Judgment :- P. Sathasivam, J. U. Upasena Amarasuriya, a national of Singapore challenges the detention order dated 29-9-2003, passed by the first respondent. The said order came to be passed by the 1st respondent in exercise of the powers conferred by Section 3 (1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central act 52 of 1974) ("COFEPOSA" in short) with a view to prevent him from smuggling goods in future. Pursuant to the order of detention, the petitioner was kept in custody in the Central Prison, Chennai. 2. On 21-9-2003, the officers of Directorate of Revenue Intelligence (DRI), Chennai at Chennai International Airport intercepted the petitioner at the aero bridge for the passengers to board the flight while he was to board the Indian Airlines Flight IC 555 of 21-9-2003 after completing the Emigration, Customs and Security formalities. At the time of interception, he was in possession of Singapore Passport issued at Singapore and were in possession of Diamonds and foreign currencies concealed in his body and some foreign currencies in his person. Based on voluntary confession, the foreign currency notes equivalent to Indian Rs.9,44,620/- and Diamond and Emerald stones of Rs.19,63,516/- were seized on the day of seizure. The total value of the seized goods is Rs.29,08,136/-. While arriving at the subjective satisfaction to detain him under COFEPOSA, the State Government has taken into consideration all the facts and materials referred to and relied upon and also the statements, mahazars, etc., accompanying thereto and passed the impugned detention order. 3. Heard Mr. Habibullah Basha, learned senior counsel for the petitioner; Mr. A. Navaneethakrishnan, learned Additional Public Prosecutor, for Respondents 1 and 3; and Mrs. Vanathi Srinivasan, Additional Central Government Standing counsel for 2nd respondent. 4. Learned senior counsel for the petitioner at the foremost contended that there is no documentary proof to show that the wife of the detenu was informed about the arrest and remand of the detenu. According to him, in the absence of such documentary proof to show that the detenu's wife was informed over telephone, the detaining authority was in violation of the provisions of law and has not considered this aspect while passing the order of detention; hence the detention order is bad. According to him, in the absence of such documentary proof to show that the detenu's wife was informed over telephone, the detaining authority was in violation of the provisions of law and has not considered this aspect while passing the order of detention; hence the detention order is bad. In the grounds of detention (1) (xi) it is stated that the detenu was arrested by the officers of D.R.I. on 21-9-2003 and remanded to judicial custody by ACMM, E.O.1, Chennai on the same day till 3-10-2003. It is further stated as there is no facility to send a telegram/phonogram to Singapore from India, the information of his arrest and remand was conveyed to Tmt. Vina, wife of the detenu over Singapore Telephone No. 64493129 on 21-09-2003. Though there is no document to show that detenu's wife was informed about his arrest and remand, even in the affidavit filed in support of the above petition, there is no denial regarding the intimation of his arrest and remand to the wife of the detenu, namely, Tmt. Vina over Singapore telephone number 64493129 on 21-9-2003. In other words, this objection was raised in para 14 of the affidavit, the intimation to his wife over telephone on 21-9-2003 has not been denied. There is no dispute that immediately after the arrest of the detenu, his family members have to be intimated. As said earlier, though there is no documentary proof, the fact of arrest and remand was intimated to the detenu's wife over phone. As rightly pointed out by learned Additional Public Prosecutor, the wife of the detenu was intimated about the arrest and she was aware of the same. It is also relevant to note that a letter was sent to the Consulate of the Republic of Singapore, 3, 8th Street, Radhakrishnan Salai, Mylapore, Chennai-4 by fax on 22-9-2003 by DRI, Chennai informing his arrest and remand, and enclosing necessary passport details and photograph of detenu. In such a circumstance, we are satisfied that the wife of the detenu was informed and intimated his arrest and remand and that there is no violation of the provisions of law as claimed. 5. The other contention is delay in considering the representation of the detenu dated 11-11-2003. In such a circumstance, we are satisfied that the wife of the detenu was informed and intimated his arrest and remand and that there is no violation of the provisions of law as claimed. 5. The other contention is delay in considering the representation of the detenu dated 11-11-2003. The records produced by the Additional Public Prosecutor reveal that the representation of the detenu dated 11-11-2003 was received by the Government on 3-12-2003, parawar remarks called for from the office of the DRI on 4-12-2003, remarks received on 9-12-2003 (6-12-2003 and 7-12-2003 were Saturday and Sunday respectively), file was sent to Public (SC) Department on 10-12-2003, sent to Joint Secretary to Government, Public on 11-12-2003, Secretary to Government on 12-12-2003, Secretary, Law Department on 12-12-2003 and to the Minister concerned who considered and rejected on 15-12-2003 (13-12-2003 and 14-12-2003 were Saturday and Sunday respectively), rejection order was sent to the detenu on 15-12-2003 and he received the letter on 16-12-2003. It is clear that though the Government have taken 13 days, it is seen that if we exclude 4 holidays, the total time taken for considering the representation is only 9 days, which cannot be considered as unreasonable. On the other hand, the information furnished would show that there was no unreasonable delay as claimed by the petitioner. 6. By pointing out the wrong description in mentioning the number of diamond stones and emerald in the mahazars, learned senior counsel for the petitioner would contend that it amply showed non application of mind. In the grounds of detention it is stated that on 21-9-2003, the appraiser has certified that the stones were diamond of 571.43 carats and emerald of 269.80 carats having market value of Rs.19,63,516/-. In the annexure 1 to Mahazar dated 21-9-2003, the number of emerald stones has been described as 571.43 Carat and diamonds as 269.80 Carat. The verification of both the items would show that there is a wrong description. However, there is no variation in the number. The said aspect has not been disputed. Learned Additional Public Prosecutor has stated that this is only a typographical error in mentioning the number of stones and the petitioner is no way prejudiced for the same. The verification of both the items would show that there is a wrong description. However, there is no variation in the number. The said aspect has not been disputed. Learned Additional Public Prosecutor has stated that this is only a typographical error in mentioning the number of stones and the petitioner is no way prejudiced for the same. As a matter of fact, on realizing that there is an error in the description of number of stones, by letter dated 15-12-2003, the Secretary to Government, Public Department, Chennai-9 intimated the detenu stating that "the weight of the seized diamonds and emeralds mentioned as 571.43 and 269.80 carats respectively in the grounds of detention is a typographical error. The weights were inter changed between the diamonds and the emeralds seized." In the light of the said communication, as rightly pointed out, it is only a typographical error and the same had been rightly intimated to the detenu. Accordingly, we reject the said contention. 7. Learned senior counsel for the petitioner by drawing our attention to the representation of the detenu, would contend that the documents regarding his stay at Bombay were not supplied in spite of specific request. It is true that before proceeding to Chennai, the petitioner checked in at Hotel Balwas, Mumbai Central where a person on the instructions of Suleman and Ramasamy of Singapore handed over 15 polythene packets containing precious stones and that thereafter he proceeded to Chennai and checked in to Beverley Hostel, Chennai. It is the claim of the petitioner that the detaining authority has supplied the hotel documents relating to his stay at Chennai, however, the documents in proof of his stay at Hotel Balwas, Mumbai Central has not been furnished. In this regard, learned Additional Public Prosecutor, after taking us through the grounds of detention and all other materials, would contend that all relevant documents were furnished to the detenu and there is no violation of the same. In the light of the said contention, we also perused the grounds of detention, materials relied on, referred to and the averments made in the affidavit and we are satisfied that the petitioner was supplied all the relevant documents and there is no violation much less Article 21 of the Constitution of India as claimed by the petitioner. In the light of the said contention, we also perused the grounds of detention, materials relied on, referred to and the averments made in the affidavit and we are satisfied that the petitioner was supplied all the relevant documents and there is no violation much less Article 21 of the Constitution of India as claimed by the petitioner. Though it is contended that there is some discrepancy in the departure date at Chennai, as rightly pointed out, xerox copy of the bill issued at Beverley Hotel, Chennai-10 clearly shows that the petitioner checked out on 20-9-2003 at 22.40 hours. 8. Learned senior counsel for the petitioner would submit that inasmuch as the petitioner was in Central Prison, Chennai as remand prisoner on the date of the detention order and any bail application having not been filed, the detaining authority, without considering the material aspect, clamped the order of detention, holding that the detenu is likely to be released on bail. According to the learned senior counsel, it shows non application of mind and on this ground, the detention order is liable to be quashed. He also contended that in view of the decisions of the Apex Court in Binod Singh v. District Magistrate, reported in (1986) 4 Supreme Court Cases 416; and Amritlal v. Union Government, reported in (2001) 1 Supreme Court Cases 341, the impugned detention order is liable to be set aside. The following principle of law enunciated in the former case (Binod Singh's case) is pressed into service: (para 7) "7. 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. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. 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. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent...." The factual details in the above decision would show that the detenu has surrendered at the time of passing of the detention order. It is further seen that the fact that the detenu was in custody or that there was any real danger of his release was not properly considered. In those circumstances, the Supreme Court found that the detention of the detenu under the Act is not justified. 9. In the latter case, namely, Amritlal v. Union Government, reported in (2001) 1 Supreme Court Cases 341, after referring to the principles enunciated in Binod Singh's case (cited supra), the Supreme Court has held that "before passing the detention order, the authority concerned must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material and that available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order." 10. It is also relevant to refer the decision of the Supreme Court in Kamarunnisa v. Union of India, reported in (1991) 1 Supreme Court Cases 128 where Their Lordships, after referring to several earlier decisions on this aspect, have arrived at a conclusion that even in the case of a person in custody a detention order can validly be passed. The guidelines formulated by Their Lordships are extracted hereunder: (para 13) "13. The guidelines formulated by Their Lordships are extracted hereunder: (para 13) "13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav [ (1985) 4 SCC 232 : 1985 SCC (Cri) 514] was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention...." 11. It is clear that there must be cogent material before the officer passing the detention order for inferring that the detenu is likely to be released on bail. This inference must be drawn from materials on record and as observed in Binod Singh's case (cited supra), it must not be the ipse dixit of the officer passing the detention order. It is also clear that before passing a detention order in respect of a person who is in jail, the concerned authority must satisfy himself and that the satisfaction must be reached on the basis of cogent materials that there is a real possibility of the detenu being released on bail and further if released on bail, the material on record reveals that he will indulge in prejudicial activity if not detained. In other words, there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of actual detention and that cogent and relevant materials warranted the necessity for making an order of detention. In the case on hand, the detaining authority, namely, State Government was aware of the fact that the detenu was in the Central Prison, Chennai as a remand prisoner and there was likelihood of he being released on bail. The State Government also satisfied that there was likelihood of the detenu indulging in such prejudicial activities again while on bail and there was a compelling necessity to prevent him from indulging in activities, namely, smuggling of goods. The details referred to in the grounds of detention would show that the detenu had diamonds, emeralds and foreign currencies concealed in his body and foreign currencies in person. The total value of foreign currency notes seized is equivalent to Indian Rs.9,44,620/- and the total market value of the diamond and emerald stones is Rs.19,63,516/-. On the day of seizure, the total market value of the seized goods is Rs.29,08,136/-. The Government also satisfied that there is nexus between the date of incident and passing of detention order. Though adjudication and prosecution proceedings are to be initiated against the detenu, the detaining authority with a view to prevent him from smuggling goods in future, detained him under the provisions of COFEPOSA. The grounds also show that the detaining authority had taken note of all the facts and materials, the statements, mahazars, etc. The authority considering all the above materials finding that there is real possibility of detenu being released on bail and further if released on bail, he will indulge in prejudicial activity if not detained, passed the order of detention. The materials referred to and relied on by the detaining authority would clearly show that a sense of awareness existed in the mind of the detaining authority. The compelling necessity, namely, that the detenu was in custody and that there was a real possibility of his being released on bail, and if he was released, he will indulge in prejudicial activities, led the detaining authority to make an order of detention. The compelling necessity, namely, that the detenu was in custody and that there was a real possibility of his being released on bail, and if he was released, he will indulge in prejudicial activities, led the detaining authority to make an order of detention. We are satisfied that the impugned order of detention is in consonance with the conditions formulated in Kamarunnisa's case and we are also satisfied that on a cumulative consideration of the facts and circumstances of the case and other materials available in the grounds of detention, the detaining authority rightly clamped the order of detention which is well within his power and there is no ground to interfere in it. 12. Under these circumstances, we do not see any merit in any of the contentions raised by the learned senior counsel for the petitioner. Accordingly this petition is dismissed.