Sat Pal ( 1 ) IN this case the petitioner was detained pursuant toorder of detention bearing No. F. 5/60/91-Home (P-11 dated 16/08/1991. passed by the Adaiinistrator of Union Territory of Delhi in exercise of powers conferred by Section 3 (1) read with Section 2 (f) of the Conservation of Foreign Exchange s Prevention of Smuggling Activities Act, 1974 (forshort called coffposa ). The order of detention was served on thepetitioner on 19/08/1991 while he was in custody. It appears that adeclaration under Section 9 (1) of COFEPOSA was also issued though a copyof the same has not been placed on the file. ( 2 ) BRIEFLY stated the facts of the case are that on 2/06/1991 thepetitioner arrived at IGI airport. New Delhi from Kaulalampur and opted forgreen channel and when he reached near the exit gate, he was intercepted bythe customs officers on suspicion and was diverted for screening of thebaggage. On screening of the briefcase one red white colour plastic envelopewas found concealed between the upper hard top and inner lining of thebriefcase. The said envelope was opened and two packets wrapped withblack colour carbon papers were recovered. On un-wrapping the carbonpapers, two gold bars of one kg. , each of foreign markings were recovered. A certified goldsmith was called on the spot who certified the recovered goldto be of 24 carat purity and the gold was valued at Rs. 7,40,000. 00. The saidgold was seized under Section 110 of the Customs Act, 1962 and a detailedpanchnama dated 2-6-1991 was also drawn. On 2-6-1991 the petitioner inhis statement under Section 108 of the Customs Act, 1962, admitted therecovery and seizure of the said gold and stated that the recovered goldbelonged to one Suleman Noor Mohammed who travelled with him fromkaulalampur It is further alleged that the petitioner was to hand over thesaid gold to said Suleman outside Delhi airport and in case he could not doso, he was to visit Prakash Hotel, Paharganj to deliver the gold to Suleman. However, the said statement was retracted by the petitioner vide an application dated 17/06/1991 filed in the Court of the learned ACMM, Newdelhi. ( 3 ) THE petitioner was arrested on 2-6-1991 and was remanded tojudicial custody till 17-6-1991 by ACMM, New Delhi on 3-6-la91. Theremand was further extended till 29-6-1991 and thereafter upto 12-1-1991. However, the said statement was retracted by the petitioner vide an application dated 17/06/1991 filed in the Court of the learned ACMM, Newdelhi. ( 3 ) THE petitioner was arrested on 2-6-1991 and was remanded tojudicial custody till 17-6-1991 by ACMM, New Delhi on 3-6-la91. Theremand was further extended till 29-6-1991 and thereafter upto 12-1-1991. It may also be pointed out here that the petitioner filed a bail applicationon 17/06/1991 in the Court of ACMM, New Delhi which was rejectedvide order dated 19/06/1991. ( 4 ) IT has been stated in para 7 of the writ petition that the residentialpremises of the petitioner were searched at Bombay by the officers of the customs and the aforesaid search resulted in nil recovery which was evidentfrom the panchnama, a copy of which is Annexure-D to the writ petition. ( 5 ) THE petitioner has challenged the order of detention in this writpetition on the basis of various grounds mentioned in the writ petition. Ms. Sangeeta Nanchahal, learned Counsel for the petitioner, however, confined her submissions to the following contentions :- 1. That the residential premises of the petitioner were gotsearched but nothing incriminating article was recovered but thepanchnama showing nill recovery was not placed before the Detaining Authority and the same being a vital document could influenecethe mind of the detaining authority. The detention order, therefore. stands vitiated due to non-application of mind by the detainingauthority. 2. That there was no material before the detaining authoritynecessitating the detention of the petitioner who was already in judicial custody and his only bail application had been dismissed on19-6-1991 by the ACMM, New Delhi. ( 6 ) NOW I proceed to examine the contentions urged by the learnedcounsel for the petitioner. Firstly. I examine the second contention urgedby the learned Counsel for the petitioner. In support of this contention thelearned Counsel drew my attention to paras 9 and 10 of the writ petition. Ithas been stated in para 9 of the petition that there was no immediate need todetain the petitioner preventively because he was already in judicial custodyand his only bail application was already dismissed on 19-6-1991. In support of this contention thelearned Counsel drew my attention to paras 9 and 10 of the writ petition. Ithas been stated in para 9 of the petition that there was no immediate need todetain the petitioner preventively because he was already in judicial custodyand his only bail application was already dismissed on 19-6-1991. In para 10it has been stated that there is non-application of mind as the conclusion ofthe detaining authority that the possibility of the petitioner getting releasedon bail could not be ruled out in the near future as he was making efforts forbeing released on bail, was not based on any material and the same washypothetical. Learned Counsel for the petitioner relying on these avermentscontended that the conclusion arrived at by the detaining authority washypothetical as there was no material before the detaining authority that thepetitioner was making efforts for being released on bail. In support of thiscontention the learned Counsel placed reliance on a Supreme Court judgmentin Shri Dharmendra Suganchand Chelawat through his sister Kumari Archanachelawat v. Union of India and Others, JT 1990 (1) SC 184. ( 7 ) A counter affidavit has been filed on behalf of the respondents andin reply to paras 9 and 10 it has been submitted that the petitioner hadmoved an application for bail which was rejected on 19-6-1991 and possibilityof filing another application in future and consequent release could not beruled out. It was further submitted that the passport of the petitionerrevealed that he had gone to Dubai three times earlier for short visits and hemight have brought gold on earlier occasions also. The law on the pointwhether an order of detention can be passed against a person who is alreadyin custody was laid down by a Constitution Bench of the Supreme Court inrameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334 . Following the law laid down in this case and after a review of subsequentdecisions a three Judges Bench of the Supreme Court in the case of N. Meerarani v. Government of Tamil Nadu and Another, JT 1989 (3) SC 478 summarised the position of law as follows :- "we may summarise and reiterate the settled principle. Following the law laid down in this case and after a review of subsequentdecisions a three Judges Bench of the Supreme Court in the case of N. Meerarani v. Government of Tamil Nadu and Another, JT 1989 (3) SC 478 summarised the position of law as follows :- "we may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order ofhis preventive detention and the decision must depend on the factsof the particular case preventive detention being necessary toprevent the detenu from acting in any manner prejudicial to thesecurity of the State or to the maintenance of public order etc. ordinary it is not needed when the detenu is already in custody, thedetaining authority must show its awareness to the fact of subsistingcustody of the detenu and take that factor into account while making the order, but, even so, if the detaining authority is reasonablysatisfied on cogent material that there is likelihood of his releaseand in view of his antecedent activities which are proximate in pointof time he must be detained in order to prevent him from indulgingin such prejudicial activities, the detention order can be validly madeeven in anticipation to operate on his release. This appears to us,to be the correct legal position. " ( 8 ) THE principle of law as summarised in the case of N. Meera Rani (supra) was reiterated in a subsequent judgment of the Supreme Court inshri Abdul Sathar lbrahim Manik v. Union of India and Others, JT 1991 (4)SC 103 which has been relied upon by the learned Counsel for respondentno. 2. Even in the case of Dharmender (supra) relied upon by the learnedcounsel for the petitioner, same principle has been reiterated. From thegrounds of detention it is clear that the detaining authority was aware of thefact that the petitioner was in judicial custody and was further of the viewthat possibility of his getting released on bail could not be ruled out in thenear future as he was making efforts for release on bail. It has also beenstated in the grounds of detention that in fact the petitioner filed a bail application dated 17-6-1991 which was rejected by the ACMM, New Delhi on19-6-1991. It has further been stated therein that the scrutiny of passportrevealed that the petitioner had visited Dubai thrice in 1988 and visitedkaulalampur once in 1991. It has also beenstated in the grounds of detention that in fact the petitioner filed a bail application dated 17-6-1991 which was rejected by the ACMM, New Delhi on19-6-1991. It has further been stated therein that the scrutiny of passportrevealed that the petitioner had visited Dubai thrice in 1988 and visitedkaulalampur once in 1991. Relying on these facts, it was stated that thedetaining authority hasarrived at conclusion that the petitioner had beenindulging in smuggling activities and unless prevented he was likely to indulgein the smuggling activities in future when released on bail. Keeping in viewthese facts mentioned in the grounds of detention, I do not find any force inthis contention urged by the learned Counsel for the petitioner and accordingly the said contention is rejected. ( 9 ) AS regards the first contention, the learned Counsel for the petitioner referred to para 7 of the writ petition wherein it has been statedthat the residential premises of the petitioner by searched at Bombay bythe officers of the customs and the said search resulted in nil recovery as isevident from the copy of the panchnama of search which is Annexure-Dto the writ petition. It has further been stated that the said panchnamawas a relevant and vital material which has been with held by the sponsoringauthority and was not placed before the detaining authority at the time ofpassing of the detention order and this has vitiated the continued detentionof the petitioner. It may be relevant to point out here that in reply to thisaverment, it has been stated in the counter affidavit filed on behalf of therespondents that no information regarding search of the residential premisesof the petitioner was received from the customs department and the customsdepartment may reply to this para. However, no separate reply on behalfof the customs department has been filed. ( 10 ) IN support of this contention the learned Counsel for the petitioner has placed reliance on the following judgment in Ashadevi v. K. Shivraj and Mr. , AIR 1979 SC 447 , P. U. Abdul Rahtman v Union of Indiaand Others, AIR 1991 SC 336 , Mamnder Singh v. Union of India and Others,1990 (2) DL 232 and Amurjit Singh v. Union of India and Others, 44 (1991)DLT 649. ( 11 ) MR. Jagdev Singh, the learned Counsel for respondent No. 2. , AIR 1979 SC 447 , P. U. Abdul Rahtman v Union of Indiaand Others, AIR 1991 SC 336 , Mamnder Singh v. Union of India and Others,1990 (2) DL 232 and Amurjit Singh v. Union of India and Others, 44 (1991)DLT 649. ( 11 ) MR. Jagdev Singh, the learned Counsel for respondent No. 2. However, submitted that even if the Panchnama indicating nil recovery fromthe residential premises of the petitioner was not placed before the detainingauthority, the detention order could be sustained on the basis of the othergrounds mentioned in the said order. In support of his contention heplaced reliance on two Supreme Court judgments in Prakash Chand Mehtav. Commissioner and Secretary, Government of Kerala and others, AIR 1986sc 687 and Madan Lal Anand v. Union of India and Others, IT 1989 (Supp)SC 295. ( 12 ) NOW I may consider the cases relied upon by the learned Counselpetitioner. In the case of Asha Devi (Supra) it was held that the subjectivesatisfaction requisite on. the part of the detaining authority will getvitiated if material or vital facts which would have a bearing on the issueand would influence the mind of the detaining authority one way or theother, are ignored or not considered by the detaining authority beforeissuing the detention order. ( 13 ) IN the case of PU Abdul Rahman (Supra) the Supreme Courtreiterated the law laid down in an earlier judgment in the case of M. Abdulkutty v. Union of India, 1990 (2) SCC 1 , that if the bail application and theorder granting bail which were vital material for consideration are not considered, the satisfaction of the detaining authority would be impaired. ( 14 ) IN the case of Maninder Singh (Supra) a learned Single Judgeof this Court held that a panchnama showing nil recovery from the residenceof the detenu was a vital document which could have swayed the mind of thedetaining authority and since such a document was not placed before thedetaining authority, the detention order stood vitiated. The same view wastaken by another learned Single Judge of this Court in the case of Amarjitsingh (Supra ). The same view wastaken by another learned Single Judge of this Court in the case of Amarjitsingh (Supra ). ( 15 ) IN the case of Prakash Chand Mehta (Supra) relied upon by thecounsel for respondent No. 2, it was held that when the detention orderhas been made on two or more grounds such order of detention shall bedeemed to have been made separately on each of such ground and accordingly if one irrelevant or inadmissible ground had been taken into consideration, that would not make the detention order bad. It was, therefore,held that even if the detaining authority had not taken into considerationthe fact regarding the retraction of the statement by the detenu there wereother facts and good enough material to come to the prima facie belief thatthe detention of the detenu was necessary. The said principle of law was reiterated by the Supreme Court in its subsequent judgment in the case ofmadan Lal Anand (Supra ). ( 16 ) FROM the law laid down by the Supreme Court in the casesrelied upon by the learned Counsel fur respondent No. 2, it is clear that incase a confession made by a detenu in his statement recorded under Sec. 108of the Customs Act was subsequently retracted and the said falt was notplaced before the detaining authority at the time of passing of the detentionorder, this will not make the detention order bad in case such an order is sustainable on the basis of other grounds. ( 17 ) BUT in the. present case the real question in issue is whether adocument indicating nothing incriminating recovered from the residentialpremises of the detenu, was a relevant and material document which couldhave influenced the mind of the detaining authority if it had been placedbefore him at the time of passing the detention order. I think answer to thisquestion is found in the judgments of this Court in the Cases of Manindersingh (Supra) and Amarjit Singh (Supra), wherein it was held that such adocument was a vital and releva. I think answer to thisquestion is found in the judgments of this Court in the Cases of Manindersingh (Supra) and Amarjit Singh (Supra), wherein it was held that such adocument was a vital and releva. nt document and in case the same wasnot placed before the detaining authority, the detention order stood vitiated ( 18 ) IN this connection it will be relevant to refer to the followingconclusion in Shri Abdul Sathar Ibrahim Manik (supra) : "in a case where detenu is released on bail and it is at liberty atthe time of passing the order of detention, the detaming authorityhas to necessarily rely upon them as that would be a vital groundfor ordering detention. In such a case the bail application and theorder granting bail should necessarily be placed before the authorityand the copies should also be supplied to the detenu. " ( 19 ) IN view of the above discussion, I am of the view that the Panchnama showing nil recovery from the residence of the petitioner was a vitaland relevant document and since the said document was admittedly notplaced before the del lining authority while passing the detention order, thesubjective satisfaction on the part of the detaining authority not vitiatedas thesaid document could have influenced the mind of the detaining authorityone way or the other. The view I have taken, is also supported by thejudgment of the Supreme Court in the case of Ashadevi (Supra ). ( 20 ) ACCORDINGLY, I allow the writ petition and make the ruleabsolute. The impugned order of detention dated 16-8-1991 is quashed andi direct the petitioner be set at liberty, if not required to be detained in anyother case.