case no doubt there is an observa tion having regard to the facts therein that non considera tion of the bail application and the order of releasing would amount to non application of mind and that would affect the detention order.
The Division Bench made these observations while considering the contention that the order granting bail and the bail application, though referred to, were not relied upon.
It is not laid down clearly as a principle that in all cases non consideration of the bail application and the order refusing bail would automatically affect the detention.
The relevant observations in this context made by this Court Ahmedkutty 's case may be noted: "If in the instant case the bail order on condition of the detenu 's reporting to the customs authorities was not considered the detention order itself would have been af fected.
Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority.
In section Gurdip Singh vs Union of India, , following Ichhu Devi Choraria vs Union of India, ; and Shalini Soni vs Union of India, ; it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio." (emphasis supplied).
It is further observed in this case that: "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration.
If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete.
We have, therefore, no alterna tive but to hold that it amounted to denial of the detenu 's right to make an effective repre sentation and that it resulted in violation of Article 22(5)of the Constitution of India 447 rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." (emphasis supplied) Placing considerable reliance on this passage, the learned counsel contended inter alia that in the instant case from other point of view namely (i) if the bail application and the order refusing bail were not considered or (ii) if considered the non supply of the copies of the same to the detenu would affect the detention order.
In other words, according to him, non consideration of these two documents by the detaining authority would itself affect the satisfaction of the detaining authority.
If on the other hand they are taken into consideration and relied upon the non supply of the same to the detenu would result in violation of Article 22(5) of the Constitution rendering the detention invalid.
We are unable to agree with ' the learned counsel.
We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied.
The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that "Considering the facts . the bail application and the bail order were vital materials".
In that view these observations were made.
Further that was a case where the detenu was released on bail and was not in custody.
This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied.
Now we shall consider the other submission regarding the non supply of the bail application and the order refusing bail to the detenu and its effect.
According to the learned counsel these two documents formed relevant material and irrespective of the fact whether they were placed before the detaining authority or not they ought to have been supplied to the detenu and failure to do so has caused prejudice in making an effective representation.
We are unable to agree.
In Abdul Sattar Abdul Kadar Shaikh vs Union of India and Others [1990] I SCC 480 it is observed thus: "In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon.
These documents were not relied upon bv the detaining authority.
When a request is made by the detenu for supply of these bail applications and 448 orders refusing thereon are made, the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal.
No authority has been placed before us which goes to the extent of holding that a mere non supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Article 22(5)." (emphasis supplied).
In Syed Farooq Mohammed vs Union of India and Another, JT [1990] 3SC 102 this Court considered precisely the same question and it was observed thus: "The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the detaining authori ty were not supplied to the petitioner and as such his right of making effective representa tion guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced.
This ground is without any sub stance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was considered by the detaining athority before passing the impugned order of detention and as such this being not referred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non supply of this document prejudiced the petitioner in making effective representation against the order of detention.
Article 22(5) of the Constitution, undoubtedly, mandates that all the relevant documents referred to in the grounds of detention and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu.
The said document was not considered by the detaining authority in coming to his subjec tive satisfaction and in making the impugned order of detention.
The nonfurnishing to the detenu of the said document i.e. the bail application and the order passed thereon, does not affect in any manner whatsoever the dete nu 's right to make an effective representation in compliance with the provisions of Article 22(5) of the Constitution of India.
This ground, therefore, is wholly untenable." (emphasis supplied) 449 From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference .that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired.
When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu.
As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody.
These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary.
Therefore the law requires that these two tests have to be satisfied, in the case of such detention of a person in custody.
The Constitution Bench in Rameshwar Shaw 's case held thus: ". .
Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bonafide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.
XXX XXXX XXX Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
" Following the above principles, another Bench of three Judges of this Court in N. Meera Rani vs Government of Tamil Nadu and Another, ; after reviewing the various other decisions, it was observed that "A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw 's case and that none of the observations made in any subse quent case can be construed at variance with the principle indicated in Rameshwar Shaw 's case.
" Having so observed the Bench summarised the principle thus: "Subsisting custody of the detenu by itself does not invalidate 450 an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order etc.
ordinarily it is not needed when the detenu is already in custody;, the detaining authority must show its awareness to the.
fact of sub sisting custody of the detenu and take that factor into account while making the order; but even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proxi mate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.
This appears to us, to be the correct legal position." In Chelawat 's case after examining the various decisions of this Court dealing with preventive detention of a person in custody, it is held thus: "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 "compel ling reasons" in the context of making an order for detention of a person already in custody implies 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 in dulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." In Sanjay Kumar Aggarwal vs Union of India and Others ; after reviewing all the relevant cases including Chelawat 's case, this Court observed as under: "It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
Therefore the facts and circum stances of each case have to be 451 taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.
We have already, in the instant case, referred to the grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground.
" In a very recent judgment of this Court in Kamarunnissa etc. vs Union of India and Another., all the above mentioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under: "From the catena of decisions referred to above it seems dear to us that even 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 prejudi cial activity and (3) if it is felt essential to detain him to prevent him from so doing.
If the authority passes 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 notwithstand ing such opposition to question it before a higher Court.
" Having regard to the various above cited decisions on the points often raised we find it appropriate to set down our conclusions as under: (1) A detention order can validly be passed even in the case of a person who is already in custody.
In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
This aspect depends upon various considerations and facts and circumstances of each case.
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order.
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted 452 notwithstanding such opposition the same can be questioned before a higher Court.
(3) If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material.
The question of non applica tion of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu 's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation.
Only when the detaining authority has not only referred to but also relied upon them in arriv ing at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention.
In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
Bearing in mind the principles laid down in the above mentioned case, we shall now examine the facts in the case before us.
The detaining authority in Ground Nos. 3 and 4 has stated as under: "3.
You were arrested under Section 104 of the by the Superintendent on 26.10.90.
You were produced before the Chief Judicial Magistrate, Trivandrum on the same day.
The Magistrate remanded you to judicial custody.
453 4.
I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.
Also nothing prevents you from moving bail application in the jurisdictional court and getting release on bail.
" In the counter affidavit, it is stated that the period of remand to the judicial custody was to expire the next day after his detention.
Therefore there was every likelihood of his moving for bail and getting released On bail.
These materials Show that the detaining authority was not only aware that the detenu was in jail but also noted the circum stances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to in dulge himself in the smuggling activities.
It, therefore, cannot be said that there were no compelling reasons justi fying the detention despite the fact that the detenu is already in custody.
Likewise the failure to supply the bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order.
However, when they are not referred to or relied upon the non supply does not affect the detention.
These are all the submissions made by the learned coun sel for the petitioner and we do not see any merit in any of them.
Accordingly the Writ Petition is dismissed.
Writ Petition (Criminal) No. 106 of 1991 In this Writ Petition also the petitioner is a foreign national, being resident of Republic of Maldives.
On 25.10.90 he landed at Trivandrum Airport from Male.
After customs clearance the petitioner proceeded to Hotel Geeth at Trivandrum and while he was staying there, some officers of Customs came to the room and conducted a search.
Nothing was recovered.
But the officers took the petitioner by force to the Customs Import Baggage Hall and it is alleged that on examination, 30 gold biscuits of foreign origin were seized from either side of the handle inside the lock system of the blue colour suitcase which is alleged to be of petitioner.
The petitioner 's passport and other documents were also seized by the Air Customs Officer, Trivandrum.
The petition er 's statement was recorded ' under Section 108 of the Cus toms Act, 1962 wherein he is alleged to have confessed the guilt.
After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days.
Thereafter he was shifted to the Court of the Additional Chief Judicial Magis trate (Economic Offences), Ernakulam.
While he was in jail he made an application for grant of bail under Section 473 Cr.
454 P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While the petitioner was in jail, an order of detention was passed under Section 3(1) of the COFEPOSA Act by the Secretary to the Government, Govt.
of Kerala, Home (SSA) Department, on 7.11.90 and the same was served on the petitioner on 8.11.90.
The grounds of detention alongwith the list of documents annexed thereto were served in time.
The petitioner made a representation stating that since his bail application has been rejected and since he was in jail and his passport was also seized, there is no compelling necessity for such a detention.
He also stated that no antecedents are there showing his being involved in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.
The same points as in Writ Petition (Criminal) No. 105 of 1991 are raised in this petition also.
We have negatived all the contentions in the above case.
One another submission of the learned counsel for the petitioner is that in the case of this petitioner the deten tion order mentions only smuggling and that when once the detenu is in jail and when his passport is seized, he can no more indulge in smuggling and therefore according to the learned counsel, there is non application of mind.
In this context he relied on the definition of "smuggling".
Section 2(e) of the COFEPOSA Act defines "smuggling* ' thus: "2.
Definitions In this Act, unless the context otherwise requires, xxxx xxxx xxxx xxx (e) "smuggling" has the same meaning as in clause (39) of Section 2 of the , and all its grammatical variations and cognate expressions shall be construed accord ingly.
" Clause (39) of Section 2 of the defines "smuggling" thus: "2. Definitions In this Act, unless the context otherwise requires, (39) "smuggling" in relation to any goods means any act or 455 omission which will render such goods liable to confiscation under section 111 or section 113? Sections 111 and 113 of the provide for confiscation of improperly imported goods and exported goods respectively.
The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non existent.
We see no force in this submission.
The potentialities of the detenu as gathered from his act of smuggling that form basis for detention.
It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling.
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.
In the result this Writ Petition is also dismissed.
RP Petitions dismissed.

dataset_name: IN-Abs

summary:
The petitioners foreign nationals found to be carrying gold biscuits of foreign origin were arrested by the Customs authorities.
Their applications for grant of bail under section 437 Cr.
P.C. were rejected.
Thereafter orders of their detention were passed under section 3(1) of the Conserva tion of Foreign Exchange and Prevention of Smuggling Activi ties Act.
The grounds of detention alongwith the lists of documents annexed thereto were served in time.
The petition ers made representations which were rejected.
In the writ petitions under Article 32 of the Constitu tion, the petitioners before this Court contended that there was no compelling necessity for their detention under the as they were in jail and their bail applica tions were rejected and passports seized; that the provi sions of the Act were not attracted, as each of the inci dents in the case of the respective petitioners was solitary and there were no anticidents showing their involvement in the like incidents; that there was non application of mind by the detaining authority as copies of the bail applica tions and the orders refusing bail which were relevant documents were neither placed 436 before the detaining authority nor were supplied to them.
On behalf of one of the petitioners it was also contended that there was no application of mind by the detaining authority inasmuch as the order of detention mentioned only smuggling and once the detenu is in jail, his passport being seized he could no more indulge in smuggling.
Dismissing the writ petitions, this Court, HELD: 1.1 A detention order can validly be passed even in the case of a person who is already in custody.
In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
[451 F] 1.2 When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
This aspect depends upon various considerations and facts and circumstances of each case.
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the .detention order.
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court.
[451G H, 452 A] Dharmendra Suganchand Chelawat & Anr.
vs Union of India vs
S.N. Sinha, Commissioner of Police, Ahmedabad & Anr., ; , referred to.
Rameshwar Shah vs District Magistrate, Burdwan, ; , followed.
N. Meera Rani vs Government of Tamil Nadu &Anr.
, ; ; Sanjay Kumar Aggarwal vs Union of India & Ors., ; and Kamarunnissa etc.
vs Union of India &Anr., , relied on.
2.1 If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material.
The question of non applica tion of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
[452 B] 437 2.2 Accordingly the non supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu 's right of being afforded a reasonable opportunity guaranteed under Article 22(5) of the Constitu tion, when it is clear that the authority has not relied or referred to the same.
[452 C] 2.3 When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation.
Only when the detaining authority has not only referred to but also relied upon them in arriv ing at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances, amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
[452 C E] 2.4 In a case where detenu is released on bail and is at liberty at the time of passing the order of detention.
then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention.
In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
[452 E F] M. Ahmedkutty vs Union of India & Anr., ; ; Ramachandra A. Kamat vs Union of India. ; ; Frances Coralie Muffin
W.C. Khambra.
; ; Icchu Devi Choraria vs Union of India. ; Pritam Nath Hoon vs Union of India ; ; Lallub hai Jobibhai Patel vs Union of india; , ; Tushar Thakker vs Union of India ; Kirti Kumar Chaman Lal Kundalia vs Union of India ; Ana Carolina D 'Souza vs Union of India [1981] Supp.
SCC 53(10); Mst.
L.M.S. Ummu Saleema vs Shri B.B. Gujaral & Anr.
, ; ; Abdul Sattar Abdul Kadar Shaikh vs Union of India & Ors., and SaVed Farooq Mohammad vs Union of India & Anr., JT , referred to.
It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned.
[p. 440 E] 438 4.1 In the instant case, in the counter affidavit it was stated that the period of remand to the judicial custody was to expire the next day after the detention.
Therefore, there was every likelihood of the detenu 's moving for bail and getting released on bail.
These materials showed that the detaining authority was not only aware that the detenus were in jail but also noted the circumstances on the basis of which he was satisfied that they were likely to come out on bail 'and continue to indulge in the smuggling activities.
[453 B C] As mentioned in the grounds of detention, there was relevant material on the basis of which the detaining au thority was satisfied that there was compelling necessity to pass the detention orders.
It, therefore, cannot be said that there were no compelling reasons justifying the deten tion despite the fact that detenus were already in custody.
[443 C, 453 C] 4.2 Failure to supply the bail applications and the orders refusing bail did not in any manner prejudice the detenus from making representations particularly when they were fully aware of the contents of the applications made by them and also the refusal orders.
However, when they are not referred to or relied upon, the non supply does not affect the detention.
[453 C D] 5.1 Even a solitary incident may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed.
The authorities cannot and may not in every case salvage the antecedents but even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling.
[p. 443 D E] 5.2 The potentialities of the detenu as gathered from his act of smuggling form basis for detention.
It is diffi cult to comprehend precisely the manner in which a detenu with certain potentialities may likely to indulge in the activities of smuggling.
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.
[p. 455 B C]


judgement:
Criminal Appeal No. 624 of 1979.
From the Judgment and Order dated 27.3.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 498 of 1977.
Frank Anthony, Sushil Kumar Jain, Ms. Pratibha Jain and R.V. Singh for the Appellants.
U.N. Bachhavat, Uma Nath Singh and J.M. Sood for the Respon dent.
The following Order of the Court was delivered: These two appellants, namely, Mathura Prashad and Binda Prashad have preferred this appeal questioning the correct ness and legality of the judgment rendered in Criminal Appeal No. 498/77 by the High Court of Madhya Pradesh at Jabalpur Bench.
These two appellants (A4 and A5 before the Trial Court) along with three others, namely, Gulab Chand and Gulab Singh and Laxman Rao (who were arrayed as accused Nos. 1 to 3) took their trial on the accusation that on the night intervening 5/6.12.75 at about 12.30 a.m. at Sarkanda, Bilaspur within the limits of Bilaspur Police Station, Civil Lines intentionally caused the death of the deceased, Keshav Singh by Gulab Singh stabbing the deceased with a knife and the rest of the people assaulting him and that in the course of the same transaction, they also committed the offence of dacoity.
Under the above accusation, they were tried for offences punishable u/s 302 IPC in the alternative u/s 302 IPC read with 149 IPC and also for offence u/s 396 IPC.
The Trial Court found the third accused, namely, Laxman Rao not guilty of any of the charges and consequently, acquitted him but convicted these two appellants and accused Nos. 1 and 2 who are not before us u/s 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life.
However, the Trial Court acquitted the appellants and the other two accused of the offence u/s 396 IPC.
On being aggrieved by the judgment of the Trial Court, the convicted accused namely, these two appellants, Gulab Chand and Gulab Singh filed 429 an appeal before the High Court which for the reasons men tioned in its judgment, dismissed the appeal confirming the conviction recorded by the Trial Court.
Challenging this judgment, these two appellants filed their SLP No. 1902/79 and the other two convicted accused, namely, Gulab Chand and Gulab Singh (A1 and A2) filed a separate petition in SLP (Crl.) No. 1435/79.
This Court by an order dated 29.10.79 granted leave so far as SLP filed by these two appellants, but dismissed the SLP filed by the first and the second accused namely, Gulab Chand and Gulab Singh.
Hence, the present appeal by these two appellants.
The facts of the case which led to the filing of this appeal are well set out in the judgments of the Trial Court and the High Court and hence we think that it is not neces sary for us to proliferate the same except to refer to certain salient features relevant for the disposal of this appeal.
The deceased Keshav Singh was a petition writer.
He was living in his house at Sarkanda in Bilaspur with his wife Smt.
Phatokan Bai (PW 19) and two daughters, namely, Anjani Bai (PW 1) and Shail Kumari (PW 2) and his son, Ram Kumar (PW 3) who was younger to PW 1 and eider to PW 2.
There were some tenants in different parts of that house.
The accused Gulab Chand occupied a portion of that house as a tenant, but vacated the same about two months before this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that of the deceased.
It is alleged that the wife of Gulab Chand had complained about some alleged misbehaviour of the deceased with her.
According to the prosecution, when the deceased was sleeping in a room with his wife on the iII fated night, he heard someone knocking at the door.
On this, the deceased switched on the light and opened the door.
This appellant and the other accused entered his room.
Gulab Chand and Gulab Singh whipped up their knives and gave stab wounds; one on the chest, another on the back while bending.
These two appellants slapped and fisted the deceased.
It is fur ther stated that the second appellant herein, namely, Binda Singh caught hold of the deceased and banged him against the wall repeatedly.
PW 19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
PW 1 who was sleeping in a room on the first floor, on hearing the cry, got down and saw these appellants and the other accused leaving her father 's room.
It is alleged that the appellant while running away took with them a box con taining some clothes and other articles belonging to PW 1.
According to the prosecution, the appellants had chained the doors in such a way that the other inmates of the house could not reach the spot.
430 After the appellants had fled away, PW 1 opened the doors.
PW 3 who was sleeping in another room reached the spot.
PW 15 was a tenant in an adjoining room and he on hearing the distress cry of PW 19, wanted to come out of his room but he could not do so as the house was chained from outside.
Therefore, PW 15 shouted for opening the latches of the door.
He came to the spot after the door was opened.
One Ramji Dayal who seemed to have played an important role in the prosecution, also reached the spot but he has not been examined by the prosecution as a witness.
All the witnesses saw bleeding injuries on the body of Keshav Singh (the deceased herein) who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote 'Gulab Chand ' and thereafter became unconscious.
The injured Keshav Singh was then taken to the Government hospital at Bilaspur where he succumbed to his injuries.
The medical officer sent a requisition exhibit P 14 to the police station.
PW 19, by then, lodged the first information report Exh.
P 43 at about 3.00 a.m. on 6.12.75 before PW 21.
PW 21 held inquest and pre pared the inquest report Exh.
During the course of the investigation, he has seized exhibit P.50, the paper on which the deceased had written the name 'Gulab Chand ' on being produced by PW 3.
PW 9, the medical officer who conducted autopsy on the dead body of the deceased, found two stab wounds and one incised wound on the person of the deceased.
PW 8, another medical officer examined accused Gulab Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect.
After completing the investigation, the charge sheet was laid against all the accused persons.
As aforementioned, the trial court convicted the four accused inclusive of these two appellants which conviction was confirmed by the High Court.
Hence, this appeal by these two appellants.
Of the witnesses examined, PWs 1, 2 and 19 speak about the participation of the appellants in the perpetration of this heinous crime.
No doubt both the Courts below have concurrently found that these two appellants and the other two accused 1 and 2 were responsible for causing the death of the deceased and consequently convicted and so, the question would be whether this Court while exercising its jurisdiction under Article 136 of the Constitution of India, will be justified in interfering with the concurrent find ings of fact.
This Court in Balam Ram vs State of U.P. 11975] 3 SCC 219 at 227 held, that the powers of the Supreme Court under Article 1.36 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
The 431 scope of interference by this Court under Article 136 of the Constitution of India in a case of concurrent findings of fact arose in Arunachalam vs PSR Sadhanathan, ; wherein this Court has held that "Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary appellate power over all Courts and Tribunals in India.
The power is plenary in the sense that there are no words under Article 136 itself qualifying that power.
But, the very nature of the power has led the Court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court.
But, within the restrictions im posed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinc tion between judgments of acquittal and conviction, if the High Court, in arriving at those findings had acted "per versely or otherwise improperly".
(See State of Madras vs
A. Vaidyanatha Iyer ; and Himachal Pradesh Admin istration vs Om Prakash, We think that it is not necessary to swell this judgment by citing all the decisions relating to this principle of law.
When the facts and circumstances of the case are scruti nised, in our considered opinion, they do compel this Court to interfere on the ground that the findings of the Courts below suffer from the vice of perversity.
I1 is the admitted case that the deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explana tion given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the names of other assailants also.
But we have to test this evidence in the background of the evidence given by other witnesses namely PWs '1, 2 and 19.
PW 19 who is none other than the wife of the deceased, was sleeping in the same room in which the deceased was sleeping and, there fore, she must be the proper and natural witness and her evidence has to be given credence.
PW 19 admittedly did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him 'and that it was only thereafter the injured Keshav Singh wrote the name of Gulab Chand on a piece of paper.
The relevant portion of the evidence of PW 19 reads as follows: 432 Then Ram Kumar asked my husband as to who had assaulted and he asked for a pen and paper.
Ram Kumar brought a paper and pen and my husband could write on it the name of Gulab Chand.
In this connection, evidence of PW 2 may also be re ferred to which is as follows: "Then at this stage, my brother asked him as to who had assaulted him.
My father asked by a sign of hand for a pen and paper, whereupon my brother brought the pen and paper and gave that to my father.
My father wrote on it by his hand; he wrote the name of Gulab Singh and thereafter he became unconscious. ' This dearly indicates that before the deceased wrote the name of Gulab Chand on the paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants but it is only thereafter, PW 19 gave the names of the assailants.
Here also, the prosecution is not con sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar (PW 3).
The relevant part of PW 2 's evidence reads thus: "Then my mother and father both mentioned the names of the assailants.
At that time my brother, Ram Kumar was also there.
After Ramji had enquired, my brother also enquired them.
My father asked for by a sign of hand for pen and a copy.
" The above extracted pieces of evidence of PWs 2 and 19 indicate that PW 3 was not informed of the names of the assailants before his father (the deceased herein) wrote the name of Gulab Chand.
Had PW 3 informed by his mother (PW 19) of the names of the assailants, he might not have asked his father as to who the assailants were.
In other words, till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who assailant or assailants was/were.
It seems that both the Courts below have not approached this significant aspect of this salient feature in the proper perspective.
On the other hand, it has conveniently omitted this significant factor from consideration which gives the death knell to the prosecution case so far as the alleged participation of these two appellants in this brutal crime.
In the inquest report Exh.
P 24, it is stated that all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion was arrived at: ". . the conclusion was reached that the death of deceased Keshav Singh by Gulab Singh, Gulab Chand etc.
was due to knife wounds.
" This 'etc. ' in the present case has no relevance because there is a specific averment that the two assailants namely, Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
If really the names of these two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P :24.
At this juncture, the learned senior counsel appearing on behalf of the State referred to a decision of this Court reported in ; Pedda Narayana vs State of Andhra Pradesh wherein this Court has held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope of the proceedings under Section 174.
This decision will not be of any help to the prosecution because only two names are mentioned in the inquest report as as sailants, leaving the names of these two appellants who are now rightly attempting to take advantage of this conspicuous omission in Exh.
P. 24.
Though PW 19 is said to be the author of Exh.
P 43, she before the Trial Court does not claim to be the author of the entire averments.
She states that the police who record ed the report, asked only her name and her husband 's name and nothing further was asked from her and she did state anything more than that.
PW 19 further had deposed that she did not give the names of the accused who assaulted, that she did not know whether her husband was then dead or alive, that at Thana (Police Station) she came to know about the death of her husband, that even then she did not mention the names of the assailants, and that before going to the Thana, she did not give the names of any of the assailants to any person.
It is in evidence that both these appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
Now the explana tion offered by the prosecution is that these two appellants took the constable aside and whispered something and there fore, PW 1 suspecting that the police constable was taking side with the appellants did not come forward with a state ment that these two appellants were also the participants in the crime.
This explanation seems to have been offered only before the Trial Court.
Both the Courts below have conven iently over 434 looked and ignored all the above glaring infirmities appear ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse.
After meticulously and scrupulously analysing the evi dence, we are left with an impression that the prosecution has not satisfactorily established the guilt of these two appellants beyond all reasonable doubt.
Hence, we are unable to agree with the findings of the lower Courts that these two appellants also participated in the crime with the other two accused.
In the result, the conviction of these two appellants u/s 302 read with 34 IPC and the sentence of imprisonment for life imposed therefore are set aside and both of them are acquitted.
The appeal is thus allowed.
V.P.R Appeal al lowed.

summary:
According to the prosecution, when the deceased a peti tion writer, was sleeping in a room with his wife (PW.19) on the iII fated night, he heard someone knocking at the door.
The deceased switched on the light and opened the door.
The accused (A.1 and A.2) entered his room.
They whipped up their knives and gave stab wounds; one on the chest, another on the hack while bending.
They also slapped and listed the deceased.
It was further stated that the second appellant (A 5) caught hold of the deceased and banged him against the wall repeatedly.
PW19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
The eldest daughter of the deceased, PW 1, who was sleeping in a room on the first floor, on hearing the cry, got down and saw the appellants and the other accused leav ing her father 's room.
The appellants while running away took with them a box containing some clothes and other articles belonging to PW 1 and chained the doors in such a way that the other inmates of the house could not reach the spot.
The deceased 's son, PW 3, who was sleeping in another room reached the spot.
PW 15, a tenant in an adjoining room on hearing the distress cry of PW 19, wanted to come out of his room but he could not do 426 so as the house was chained from outside.
He came to the spot after the door was opened.
All the witnesses saw bleeding injuries on the body of the deceased who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured deceased wrote 'Gulab Chand ' and thereaf ter became unconscious, and he was then taken to the Govern ment hospital where he succumbed to his injuries.
The two appellants (A4 and A5 before the Trial Court) along with three others were tried section 302 IPC or section 302/149 and section 396, for causing the death of the deceased, accused No. 2 stabbing the deceased with a knife and the rest of the accused assaulting him and for committing the offence of dacoity.
The Trial Court found the third accused not guilty of any of the charges and acquitted him but convicted others section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life, and acquitted them of the offence section 396 IPC.
The High Court confirmed the conviction.
The present two appellants (A4, A5) filed the present appeal against the judgment of the High Court through special leave.
The other two accused (A1 and A2) preferred a separate special leave petition, which was dismissed by this Court.
Allowing the appeal of the two accused (A4, A5), this Court, HELD: 1.
The powers of the Supreme Court under Article 136 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact, save in exceptional circumstances.
[430 H] 2.
Within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinction between judgments of acquit tal and conviction, if the High Court, in arriving at those findings has acted perversely or otherwise improperly.
[431 C] Arunachalam vs PSR Sadhananthan, ; ; State of 427 Madras vs
A. Vaidyanatha Iyer; , ; Himachal Pradesh Administration vs Om Prakash, [1972]1 SCC 249, referred to. 3.01 The deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explanation given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the name of other assailants also.
[431 E F] 3.02.
PW 19 the wife of the deceased, was sleeping in the same room in which the deceased was sleeping did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him and that it was only thereafter the injured deceased wrote the name of Gulab Chand on a piece of paper.
Before the deceased wrote the name of Gulab Chand on a piece of paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants.
[431 F G] 3.03.
The evidence of PW 2 and 19 indicated that PW 3 was not informed of the names of the assailants before his father (the deceased) wrote the name of Gulab Chand.
Till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who the assailant or assailants was/were.
The Courts below have not approached this signifi cant aspect of this salient feature in the proper perspec tive.
[432 G] 3.05.
In the inquest report there is a specific averment that the two assailants namely, Gulab Singh (A.2) and Gulab Chand (A.1) stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
P. 50.
If really the names of the two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P. 24, the inquest report.
[433 B C] 428 3.06.
It is in evidence that both the appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
The prosecution has not satisfactorily established the guilt of the two appellants beyond all reasonable doubt.