Holding

A COFEPOSA detention order is valid even when the detainee is already in judicial custody, provided the Detaining Authority is subjectively satisfied of custody, imminent bail, and probable prejudicial activity; the High Court’s quashing was erroneous and the orders are restored.

Summary

The Directorate of Revenue Intelligence intercepted eight kilograms of foreign gold allegedly smuggled by the Jalan brothers, who were arrested and placed in judicial custody. While they remained in custody, the Detaining Authority under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) issued detention orders, asserting a real possibility of their release on bail and a likelihood of them resuming prejudicial activities. The Delhi High Court quashed the detention orders, holding that the authority had failed to consider the imminent possibility of bail and a retraction petition filed by a co‑accused, Anand. The Supreme Court held that a detention order is valid even against a person already in custody if the authority is subjectively satisfied of (i) awareness of custody, (ii) likelihood of bail, and (iii) probable prejudicial conduct, and that the High Court erred in interfering with this satisfaction. Consequently, the Court restored the detention orders, dismissed the special leave petition and the related writ petitions, and ordered the detenus to be taken back into custody.

Issues considered

Whether a COFEPOSA detention order can be validly passed against a person already in judicial custody.
Whether the Detaining Authority satisfied the statutory requirement of subjective satisfaction regarding custody, possibility of bail, and likelihood of prejudicial activity.
Whether the non‑consideration of Anand’s retraction petition vitiates the detention order.
Whether the Delhi High Court erred in quashing the detention orders.
Interpretation of the disjunctive 'or' in Section 13 of COFEPOSA as 'and' for the purpose of the writ petitions.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 13, s. 3(3)
Constitution of Indias. Article 22(5), s. Article 32
Customs Act, 1962s. 104, s. 108

Subjects

COFEPOSApreventive detentionsubjective satisfactionjudicial custodybailgold smugglingretraction petitionSection 13 interpretationArticle 22(5)Article 32

Judgment

[2019] 14 S.C.R. 169 169

UNION OF INDIA THROUGH A
JOINT SECRETARY (COFEPOSA),
MINISTRY OF FINANCE, NEW DELHI
v.
ANKIT ASHOK JALAN B
(Criminal Appeal No. 1746 OF 2019)
NOVEMBER 22, 2019
[UDAY UMESH LALIT, INDIRA BANERJEE AND
C
M. R. SHAH, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 – Passing of detention order in case
of person already in judicial custody – Subjective satisfaction of
the Detaining Authority– One ‘A’ carrying 8 Kgs. of gold of foreign
origin valued at Rs.2.71 crores approx. intercepted by the Directorate D
of Revenue Intelligence, Kolkata Zonal Unit – He indicated that he
was engaged by the detenus – Detenus apprehended – Bail rejected–
Remanded to judicial custody– Detention orders passed by the
Detaining Authority– Writ petition filed by the respondent
challenging the detention orders against his father and brother E
(detenus)– High Court quashed and set aside the detention orders
– In appeal by both the parties and writ petitions filed by various
writ petitioners, held: Detaining Authority while passing the
detention orders was aware of the fact that the detenus are actually
in custody; that there is a real possibility of their being released on
bail; and that on being so released they would in all probability F
indulge in prejudicial activities and therefore it is essential to prevent
them from smuggling of gold and foreign currency in future –
Detention orders show the application of mind by the Detaining
Authority – Detenus were granted bail by the Court on the very
date the orders of detention were quashed by the High Court, G
therefore, the apprehension in the mind of the Detaining Authority
that the detenus are likely to be released on bail was well founded
and fortified – Further, when the detention orders were passed by
the Detaining Authority, neither the Sponsoring Authority nor even

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169
170 SUPREME COURT REPORTS [2019] 14 S.C.R.

A the Detaining Authority was aware of any retraction petition of ‘A’
– No occasion and/or reason for the Detaining Authority to consider
his retraction statement – Thus, it cannot be said that on non-
consideration of A’s retraction petition, the detention orders were
vitiated – High Court erred in interfering with the subjective
satisfaction of the Detaining Authority – Impugned judgment set
B
aside – Detention orders of the respective detenus restored –
Detenus be taken into custody forthwith by the Detaining Authority
– In view of the judgment in Criminal Appeal arising from SLP
(Criminal) No. 7010/2019, no merit found in the present writ petitions
– Customs Act, 1962 – s.104, 108 – Constitution of India –
C Arts.22(5), 32.
Disposing of the matters, the Court
HELD: 1.1 The Detaining Authority while passing the
detention orders was aware of the fact that the detenus are actually
in custody; that there is a real possibility of their being released
D on bail; and that on being so released they would in all probability
indulge in prejudicial activities and therefore it is essential to
prevent them from smuggling of gold and foreign currency in
future. Even if a person is in judicial custody, he can be detained
under the relevant provisions of the concerned Act, like
E COFEPOSA etc. However, there must be a proper application of
mind and the Detaining Authority must have been subjectively
satisfied on considering the relevant material that there is a
reason to believe that there is a real possibility of detenus being
released on bail and that on being so released the detenus will in
all probability indulge in prejudicial activities. In the recent
F decision, Supreme Court in Dimple Happy Dhakad observed and
held (i) that the order of detention validly can be passed against
a person in custody and for that purpose it is necessary that the
grounds of detention must show whether the Detaining Authority
was aware of the fact that the detenu was already in custody; (ii)
G that the Detaining Authority must be further satisfied that the
detenu is likely to be released from custody and the nature of
activities of the detenu indicate that if he is released, he is likely
to indulge in such prejudicial activities and therefore, it is
necessary to detain him in order to prevent him from engaging in
such activities; and (iii) the satisfaction of the Detaining Authority
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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 171
DELHI v. ANKIT ASHOK JALAN

that the detenu is already in custody and is likely to be released A
on bail and on being released, he is likely to indulge in the same
prejudicial activities with the subjective satisfaction of the
Detaining Authority. The detention orders show the application
of mind by the Detaining Authority based on the material available
on record, facts and circumstances of the case, nature of activities
B
and propensity of the detenus indulging in such activities.
Therefore, in the facts and circumstances of the case, the High
Court has erred in setting aside the detention orders on the
ground stated hereinabove, namely, that there is a clear lapse
and failure on the part of the Detaining Authority, to examine and
consider the germane and relevant question relating to the C
imminent possibility of the detenus being granted bail, while
recording its subjective satisfaction and passing the detention
orders. [Paras 8.1, 8.2] [187-D-H; 188-A-C]
Rameshwar Shaw v. District Magistrate AIR 1964 SC
334 : [1964] SCR 921 – followed. D
Union of India and another v. Dimple Happy Dhakad
2019 AIR 3428 ; Noor Salman Makani v. Union of
India (1994) 1 SCC 381 ; N. Meera Rani v. Government
of T.N. (1989) 4 SCC 418 : [1989] 3 SCR 901 – relied
on. E
Merugu Satyanarayana v. State of A.P. (1982) 3 SCC
301 : [1983] 1 SCR 635 ; State of Gujarat v. Sunil
Fulchand Shah (1988) 1 SCC 600 : [1988] 2 SCR
903 ; Vijay Kumar v. Union of India (1988) 2 SCC 57 ;
Abdul Sathar Ibrahim Manik v. Union of India (1992) F
1 SCC 1 : [1991] 1 Suppl. SCR 435 ; Baby Devassy
Chully v. Union of India (2013) 4 SCC 531 : [2012] 9
SCR 515 ; Raverdy Marc Germain Jules v. State of
Maharashtra (1982) 3 SCC 135 ; Prakash Chandra
Mehta v. Commissioner and Secretary., Government of
Kerala (1985) Suppl. SCC 144 : [1985] SCR 697 ; G
Madan Lal Anand v. Union of India (1990) 1 SCC 81 :
[1989] 1 Suppl. SCR 733 ; V.C. Mohan v. Union of
India (2002) 3 SCC 451 : [2002] 2 SCR 144 ; Deepak
Bajaj v. State of Maharashtra (2008) 16 SCC 14 :
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172 SUPREME COURT REPORTS [2019] 14 S.C.R.

A [2008] 15 SCR 1062 ; Rushikesh Tanaji Bhoite v. State
of Maharashtra (2012) 2 SCC 72 : [2012] 2 SCR
640 ; A. Sowkath Ali v. Union of India (2000) 7 SCC
148 : [2000] 2 Suppl. SCR 48 ; P. Saravanan v. State
of T.N. (2001) 10 SCC 212 ; Huidrom Konungjao Singh
v. State of Manipur (2012) 7 SCC 181 : [2012] 5 SCR
B
1173 ; Union of India v. Paul Manickam (2003) 8 SCC
342 : [2003] 4 Suppl. SCR 618 Dharmendra
Suganchand Chelawat v. Union of India (1990) 1 SCC
746 ; Veeramani v. State of T.N. (1994) 2 SCC 337 :
[1993] 3 Suppl. SCR 796 – referred to.
C 1.2 The detenus were granted bail by the Court on the
very date the orders of detention were quashed by the High Court,
i.e., on 2.8.2019. Therefore, the apprehension in the mind of the
Detaining Authority that the detenus are likely to be released on
bail was well founded and fortified. Therefore, the High Court
D has fallen in error in quashing and setting aside the detention
orders on the ground that there is a clear lapse and failure on
the part of the Detaining Authority, to examine and consider the
germane and relevant question relating to the imminent possibility
of the detenus being granted bail, while recording its subjective
satisfaction and passing the detention orders. It appears that
E Memo No. 9920/AB-I dated 31.08.2019 of Jail Authority,
prisoner’s (Shri ‘A’) petition dated 22.6.2019 was forwarded to
the Chief Metropolitan Magistrate, Calcutta only. It appears that
the said petition was not forwarded to any other concerned
including the Sponsoring Authority or Detaining Authority. It also
F appears from the material on record that as per letter Memo No.
9899/AB-I dated 30.08.2019 of Jail Authority, a copy of the
prisoner’s petition of Shri ‘A’ dated 22.6.2019 was forwarded on
22.6.2019 itself to the Chief Metropolitan Magistrate, Calcutta.
The same was received by the office of the Chief Metropolitan
Magistrate, Calcutta on 24.6.2019. It appears that Shri ‘A’ and
G the detenus herein were produced before the Chief Metropolitan
Magistrate, Calcutta from judicial custody on 2.7.2019 and during
the course of hearing, it had come to the notice of prosecution
that a retraction petition was filed by Shri ‘A’. Therefore, and
accordingly, a request was made before the Chief Metropolitan
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DELHI v. ANKIT ASHOK JALAN

Magistrate, Calcutta for supply a copy of the same and accordingly A
the Chief Metropolitan Magistrate ordered advocate of Shri ‘A’
to serve a copy of the retraction petition vide order dated
2.7.2019. It appears from the material on record that the office
of DRI, Calcutta received a copy of the retraction petition of Shri
‘A’ dated 22.6.2019 on 15.07.2019. It is required to be noted
B
that there are two orders available on the order sheet of the trial
Court. First is the handwritten order and other is a typed order.
All other orders are typed orders. The handwritten order does
not bear the stamp of the court and/or signature of the Magistrate.
Therefore, the handwritten order does not inspire any confidence
and therefore no reliance can be placed upon the handwritten C
order on the order sheet of the trial Court dated 24.06.2019.
Under the circumstances, it appears that when the detention
orders were passed by the Detaining Authority, neither the
Sponsoring Authority nor even the Detaining Authority was aware
of any retraction petition of Shri ‘A’. Under the circumstances,
D
there was no occasion and/or reason for the Detaining Authority
to consider the retraction statement of Shri ‘A’. Under the
circumstances, it cannot be said that on non-consideration of the
‘A’s’ retraction petition, the detention orders were vitiated. The
High Court committed grave error in quashing and setting aside
the detention orders and interfering with the subjective E
satisfaction of the Detaining Authority. Consequently, the appeal
preferred by the Detaining Authority, i.e., Civil Appeal arising
from Special Leave Petition (Criminal) No. 7010 of 2019 is
allowed, the impugned judgment and order passed by the High
Court quashing and setting aside the detention orders is hereby
F
quashed and set aside and the detention orders of the respective
detenus are hereby restored. The detenus, shall be taken into
custody forthwith by the Detaining Authority. Accordingly, the
special leave petition preferred by the respondent, i.e.,
Special Leave Petition (Criminal) No. 7013/2019 stands
dismissed. [Paras 9-11] [191-C-H; 192-A-H; 193-A] G
1.3 Writ Petition (Criminal) Nos. 204, 206 & 209/2019
In view of the judgment rendered in Criminal Appeal arising
from Special Leave Petition (Criminal) No. 7010/2019, no merits

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174 SUPREME COURT REPORTS [2019] 14 S.C.R.

A found in the present writ petitions and they are accordingly
dismissed. [Para 11]
T.V. Sravanan v. State (2006) 2 SCC 664 ; Rekha v.
State of T.N. (2011) 5 SCC 244 : [2011] 4 SCR 740
– held inapplicable.
B Kamarunnisa v. Union of India (1991) 1 SCC 128 : [1990]
1 Suppl. SCR 457 – relied on.
Case Law Reference
[1983] 1 SCR 635 referred to Para 5.4
C [1988] 2 SCR 903 referred to Para 5.4
(1988) 2 SCC 57 referred to Para 5.4
[1991] 1 Suppl. SCR 435 referred to Para 5.4
[2012] 9 SCR 515 referred to Para 5.4
D (1982) 3 SCC 135 referred to Para 5.6
[1985] SCR 697 referred to Para 5.10
[1989] 1 Suppl. SCR 733 referred to Para 5.10
[2002] 2 SCR 144 referred to Para 6.6
E
[2008] 15 SCR 1062 referred to Para 6.6
[2012] 2 SCR 640 referred to Para 6.6
[2000] 2 Suppl. SCR 48 referred to Para 6.10
(2001) 10 SCC 212 referred to Para 6.10
F
2019 AIR 3428 relied on Para 8.1
[2012] 5 SCR 1173 referred to Para 8.1
[2003] 4 Suppl. SCR 618 referred to Para 8.1
(1990) 1 SCC 746 referred to Para 8.1
G
[1993] 3 Suppl. SCR 796 referred to Para 8.1
(1994) 1 SCC 381 relied on Para 8.2
[1964] SCR 921 followed Para 8.3

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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 175
DELHI v. ANKIT ASHOK JALAN

[1989] 3 SCR 901 relied on Para 8.3 A
(2006) 2 SCC 664 held inapplicable Para 8.4
[2011] 4 SCR 740 held inapplicable Para 8.4
[1990] 1 Suppl. SCR 457 relied on Para 8.5
CRIMINAL APPELLATE/ORIGINAL JURISDICTION : B
Criminal Appeal No. 1746 of 2019.
From the Judgment and Order dated 02.08.2019 of the High Court
of Delhi at New Delhi in Writ Petition (Criminal) No. 1840 of 2019.
With
C
Special Leave Petition (Criminal) No. 7013/2019, Writ Petition
(Criminal) Nos. 204, 206, 209 of 2019.
K.M. Nataraj, ASG, Vikram Chaudhri, Sr. Adv., Kanu Agrawal,
Sanjay Tyagi, Sharath Nambiar, Vinayak Sharma, B. Krishna Prasad,
Ashish Batra, Wattan Sharma, Sarthak Sachdev, Harshit Sethi, Rishi D
Sehgal, Keshvam Chaudhri, Anzu. K. Varkey, Amit K. Nain, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
E
1. Leave granted in Special Leave Petition (Criminal) No. 7010
of 2019.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 02.08.2019 passed by the High Court of Delhi at New
Delhi in Writ Petition (Criminal) No. 1840 of 2019, by which the High F
Court has allowed the said writ petition preferred by the respondent
herein and has quashed and set aside the detention orders bearing Nos.
PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA
dated 1.7.2019, the Union of India through the Detaining Authority has
preferred the present appeal. Feeling aggrieved and dissatisfied with
the aforesaid impugned judgment and order passed by the High Court, G
even the detenu has preferred the special leave petition challenging the
aforesaid impugned judgment and order, inasmuch as on grounds ‘C’,
‘D’, ‘E’, ‘F’ and ‘G’ raised in the main writ petition before the High
Court, having not been decided one way or the other, while allowing the
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176 SUPREME COURT REPORTS [2019] 14 S.C.R.

A writ petition of the original writ petitioner on the first two grounds, i.e.,
grounds ‘A’ & ‘B’.
2.1 Writ Petition (Criminal) Nos. 204/2019, 206/2019 and 209/
2019 have been preferred by the respective writ petitioners under Article
32 of the Constitution of India for an appropriate writ, direction or order
B declaring that the disjunctive ‘or’ in Section 13 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as ‘COFEPOSA Act’) shall be read as ‘and’ so
that only those actions which are actually done in good faith would be
protected under the said Section, to enable the respective petitioners to
take such further action against the Detaining Authority, as may be
C permissible in law.
2.2 At the outset, it is required to be noted that so far as the
respective writ petitioners of writ petitions are concerned, though
detention orders qua them have been set aside by the High Court, still
the respective petitioners have prayed for the aforesaid reliefs.
D
Criminal Appeal @ SLP (Criminal) No.7010/2019 and SLP
(Criminal) No. 7013 of 2019.
3. The facts of the case in nutshell are as follows:
That in the light of specific intelligence, the Directorate of Revenue
E Intelligence, Kolkata Zonal Unit (for short ‘DRI’) intercepted one Anand
on 09.06.2019 near Dankuni Toll Plaza, West Bengal, while he was
travelling on a bus from Siliguri to Kolkata, carrying 8 Kgs. of gold of
foreign origin valued at Rs.2.71 crores approximately. That the said
Anand, vide his statements recorded on 09.06.2019 and 10.06.2019
F indicated that, he had been engaged by the detenus to receive the 8 bars
of smuggled gold from Indo-Bhutan border at Jaigaon from an unknown
person, to be transported and delivered to Kolkata and Delhi. That as
per the detenus, they were apprehended by officers of DRI on 10.06.2019
at about 2:00 p.m. at the Food Court of Quest Mall, 33, Syed Amir Ali
Avenue, Park Circus, Beck Bagan Row, Kolkata, West Bengal – 700017
G and taken to the latter’s office. That the detenus’ self-incriminating
confessions were purportedly obtained under Section 108 of the Customs
Act, 1962 (hereinafter referred to as the ’Act’) and they were formally
shown as arrested on 11.06.2019 under the provisions of Section 104 of
the Act. That thereafter the detenus were produced before the Court of
Judicial Magistrate on 12.06.2019.
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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 177
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

3.1 That vide order dated 12.06.2019 in Misc. 67/2019, the learned A
Chief Metropolitan Magistrate, Kolkata rejected the prayer of bail made
on behalf of the detenus and remanded them to judicial custody till
18.06.2019.
3.2 That while the detenus were in custody, the detention orders
were rendered by the Detaining Authority on 01.07.2019. The detention B
orders were served on both the detenus on 02.07.2019. The detenus
have been served with the relied upon documents with the list of
documents on 04.07.2019.
3.3 That the detenus filed their representations dated 07.07.2019,
under Article 22(5) of the Constitution of India read with Section 3(3) of C
the COFEPOSA Act, addressed to the Detaining Authority against the
impugned detention orders, through the jail authorities.
3.4 That the respondent Ankit Ashok Jalan filed writ petition before
the High Court challenging the aforesaid detention orders against his
father – Ashok Kumar Jalan and his brother – Amit Jalan (detenus) D
dated 01.07.2019. It was mainly contended on behalf of the original writ
petitioner that despite the detenus already being in judicial custody, the
Detaining Authority rendered the detention orders and there being no
imminent possibility of their being released on bail nor any material relied
upon therein to raise an apprehension that they may be so released in
the near future since no bail application was pending, the same are ex E
facie illegal and without any basis. It was further contended that the
relied upon documents have not been perused by the Detaining Authority,
inasmuch as, the retraction petition of the said Anand, which is a vital
document, has neither been placed before the Detaining Authority nor
considered by it in accordance with law, the document purported to be a F
copy of the ‘retraction petition’ in respect of the said Anand, placed at
Sr. No.30 of the list of relied upon documents, is actually the latter’s bail
application, and thus the subjective satisfaction is sham, erroneous and
incomplete, and therefore, violative of the detenus’ right to effective
representation as mandated and guaranteed by the Constitution, and by
law. G
4. The writ petition before the High Court was opposed by the
Detaining Authority. It was requested not to entertain the writ petition
at this stage, since the detenus’ representations were pending
consideration before the Advisory Board. On merits, it was submitted
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178 SUPREME COURT REPORTS [2019] 14 S.C.R.

A that there was cogent material before the Detaining Authority to arrive
at the subjective satisfaction that the detenus were likely to be released
from judicial custody and that there was likelihood of their continuing to
indulge in the prejudicial activities. It was also submitted on behalf of
the Detaining Authority that all the relevant documents were supplied to
the detenus. That by the impugned judgment and order, the High Court
B
has quashed and set aside the detention orders mainly on the ground that
there was a clear lapse and failure on the part of the Detaining Authority
to examine and consider the germane and relevant question relating to
the imminent possibility of the detenus being granted bail, while recording
its subjective satisfaction and passing the detention orders.
C 4.1 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court quashing and setting aside the
detention orders, Union of India through the Detaining Authority has
preferred the present appeal. As observed hereinabove, even the original
writ petitioner has also approached this Court against the impugned
D judgment and order passed by the High Court, inasmuch as on grounds
‘C’, ‘D’, ‘E’, ‘F’ and ‘G’ raised in the main writ petition before the High
Court, having not been decided one way or the other, while allowing the
writ petition of the original writ petitioner on the first two grounds, i.e.,
grounds ‘A’ & ‘B’ only.
E 5. Shri K.M. Nataraj, learned Additional Solicitor General of India
has vehemently submitted that the impugned judgment and order passed
by the High Court is clearly contrary to the law laid down by this Court
in a recent judgment rendered in the case of Union of India and another
v. Dimple Happy Dhakad, Criminal Appeal No. 1064/2019 arising
out of SLP (Criminal) No. 5459/2019, decided on 18.07.2019, 2019
F SCC OnLine SC 875. It is submitted that despite the categorical finding
recorded by the Detaining Authority with regard to the “immediate
possibility of the release of the detenus from judicial custody”, the High
Court has observed that the same is not sufficient compliance in law and
has quashed the detentions orders on this sole ground.
G 5.1 Relying upon para 7 of the detention orders, it is submitted
that the Detaining Authority was aware with regard to detenus being in
custody and their immediate possibility of the release and their propensity
to indulge in prejudicial activities after release. It is submitted that the
subjective satisfaction of the Detaining Authority has been clearly
H recorded with regard to the custody - the likelihood of the release and
UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 179
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

the propensity to indulge in prejudicial activities. It is submitted that A
even the bail application of Anand was also considered by the Detaining
Authority.
5.2 It is further submitted by the learned Additional Solicitor General
that the aforesaid consideration on the part of the Detaining Authority is
sufficient compliance with the constitutional protections. Reliance is B
placed upon the decision of this Court in the case of Noor Salman
Makani v. Union of India (1994) 1 SCC 381 (paras 5 & 6).
5.3 It is further submitted by the learned Additional Solicitor General
that even in the case of Kamarunnisa v. Union of India (1991) 1
SCC 128, relied upon by the respondent, this Court lays down a three- C
pointer test in passing of a detention order in case of a person already in
judicial custody as under:
“(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 D
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
E
in prejudicial activity and
(3) if it is felt essential to detain him to prevent him from so doing.”
It is submitted that in the said decision, this Court further
observed:
“if the authority passes an order after recording his satisfaction in F
this behalf, such an order cannot be struck down on the ground
that the proper course for the authority was to oppose the bail and
if bail is granted notwithstanding such opposition, to question it
before a higher court.”
It is submitted that this Court further clarified as under: G

“….What this court stated in the case of Ramesh Yadav [(1985)
4 SCC 232] was that ordinarily a detention order should not be
passed merely to pre-empt or circumvent enlargement on bail in
cases which are essentially criminal in nature and can be dealt
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180 SUPREME COURT REPORTS [2019] 14 S.C.R.

A with under the ordinary law. It seems to be well settled that even
in a case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be had to the
law of prevention detention.”
5.4 It is submitted that even as per the said decision, the awareness
B that the detenus are in custody and the categorical recording of the fact
that the detenu is likely to be released on bail, is sufficient when a detention
order is being passed against a person in custody. Learned ASG has
also relied upon the following decisions of this Court, Merugu
Satyanarayana v. State of A.P. (1982) 3 SCC 301; State of Gujarat
v. Sunil Fulchand Shah (1988) 1 SCC 600; Vijay Kumar v. Union
C of India (1988) 2 SCC 57; Abdul Sathar Ibrahim Manik v. Union
of India (1992) 1 SCC 1; Veeramani v. State of T.N. (1994) 2 SCC
337; and Baby Devassy Chully v. Union of India (2013) 4 SCC
531.
5.5 It is further submitted by the learned ASG that the detenus
D have been released on bail subsequent to the impugned judgment and
order of the High Court and therefore the ground of imminent likelihood
of release stood proved. It is submitted that admittedly the detenus have
been granted bail by the Court on the very date of the order of detention
was quashed by the High Court by the impugned judgment and order
E dated 2.8.2019. It is submitted therefore the apprehension in the mind
of the Detaining Authority that the detenus are likely to be released on
bail and regarding the prejudicial activities of the detenus has to be taken
as well founded and fortified. It is submitted therefore that the grounds
raised by the detenus regarding non-mentioning of imminent likelihood
of release does not survive for consideration, as the detenus have been
F released subsequent to the order of detention as apprehended by the
Detaining Authority. It is submitted that as on date if the detention order
is quashed, the detenus will be free to indulge in the prejudicial activities
as mentioned in the detention order thereby causing serious harm and
prejudice to the society in general and the economy of the nation in
G particular.
5.6 Now so far as the other grounds raised by the detenus with
respect to retraction statement of Shri Anand not being with the Detaining
Authority on the date of passing of the detention orders and therefore
the detention orders have been vitiated is concerned, it is submitted that
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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 181
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

an affidavit has been furnished along with documentary evidence by the A
Sponsoring Authority by letter dated 31.8.2019. It is submitted that as
per letter dated 31.08.2019 of the jail authority, prisoner’s petition dated
22.6.2019 submitted by Shri Anand, was forwarded to the learned court
of Chief Metropolitan Magistrate, Calcutta only. It is submitted that the
said petition was not forwarded to any other concerned including the
B
Sponsoring or Detaining Authority except the court of Chief Metropolitan
Magistrate, Calcutta. It is submitted that further, as per letter memo
dated 30.08.2019 of jail authority, a copy of the prisoner’s petition of
Shri Anand dated 22.6.2019 was forwarded on 22.6.2019 to learned
Chief Metropolitan Magistrate, Calcutta. The same was received by
the office of Chief Metropolitan Magistrate on 24.6.2019. It is submitted C
that Shri Anand, Shri Ashok Kumar Jalan and Shri Amit Jalan were
produced before the learned Chief Metropolitan Magistrate, Calcutta
from judicial custody on 2.7.2019. It is submitted that during the course
of hearing of the case, it came to the notice of the prosecution that a
retraction petition was filed by Shri Anand. Accordingly, a request was
D
made before the learned Chief Metropolitan Magistrate for supply of a
copy of the same. Accordingly, learned Chief Metropolitan Magistrate
ordered advocate of accused No.1 (Shri Anand) to serve the copy vide
order dated 2.7.2019. It is submitted that the office of DRI, Kolkatta
received a copy of the prisoner’s petition/retraction petition of Shri Anand
dated 22.6.2019 on 15.7.2019, which was served by one Shri Sumit Dey, E
Advocate of Shri Anand as per learned Chief Metropolitan Magistrate’s
order dated 2.7.2019. It is submitted that therefore when the Sponsoring
Authority was not aware about the retraction application of Shri Anand
dated 22.6.2019 when the proposal was forwarded by the Sponsoring
Authority to the Detaining Authority and therefore the alleged retraction
F
application dated 22.6.2019 could not be placed by Sponsoring Authority
before the Detaining Authority before passing the detention orders on
1.7.2019 against the detenus. It is submitted that therefore and even
otherwise non-consideration of the retraction application dated 22.6.2019
of Shri Anand by the Detaining Authority does not vitiate the orders of
detention. In support of his above submission, learned ASG has relied G
upon a decision of this Court in the case of Raverdy Marc Germain
Jules v. State of Maharashtra (1982) 3 SCC 135.
5.7 It is further submitted by the learned ASG that even otherwise
the contents of the prisoner’s petition/retraction petition of Shri Anand
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182 SUPREME COURT REPORTS [2019] 14 S.C.R.

A dated 22.6.2019 is a mere afterthought. It is submitted that Shri Anand
was caught carrying 8Kgs. of foreign origin gold without any supporting
documents whatsoever in the presence of the independent witnesses, as
per due process and procedure. It is submitted that whatsapp messages
exchanged between him and Shri Ashok Jalan and the whatsapp calls
made between them provides unclenching evidence about their
B
acquaintance and complicity in the case. It is submitted that hence the
prisoner’s petition/retraction petition does not prejudice the decision of
the Detaining Authority in passing of the detention orders, which were
based on the facts and evidence on record which were duly mentioned
in the detention orders and relied upon documents supplied along.
C 5.8 It is further submitted that even the retraction statement of
Shri Anand is not a vital document in case of the present detention orders
against the detenus as their retractions have been duly considered by
the Detaining Authority.
5.9 It is further submitted by the learned ASG that apart from the
D above facts, Shri Anand after his release on bail has reiterated his earlier
statements dated 9.6.2019, 10.6.2019 and 14.6.2019 on 19.7.2019 wherein
he has categorically stated that he filed the retraction petition as per the
directions of his advocate which was a mistake on his part.
5.10. It is further submitted by the learned ASG that even otherwise
E failure to place certain documents may not necessarily be fatal to a
detention order. In support of his submission, learned ASG has also
relied upon the decisions of this Court in the cases of Prakash Chandra
Mehta v. Commissioner and Secretary., Government of Kerala,
(1985) Suppl. SCC 144 (paras 69 to 73, 75, 82 & 83) and Madan
F Lal Anand v. Union of India (1990) 1 SCC 81.
5.11 Making the above submissions and relying upon the above
decisions, it is prayed to allow the present appeal and quash and set
aside the impugned judgment and order passed by the High Court
quashing and setting aside the detention orders.
G 6. While supporting the impugned judgment and order passed by
the High Court quashing and setting aside the orders of detention, learned
counsel appearing on behalf of the respondent has vehemently submitted
that the High Court has given cogent reasons while quashing and setting
aside the orders of detention, and therefore, the same is not required to
be interfered with by this Court.
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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 183
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

6.1 Shri Vikram Chaudhri, learned Senior Advocate appearing on A
behalf of the original writ petitioner has taken us to the relevant grounds
of detention, more particularly paragraphs (v) and (vii) and has submitted
that the statements of Shri Anand are the fulcrum, basis and foundation
on which the entire case set up against the detenus rests. Consequently,
if the statements are excluded from the zone of consideration, nothing
B
shall survive qua the detenus. It is submitted that there is no incriminating
recovery from the detenus as such.
6.2 It is further submitted by the learned Senior Advocate appearing
on behalf of the original writ petitioner that though a specific reference
has been made by the Detaining Authority regarding the factum of
retraction of their statement by the present detenus, however, not a C
whisper has been made as to the fact of any retraction made by Shri
Anand even in his bail application. It is submitted that even if the short
denial of statement of bail application of Shri Anand is seen as retraction,
the same has never gone into the mind making of the Detaining Authority
for arriving at his subjective satisfaction. It is submitted that the Detaining D
Authority has chosen to make a detailed consideration of the retraction
made by the detenus, but it will not show the same consideration to the
retraction made by Shri Anand, it was alive and aware regarding the
same.
6.3 It is further submitted that as such the retraction statement of E
Shri Anand has not been supplied by the Detaining Authority to the
detenus. It is submitted that as per the relied upon documents, it is
stated as “copy of retraction petition in respect of Shri Anand”. It is
submitted that however the above document is a bail application of Shri
Anand and not a retraction statement. It is submitted that therefore
non-supply of the retraction statement of Shri Anand to the detenus has F
vitiated the orders of detention.
6.4 It is further submitted that in the grounds of detention, there is
no reference to the retraction petition on behalf of Shri Anand.
6.5 It is further submitted that as it is evident from the order sheet G
of the Court, retraction petition filed by Shri Anand has reached the
Court on 24.06.2019 and handwritten court proceedings recorded the
said fact. It is submitted that therefore retraction petition formed a part
of the judicial/court record, much prior to the issuance of the detention
orders. It is submitted that therefore the retraction petition of Shri Anand
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184 SUPREME COURT REPORTS [2019] 14 S.C.R.

A was in complete knowledge of the DRI Officers as well as their
Advocates. It is submitted that except the Detaining Authority and the
prosecution, none was aware of the proposal for detention and it was
their bounden duty to call for all the records. It is submitted that, however,
request for supply of the said retraction petition and the entire Court
record was not made before passing of the detention orders.
B
6.6 It is further submitted that the stand that the authorities got
knowledge of the retraction only on 2.7.2019 has not been substantiated.
It is submitted that the retraction petition dated 22.6.2019 of co-accused
Shri Anand had a vital bearing on the complicity or otherwise of the
detenus in the alleged prejudicial activities. It is submitted that the
C Detaining Authority would have been aware of the contents of the
retraction and would have considered the same, it may have influenced
the mind of the Detaining Authority one way or the other. It is submitted
therefore that non-supply of the retraction petition by Shri Anand and/or
non-consideration of the factual factum of retraction petition by Shri
D Anand has definitely vitiated the orders of detention and therefore the
High Court has rightly set aside the detention orders. In support, learned
counsel has heavily relied upon the decisions of this Court in the cases
of V.C. Mohan v. Union of India (2002) 3 SCC 451; Deepak Bajaj
v. State of Maharashtra (2008) 16 SCC 14; and Rushikesh Tanaji
Bhoite v. State of Maharashtra (2012) 2 SCC 72.
E
6.7 It is further submitted that even otherwise subjective
satisfaction was also vitiated for lack of any cogent material to arrive at
the satisfaction regarding the imminent possibility of release on bail, more
particularly when the bail application filed by both the detenus was already
rejected by the Magistrate and no further bail application of the detenus
F was pending.
6.8 It is further submitted that indisputably bail application of the
detenus was rejected on 12.06.2019. No further bail application was
filed or pending before any court. It is submitted therefore the subjective
satisfaction of the Detaining Authority that the detenus are likely to be
G released on bail has been vitiated and therefore the High Court has
rightly quashed and set aside the orders of detention on this ground alone.
In support, learned counsel has heavily relied upon the decisions of this
Court in the cases of Rameshwar Shaw v. District Magistrate AIR

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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 185
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

1964 SC 334; Kamaarunnissa (supra); T.V. Sravanan v. State (2006) A
2 SCC 664; and Rekha v. State of T.N. (2011) 5 SCC 244.
6.9 Relying upon the decision of this Court in the case of Union
of India v. Dimple Happy Dhakad (supra), it is vehemently submitted
by the learned counsel appearing on behalf of the respondent that, as
held by this Court, the satisfaction of the Detaining Authority that the B
detenus may be released on bail cannot be ipse dixit of the Detaining
Authority. It is submitted that as such on facts in the case of Dimple
Happy Dhakad (supra), this Court confirmed the orders of detention
having been satisfied that the subjective satisfaction of the Detaining
Authority that the detenu is likely to be released on bail is based on the
materials. It is submitted that even otherwise the decision of this Court C
in the case of Rekha (supra) has been delivered by three Judges Bench
and the decision in the case of Dimple Happy Dhakad (supra) has
been delivered by two Judges Bench. It is submitted that in any case, in
the present case, as such no bail application of the detenus was pending
before any court. D
6.10 It is further submitted that even the question of severability
under Section 5-A of the COFEPOSA was never urged/pleaded by the
appellant/Detaining Authority either before the High Court or before
this Court in any of their pleadings. It is submitted that even otherwise
in view of the decisions of this Court in the cases of A. Sowkath Ali v. E
Union of India (2000) 7 SCC 148; and P. Saravanan v. State of T.N.
(2001) 10 SCC 212, Section 5-A of COFEPOSA shall not be applicable.
6.11 It is further submitted that even otherwise there was a delay
in deciding the representation and therefore also the orders of detention
were liable to be set aside. F
6.12 Learned counsel appearing on behalf of the detenus has also
requested to consider the observations made by the learned trial Court
while granting bail to the detenus, more particularly strictures on the
conduct of the DRI officials thereby highlighting illegal incarceration of
the detenus by the DRI and extraction of false statements during such G
illegal custody.
6.13 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeal/petitions and not to

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186 SUPREME COURT REPORTS [2019] 14 S.C.R.

A interfere with the impugned judgment and order passed by the High
Court quashing and setting aside the orders of detention.
7. We have heard the learned counsel for the respective parties
at length.
8. By the impugned judgment and order, the High Court has set
B aside the respective orders of detention and released the detenus, namely,
Ashok Kumar Jalan and Amit Jalan under the provisions of COFEPOSA.
The orders of detention are set aside by the High Court mainly, inter alia,
on the ground that there was a clear lapse and failure on the part of the
Detaining Authority, to examine and consider the germane and relevant
C question relating to the imminent possibility of the detenus being granted
bail, while recording its subjective satisfaction and passing the detention
orders and also on the ground that non-placement of the relevant material
in the form of Anand’s retraction petition and its non-consideration by
the Detaining Authority, also vitiates the detention orders.
D 8.1 Now so far as the first ground on which the detention orders
have been set aside, namely, there is a clear lapse and failure on the part
of the Detaining Authority, to examine and consider the germane and
relevant question relating to imminent possibility of detenus being granted
bail while recording its subjective satisfaction and passing the detention
orders is concerned, at the outset, it is required to be noted that in
E paragraph 7, the Detaining Authority observed and stated as under:
“7. I am aware that you, i.e., Shri Ashok Kumar Jalan are in
judicial custody at present at Presidency Correctional Home,
Alipore, Kolkata. However, there is an immediate possibility of
your release from judicial custody and if you are released on bail,
F you are likely to continue to indulge in the prejudicial activities and
therefore there is a need to issue a Detention Order against you
under the COFEPOSA Act, 1974 with a view to prevent you from
smuggling of gold and foreign currency in future.”
Therefore, it is evident that the Detaining Authority while passing
G the detention orders was aware of the fact that the detenus are actually
in custody; that there is a real possibility of their being released on bail;
and that on being so released they would in all probability indulge in
prejudicial activities and therefore it is essential to prevent them from
smuggling of gold and foreign currency in future.
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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 187
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

As per catena of decisions of this Court, even if a person is in A
judicial custody, he can be detained under the relevant provisions of the
concerned Act, like COFEPOSA etc. However, there must be a proper
application of mind and the Detaining Authority must have been
subjectively satisfied on considering the relevant material that there is a
reason to believe that there is a real possibility of detenus being released
B
on bail and that on being so released the detenus will in all probability
indulge in prejudicial activities. In the recent decision, this Court in the
case of Dimple Happy Dhakad (supra) had an occasion to consider
the aforesaid aspect and after considering the decisions of this Court in
the cases of Kamarunnisa (supra); Union of India v. Paul Manickam
(2003) 8 SCC 342; Huidrom Konungjao Singh v. State of Manipur C
(2012) 7 SCC 181; Dharmendra Suganchand Chelawat v. Union
of India (1990) 1 SCC 746; and Veeramani (supra), this Court
observed and held (i) that the order of detention validly can be passed
against a person in custody and for that purpose it is necessary that the
grounds of detention must show whether the Detaining Authority was
D
aware of the fact that the detenu was already in custody; (ii) that the
Detaining Authority must be further satisfied that the detenu is likely to
be released from custody and the nature of activities of the detenu indicate
that if he is released, he is likely to indulge in such prejudicial activities
and therefore, it is necessary to detain him in order to prevent him from
engaging in such activities; and (iii) the satisfaction of the Detaining E
Authority that the detenu is already in custody and is likely to be released
on bail and on being released, he is likely to indulge in the same prejudicial
activities with the subjective satisfaction of the Detaining Authority.
8.2 In the case of Noor Salman Makani (supra), a submission
was made regarding non-application of mind by the Detaining Authority F
with regard to the circumstance that the detenu was in jail and a mere
bald statement that the possibility that the detenu was likely to be released
on bail cannot be ruled out is not enough and it only shows that there
was no proper application of mind. This Court did not accept the said
submission and has observed that nothing more could have been said by
the Detaining Authority in this context. It is required to be noted that in G
the said decision the apprehension of the Detaining Authority came to
be true as the detenu was released on bail. This Court refused to set
aside the detention order on the aforesaid ground. It appears that the
detenus were waiting for the setting aside of the detention orders on the
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188 SUPREME COURT REPORTS [2019] 14 S.C.R.

A ground that they are in custody and that there is no real apprehension
that the detenus are likely to be released on bail.
As discussed earlier, the detention orders show the application of
mind by the Detaining Authority based on the material available on record,
facts and circumstances of the case, nature of activities and propensity
B of the detenus indulging in such activities. Therefore, in the facts and
circumstances of the case, the High Court has erred in setting aside the
detention orders on the ground stated hereinabove, namely, that there is
a clear lapse and failure on the part of the Detaining Authority, to examine
and consider the germane and relevant question relating to the imminent
possibility of the detenus being granted bail, while recording its subjective
C satisfaction and passing the detention orders.
8.3 A Constitution Bench of this Court in the case of Rameshwar
Shaw (supra) has observed and held that the detention of the said
person would be necessary after he is released from jail, and if the
authority is bona fide satisfied that such detention is necessary, he can
D make a valid order of detention a few days before the person is likely to
be released. It is further observed that “therefore 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 aforesaid decision of this Court, in the
E subsequent decision, in the case of N. Meera Rani v. Government of
T.N. (1989) 4 SCC 418, in para 22, this Court observed and held as
under:
“….Subsisting custody of the detenu by itself does not invalidate
an order of his preventive detention and the decision must depend
F 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 to 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 subsisting custody of the detenu and take that factor
G 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 proximate in point of time he must be detained in order
to prevent him from indulging in such prejudicial activities, the
H
UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 189
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

detention order can be validly made even in anticipation to operate A
on his release. This appears to us, to be the correct legal position.”
8.4 Now so far as the reliance placed upon the decisions of this
Court in the cases of Rekha (supra) and T.V. Sravanan (supra) by the
learned counsel appearing on behalf of the detenus is concerned, at the
outset, it is required to be noted that on the facts and circumstances of B
the case, narrated hereinabove, the aforesaid decisions shall not be of
any assistance to the detenus and/or, as such, the same shall not be
applicable to the facts of the case on hand. Even in the case of Rekha
(supra), the decision of the Constitution Bench of this Court in the case
of Rameshwar Shaw (supra) was not placed before the Court for
consideration and therefore this Court had no occasion to consider the C
said decision. It is also required to be noted that even after considering
the decision of this Court in the case of Rekha (supra), which has been
heavily relied upon by the learned counsel appearing on behalf of the
detenus, in the case of Dimpy Happy Dhakad (supra), this Court has
observed that even if a person is in judicial custody, he can be put on a D
preventive detention provided there must be an application of mind by
the Detaining Authority that (i) the order of detention validly can be
passed against a person in custody and for that purpose it is necessary
that the grounds of detention must show whether the Detaining Authority
was aware of the fact that the detenu was already in custody; (ii) that
the Detaining Authority must be further satisfied that the detenu is likely E
to be released from custody and the nature of activities of the detenu
indicate that if he is released, he is likely to indulge in such prejudicial
activities and therefore, it is necessary to detain him in order to prevent
him from engaging in such activities; and (iii) the satisfaction of the
Detaining Authority that the detenu is already in custody and is likely to F
be released on bail and on being released, he is likely to indulge in the
same prejudicial activities with the subjective satisfaction of the Detaining
Authority.
8.5 In the case of Kamarunnissa (supra), this Court concluded
as under: G
“(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.
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190 SUPREME COURT REPORTS [2019] 14 S.C.R.

A (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
B
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.
C (3) If the detenu has moved for bail then the application and the
order thereon refusing bail even if not placed before the detaining
authority it does not amount to suppression of relevant material.
The question of non-application of mind and satisfaction being
impaired does not arise as long as the detaining authority was
D 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
E 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
F when the detaining authority has not only referred to but also
relied upon them in arriving 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
G 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

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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 191
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

authority has to necessarily rely upon them as that would be a 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.”
9. Now applying the law laid down by this Court, referred to B
hereinabove, to the facts of the case on hand and considering the ground
(para 7) and the various circumstances noted by the Detaining Authority,
we are satisfied that the detention orders cannot be quashed on this
ground. It is to be noted that the detenus have been granted bail by the
Court on the very date the orders of detention were quashed by the
High Court, i.e., on 2.8.2019. Therefore, the apprehension in the mind C
of the Detaining Authority that the detenus are likely to be released on
bail was well founded and fortified. Therefore, the High Court has
fallen in error in quashing and setting aside the detention orders on the
ground that there is a clear lapse and failure on the part of the Detaining
Authority, to examine and consider the germane and relevant question D
relating to the imminent possibility of the detenus being granted bail,
while recording its subjective satisfaction and passing the detention orders.
10. Now so far as the other submissions made by the learned
counsel appearing on behalf of the detenus, which according to the
learned counsel were not considered by the High Court, namely, non- E
consideration of the relevant facts, namely, the retraction statement made
by Shri Anand, by the Detaining Authority is concerned, at the outset, it
is required to be noted that it appears that Memo No. 9920/AB-I dated
31.08.2019 of Jail Authority, prisoner’s (Shri Anand) petition dated
22.6.2019 was forwarded to the learned Chief Metropolitan Magistrate,
Calcutta only. It appears that the said petition was not forwarded to any F
other concerned including the Sponsoring Authority or Detaining Authority.
It also appears from the material on record that as per letter Memo No.
9899/AB-I dated 30.08.2019 of Jail Authority, a copy of the prisoner’s
petition of Shri Anand dated 22.6.2019 was forwarded on 22.6.2019
itself to the learned Chief Metropolitan Magistrate, Calcutta, The same G
was received by the office of the learned Chief Metropolitan Magistrate,
Calcutta on 24.6.2019. It appears that Shri Anand and the detenus herein
were produced before the learned Chief Metropolitan Magistrate, Calcutta
from judicial custody on 2.7.2019 and during the course of hearing, it

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192 SUPREME COURT REPORTS [2019] 14 S.C.R.

A had come to the notice of prosecution that a retraction petition was filed
by Shri Anand. Therefore, and accordingly, a request was made before
the learned Chief Metropolitan Magistrate, Calcutta for supply a copy
of the same and accordingly the learned Chief Metropolitan Magistrate
ordered advocate of Shri Anand to serve a copy of the retraction petition
vide order dated 2.7.2019. It appears from the material on record that
B
the office of DRI, Calcutta received a copy of the retraction petition of
Shri Anand dated 22.6.2019 on 15.07.2019. Much reliance is placed
upon the orders sheet of the learned trial Court dated 22.06.2019 in
support of the submission on behalf of the detenus that the Sponsoring
Authority was aware of the Anand’s retraction statement and therefore
C the Sponsoring Authority ought to have drawn the attention of the Detaining
Authority on the wider aspect of Anand’s retraction. However, it is
required to be noted that there are two orders available on the order
sheet of the trial Court. First is the handwritten order and other is a
typed order. All other orders are typed orders. The handwritten order
does not bear the stamp of the court and/or signature of the learned
D
Magistrate. Therefore, the handwritten order does not inspire any
confidence and therefore no reliance can be placed upon the handwritten
order on the order sheet of the trial Court dated 24.06.2019. Under the
circumstances, it appears that when the detention orders were passed
by the Detaining Authority, neither the Sponsoring Authority nor even
E the Detaining Authority was aware of any retraction petition of Shri
Anand. Under the circumstances, there was no occasion and/or reason
for the Detaining Authority to consider the retraction statement of Shri
Anand. Under the circumstances, it cannot be said that on non-
consideration of the Anand’s retraction petition, the detention orders have
been vitiated.
F
11. In view of the above and for the reasons stated above, the
High Court has committed a grave error in quashing and setting aside
the detention orders and interfering with the subjective satisfaction of
the Detaining Authority. Consequently, the appeal preferred by the
Detaining Authority, i.e., Civil Appeal arising from Special Leave Petition
G (Criminal) No. 7010 of 2019 is allowed, the impugned judgment and
order passed by the High Court quashing and setting aside the detention
orders is hereby quashed and set aside and the detention orders of the
respective detenus are hereby restored. The detenus, i.e., Ashok Kumar
Jalan and Amit Jalan shall be taken into custody forthwith by the Detaining
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UOI THR. JOINT SECY. (COFEPOSA), MINISTRY OF FINANCE, NEW 193
DELHI v. ANKIT ASHOK JALAN [M. R. SHAH, J.]

Authority. Accordingly, the special leave petition preferred by the A
respondent, i.e., Special Leave Petition (Criminal) No. 7013/2019 stands
dismissed.
Writ Petition (Criminal) Nos. 204, 206 & 209/2019
As stated above, Writ Petition (Criminal) Nos. 204/2019, 206/
2019 and 209/2019 have been preferred by the respective writ petitioners B
under Article 32 of the Constitution of India for an appropriate writ,
direction or order declaring that the disjunctive ‘or’ in Section 13 of the
COFEPOSA Act shall be read as ‘and’ so that only those actions which
are actually done in good faith would be protected under the said Section,
to enable the respective petitioners to take such further action against C
the Detaining Authority, as may be permissible in law. But in support of
the prayer(s) made in the writ petitions, during the course of hearing, no
such submissions were advanced by the learned counsel for the respective
petitioners.
Even otherwise, in view of our judgment rendered in Criminal D
Appeal arising from Special Leave Petition (Criminal) No. 7010/2019,
we find no merits in the present writ petitions and they are accordingly
dismissed.

Divya Pandey Matters disposed of.
E

F

G

H