Holding

A detention order under COFEPOSA is vitiated if any relevant material that could affect the detaining authority’s satisfaction is not placed before it, and short postal delays do not constitute fatal procedural infirmity.

Summary

Ahamed Nassar was detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for alleged smuggling of cellular phones and cigarettes. He filed a representation on 21 May 1999, which was processed with short postal delays that the Court held were not attributable to the authorities. Two letters – one from Nassar and one from his advocate – containing a retraction of his earlier confession and a claim that the seized goods were not prohibited were not placed before the detaining authority before the formal detention order was issued. The Court held that failure to place such relevant material vitiates the detention order, while the recorded "likelihood of release on bail" was not without factual basis because the bail application was considered. Consequently, the detention order dated 28 April 1999 was set aside and the petition was allowed, ordering Nassar’s release.

Issues considered

Whether the two‑day and other postal delays in considering the representation violated the requirement of expeditious disposal under Article 22(5) of the Constitution and COFEPOSA.
Whether the mode of communication (speed post) and the delay attributable to postal services constitute an unreasonable delay justifying the detention.
Whether the non‑placement of the detenu’s letter and the advocate’s letter before the detaining authority vitiates the detention order.
Whether the detaining authority’s finding of a "likelihood of release on bail" without a pending bail application amounts to a lack of application of mind.
How the provisions of COFEPOSA and the principle of strict construction of preventive detention statutes should be interpreted.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)(i)
Constitution of Indias. 21, s. 22(5)
Customs Act, 1962s. 11(2)(u), s. 135

Subjects

preventive detentionCOFEPOSArepresentation delayrelevant materialsubjective satisfactionbail likelihoodexpeditious disposalconstitutional lawArticle 22(5)detention order vitiated

Judgment

AHAMED NASSAR A
v.
STATE OF TAMIL NADU AND ORS.

OCTOBER 14, 1999

(KT. THOMAS AND A.P. MISRA, JJ.] B

Criminal Law:

Conservation of Foreign Exchange and Prevention of Smuggling Ac-
tivities" Act, 1974:
c
Section 3:

Preventive Detention-Appropriate authority-Representation before--
Disposal of-Delay in-Sponsoring authority took two days' time in sending
his comments-'-Held : Delay not to be assessed on the yardstick of number D
of days-ln a given case even a few days' delay may be fatal while in another
set of circumstances a longer delay may still be held to be for valid
reasons-'-However, there should be no unexplained delay or delay through
carelessness-ln the circumstances of the case, two days' delay is not undue
delay.
E
Preventive Deten~ion-Appropriate authority-Representation before-
Communication-Mode of-Speed post-Delay in-Sponsoring authority's
comments .took three days' time in reaching Central Government-Held :
Speed post is a reasonable mode of communication-Delay is attributable to
vagaries or inefficiency of postal or communication agencies and not due to
Government apathy or negligence-Constitution of India, 1950, Art. 22(5). F

Preventive Detention-Appropriate authority-Representation before-
Communication-Delay in-Held: Detenu has no right to force representation
to be sent through special messenger by air.

Preventive Detention-Detention orde~Relevant material-Non-place- G
• ment of-Before detaining authority---Subjective satisfaction of-Effect-Held:
... Every conceivable material which is relevant must be placed before the
detaining authority---Such materials must be considered by the detaining
,· authority-Non- consideratrion of the same vitiates the detention orde~The
date of issuance of fonnal order of detention is the relevant date upto which H
657
658 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A relevant material has to be placed before the detaining authority.
Preventive Detention-Detention order-Relevant material-Non-place-
ment of-Before detaining authority-Subjective satisfaction of-Two letters,
one written by detenu awl the other by his advocate, not placed before the
detaining autho1ity-Detenu 's letter related to retraction of his confession
B which was also recorded in his bail application-Detenu 's letter also men-
tioned that the seized goods were 11on-p10hibited goods for which he offered
to pay the duty but still he was arrested-Effect-Held : Non-consideration of
the first part of detenu's letter is acceptabl~But second pmt is detenu's stand
011 men'ts which is relevant-Hence, non-placement of the two letters before
C the detaining authority vitiates the detention order.
Preventive Detention-Detention order-Detenu in jail-Bail applica-
tion rejected-Likelihood of detenu being released on bail---Detaining
authority-Subjective satisfaction of~Held : Can be arrived at by looking to
the contents of the bail application, although rejected, and also the Constitu-
D tional Scheme, Preamble, Objects and Reasons of the Act.
Preventive Detention LaYir-lnterpretation of-Held : Should be strictly
construed since it takes away one's liberty-But it should also be seen that no
person who acts against the national interest is allowed to escap~Where two
E -interpretations are possible, the one which subserves the objects of the preven-
tive detention statute should be preferred-More so, when the credibility of the
statutory acts performed by statutory functionaries are to be scrntinized and
tested.

Interpretation of Statutes:
F Interpretation-Basic Principl&-lf there are two possible interpreta-
tions, the one which subserves the objective of the statute should be accepted.

Words and Phrases :

G "Expeditious disposal" and "likely to be releqsed"-Meaning of

The petitioner-detenu was detained under Section 3(1)(i) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974. The detenu sent his representation on 21.5.1999 which was
received by the Central Government on 25.5.1999 and on the same day
H comments were called from the sponsoring authority. The sponsoring
AHAMED NASSAR v. STATE 659
authority sent reply on 28.5.1999, which was received by the Central A
Government on 1.6.1999, which called for the comments of the detaining
authority. The detaining authority sent the comments on 10.6.1999, which
was received by the Central Government on 14.6.1999. On 15.6.1999 it was
s11bmitted to the Special Secretary and on the same day it was rejected and
information was sent to the Detenu also on the same day.
B
In this petition it was contended on behalf of the petitioner • Detenu
that there was a delay of two days, namely, 25.5.1999 and 26.5.1999 in·
considering the representation of the Detenu; that two letters, one written
by the Detenu and the other written by his advocate, were not placed before
the sponsoring authority; that the letters contained factual assertions like · C
retraction of the detenu's earlier alleged confossion and the detenu's stand
that the seized goods were not prohibited goods for which Detenu offered
to pay the duty but the officer concerned without listening to him arrested
him and that the recording of the detaining authority that there was
likelihood. of the detenu being released on bail was not based on any factual
basis which showed non-application of mind by the detaining authority. D

On behalf of the respondent it was contended that the retraction of
the confession was also recorded in the bail application which was placed
and considered by the detaining authority.
E
Allowing the appeal, this Court.

HELD : 1. The alleged delay of two days, viz., 25.5.1999 and 26.5.1999
the time taken by the sponsoring authority to send its comment. Though
both the authorities were in the same city it cannot be held that this delay
is attributable for the delay in disposal of detenu's representation. In a F
given case even few days' delay may be fatal while in another set of
circumstances a longer delay may still be held to be for valid reasons.
Expeditious disposal of any representation only means which could be
expeditiously disposed of by the concerned authority but should not be
with any unexplained delay of delay through carelessness. This would G
depend on the facts and circumstances of each case. [668-B; CJ

Mst. L.M.S. Ummu Sa/eema v. Shri B.B. Gujarat, [1981) 3 SCC 317
and KM. Abdulla Kunhi v. Union of india, [1991) 1 SCC 47.6, relied on.

2.1. The liberty of an individual under the Constitution is very . H
660 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A sacrosanct and there is a constitutional obligation ca~t on the concerned
authorities but this liberty should not be SO stretched to such an UR·
reasonable extent to force communications to. be sent through special
messenger by air. [669-G; H]

2.2. The mode of communication for the statutory authorities has to
B be in the mode prescribed which has to be reasonable. In the present case,
the mode of these communications was through speed post. This could not
'be construed as callous, slack or casual disposition of the detenu's repre-
sentation. [670-A]

C 2.3. The delay attributed was caused in postal communications. So
such a short delay may -not have much bearing. What is relevant is, there
should be reasonable explanation for such a delay. How the authorities
have .dealt with the matter? If it was casual, neglect, keeping relevant
papers immobile without any reasonable cause they are attributable to
assess delay. But delay on account of vagaries of or on account of inef'·
D ficiency of postal or communicating agencies cannot in normal cir-
cumstances be taken as inexcusable delay either on the part the sponsoring
or detaining authority or the concerned State authorities in disposal of the
detenu's representation. [671-A; B; CJ

2.4. The stated delay was on account of vagaries of the postal
E
department. It is not attributable to the States. Hence, on the facts and
circumstan, · of this case, it is not possible to hold that there was any
delay in the disposal of the detenu's representation by the Central Govern-
ment. [670-B; C]

F Venmathi Selvam (Mrs.) v. State of T.N., [1998] 5 SCC 510 and
Rajammal v. State of T.N., [1999] 1 SCC 417, held inapplicable.

3. A man is to be ddained in prison based on the subjective satis-
faction of the detaining authority. Every conceivable material, which is
relevant and vital, which may have a bearing on the issue, should be placed
G before the detaining authority. Sponsoring authority should not keep it
back, based on his interpretation that it would not be of any help to a
prospective detenu. Decision is not to be made by the sponsoring authority.
The law on this subject is well settled; a detention order vitiates 'if any
relevant document is not placed before the detaining authority, which
H reasonably could affect his decision. (672-G; H; 673-A]
AHAMED NASSAR v. STATE 661

Ashadevi v. K Shivraj, [1979] 1SCC222;Ayya v, State of U.P., [19891 A
l SCC 374 and Sita Ram Somani v. State of Rajasthan, [1986] 2 SCC 86,
.relied on.

4~1. The two letters, one written by the detenu and the other \l<Titten by
his advocate, contain factual assertions not only retraction of his earlier
alleged· confession but also other matters. As far as retraction of the confes- B
sion by the detenu is concerned the stand of the respondent that the same
was also recorded in the bail application of the detenu, which was placed and
considered by the detaining authority. But in these letters the stand of the
detenu was that the seized goods are not prohibited goods for which the
detenu offered to pay the duty but instead; the officer concerned without C
listening, proceeded to arrest him. But this stand is on merits. It is not
necessary in these proceedings to go into its merits and demerits.
[674-C; D; El
4.2. The question is not whether the second part of the contents of
those letters was relevant or not but whether they were placed before the D
detaining authority for his consideration. There could be no two ~pinions on
it. It contains the very stand of the detenu ofwhateverworth. This is relevant.
It may be that the detaining authority might have come to the same con-..
clusion as the sponsoring authority but its contents are relefant which the ·
sponsoring authority could not withhold. One of the letters written by the
deteim's advocate reached the sponsoring authority and reached well within E
time for it being placed before the detaining authority. There is an obligation
cast on the sponsoring authority to place it before the detaining authority,
which has not been done. There should' be consideration of all relevant
materials in case such materials were within the reach of the detaining
authority till formal detention order was issued. [674-E; F; G; 675-B]
F
4.3. The issuance of the formal order of detention is the relevant date
upto which if any relevant material comes in possession of the concerned
authority it has to be placed before the detaining authority. Since in the
present case the letter of the detenu was also received before the issuance
of the formal detention order, it was incumbent for the Secretary con- G
cerned to have it placed before the detaining authority. Therefore, non-
placement of the two letters, which were relevant before the detaining
authority, vitiates the impugned detention order. [676-8; C; DJ

Mohd. Shakeel Wahid Ahmed v. State of Maharashtra, [1983) 2 SCC
392, relied on. H
662 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

. A 5.1. The cnurts must find the extent of individual right deciphering
with the degree of trespass he makes on the public right, on which there
is embargo. Where an individual acts clandestinely for his personal gain
against national interest deleteriously affecting national economy or
security the drastk curtailment of his right should be kept in mind to see
that no such person escapes from the clutches of law. On the one hand, as
B it takes away one's liberty it should be strictly construed; on the other hand
to subserve the objective of the Act, in the national interest it should be
seen that no such person escapes. [678-H; 679-A-B]

5.2. In this backdrop of the Constitutional scheme, the Preamble and
C the Objects and Reasons of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, the justifiability of the acts
of every statutory functionary performing statutory obligations under the
Act has to be scrutinized and tested. It is well settled that whenever there
are two possible interpretations of a statute, the one that subserves the
D objective of an enactment is to be accepted. The same principle shall with
equal force apply in testing the credibility of the acts of a statutory
functionary performing their statutory obligations. Such authorities, while
performing their obligations under the preventive detention law must
perform it .on one hand with promptness, as not to further lengthen
detenu's detention through their casual conduct, neglect, lethargy, etc; on
E the other hand all what is required to be done by it is if it has been done
then in construing its conduct, conclusions etc. If there be two possible
interpretations then the one that subserves the objective of the statute
should be accepted. [679-B; C; DJ

F 5.3. Even for judging as to what should be the measure to test.the
legality of the subjective satisfaction of the detaining authority when he
records "there is likelihood of the detenu being :-eleased on bail", the court
has to keep in mind the aforesaid conspertus of the Constitution,
Preamble, Objects and Reasons of the Act. When one's liberty is to be
curtailed, on the subjective satisfaction of the detaining authority, with the
G area of interference by the court being limited, then within this limitation,
the Court must see, in the authority's privileged area that the detaining
authority does not stretch itself illegitimately in the exercise of its juris-
diction. [679-F; G]

H Dharmendra Suganchand Che/awat v. Union of India, [1990] 1 SCC
' /
AHAMED NASSAR v. STATE 663

746 and Binod Singh v. District Magistrate, Dhanbad, [1986) 4 SCC 416, A
relied on.

Rivadeneyta Ricardo Agustin v. Govemment of the National Capital
Territory of Delhi, [1994) 1 Supp. SCC 597, held inapplicable.

Kamarwmissa v. Union of India, [1991) 1 SCC 128, cited. B

6.1. In the present case, before the detaining authority, there existed
not only the order rejecting the detenu's bail application but also the
contents of the bail application. The averments made therein are relevant
material on which the subjective satisfaction could legitimately be drawn C
either way. Thus inspite of rejection of the bail application by a court, it
is open to the detaining authority to come to his own satisfaction based on
the contents of the bail application keeping in mind the circumstances that
there is likelihood of the detenu being released on bail. Merely because no
bail application was then pending is no premise to hold that there was no D
likelih(lod of his being released on bail. The words "likely to be released"
connotes chances of being bailed out, in case there be pending bail applica-
tion or in case if it is moved in future is decided. The word "likely" shows
it can be either way. So without taking any such risk if on the facts and
circumstances of each case, the type of crime to be dealt with under the
criminal law, including contents of the bail application, each separately or E
all this compositely, all would constitute to be relevant material for arriv-
ing at any conclusion. The contents of bail application would vary from
one case to the other, coupled with t~e different set of circumstances in
each case, it may be legitimately possible in a given case for the detaining
authority to draw an inference that there is likelihood of the detenu being F
released on bail. Therefore, the conclusion of the detaining authority on
the facts of the present case that "there is likelihood of his being released
on bail" cannot be said to be based on no relevant material.
[682-B; C; D; E; 683-A]
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Cr!.) No. G
166 of 1999.

.. Under Article 32 of the Constitution of India .

K.K. Mani for the Petitioner. H
' '
664 SUPREME COURT REPORTS [1999] SUPP: 3 S.C.R.

A T.C. Sharma, P. Parmeshwaran for the Respondent in Union of
India.

R. Mohan, V.G. Pragasam for the Respondent No. 1.

The Judgment of the Court was delivered by
B
MISRA, J. The petitioner has challenged the detention order dated
28th April, 1999 under Section 3(1)(i) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as the 'COFEPOSA'). The detention order was passed by Shri
C M.F. Farooqui, Secretary to the Government of Tamil Nadu Public (SC)
Department, Chennai which reads as under :

"ORDER - Whereas the Government of Tamil Nadu are satisfied
with respect to the person known as Thiru Ahamed Nassar son of
Thiru Ahamed, No.10, Mariamman Koil Street, Pudsupattinam,
D Ramanathapuram District now a remand pryoner in the Central
Prison, Chennai that with a view of preventing him from smuggling
goods in further, it is necessary to make the following order :

"Now, therefore, in exereise of the powers conferred by Section
3(1)(i) of the Conservation of Foreign Exchange and Prevention
E of Smuggling Activities Act, 1974 (Central Act 52 of 1974),..the
Governor of Tamil Nadu hereby directs that the said· Thiru
Ahamed Nassar, son of Thiru Ahamed, be detained and kept in
custody in the Central Prison, Chennai."

F The detenu (Petitioner) arrived at Anna International Airport, Chen-
nai on 12th March, 1999 by Indian Airlines flight from Singapore alung
with three pieces of baggage, viz., one card board carton marked by Sony
VCD MHC-V 818, one card board carton marked Sony VCD SS-V 818
and one green colour 'VENO' zipper shoulder bag and one transparent
plastic duty free shop bag as hand luggage. He after completing his
G ·immigration formality collected his checked-in-baggage consisting of·three
pieces from conveyer belt No.2 and proceeded to Table No. 11, where he
declared to the Superintendent in charge that he was in possession of one
. Video CD System, five cellular phone, 10 carton cigarettes and that the
value of goods imported by him was Rs. 60,000. On suspicion the Custom
H officer intercepted the detenu as he suspected the detenu might be carrying
AHAMED NASSAR v. STATE [MISRA, J.j 665

contraband or electronic goods in huge quantities. On questioning, whether A
he was carrying any such contraband or electronic goods, he ,.replied in
negative. The custom officer not being satisfied took him to the air intel-
ligence unit room along with the said baggage for detailed examination.
Even in the presence of witnesses on being questioned he confirmed his
name and that he owns three check-in-baggage and one hand bag. On
B
examination of Sony Video CD MHC-V 818 carton, the officer found that
it contained one Sony Video CD player model, the second carton Soni
Video CD SS-V 818 contained one pair of speakers. The third green colour
zipper shoulder bag "VENO" contained 10 cartons of State Express 555
cigarette, each containing 400 sticks and on examining one carton it was
found within, it contained two cartons of State Express 555 cigarettes each C
containing 200 cigarettes. He further opened and examined both the State
Express 555 cigarette cartons and recovered six cellular phone all with
transparent polythene cover wrapped in black carbon paper and secured
with black cellophone tape from one carton and ten packets of State
Express 555 cigarettes each containing 20 cigarettes from the other carton. D
Similarly he opened and examined the remaining nine State Express 555
cigarette cartons 400/20 capacity and recovered 10 packets of State Express
555 cigarette with 20 sticks in each and six cellular phones from each of
the four above said nine State Express 555 cigarette cartons. The said
officer then examined the balance of State Express 555 cigarette cartons
-, of 400/20 capacity and recovered ten packets of State Express 555 cigarette E
with 20 sticks in each and seven cellular phones from each of the said five
cartons. Thereafter the said officer cut open all the cellular phone wrapper
and found 23 numbers Samsung SGH cellular phones, 31 numbers Bosch
GSM 908 cellular phones and 11 numbers Nokia 6110 cellular phones.
Then his hand bag was also opened which contained transparent polythene F
duty free shop bag containing 14 numbers AIWA HSGS 183 walkmen and
his personal effects. So in all total goods in baggage found were 65 cellular
phones, 14 AIWA walkmen, 10 cartons of State Express 555 cigarette and
one Soni Video CD player.

The case of the respondent is that the goods brought in were in trade G
and they were not bona fide baggage goods and the petitioner grossly
misdeclared the type and quantity of goods brought by him. In fact he
ingeniously concealed the cellular phones in cigarette cartons to evade
detection by custom authorities and attempted to clear the goods without
payment of appropriate custom duty. The aforesaid 65 assorted cellular H
666 SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A phones, 14 AIWA walkmen, 10 cartons of State Express cigarette and one
Soni video MHC-V CD system were seized under a mahazar for action
under the Customs Act, 1962. The total value of goods seized is Rs. ·'
7,16,200 (CIF) and Rs. 10,74,300 (market value) on the day of seizure. The
further case is on the same day, on 12th March, 1999 he made voluntary
statement before custom officers at Anna International Airport, Chennai
B that since his income was not sufficient so lo earn, he took a passport with
the help of his friend to import goods to Chennai and to sell them in Burma
Bazar. On 7th March, 1999 he went to Singapore and from the income
earned there bought some walkmen and one VCD and when he was about
to leave Singapore one Seeni Mohamed met and introduced himself and
c gave some cigarette cartons and five cellular phones at Kualampur to be
carried to India and for which in turn he was paid his air ticket. These
goods were contained in a green colour VENO zipper bag. The said friend
informed the detenu that on his arrival at Chennai he should carry the said
green colour VENO zipper bag outside the air port where it should be
handed over to the person identifying him who shall pay him Rs. 15,000.
D
The case of the respondent as disclosed in the counter affidavit is, under
Section 11(2)(u) of the Customs Act, 1962 read with Section 3{3) of the ....
Foreign Trade (Development and Regulation) Act, 1992, import of cellular
phones and electronic goods by way of concealment and misdeclaration of
its value with an attempt to evade duty, renders such goods liable for
E confiscation under Section lll(d), (1) and (m) of the Customs Act. The
'
petitioner was arrested on 13th March, 1999 and produced before the
Additional Chief Metropolitan Magistrate, E.0.-II, Chennai, who
remanded him to judicial custody till 26th March, 1999. The aforesaid
detention order was served on the detenu while he was in the Central
Prison, Chennai on 28th April, 1999.
F

On the other hand, case of the detenu is that the Customs officers
illegally seized the above goods by obtaining involuntary and false state-
ment from the petitioner by the use of threat, force and intimidation.

G
The learned counsel for the petitioner Shri K.K. Mani, submits that
the material documents which have bearing effect on the subjective satis-
faction of the detaining authority were neither placed nor considered .,
before passing of the impugned detention order. He refers to the following
H documents:
AHAMED NASSAR v. STATE [MISRA, J.] 667

(a) Detenu's letter dated 23rd April, 1999 addressed to the A
detaining authority which was given to the Jail authorities on
the same day at 1745 hrs. ·

(b) The letter dated 19th April, 1999 sent by his advocate to the
customs authority was also not placed before the detaining
authority. B

Next he submits, on account of delay in considering detenu's repre-
sentation dated 21st May, 1999 both by the State Government and the
Central Government, the detention order is liable to be set aside. For this
he submits the following dates : C

(a) Representation of the detenu to the State Government is
dated 21st may 1999 which was received by the State Govern-
ment on 22nd May, 1999. After receiving it, remarks were
called for on 24th May, 1999 from the sponsoring authority
which was received only on 27th May, 1999. The delay pointed D
out is two days for the dates 25th and 26th May, 1999.

(b) Representation dated 21st May, 1999 to the Central Govern-
ment was received on 25th May, 1999 and Central Gmnn-
ment called for comments from detaining authority only on
the 1st June, 1999. Submission is, this delay could have been
E
eliminated if the same were called through 'FAX' or by
'E-Mail'.

The next submission is, the subjective satisfaction recorded by the
detaining authority, that there was likelihood of detenu being released on F
bail is not based on any factual basis, which shows non-applying of mind
by the detaining authority. He submits, the bail application of the petitioner
dated 1st April, 1999 was dismissed by the Addi. Chief Metropolitan
Magistrate on 12th April, 1999, and no other bail petition was either
pending or brought to the notice of the detaining authority when it passed
the detention order on 28th April, 1999. Finally, he. submits that the G
detaining authority failed to take note that the petitioner was arrested
under Section 104 of the Customs Act for an offence under Section 135 of
the same Act and the conviction for which is only seven years' imprison-
ment. Hence, there was no compelling reason to detain the detenu under
the COFEPOSA. H
668 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A The first submission for the detenu is that there was delay in
considering the representation of the detenu by the State Government.. It
arises out of the following facts. Detenu's representation dated 21st May,
1999 was received by the State on 22nd May, 1999, remarks was called from
the sponsoring authority on 24th May, 1999 which was received back on
B 27th May, 1999. The delay is said to be for these two days, namely 25th
and 26th May, 1999. The alleged delay of two days, viz., 25th and 26th May,
1999 which is the time taken by the sponsoring authority to send its
comment. Though both the authorities were in the same city it cannot be
held that this delay is attributable for the delay in disposal of detenu's
representation. In a given case, even few days delay may be fatal while in
C another set of circumstances a longer delay may still be held to be for valid
reasons. Expeditious disposal of any representation only means which
could be expeditiously disposed of by the concerned authority but should
not be with any unexplained delay or delay through carelessness. This
would depend on the facts and circumstances of each case. In Mst. L.M.S.
D Ummu Saleema v. Shri B.B. Gujarat and another, [1981] 3 SCC 317 (para
7), the Court held that the explanation of each day delay is not a magical
formula. It only means it should be done with utmost expedition :

"The time imperative can never be absolute or obsessive. The
E occasional observation made by the Supreme Court that each day's
delay in dealing with the representation must be adequately ex-
plained are meant to emphasise the expedition with which the
representation must be considered and not that it is a magical
formula, the slightest breach of which must result in the release of
the detenu." (Para 7)
F
In KM. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and
Others & State of Karnataka and others, [1991] 1 SCC 476, the court held :

"The words 'as soon as may be' occurring in Clause (5) of
G Article 22 reflects the concern of the framers that the repre-
sentation should be expeditiously considered and disposed of with
a sense of urgency without an avoidable delay. However, there can
be no hard and fast rule in this regard. It depends upon the facts ....
and circustances of each case. There is no period prescribed either
H under the Constitution or under the concerned detention law,
AHAMED NASSAR v. STATE [MISRA, J.] 669

within which the representation should be dealt with. The require- A
ment, however, is that there should not be supine indifference,,
slackness or callous attitude in considering the representation."

Within this sphere of legal premise we do not find th,tit there was any
callousness or undue delay caused by the State Gov~rnment in disposing
B
of detenu's representation. So far consideration of the detenu repre-
sentation by the Central Government the relevant facts are, that the detenu
sent his representation on 21st May, 1999 from Chennai which was received
in Delhi on 25th May, 1999 and on the same day comments were called
from the sponsoring authority at Chennai. Reply was sent by the sponsoring
authority on 28th May, 1999 which was received in Delhi on 31st May, 1999. c
The same was placed before the Deputy Secretary, Central Government
on 1st June, 1999 who called for the comment of the detaining authority.
This comment was sent by the detaining authority on the 10th June, 1999
which was received by the Central government on 14th June, 1999. On 15th
June, 1999 it was submitted to the Special Secretary and on the same day D
it was rejected and information was sent to the detenu also on the same
day. The detenu on these facts presses that there is delay in considering
his representation. The first is between 25th May, 1999 and 28th May, 1999
and then two days delay in receipt of the same by the Central Government
which is on 31st May, 1999. Next the delay is of nine days between 1st June
and 10th June. On the 1st June, 1999, the Central Government (Deputy E
Secretary, COFEPOSA) called for the comment from the detaining
authority and on 10th June, 1999 reply was sent by the State Government.
Similarly three days delay is said to be when the same was received by the
Central Government on 14th June, 1999. In considering this delay it has to
be kept in mind this is the communication period as the two authorities F
are placed at long distance in two different cities, one is in New Delhi and
the other is in Chennai. The delay is defended to be on account of delay
by the postal authorities in communicating the letters. The submission is,
when liberty of an individual is affected, faster mode of communication
should have been adopted, if necessary, it should have been sent by Air or
through a special messenger by flight. This in our considered opinion is too G
far fetched to be accepted. The liberty of an individual under Constitution
is very sacrosanct and there is constitutional obligation cast on the con-

- cerned authorities but this liberty should not be so stretched to such
unreasonable extent to force communications to be sent through special
messenger by air. H
670 SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R.

A We have to keep in mind that mode of communication for the
statutory authorities has lo be in the mode prescribed which has to be
reasonable. It has been stated and we have also found from the file placed
before us that the mode of these communications were through speed post.
This could not be construed as callous, slack or casual disposition of his
B representation. For the respondent it was stated from the records that the
communication between the Central Government at New Delhi and spon-
soring authority and detaining authority at Chennai was through speed
post. The stated delay was on account of vagaries of the postal department.
It is not attributable to the States. Hence on the facts and circumstances
of this case, it is not possible to hold, there was any delay in the disposal
C of detenue's representation by the Central Government. In our considered
opinion there was no delay in consideration of detenu's representation both
by the State and the Central Government.

Reliance has been placed on behalf of the detenu in Venmathi
Selvam (Mrs.) v. State of T.N. and Anr., (1998) 5 SCC 510. In this case the
D Court held :

"Though the delay is not long, it has remained unexplained.
Though the delay by itself is not fatal, the delay which remains
unexplained becomes unreasonable. In spite of this well settled
E legal position the .State Government has failed to explain satisfac-
torily that it had dealt with the representation of the detenu as
promptly as possible."

In this case even after an opportunity was given by the Court, the
State did not file any counter affidavit.
F
In Rajammal V. State of T.N. and Anr., (1999) 1 sec 417, the Court
held:

"The position, therefore, now is that if delay was caused on
account of any indifference or lapse in considering the repre-
G sentation, such delay will adversely affect further detention of the
prisoner. In other words, it is for the authority concerned to explain
the delay. if any, in disposing of the representation. It is not enough
to say that the delay was very short. Even longer delay can as well
be explained. So the test is not the duration or range of delay, but
H how it is explained by the authority concerned."
AHAMED NASSAR v. STATE [MISRA, J.] 671

In this case, the Court held that though there is explanation for delay A
till 9th February, 1998 but no explanation had been given for the delay
which occurred thereafter that is to say till 14th February, 1998. These
decisions render no help to the detenu. The present case is not such a case.
The delay attributed was caused in postal communications. So such a short.
delay may not have much bearing. What is relevant is, there should be
B
reasonable explanation for such delay. How the authorities has dealt with
the matter? If it was casual, neglect, keeping relevant papers immobile
without any reasonable cause are attributable to assess delay. But delay on
account of vagaries of or on account of inefficiency of postal or com-
municating agencies cannot in normal circumstances be taken as inex-
cusable delay either by the sponsoring or detaining authority or the con- c
cerned State authorities in disposal of detenu's representation.

Mr. R. Mohan learned counsel for the detenu submitted that
material and vital documents which have bearing on this subjective satis-
faction of the detaining authority were not placed before him. Reference D
was made to the detenu's letter dated 23rd April, 1999, addressed to the
detaining authority, delivered to the jail authorities on the same day at 1745
hrs., and letter dated 19th April, 1999 of his advocate, addressed to the
sponsoring authority. Both these letters were not placed before the detain-
ing authority. These letters refer, apart from detenu's retraction from his
earlier confession dated 12.3.1999, the infonnation which detenu gave to E
the custom officers that he was in possession of non-prohibited and duti-
able goods for which he is ready to pay its duty. Respondent's reply with
reference to letter dated 23rd April, 1999 is that this letter was given to
the jail authority late in the evening on the 23rd April, which was dis-
patched the very next day by speed post, to the Secretary Public, which is F
prescribed and acknowledged mode for sending letters from jail. 25th
April, 1999 being Sunday, the letter reached the Secretariat on 26th April,
1999 which after its segregation and processing reached the concerned
Secretary at about 3.00 P.M. on the same day. This receipt was after the
concerned Secretary signed his proposal for the detention on the 24th
April, after it was sent to the Minister concerned, who bt<ing the detaining G
authority signed the same on the 26th April, 1999. Thereafter the grounds .
of detention were sent for translation to the Department of Culture which
returned them back on 28th April, 1999 on which date the formal order of
...... detention was signed. Hence, the said representation letter could not be
placed before the detaining authority. It is also submitted that after its H .
672 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A receipt the Secretary found it containing retraction of the confession but it
was only repetition of which was contained in detenu's bail application
dated 1st April, 1999, which was placed before the detaining authority and
was considered by him.

With reference to the letter of the advocate dated 19th April, 1999,
B two reasons are stated for it not being placed before the detaining
authority. Firstly, it refers to the retraction of confession made by the
detcnu which is referred to in the detenu's bail application dated 1st April,
1999 and secondly since this was sent to a quasi-judicial authority, it should
have accompanied with either a vakalatnama or an authorisation signed by
C from the detenu. Further it is said that the retraction could not be con-
sidered as it was not sent by the detenu himself. As a legal submission it
is submitted, Article 22(5) of the Constitution of India guarantees earliest
opportunity to make a representation and its disposal but a detenu has no
pre-existing right for expeditious consideration of his representation by the
detaining authority prior even to his detention order.
D
Submissions so far made are misconceived and hence we have no
hesitation to reject the same. The question here is not any consideration
of any representation of the detenu expeditiously by the detaining authority
prior to his detention order but non-placement of the aforesaid two
E relevant letters before the detaining authority. What is relevant must be
placed before the detaining authority for its consideration.

About sending the letter to the detaining authority it was submitted
that the Secretariat to which the letter was sent, was situated at a short
distance and hence it should have been sent through a special messenger.
F Reply is that the same was dispatched through speed post which is the
prescribed and acknowledged mode for sending such letters. It is true in a
given circumstance, where urgency is spelt out an officer may opt for such
a recourse, but where dispatch is through a prescribed mode, which is more
expeditious than normal mode, it cannot be attributed that the authorities
G were either callous or careless or causal in its dealing.

So far stand of the respondent with reference to the advocate's letter
dated 19th April, 1999 it cannot be held to be a justifiable stand. These
technical objections must be shun where a detenu is being dealt under the .
preventive detention !aw. A man is to be detained in the prison based on
H subjective satisfaction of the detaining authority. Every conceivable
AHAMED NASSAR v. STATE [MISRA, J.] 673

material which is relevant and vital which may have bearing on the issue A
should be placed before the detaining authority. Sponsoring authority
... should not keep it back, based on his interpretation that it would not be
of any help to a prospective detenu. Decision is not to be made by the
sponsoring authority. The law on this subject is well settled, a detention
order vitiates if any relevant \focument is not placed before the detaining
authority which reasonably could affect his decision.
B

In Ashadevi wife of Gopal Ghenna/ Mehta (Detenu) v. K. Shivraj,
Addi. Chief Secretary to the Govt. of Gujarat and Anr., [1979) 1 SCC 222,
the Court held :

"If material or vital facts which would influence the mind of C
the detaining authority one way or the other on the question
whether or not to make the detention order are not placed before
or are not considered by the detaining authority, it would vitiate
its subjective satisfaction. rendering the detention order illegal."
D
This is a case of preventive detention under Section 3(1) of the
COFEPOSA, where confessional statement retracted by the detenu was
not placed before the detaining authority.

In A;ya alias Ayub v. State of UP. and Anr., [1989] l SCC 374, the
Court held : E
"There would be vitiation of the detention on grounds of
non-application of mind if a piece of evidence, which was relevant
though not binding, had not been considered at all. If a piece of
evidence which might reasonably have affected the decision
whether or not to pass an order of detention is excluded from F
consideration, there would be a failure of application of mind
which, in turn, vitiates the detention. The detaining authority might
very well have come to the same conclusion after considering this
material; but in the facts of the case the omission to consider the
material assumes materiality." G
In Sita Ram Somani v. State of Rajasthan & Ors., [1986) 2 SCC 86,
the court held :

" ... .it appears to be clear to us that the documents mentioned
by the appellant in his petition were not placed before the detain- H
674 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
.. ""'
A ing authority and, therefore, were not considered by the detaining
authority. It is possible that they were placed before the screening
Committee in the first instance, but that is immaterial. It was the ·•
detaining authority that had to consider the relevant material
before taking a decision whether it was necessary to detain the
appellant under the COFEPOSA. That was not done and there
B was, therefore, a clear ·non-application of mind by the detaining
authority to relevant material."

The aforesaid two letters, viz., dated 23rd April, and 19th April,
contains factual assertions not only retraction of his earlier alleged confes-
c sion but other matters. So far the retraction of confession by the detenu,
we accept .the stand of the respondent that the same was also recorded in
the bail application dated 1st April, 1999 of the detenu which was placed
and considered by the detaining authority. But in these letters the stand of
the detenu, was that the seized goods are not prohibited goods which
passed through the red channel, for which the detenu offered to pay the
D
duty but instead, the officer concerned without listening proceeded fo
arrest him. It is true, the respondent case is that the detenu brought these
goods in trade which were not bona fide baggage and were misdeclared
both the type and quantity of goods were found concealed (65 cellular
phones in 10 cigarette cartons of State Express 555) to evade detection and
E payment of custom duty. But this stand is on merits. It is not necessary in
these proceedings to go into its merits and demerits.

The question is not whether the second part of the contents of those
letters was relevant or not but whether they were placed before the
F detaining authority for his consideration. There could be no two opinions
on it. It contains the very stand of the detenu of whatever worth. What else
would be relevant if not this? It may be that the detaining authority might
have come to the same conclusion as the sponsoring authority but its
contents are relevant which could not be withheld by the sponsoring
authority. The letter dated 19th April, 1999 it reached the sponsoring
G authority and reached well within time for it being placed before the
detaining authority. There is obligation cast on the sponsoring authority to
place it before the detaining authority, which has not been done. Even the
letter dated 23rd April, 1999 which reached the Secretary concerned at . ~r
3.00 P.M. on 26th April, 1999 which was much before the formal detention
H order dated 28th April, 1999. The Secretary concerned was obliged to
AHAMED NASSAR v. STATE [MISRA, J.] 675

place the same before the detaining authority. Respondent authority was A
not right in not placing it as it contains not only what is already referred
to in the bail application dated 1st April, 1999 but some~hing more.

This shows there was really non-application of mind. It is not in
dispute that the relevant date of the issue of formal detention order was
28th April, 1999 though it was signed on the 26th April, 1999. Thus, there B
should be consideration of all relevant material in case such materials were
within the reach of detaining authority till formal detention order was
issued.

In the case of Mohd. Shakeel Wahid Ahmed v. State of Maharashtra C
and Ors., (1983] 2 SCC 392, also detention was challenged as relevant
material came into existence after signing of the detention order but before
issuance of formal order. The advisory board opined in the case of another
detenu Shamsi that there was no sufficient cause for Shamsi's detention but
this material was not placed before the detaining authority. The defence D
taken by the State was that the detention order is dated 8th October, 1981
while advisory board's opinion is dated 19th October, 1981. The constitu-
tion bench of this Court rejected this contention and held :

"The explanation offered by Shri Capoor as to why the opinion
of the Advisory Board in Shamsi's case was not placed before him E
is that the report of the Advisory"Board in Shamsi's case which is
dated October 19, 1981, was not in existence when he 'formulated
and ordered to issue the detention order against the petitioner' in
this case. We see quite some difficulty in accepting this explana-,
tion. In the first place, the fact that it was on October 8, 1981 that F
Shri Capoor had directed the detention of the petitioner is a matter
of no consequence .. The order of detention was issued, that is to
say passed, on November 7, 1981 and we must have regard t~ the
state of circumstances which were in existence on that date. Shri
Capoor seems to suggest that the Advisory Board's opinion dated
October 19, 1981 came into existence after he had made up his G
,, mind to pass an order of detention against the petitioner on
October 8, 1981 and, therefore, he could not take, or need not
have taken, that opinion into account. The infirmity of this explana-
tion is that the order of detention was passed against the petitioner
on November 7, 1981 and the Advisory Board's opinion in Shamsi's H
676 SUPREME COURT REPORTS [1999] SUPP: 3 S.C.R.

A case was available to the State Government nearly three weeks
before that date."

The above was a case where detention order was signed on 8th
October but formal order was only signed on 7th November, 1981. The
relevant material, viz., opinion of the Advisory Board came into existence
B on 19th October, 1991, i.e., between the aforesaid two dates.
Non-placement of the opinion, which came into existence after signing of
detention order before the detaining authority was held to vitiate the
detention. Thus issuance of the formal order is held to be relevant date
upto which, if any, relevant material comes in possession of the concerned
C authority has to be placed before the detaining authority. In the present
case, we find the letter of detenu dated 23rd April, 1999 was received on
26th April, 1999, i.e., before issuance of formal detention order dated 28th
April, 1999. It was incumbent for the Secretary concerned to have placed
it before the detaining authority. So we conclude, non-placement of those
D two letters which were relevant, vitiates the impugned detention order.

Next submission is, the detaining authority while recording his
subjective satisfaction recorded that there was likelihood of detenu being
released on bail was based on no factual basis. Such recording in the
E absence of any material shows non-application of mind by the detaining
authority. The facts are the dctenu moved the bail application on the 1st
April, 1999, which was dismissed by the Additional Chief Metropolitan
Magistrate (E.O. II), Madras on 12th April, 1999. No other bail application
was brought to the notice of the detaining authority till the date he passed
the detention order or 28th April, 1999. Repelling this contention,
F submission for respondent-State is that this rejection of the bail application
was placed before the detaining authority, who was aware that detenu was
entitled to go in appeal for bail up to the higher forum, namely, Sessions
Court, High Court etc. It is in anticipation of such expected action from
the detepu the said subjective satisfaction was arrived at. Submission is in
G fact later a bail application was moved in the Session Court which was
.
dismissed on the 23rd April, 1999 and another bail application was filed in
the High Court on the same day which was also dismissed on 30th April,
1999 which is after passing of the detention order.

H In interpreting any provision of Preventive detention law, its
AHAMED NASSAR v. STATE [MISRA, J.] 677

preamble and its objectives have to be kept in mind. The Preamble of A
COFEPOSA is :

"An act to provide for preventive detention in certain cases for
the purposes of conservation and augmentation of foreign ex-
change and prevention of smugglii;1g activities and for matters
connected therewith." B

The object and reasons of this Act is also incorporated therein;

"Whereas violations of foreign exchange regulations and smug-
gling activities arc having an increasingly deleterious effect on the
national economy and thereby a serious adverse effect on the c
security of the State;

And whereas having regard to the persons by whom and the
manner in which such activities or violations are organised and
carried on, and having regard to the fact that in certain areas which D
are highly vulnerable to smuggling, smuggling activities of a con-
siderable magnitude and clandestinely organised and carried on,
it is necessary for the effective prevention of such activities and
violations to provide for detention of persons concerned in any
manner therewith;"
E
So this 'Act' is brought in for the conservation and augmentation of
foreign exchange and for the prevention of smuggling. This became neces-
sary as there were large scale violations of foreign exchange regulations
and increasing smuggling activities affecting the National economy. In
other words, it was brought in to prevent such clandestine activities by
F
detaining such person.

In order to achieve this objective, in the national interest ari
obligation is cast on the State even to curtail the most sacred of the human ·
rights, viz., his personal liberty. The source of power to curtail this, flows
from Article 22 of the Constitution of India within the limitation as G
provided therein. Every right in our Constitution within its widest
amplitude is clipped with reasonable restrictions. Right under Article 15
,,,p not to be discriminated on grounds of religion, race, caste, sex, etc., is
clipped through its sub-clauses (3) and (4) while making provisions for
women, children, socially and educationally backward classes, Scheduled H
1:>-llir
678 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A castes and Schedule Tribes respectively. Article 16 creates right for
equality of opportunity in the matter of public employment which is
curtailed through its sub-clauses (3), (4), (4A) and (5) by enabling the
Parliament to make law confining to a class or classes for employment to
an office even prior to such emplpyment, permitting reservation in favour
of backward class, Scheduled castes and Scheduled tribes or in the cases
B
of religious denominational institution. Each of the most solemn rights of
any citizens is cloaked with reasonable restrictions under various
sub-clauses of Article 19. The protection of life and personal liberty
enshrined in Article 21 itself contains the restriction which can be curtailed
through the procedure established by law, which of course has to be
c reasonable fair and just. Article 22 confers power to deprive of the very
sacrosanct individual right of liberty under very restricted conditions.
Sub-clauses (1) and (2) confers right to arrest within the limitations
prescribed therein. Sub-clause (3) even erases this residual protective right
under sub-clauses (2) and (3) by conferring right on the authority to detain
D a man without trial under the preventive detention law. This drastic
-<
clipping of right is for a national purpose and for the security of the State.
.J

Similarly, Article 301, Chapter XII of the Constitution confers right
to trade, commerce and intercourse freely through out the territory of India
E but succeeding Articles, viz., Articles 302, 303 and 304 slice that absolute
freedom in various grades and degrees. Each of such checks and clippings
in the absolute right of an individual is made within the sphere of certain
reasonableness to give preference, when in conflict with the collective right
of and for the gain of the society. Man is a social animal who dedicates his
works to enrich the social coffer for enriching social development. On one
F
hand individual rights are well recognised but when it makes dent on
society, affecting public right it gives way. This is the pattern of our
Constitution. So far as individual rights are concerned they are recognised
and fully protected but such right is curtailed when it tramples on
community right or right of public at large. It is severely curtailed when it
G tramples with considerable magnitude for self gain, deleteriously effecting
the national interest by dealing such person sternly through preventive
detention without trial, for a specified period within the limitation provided
therein. So in any organised society there can be no right in absolute term. ~

H Thus courts must first find, the extent of individual right deciphering
AHAMED NASSAR v. STATE [MISRA,J.] 679

with the degree of trespass he makes on the public right, on which there A
is embargo. Where an individual acts clandestinely for his personal gain
against national interest deleteriously affecting national economy or
security the draSlic curtailment of his right should be kept in mind to see
that no such person escapes from the clutches of law. On the one hand, as
it takes away ones liberty it should be strictly construed, on the other hand
B
to subserve the objective of this Act, in the national interest it should be
seen that no such person escapes.

In this backdrop of the Constitutional scheme, the preamble as also
the objects and reasons of COFEPOSA we have to scrutinize and test the
justiciability of the acts of every statutory functionary performing statutory C
obligations under the Act. It is well settled that whenever there are two
possible interpretations of a statute, the one that subserves the objective of
an enactment is to be accepted. The same princi pie shall with equal force
apply in testing the credibility of the acts of a statutory functionary per-
forming their statutory obligations. Such authorities, while performing their D
obligations under the preventive detention law must perform it on one hand
t ·~

with promptness, as not to further lengthen detenus detention through their
causal conduct, neglect, lethargy, etc., on the other hand all what is
required to be done by it is if it has been done then in construing its
conduct, conclusions etc., if there be two possible interpretations then the
one that subserve the objective of the statute should be accepted. E

Next, returning to the issue under consideration, as to what should
be the measure to test the legality of the subjective satisfaction of the
detaining authority when he records, "there is likelihood of detenu being
released on bail". Even for judging this we have to keep in l]lind the F
aforesaid conspectus of the Constitution, preamble, objects and reasons of
the Act. When one's liberty is to be curtailed, on the subjective satisfaction
of the detaining authority, with area of interference by the court being
limited, then within this limitation, Court must see, in this authority
privileged area that the detaining authority does not stretch itself il-
legitimately in the exercise of its jurisdiction. G
'
Learned counsel for the detenu relies on Dhannendra Suganchand
Chelawat through his sister Km. Archana Chelawat & Suganchand Kan-
naiyyalal Chelawat through his daughter Km. Archana Chelawat v. Union of
India & Ors., [1990] 1 SCC 746, in this case .the Court held : .H
680 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A "In the present case there was no material in the grounds of
detention showing that the detaining authority apprehended that
the further remand would not be granted by the Magistrate on
October 13, 1988, and the appellants would be released from
custody on that day. On the other hand the bail applications moved
by the appellants had been rejected by the Sessions Judge a few
B days prior to the passing of the order of detention. The grounds
of detention disclose that the appellants were engaged in activities
which are offences punishable with imprisonment under the
Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot,
therefore, be said that there was a reasonable prospect of the
c appellants not being further remanded to custody on October 13,
1988 and their being released from custody at the time when the
order for preventive detention was passed on October 11, 1988"

In the above, it was a case under Narcotic Drugs and Psychotropic
Substances Act, 1985, therefore, it cannot be said that there was a
D reasonable prospect of the appellant being released on bail.
.. '
In Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors., [1986]
4 sec 416, the detenu was in detention when order of detention under
Section 3(2) National Security Act, 1980 was served on him. There were
E criminal cases against him and in one of them the offence was Section 303
of the IPC. When the order of detention was passed the petitioner had not
surrendered but when it was served petitioner had already surrendered. In
this background subjective satisfaction of the order of detention was chal-
lenged as there was no likelihood of the detenu being released on bail. This
Court held:
F
"If a man is in custody and there is nc imminent possibility of
his being released, the power of preventive detention should not
be exercised. In the instant case when the actual order of detention
was served upon the detenu, the detenu was in jail. There is no
indication that this factor or the question that the said detenu might
G
be released or that there was such a possibility of his release, was
taken into consideration by the detaining authority properly and
seriously before the service of the order."

In this case there exL~ted prim a f acie no scope to release him on bail
H as the offence was under Section 303 IPC.
AHAMED NASSAR v. STATE [MISRA, J.] 681

Jn Rivadeneyta Ricardo Agustin v. Government of the National Capital A
.Territory of Delhi and Ors., [1994] 1 Supp. SCC 597, reliance is placed on
the following passage which approved the case of Kamanmnissa v. Union
of India, [1991) 1 SCC 128 held '~
C•

"The decisions of this Court to which our attention was drawn
by the learned counsel for the petitioners lay down in no uncertain B
terms that detention orders ean validly be passed against detenus
who are in jail, provided the officer passing the order is alive to
the fact of the detenus being in custody and there is material on
record to justify his conclusion that they would indulge in similar
activity, if set at liberty." c
The above decision is strongly relied by learned counsel for the
detenu as detention therein was also under Section 3 of the COFEPOSA
per.taining to an offence under Section 135 of the Customs Act. It was held
that the State could not bring to the notice any material indicating that
... release of the pditioner was imminent or there was a likelihood of his being D
released. In that case the bail application was finally dismissed on June 9,
1992 and hence there was no scope for presuming a likelihood of his being
released on bail. Further significantly proposal for the detention was sent
on May 22, 1992 but the authority concerned passed the order only on
August 18, 1992, after several months without appraising of. the facts E
prevailing in the middle of the August 1992. The above decision is, there-
fore, distinguishable on facts. The Court in the above case records :

"The bail petition filed by him were dismissed finally on June
9, 1992. He did not move any bail application thereafter ... 'It is
pointed out that according to counter, proposal for the detention F
of petitioner was sent to the Administrator on May 22, 1992 but
the authority passed the order only on August 18, 1992 without
apprising himself of the fact situation prevailing in the middle of
August 1992."

We have already observed in the matter of testing satisfaction of any G
detaining authority, it has to be tested on the facts and circumstances of
each case. Examining the facts in the present case, we find in para 7 of the
counter affidavit filed on behalf of respondent No.1 (State) by Mr. S.
Retnaswamy, Deputy Secretary to Government, Public Department,
· Government of Tamil Nadu, Chennai-9 it is stated : H
682 SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A " ....It is further submitted that the detaining authority has
considered 'the bail application of the detenu dated 1.4.1999 and
arrived at the subjective satisfaction that there is likelihood of the
release of the detenu on bail and hence it cannot be stated that
there is non-application of mind on the part of the detaining
authority."
B

So before the detaining authority, there existed not only order dated
12.4.1999 rejecting his bail application but the contents of the bail applica-
tion dated 1.4.1999. The averment made therein are relevant material on
C which subjective satisfaction could legitimately be drawn either way. Thus
in spite of rejection of the bail application by a court, it is open to the
detaining authority lo come to his own satisfaction based on the contents
of the bail application keeping in mind the circumstance that there is
likelihood of detenu being released on bail. Merely because no bail ap-
plication was then pending is no premise to hold that there was no
D likelihood of his being released on bail. The words "likely to be released"
connote chances of being bailed out, in case there be pending bail applica-
tion or in case, if it is moved in future, is decided. The word "likely" shows
it can be either way. So without taking any such risk if on the facts and
circumstances of each case, the type of crime to be dealt with under the
E criminal Jaw, including contents of the bail application, each separately or
all this compositely, all would constitute to be relevant material for arriving
at any conclusion. The contents of bail application would vary from one
case to the other, coupled with the different set of circumstances in each
case, it may be legitimately possible in a given case for a detaining authority
to draw an inference that there is likelihood of detenu being released on
F bail. The detention order records :-

"The Administrator of the National Capital Territory of Delhi
is aware that you are in judicial custody and had not moved any
bail application in the Court(s) after June 9, 1992 but nothing
G prevents you from moving bail applications and possibility of your
release on bail cannot be ruled out in the near future. Keeping in
view your modus operandi to smuggle gold into India and frequent
visits to India, the Administrator of the National Capital Territory -----
of Delhi is satisfied that unless prevented you will continue to
H engage yourself in prejudicial activities once you are released."
AHAMED NASSAR v. STATE [MISRA, J.] 683
Thus we hold the conclusion of the detaining authority on the facts A
of the present case, "there is likehood of his being released on bail" cannot
be said to be based on no relevant material.

However, in view of our findings, viz., non-placement of two material
documents, one letter dated 19th April, 1999 by the advocate of the detenu
to the sponsoring authority and the other, letter dated 23rd April, 1999 by B
the detenu, before the detaining authority which were relevant and were
likely to affect the satisfaction, hence we have no hesitation to hold that
the detention of the petitioner under Section 3(1) of the COFEPOSA
vitiates and the detention order is unsustainable in law.

Accordingly, we quash the impugned detention order dated 28th c
April, 1999 passed by the detaining authority under Section 3(l)(i) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities,
1974. The writ petition is accordingly allowed. The petitioner be released
from jail forthwith unless required in connection with some other case.

v.s.s. Appeal allowed

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