JUDGMENT
Radhakrishnan, J.
1. This writ of habeas corpus is preferred by the
wife of Abdul Salam Abu, S/o Abdu Rahiman, who is under
detention pursuant to detention order No
69324/SSA/4/01/ Home dated 27.12.2001 issued by the first
respondent. Detenu was detained by the first respondent
in exercise of the powers conferred by Section 3 (1)(i)
and (3)(1)(ii) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (for short
COFEPOSA Act’).
2. Detenu was apprehended on 20.11.2001. H was
a passenger of IC 598 of India Airlines coming from
Sharja to Calicut. He was found to carry 90 mobile phones
and four movie cameras. One hundred and fifty numbers of
gold coins were also found out. A statement was recorded
on the same day. He was also arrested at 10.00 p.m. and
was produced before the Chief Judicial Magistrate, Manjeri
at 11.00 a.m. on 21.11.2001 and was remanded to judicial
custody till 4.12.2001. He moved bail application.
Crl. M.P. No. 11415 of 2001 in O.S. No. 18 of 2001 before the
Additional Chief Judicial Magistrate (Economic Offence).
Ernakulam. Bail was granted to him on 11.12.2001. While
he was on bail order of detention was passed on
27.12.2001 detaining him in Central Prison,
Thiruvananthapuram.
3. The only contention raised by the counsel for
the petitioner is that while the detenu was detained under
the COFEPOSA Act he was on bail granted by a competent
criminal court. Counsel submitted that application for
bail and the order granting bail are vital documents but
were not noticed, adverted to and considered by the
detaining authority and consequently the order of
detention is vitiated. Counsel made reference to the
decisions of the apex Court in M. Ahamedkutty v. Union of
India (1990 (2) S.C.C. 1), Abdul Sathar Ibrahim Sait v.
Union of India (1992 (1) SCC) and the decisions of this
court in Ashraf v. State of Kerala (2001 (1) KLJ 684) and
Hajra v. State of Kerala (1997 (1) KLT 597). Reference
was also made to the decision of the apex court in
Chowdarabu Raghunandan v. State of Tamil Nadu (2002
S.C.C. (CrL.) 714) and the decision of this court in O.P. No
7571 of 2002.
4. Counsel appearing for the respondents submitted
that when the sponsoring authority has made available the
bail application and the order granting bail, it must be
taken that the detaining authority had before it the said
bail application and the order granting bail and formed
its subjective satisfaction and passed the detention order
in exercise of the powers conferred under Sections 3(i)(i)
and 3(1)(iii of the COFEPOSA Act. The fact that there is
no reference about the bail application and the order
granting bail in the detention order does not mean that
the detaining authority has not applied its mind while
passing the order of detention. We find it difficult to
accept the contention advanced on behalf of the
respondents. The apex curt in M. Ahamedkutty’s case.
supra (1990 (2) SCC 1) stated that the bail application
and the bail order are vital documents. We may extract
relevant portion of the judgment for easy reference.
“Considering the facts in the instant case, the
bail application and the bail order were vital
materials for consideration. If those were not
considered the satisfaction of the detaining
authority itself would have been impaired, and if
those had been considered, they would be 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 could 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 the
detenu to be set at liberty in this case.”
This question again came up for consideration before the
apex court in Abdul Sathar Ibrahim Manik v. Union of
India and Ors. (1992 (1)SCC 1). After analysing the
various decisions, the apex court laid down several
propositions of which we are concerned in this case with
proposition No.6, which is extracted below:
“In a case where detenu is released on bail and
is at liberty at the time of passing the order of
detention, then the detaining authority has to
necessarily rely upon them as that would be a
vital ground for ordering detention. In such a
case the bail application and the order granting
bail should necessarily be placed before the
authority and the copies should also be supplied
to the detenu.”
A Bench of this Court in Ashraff v. State of Kerala (2001
(1) KLJ 684) followed the abovementioned decision and held
that bail application and the order of bail are all vital
documents and the detaining authority is bound to consider
the same. The court also held that the contents of the
bail application and the manner in which bail application
was considered by the Magistrate and the ground on which
he was satisfied of granting bail would also have a
bearing in the formation of the subjective satisfaction of
the detaining authoirty in passing the detention order
since those documents are vital documents.
5. In this connection we may also refer to the
recent decision of the apex court in Chowdarabu
Raghunandan v. State of Tamil Nadu and Ors. (2002 S.C.C.
Crl. 714). In that case apex court was considering the
provisions of the COFEPOSA Act and emphasised the
necessity of adverting to vital documents and held as
follows:
“Though the courts exercising powers of judicial
review do not consider the challenges to an order
of detention as if on an appeal reappreciating the
materials, yet since an order of detention in
prison involves the fundamental rights of a life
and liberty, no absolute immunity can be claimed
by the respondents as to the decision arrived at
and it is open to the courts to see whether there
has been due and proper application of mind and
that all the relevant and vital materials for the
purpose have been noticed, adverted to and considered.”
We have indicated that when a competent court grants bail
on the basis of an application filed by the detenu
grounds urged in the bail application as well as the order
granting bail are vital documents to be examined by the
detaining authority. It is always open to the detaining
authority to come to its own subjective satisfaction on
the basis of those materials. We have already indicated
those are all vital materials to be considered by the
detaining authority. In this case the bail application
and the order granting bail are vital documents since the
competent court has granted bail on certain grounds and
hence those documents are to be adverted to and
considered.
6. Incidentally we may also point out that the
decisions in Ahamedkutty’s case (1990 (2) SCC 1) and Abdul
Sathar Ibrahim Manik’s case (1992 (1) SCC 1) came up for
consideration before the apex court in K. Varadaraj v.
State of Tamil Nadu (2002 SCCL Com 448). That was a case
arose out of the Tamil Nadu Prevention of Dangerous
Activities of Bottleggers. Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders and Slum
Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982). In that
case before the detention order was passed on 8.11.2001.
detenu was arrested for indulging in the trade of
bootlegging. Pursuant to the arrest he made an
application for bail and as per order dated 19.10.2001
bail was granted to him and the court directed him to be
released on bail on his executing a bond for Rs. 5.00/with
two sureties for the like sums, each to the satisfaction of
the Judicial Magistrate. Krishnagiri, Bail was granted
since no objection was raised by the Public Prosecutor.
However, he was not released on bail since he failed to
comply with the conditions imposed while granting bail and
consequently continued to be in custody. Order of
detention was passed on 8.11.2001. When the detention
order was passed, detaining authority did not have before
it the application for bail nor the order passed thereon
by the Sessions Judge. However, detaining authority took
into consideration remand order made by the court to note
the fact that the detenu was in police custody.
Contention was raised before the High Court by the detenu
that application for bail preferred by him as well as the
order on it were not placed before the detaining
authority. Consequently order of detention was vitiated.
The High Court however rejected the contention noticing
that the detenu did not come out on bail and he had
remained to be on remand in prison on the basis of the
order bail application or the order made thereon were on
relevant material. The apex court after considering its
earlier decision in Abdul Sathar’s case held as follows:
“We have considered the argument advanced on
behalf of the parties as also perused the records.
The issue that arises for our consideration in
this case is not really res integra. In the case
of Ahamedkutty (supra), this court held:
“Considering the facts the bail application and
the bail order were vital materials for
consideration. If those were not considered the
satisfaction of the detaining authority itself
would have been impaired…..” It is based on this
observation of the court that learned counsel for
the appellant argued that non-consideration of the
bail application and order made thereon would
vitiate the order of detention. But we should
notice that the said observation of this court was
made on facts of that case, therefore, we cannot
read into that observation of this court that in
every case where their is an application for bail
and an order made thereon the detaining authority
must as a rule be made aware of the said
application and order made thereon. In our
opinion the need of placing such application and
order before the detaining authority would arise
on the contents of those documents. If the
documents do contain some material which on facts
of that case would have some bearing on the
subjective satisfaction of the detaining authority
then like any other vital material even this
document may have to be placed before the
detaining authority. In our opinion, the judgement
of this court in Ahamedkutty (supra) does not lay
down a mandatory principle law that in every case
the application for bail and the order made
thereon should be placed before the court. We are
supported in this view of ours by the judgment
relied on by the State in Abdul Sathar (supra).”
After holding so, apex court further held as follows:
“From the facts of this case, we must note that
the fact that the detenu was in custody was taken
note of by the detaining authority by reference to
his remand order therefore that is a vital fact
which is taken note of by the court. The contents
of the bail application also in our opinion do not
contain any vital material notice of which the
detaining authority had to take. However, in our
opinion there was a vital fact in the order of the
court notice of which ought to have been taken by
the detaining authority. The said fact is that
the court specifically noted in the bail order
that the Public Prosecutor had no objection for
grant of bail therefore the court was inclined to
grant bail to the appellant. This is a
circumstances, in our opinion, which ought to have
been noticed by the detaining authority because
the counsel representing the State in express
terms said that he which would also mean his
client which is the State, did not have any
objection to the grant of bail. Therefore in our
opinion this is a vital fact notice of which the
detaining authority ought to have taken.”
Counsel for the respondents submitted that as opined by
the apex court in Ahamedkutty’s case , there is no general
proposition that whenever bail is granted on application
made by the detenu application and the bail order are
vital documents to be considered by the detaining
authority, consequently non mentioning of the bail
application and the bail order in the detention order
would not vitiate the order of detention.
7. We find it difficult to accept the above
contention of the respondents. Apex court in Varadaraj’s
case has noted that it is not correct to say in every case
there is an application for bail and the order made
thereon and the detaining authority must as a rule be made
aware of the said application and the order made thereon.
Need of placing such an order and the application would
arise on the contents of those documents. If the
document do contain some materials which wold enable to
form subjective satisfaction of the detaining authority it
has to be placed before the detaining authority. In the
above mentioned case apex court has found that the
concession made by the Prosecutor is a relevant factor
which ought to have been taken note of, when an order is
passed by a competent court granting bail after hearing
the counsel for the accused as well as the prosecutor on
merits subject to certain conditions we are of the view
the said order is also a vital document though not an
order passed on concession by the criminal court. Order
passed by the criminal court on concession made by the
prosecutor as well as the order passed by the criminal
court after hearing both sides is also a vital document.
As far as this case is concerned order passed by the
criminal court granting bail is a conditional one and t he
conditions are as follows:
(1) The accused shall execute bond for Rs.50,000/-
with two solvent sureties for the like sum.
(2) The accused shall appear before the
investigating officer on every Monday and Friday
for two months or till the investigation is over
whichever is earlier.
(3) The accused shall not leave the country
without the permission of this court.
We are of the view that detaining authority has to
consider whether the conditions imposed by the criminal
court while granting bail would be sufficient to safeguard
its interest or continued detention is necessary under the
COFEPOSA Act. This is a vital fact to be gone into by the
detaining authority. It is always open to the detaining
authoirty to detain a person de hors the conditions
imposed by the criminal court but that is a fact to be
taken into consideration by the detaining authority to
from its subjective satisfaction while passing the
detention order. In this case we find detenu was already
on bail subject to certain conditions. Detaining
authority had not noticed, adverted to and considered that
fact. Consequently the order of detention is vitiated.
8. Counsel appearing for the sponsoring authority
however submitted that even if the detention order is
vitiated by procedural infirmity, detaining authority may
be permitted to pass fresh orders rectifying the
procedural defects. Counsel laid stress on the decision
of the apex Court in Naranjan Singh Nathawan v. State of
Punjab (AIR 1952 S.C. 106) which was referred to by the
apex court in a later decision in Sanjay Dutt v. State
(1994(5) SCC 410). Counsel appearing for the detenu
however submitted that if the court finds that the order
of detention is invalid and it is set aside, the detaining
authority has no jurisdiction to pass fresh orders. In
any view of the matter, counsel submitted that in the
instant case such a power cannot be exercised since the
period of detention is about to expire. We are of the
view in the instant case it may not be possible for the
detaining authority to pass fresh detention order since
only a few more months remain for the detenu to be
released. However, we may add in appropriate cases where
there are procedural infirmities, the detaining authority
can pass fresh orders after clearing the procedural
defects. We find in this case detaining authority had
failed to take note of the bail application and the order
granting bail. Consequently mandatory requirement has not
been complied with by the detaining authority.
9. We are of the view in appropriate case it
would be possible to cure such defects and pass fresh
detention orders. We are fortified in this view by the
decision of the apex court in Naranjan Singh’s case ,
supra, (AIR 1952 S.C. 106) wherein the apex court after
referring to the earlier decision in Makkan Singh v.
State of Punjab (AIR 1952 S.C. 27) held as follows:
“Indeed, the position is now made more clear by
the express provisions of Section 13 of the Act which
provides that a detention order may at any time be
revoked or modified and that such revocation shall
not bar the making of a fresh detention order
under Section 3 against the same person. Once it is
conceded that in habeas corpus proceedings the
Court is to have regard to the legality or
otherwise of the detnetion at the time of the
return and not with reference to the date of the
institution of the proceeding, it is difficult to
hold, in the absence of proof of bad faith, that
the detaining authority cannot supersede an
earlier order of detention challenged as illegal
and make a fresh order wherever possible which is
free from defects and duly complies with the
requirements of the law in that behalf.”
Counsel appearing for the detenu is justified in
contending that on the same set of facts a fresh order of
detention cannot be passed but in a case where vital
documents were not adverted to or noticed and considered
while passing the detention order the detaining authority
could look into all those vital documents omitted to be
considered and pass a fresh order of detention. We
therefore quash the order of detention subject to the
above observation and set the detenu at liberty unless he
is required in connection with any other case.