NEW DELHI, MAY 02, 2013: ROHIT Sakhuja and Ajit Singh Chadha have been subjected to detention vide order dated 04.01.2013 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Relevant para of one of the detention orders read:

"47. I am aware that you are liable to punitive action under the Customs Act, 1962 and connected prosecution proceedings and adjudication proceedings are likely to be initiated against Shri Ajit Singh Chadha alias Romy i.e. you. I am also aware that at-present you are under judicial custody for the matter being investigated by Police authorities and your bail application had been rejected at the first instance. However, taking into consideration your conducts all throughout the period since the investigation was initiated by DRI and your tendency to abscond, I am satisfied that you have high potentiality and propensity to indulge in aforesaid prejudicial activities, therefore, I am further satisfied that in the meantime you should be immobilized by detention under the COFEPOSA Act, 1974 which a view to prevent you from engaging in smuggling goods in future."

The Writ Petitions challenge the above detention orders on various grounds. After referring to various judgements of the Supreme Court, especially in Binod Singh v. District Magistrate, Dhanbad , Bihar & Ors., (1986) 4 SCC 416, wherein the Supreme Court opined:-

It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence . If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised….."

The High Court held that:

From a reading of the said paragraph, it is clear that if a detenu is in police or judicial custody and there is no imminent possibility of his release, the rule is that the power of preventive detention should not be exercised. However, when there is imminent possibility that the person in custody may be released, power of preventive detention can be exercised.

Other than paragraph 47 quoted above and paragraph 40 which we have noticed, no other paragraphs in the grounds of detention deal with bail applications and orders passed by the courts on the bail applications preferred by the detenues . It is clear from paragraph 47 that in the case of Ajit Singh Chadha , on the date when the impugned detention order was passed, he was in judicial custody and it is recorded that his bail application in the first instance had been dismissed and rejected.

In the case of detention order against Rohit Sakhuja , the situation is no better. It is stated that he had been arrested and was in judicial custody since arrest as the matter was being investigated by the police authorities. There is no averment that Rohit Sakhuja had filed any bail application or was likely to file a bail application and consequent thereto there was imminent possibility that he would be released on bail. It was not recorded that in similar cases other accused have been granted or released on bail. In fact, it is averred in the writ petition and accepted that Rohit Sakhuja has not preferred any regular bail application till today. Prior to his arrest he had filed anticipatory bail applications which were rejected by the Sessions Court and High Court.

In view of the aforesaid position, we do not think that the detention orders can be sustained as there is a clear lapse and failure on part of the Detaining Authority to examine and consider the aforesaid pertinent question relating to imminently possibility of the detenu being granted bail in the criminal cases in which they were detained while passing the detention orders.

Preventive Detention is permissible under Article 22(3 )( b) of the Constitution of India but the same has to ordered/directed keeping in view that right to life and liberty are enshrined in Article 21 of the Constitution of India. Preventive detention is an extreme step which is required and may be justified, but when a detention order does not meet the prescribed parameters and fails to comply with the procedural requirements, the order stands vitiated and has to be struck down.

(See 2013-TIOL-345-HC-DEL-COFEPOSA)