S.K. Kondo vs Deputy Secretary to Govt. of Tamil Nadu and Another

Davit Annoussamy, J.—This is a petition by the wife of the detenu Marineri Kondo, under Art. 226 of the Constitution for the issuance of a

writ of Habeas Corpus quashing the order of detention passed against the detenu and setting him at liberty.

The order of detention was passed by the Government of Tamil Nadu on 13-5-1986 with a view to preventing the detenu from smuggling

goods.

The circumstances under which the order of detention was passed are as follows : The detenu who is a Japanese national arrived at the Madras

Airport coming from Singapore and he opted for Greek Channel in Customs. When upon suspicion, his baggage were opened, the following were

recovered -

(1) Four gold biscuits each weighing 10 tolas from the bottom portion of the Achiever flash;

(2) Five gold biscuits each weighing ten tolas from the automatic shutter; and

(3) Three gold biscuits, each weighing ten tolas from each log of the tripod stand of the camera;

The total gold so recovered amounts to 18 gold biscuits.

The main ground urged before us by the learned Counsel for the petitioner is that the detenu, at the time of the order of detention, was in jail and

that there was no compelling necessity to pass an order of detention. He placed before us the following decisions -

Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, , and Kista Pillai Vs. Amirthammal, .

The learned Counsel appearing for the Public Prosecutor has stated that there was very much compelling necessity in this case and placed

before us the following decisions :

Suraj Pal Sahu Vs. State of Maharashtra and Others, ,

The following propositions emerge from the abovesaid decisions :-

(i) When the person to be detained is in jail, the detaining authority should be aware of that fact;

(ii) Once such an awareness is created, there must be compelling necessity for the authority to pass the order of detention;

(iii) Such compelling necessity must be made apparent in the grounds of detention;

(iv) The compelling necessity should be such that the activities are so interlinked and continuous in character that they warrant an order of

detention; and

(v) The compelling necessity so disclosed in the order of detention is justiciable and the Court can come to the conclusion that such necessity on

the basis of the facts disclosed did not exist;

Both parties agreed that these are the propositions which emerge from the decisions placed by them.

The process of remand of a person accused of an offence has got its frail, logic and formalities and the order of detention has got on its side its

own purpose and objectives. But both have the same practical result on the person concerned. Also in both the matters, the State has got a say. In

deserving cases, the State may, by approaching, if necessary, the highest court see that bail is not granted to the person concerned, by putting forth

all the facts and circumstances of the case as it has come in the present one. But, at the same time, if the case is of such a grave nature, the State

might find it safe to have a double lock and therefore to clamp an order of detention in spite of the person being in jail in spite of its intention to

oppose further petition for bail. It is clear from the rulings of the Supreme Court, that where an order of detention is passed on a person, who is

already on remand, there should be compelling necessity. Whether such a compelling necessity existed has to be decided upon the facts and

circumstances of each case.

In the present case, apart from saying in para 4 of the grounds of detention that there was a compelling necessity and that the detaining authority

was aware of the fact that detaining authority was aware of the fact that the petitioner was on remand the authority has not pointed out, what in his

mind prompted him to consider that there was such a compelling necessity. Even thereafter till the end of the argument, apart from saying that the

detenu has concealed the gold biscuits in camera, nothing was added by way of reasons, which would constitute the compelling necessity.

Obviously, any person with the intention to smuggle, will conceal the gold in one way of other and he will not expose it to eye of the others.

Therefore, the simple fact of having concealed the gold in some apparatus cannot be considered as being a very important circumstance, which

constitutes compelling necessity.

In this case, as the detenu appears to be a foreign national and therefore, unless the case against him is over, he gets the punishment he deserves

and undergoes such punishment, he will not be in a position to leave the country and indulge in any further smuggling activities. The state has,

therefore, every possibility to have an eye on the person concerned in order to prevent him from indulging in further smuggling activities in

consultation with the corresponding consular agencies. Therefore, in this case, the compelling necessity is neither disclosed clearly in the grounds of

detention, nor made clear before us by the counters and arguments by the respondents.

Learned Counsel appearing for the Public Prosecutor brought before us a decision of this Court, in which one of us, was a party in W.P. 1726

to 1730 of 1988 in which this Court has decided that there was compelling necessity even though many details were not given in the order of

detention. We have found that the detenus have indulged in large scale smuggling, with the help of a vessel they have hired solely for the purpose of

smuggling and that, therefore, they represented a team of wide dangerous dimension. It is not so in this case.

In the result, this writ petition is allowed and the order of detention is set aside and the detenu (Morinari Kondo) is directed to be set at liberty

forthwith, unless required otherwise.

Petition allowed.