A two-judge bench of The Hon'ble Supreme Court of India, in a recent judgment in Union of India v. Dimple Happy Dhakad (AIR 2019 SC 3428) set aside a Bombay High Court judgment, which had quashed detention order passed against one Dimple Happy Dhakad, thereby restoring the detention order.
One of the major ground discussed for setting aside the detention order was the non-pendency of a bail application of the accused, rendering the detention order bad in law. The judgment of the Supreme Court in Dimple Happy Dhakad appears to be contrary to the settled law, with respect to the passing of detention orders against persons already in judicial custody.
Preventive Detention and it's narrow scope:
A three-judge bench of the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, noted the very narrow scope of Preventive Detention Law:
"Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise, we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal."
Detention order for a detenu already in custody:
A detention order can be passed against a detenu even if he is already in judicial custody. Since ordinary procedure under the Code of criminal procedure provides for the law in that situation, the courts have developed a legal principle that detention orders can be passed against someone who is already in judicial custody, however, there has to be an imminent possibility of release of the detenue from judicial custody.
While passing of the detention order, the detaining authority must record the satisfaction of imminent release of detenu from judicial custody. Such satisfaction cannot be mere ipse dixit i.e.there has to be some compelling reason/material to believe that the detenu could be released and mere bald expression of such a statement cannot suffice.
For instance, if there is no pending bail application, certainly there would be no possibility of the detenue being released. In Rekha (Supra), this position of law is enunciated as follows:
"It has been held in T.V. Sravanan v. State [(2006) 2 SCC 664 : (2006) 1 SCC (Cri) 593] , A. Shanthiv. Govt. of T.N. [(2006) 9 SCC 711 : (2006) 3 SCC (Cri) 371] , Rajesh Gulati v. Govt. of NCT of Delhi[(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] , etc. that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. These decisions appear to have followed the Constitution Bench decision in Haradhan Saha v. State of W.B. …
In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.
In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal.
The Conundrum created by Dimple Happy Dhakad:
In Dimple Happy Dhakad (Supra), the Supreme Court set aside the Bombay High Court judgment which set aside detention order, inter alia, on the ground that there was no application of mind indicating the satisfaction of the detaining the authority that there was an imminent possibility of detenues being released on bail.
One of the questions framed by the Supreme Court was as follows:
'(ii) Whether the High Court was right in quashing the detention orders merely on the ground that the detaining authority has not expressly satisfied itself about the imminent possibility of the detenues being released on bail?'
While noting the well-settled law with respect to detention order passed against a person in custody, the court noted the rejection of the bail application of the detenu clearly, as follows:
"…In the present case, the detention orders dated 17.05.2019 record the awareness of the detaining authority:- (i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. …But the detaining authority has clearly recorded the antecedent of the detenues and its satisfaction that detenues Happy Dhakad and Nisar Aliyar have the high propensity to commit such offences in future.
The court, however then proceeded to examine the 'subjective satisfaction' of the detaining authority and then it appears that on the basis of the 'grave' allegations of smuggling huge amounts of gold, the Hon'ble court was inclined to set aside the judgment of the Bombay High Court and restore the detention orders, in the following words:
"The satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority. In Senthamilselvi v. State of T.N. and Another (2006) 5 SCC 676, the Supreme Court held that the satisfaction of the authority coming to the conclusion that there is likelihood of the detenu being released on bail is the "subjective satisfaction" based on the materials and normally the subjective satisfaction is not to be interfered with.
The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that detenu Nisar Aliyar has been indulging in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua detenu Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and his relatives. The High Court, in our view, erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released on bail which is in violation of the principles laid down in Kamarunnisa and other judgments and Guidelines No.24. The order of the High Court quashing the detention orders on those grounds cannot be sustained."
This position in law and consequently its application on the 'grave' facts are then put as follows:
"The court must be conscious that the satisfaction of the detaining authority is "subjective" in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested. In the present case, huge volume of gold had been smuggled into the country unabatedly for the last three years and about 3396 kgs of the gold has been brought into India during the period from July 2018 to March 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have the propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure. Based on the documents and the materials placed before the detaining authority and considering the individual role of the detenues, the detaining authority satisfied itself as to the detenues' continued propensity and their inclination to indulge in acts of smuggling in a planned manner to the detriment of the economic security of the country that there is a need to prevent the detenues from smuggling goods. The High Court erred in interfering with the satisfaction of the detaining authority and the impugned judgment cannot be sustained and is liable to be set aside."
The Hon'ble Supreme court set aside the detention orders on the subjective satisfaction of the detaining authority as to the smuggling of huge quantity of gold and its serious effects on the nation. However, it is also clear that bail applications filed by the detenu has been rejected, which would itself rendered the detention order bad in law, as discussed above. It appears that this view in Dimple Happy Dhakad (Supra) seems to flow contrary to the law laid down by the Supreme Court, well enunciated in Rekha (Supra).
The Author is a Lawyer practicing at the Delhi High Court. The authors views are personal.