B. S. KAPADIA, Y. B. BHATT, J. ( 1 ) THE petitioner is detained in pursuance of the detention order dated 21-5-1990 passed by the Joint Secretary to the Government of India Ministry of Finance Department of Revenue (Shri Mahendra Prasad) under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling. Activities Act on his being satisfied with respect to the petitioner that with a view to preventing the petitioner from abetting the smuggling of goods it is necessary to detain him. The order of detention was served on the petitioner on 30-5-1990. The grounds of detention dated 21-5-1990 were also served on the petitioner on 30-5-1990. ( 2 ) ON perusal of the grounds it appears that petitioner is the owner of a boat known as Umiyawati bearing registration No. PBR 394 Information was received by the Customs Office on 24 that one fishing boat bearing registration No. PBR 399 carrying contraband silver in huge quantity was lying opposite the godown of old jatty in Porbandar Port area. A team of Porbandar Customs Officers rushed to the port area and started search operation to locate the said boat. After intensive search the boat was located in abandoned condition. The boat was thoroughly searched in the presence of two independent panchas which resulted in recovery of 196 silver slabs having foreign markings from the hatches of the boat Said silver slabs were totally weighing 6383. 456 kgs. valued at Rs 4 47 54 537/- The said silver slabs were liable to be confiscated and hence under the Panchnama dated 24 they were seized Said boat along with its tackles valued at Rs 5 lacs was also placed under seizure by the Customs Officer on 25-1-1990 ( 3 ) THE statement of the petitioner was recorded on 24 wherein the petitioner has inter alia admitted that he was the ownercum-tindel of the said Boat No. PBR 899; that he got the said boat around last Diwali; that he got the boat registered with the Port Authorities got valid fishing pass from the Customs House Porbandar. It is further stated in the said statement under Section 188 of the Customs Act that after 15 one Mamad Machhiyara came to Porbandar to see him and said Mamad asked the petitioner to utilise his boat Umiyavati for crossing of contraband silver for which Mamad offered him Rs 50 0 that he agreed to do the job for which an advance of Rs 25 0 was received by him from Mamad; that on 21-1-1990 after fishing and off-loading the fish at the coast petitioner relieved other crew except two persons viz. Jivan Mavji Gohel and Rama Mandan Hodar; that the petitioner along with said two crew remained on the boat; that in the evening of 22-1-1990 Mamad of Mangrol Bara came to petitioners boat and all of them left Porbandar; that as per the direction of Mamad the petitioner and offices sailed towards Navadra in the night of 22-1-1990 and halted a fathom water opposite to Navadra light house and lighted two lamps on his boat; that in the night of 23-1-1990 one Pakistani boat with tow lamps came near to his boat; that at that time Mamad shouted Akbar - Akbar and in reponse to which a person from Pakistani boat shouted Mamad - Mamad and Pakistani boat came along side of his boat; that Mamad had a talk with the person in Pakistani boat regarding the contraband goods; that thereafter crew of the Pakistani boat off-loaded the silver slabs from their boat to the petitioners boat; that the petitioner along with other crew arranged the silver slabs into the hatch of his boat which on counting was found to be 196; that the petitioner removed the jute packing from two slabs and checked; that the silver slabs were having some marks on them; that after delivery the Pakistani boat returned and the petitioner started his boat towards Porbandar and arrived at Porbandar Port Area in the early morning of 24-1-1990; that Mamad got down from petitioners boat and went to the city to arrange for the vehicle for transportation of the silver slabs but he returned due to morning sunlight and told petitioner that he (Mamad) would come back in the night to take the delivery of the silver slabs; that the petitioner along with other two crew remained on boat waiting for Mamad; that at about 16. 00 hours of 24-1-1990 the petitioner found some customs officers in the Port Area checking all fishing boarts and due to fear of being caught all the people got down from the boart and waited away from the boat keeping watch on the movements of the customs officers; that when the customs officers boarded his boat Umiyavati and recovered the silver slabs kept in the hatch of the boat all the people ran away from the place and that all of them were hinding from one place to another till 244-1990 when the customs officers caught the petitioner and other and brought to the Customs Office Porbandar. Thereafter statements of other persons were recorded. ( 4 ) IN the grounds of detention it is pointed out that departmental adjudication and prosecution proceedings under the Customs Act would be initiated against the petitioner and other in due course by the appropriate authority separately. The petitioner along with Jivan Mavji Gohel and Ram Mandan Hodar was produced before the Judicial Magistrate and the petitioner was remanded to judicial custody. It is also stated in para 12 of the grounds of detention that the detaining authority has considered all the facts and circumstances of the case and has carefully considered the material placed before him and he was satisfied that the petitioner has abetted the smuggling of goods and would continue his prejudicial activity in case his movements are free. It is also mentioned that the detaining authority was aware that at present the petitioner is in judicial custody. However looking to his role in the prejudicial activity and as there is every possibility of his release on bail in the near future he was satisfied that it was necessary to detain the petitioner under the COFEPOSA with a view to preventing him from abetting the smuggling of goods. ( 5 ) VARIOUS contentions have been raised in the present petition but Mr. Kiran Jani learned Advocate for the petitioner has pressed only ground No. 5 of the petition and submitted that at the time when the petitioner was detained he was under judicial custody and that there must be apprehensive material on record to justify the detention of a person who is in the judicial custody otherwise the subjective satisfaction would be illusory and not genuine and therefore the order of detention is null and void. For justifying his contention he has pointed out from the petition that no bail application of petitioner is pending decision and that from the date of his arrest till the detaining authority has passed the order of detention on 21-5-1990 the petitioner has not made any bail application. He further pointed out that from the date of service of the impugned order till today the petitioner has not made a single attempt to get himself released on bail. Under the circumstances Mr. Jani submits that there is no material on record to suggest that there is a possibility of the petitioner being released on bail in near future and in absence of any apprehensive material on that point the subjective satisfaction arrived at by the detaining authority is vitiated and therefore the order of detention is null and void. ( 6 ) ON this point there is affidavit-in-reply filed by the respondent No. 2 wherein in para 9 it is clearly pointed out that he was also aware of the fact that the detenus bail application is not pending before the Court and therefore looking to the role in prejudicial activities and as there was every possibility of his being released on bail in near future he was satisfied that it was necessary to detain him under the COFEPOSA and that there was compelling necessity and after careful consideration of the documents and materials placed before him he was subjectively satisfied and accordingly he passed the order. The other allegations made in the petition are denied. ( 7 ) IN these connection Mr. Jani has placed reliance on various authorities. However he has only confined to two authorities and they are the judgments in the cases of (i) Vijay Kumar v. Union of India AIR 1988 SC 934 and (ii) Dharmendra Suganchand Chelawat v. Union of India Judgment Today 1990 (1) SC 184. In the case of Vijay Kumar (supra) relevant observations are made in para 15 of the said judgment after considering various judgments of the Supreme Court in paras 12 13 and 14 In the case of Dharmendra Suganchand (supra) the aforesaid judgment in the case of Vijay Kumar has been considered by the Supreme Court in paras 11 and 18 of the said judgment. After considering various judgments on the point in para 21 conclusion is arrived at by the Supreme Court as under:the decision referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near further and (b) taking into account the nature of the antecedent activities of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. This is a case in which the Supreme Court has already explained as to what would be the compelling reasons and one of them is that there must be cogent material before the detaining authority on the basis of which it can be said that the detenu is likely to be released from the custody in near future. In this case according to Mr. Jani the learned Advocate appearing for the petitioner no application for bail is made on behalf of the petitioner right from the date of his detention till today and no such application is pending before the court for decision. Mr. Jani has also assured us that no such bail application would be made on behalf of the petitioner for releasing him on bail during the pendency of the criminal case which is pending under the Customs Act. Mr. Jani states that he makes this statement under specific instruction of the petitioner. ( 8 ) IN view of the assurance given by Mr. Mr. Jani states that he makes this statement under specific instruction of the petitioner. ( 8 ) IN view of the assurance given by Mr. Jani and in view of the fact that in the affidavit-in- reply no material is pointed out on the basis of which it can be said that the petitioner would be released from custody in near future there was no material before the detaining authority to satisfy himself on the point that the petitioner was to be released in near future. Therefore on that ground alone the petition deserves to be allowed. ( 9 ) HOWEVER it is clarified that in spite of the aforesaid assurance of Mr. Jani if the petitioner makes any such application for bail during the pendency of the aforesaid criminal case and if the petitioner is ordered to be released from custody the question of his preventive detention under the COFEPOSA on the basis of the above material may be considered by the appropriate authority in accordance with law and this decision shall not be construed as an impediment for that purpose. ( 10 ) IN the result the petition stands allowed. The order of detention passed against the petitioner or 21 (Annexure-A to the petition) is set aside. The petitioner will cease to be a detenu under the COFEPOSA and he be transferred to judicial custody. Rule is accordingly made absolute. Copy of this judgment be sent to the concerned Chief Judicial Magistrate for information with regard to the above observation. (RPV) Petition allowed. .