SUNILA JAIN versus UNION OF INDIA AND ANR.

S.B. SINHA, J. Leave granted. A Whether a copy of the bail applicatio~ is required to be taken into consideration for the purpose of passing an order of preventive detention in tenns of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to a:; 'COFEPOSA') is the question

pp. 477–478, margin G

involved in this appeal which arises out of a judgment and order dated 30th B March, 2004 passed by the High Court of Karnataka in Writ Petition No. 92/ 2003 whereby and whereunder the writ of habeas corpus filed by the appellant was dismissed.

p. 478

The appellant's husband D.K. Jain was a licensee under Foreign Trade

p. 478

(Development and Regulation) Act, 1992. He was carrying on business under the name and style of Mis. Amisha lntemat:onal. On or about 9.6.1997 the said finn obtained a letter of pennission for manufacturing powder grade silk yam under the 100% Export Oriented Unit Scheme and Importer Exporter Code issued by the Development Commissioner, Cochin Special Economic zone (CEPZ). In terms of the said letter of pennission the firm was required

p. 478

to fulfill export obligations specified therein and to achieve the value addition. D Having obtained an infonnation that the said firm was diverting duty free mulberry raw silk yarn imported under the said scheme to the domestic market for undue monetary gains instead of using the same for manufacturing purpose wherefor the said permission had been granted and in place of

p. 478, margin C

exporting powder grade silk yarn, had been exporting bricks and other waste material, raids were conducted at Bangalore and at Cochin Port on 29.1.2003.

p. 478, margin C

Several incriminating documents and prop(:rties were seized.

p. 478, margin E

The statement of the husband of the appellant (the detenu) in tenns of Section 108 of the Customs Act was recorded. Another statement of his was

p. 478, margin E

recorded under the said provision on 30th January, 2003. He was also arrested on the said date. An application for bail was moved by him before the Special Economic Offences Court on the said date itself, the contents whereof are as under:

p. 478, margin E

"Application UIS 436 of the Crim nal Procedure Code.

p. 478, margin F

1. The above complainant customs have registered a case against accused for or an offence punishable under section 135 of the Customs Act.

p. 478, margin G

... 2. The said offence is bailable in nature and accused is an innocent of the said alleged offence.

p. 478, margin G

3. The accused is a pennanent residence of Bangalore and peace loving citizen of Bangalore. 4. The accused is willing to pay security to this Hon 'ble Court for release of the accused."

p. 479, margin A

On the premise that offence under Section 108 of the Customs Act is bailable, he was granted bail on the same day.

p. 479, margin B

The detaining authority passed an order of detention against the detenu on 12.6.2003. Questioning the said order of detention, a writ petition praying for issuance of habeas corpus was moved before the High Court ofKamataka at Bangalore. By reason of the impugned judgment the said writ petition has been dismissed. Before the High Court principally two contentions were raised on behalfof the detenu. ( 1) A copy of the application for bail having not been supplied by the detaining authority, the impugned order of detention is vitiated in law; and (2) In view of the fact that the licence granted in favour of the said finn was suspended, the question of passing an order of detention for preventing the detenu from carrying out the activities which could be detrimental to the provisions of the Customs Act did not arise. Both the contentions have been rejected by the High Court by reason of the impugned judgment.

p. 479, margin B

Before us, however, Mr. K.K. Mani, learned counsel appearing on behalf of the appellant pressed only the first contention, in support whereof the learned counsel relied upon the decisions of this Court in M Ahamedkutty v. Union of India & Ors., [1990] 2 SCC 1, P. U. Abdul Rahiman v. Union of India & Ors. [1991] supp. 2 SCC 274 and Abdul Sathar Ibrahim Manik v. Union of India & Ors., [1992] 1 SCC 1. It was submitted that a distinction must be made in the matter of supply of a copy of the bail application in a case where the detenu is in custody and in a case where he was free on the date of passing of the order of detention. The learned counsel would submit that whereas in the former case neither a copy of the bail application nor an order of bail is required to be placed before the detaining authority by the sponsoring authority, in the latter case, the same is imperative in nature. It was urged that in the instant case it is evident from the records that neither the copy of the bail application nor the order of the court granting bail to the detenu had been placed before the detaining authority. It was furthennore argued that the High Court committed a manifest error in rejecting the said contention of the appellant stating that he must have been aware of the contents of the bail application and, th us, was not prejudiced in any manner whatsoever. The constitutional mandate contained in Article 22 of the Constitution of India, Mr. Mani would argue, must be complied with wherefor supply of relevant material is imperative. In support of the said contention reliance was placed in Mrs. Tsering Dl'lkar v. Administrator, Union Territory of Delhi & Ors. [1987] 2 SCC 69, Johney D'Couto v. State of Tamil Nadu, [I 988] I SCC 116 and Smt. !cchu Devi Choraria v. Union of ndia & Ors., [I 980] 4 sec 531.

pp. 479–480, margin E

Mr. Gopal Subramanium, learned Additional Solicitor General appearing on behalf of the respondents, on the oi:her hand, submitted that in the instant case a copy of the bail application was not required to be placed before the detaining authority. It was urged that the ordt:r of detention dated 12.6.2003 shows that the fact, that the detenu had been released on bail, was within the knowledge of the detaining authority and such vital fact having been taken into consideration the order of detention cannot be said to be vitiated for nonplacement of the application for bail before him.

p. 480, margin B

It is not disputed before us and furthermore it would appear from the impugned judgment of the High Cou11 that the order of bail passed by the learned magistrate as also the order of remand were furnished to the detenu.

p. 480, margin D

It is not doubt true that clau~e (5) of th1: Article 22 of the Constitution of India mandates that all procedural requirements contemplated thereby as also the relevant provisions of COFEPOSA are required to be strictly complied with in a case of preventive detention.

p. 480, margin D

Apart from the fact, that a copy of the application for bail was available with the detenu, a bare perusal thereof would show that save and except the submission that the offence is bailable in nature, no other contention which was required to be brought to the notice of the detaining authority was put forward.

p. 480, margin E

The question as to whether an offence is bailable or not is not a vital fact whereupon an order of bail can be passed. Application of mind to the averments made in a bail applicatio~. may be relevant where the grounds stated therein reveal certain facts which are vital for passing an order of detention. In a case of such nature, it may be said the application for bail was necessary to be placed before the detaining authority and non-furnishing a copy thereof to the detenu would vitiate the order of detention.

p. 480, margin F

In Abdul Sathar Ibrahim Manik v. Union of India & Ors., [1992] SCC 1 this court inter a/ia held:

p. 481, margin A

" ..... (3) If the detenu has moved for bail then the application and order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the that the detenu was in actual custody." It was, however, observed: "(6) In a case where detenu is released on bail and is at liberty time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground ordering detention. In such a case the bail application and the granting bail should necessarily be placed before the authority the copies should also be supplied to the detenu."

p. 481, margin A

We do not think that the aforementioned enunciation of law universal application. We would deal with this aspect of this matter a later.

p. 481, margin D

In M Ahamedkutty (supra) this Court was dealing with a case where order of bail was passed on the condition that he would report before Customs Authority on every Wednesday and would not change his residence without prior permission of court. This Court in the aforementioned situation opined that non-consideration of the order passed on the said petition for bail would amount to non-application of mind on the part of the detaining authority holding:

p. 481, margin E

"Considering the facts in the instant case, the bail application and bail order were vital materials for consideration. If those were considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with grounds of detention and without them the grounds themselves not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling th1: detenu to be set at liberty in this case." The said decision has no application to the present case. In P. U. Abdul Rahiman (supra) this Court held: "The appellant had been arrested on June 4, 1988 under the Narcotic Drugs and Psychotropic Substances Act, 1985. On June 9, 1988 he had moved an application before the Judicial First Class Magistrate, Kasargod for bail. That application was rejected. On June IO, 1988 the appellant moved an application for bail, as C.M.P. No. 104 of 1988, before the District Sessions Judge, Kasargod. On June 17, 1988 the appellant was released on bail subject to certain conditions. In the two applications for bail the appellant had specifically stated that he had retracted from the statement made by him. The co-accused, who had also made a statement, had retracted from his statement."

pp. 481–482, margin F

The bail petition filed by the detenu therein contained material facts which were required to be taken into consideration by the detaining authority. Such is not the case here.

p. 482, margin D

The decisions of this Court referred to herein before must be read in their entirety. It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance of and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.

p. 482, margin E

The decisions relied upon by Mr. Mani in our opinion do not lay down as universal rule that irrespective of the facts and circumstances of the case it would be imperative to place all applications for bail as also the orders passed thereupon before the detaining authority and copies thereof supplied to the detenu. On the petitioner's own showing, only that part of the application for grant of bail that the offence in question is a bailable, was relevant. No other submission had been raised at the bar. Whether a provision of law is bailable or not is a question of law. The same is presumed to be known to courts and/or the detaining authority. It may not be necessary even to be stated in the application for bail. If a person had been released on bail on the ground that the offence is bailable, it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of the materials placed on record, as to whether the order of preventive detention should be passed against the detenu or not. The constitutional mandate can be said to be violated provided: (I) the impairment has been caused to the subjective satisfaction to be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority.

p. 483, margin A

In the instant case the order of detention has been taken note of the fact that the detenu had already been released on bail in the following terms:

p. 483, margin D

"You were arrested on 30.1.2003 and released on bail by the Hon'ble Judge, Special Court of Economic Offences, Bangalore, upon executing a personal Bond for an amount of Rs. I 0,000/- and Security

p. 483, margin E

in the form of cash for the like sum."

p. 483, margin E

It is also not in dispute that a copy of the order granting bail and order of remand has been furnished to the detenu. In this view of the matter we are of the opinion that non-furnishing of a copy of the application of bail cannot be said to be a ground which impaired the subjective satisfaction of the detaining authority or the same was a relevant fact which was required to be taken into consideration by him and the application for bail was required to be supplied to the detenu. It is now well settled that all the documents placed before the detaining authority are not required to be supplied; only relevant and vital documents are required to be supplied.

p. 483, margin E

As in the fact of this case, we are satisfied that the application for bail was not a vital document copy whereof was required to be supplied to the detenu, in our opinion, the order of detention is not vitiated. A Division-_ Bench of this Court in K. Varadharaj v. Stale a/TN. & Anr 735] upon noticing some of the decisions relied upon by Mr. held:

pp. 483–484, margin G

"From the above observations, it is clear that placing of for bail and the order made thereon are not always such requirement would depend upon the facts of each

p. 484, margin A

In Radhakrishnan Prabhakaran v. State of r.N. and SCC 170], this Court clearly held that only such documents be supplied which are relevant stating :

p. 484, margin B

"8. We may make it clear that there is no legal a copy of every document mentioned in the order shall supplied to the detenu. What is important is that copies of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of necessary shall be supplied to him. It is admitted counsel for the petitioner that the order granting bail has to him. Application for bail has been submitted by the when the order of detention was passed which was subsequent order granting bail. We cannot comprehenG as to how rejecting bail would be of any relevance in the matter later succeeded by the order granting bail"

p. 484, margin C

In Smt. /cchu Devi Choraria (supra) , this Court emphasized right to be supplied copies of the documents., statements and relied upon in the grounds of detention without any undue delay constitutional right under Article 22(5) as also statutory right 3(3) of the COFEPOSA Act. We have held hereinbdore that bail application, in the facts and circumstances of the case, was supplied by the detaining authority was imper~tiv'e in character. decision has, therefore, no application to th•! facts of the present

p. 484, margin E

The question as to whether the detenu was prejudiced a copy of the application for bail or not, in th'! facts and circumstances of case, does not arise. The decisions relied upon by Mr. Mani clearly distinguishable.

p. 484, margin G

Johney D 'Couto, (supra) relates to a case wherein detention were not supplied in the language known to the detenu. that nature only, it was held that the question as to whether knowledge or prejudice could be irrelevant.

pp. 484–485, margin G

For the foregoing reasons, we are of the opinion that in the present appeal and it is accordingly dismissed. circumstances of the case, the parties shall bear their own B.B.B. Appeal

p. 485, margin A