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CASE NO.: Appeal (crl.)  245 of 2006

PETITIONER: Sunila Jain

RESPONDENT: Union of India & Anr

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of SLP (Crl) No.  1860 of 2004]  

S.B. SINHA, J :  

       Leave granted.            Whether a copy of the bail application is required to be taken into  consideration for the purpose of passing an order of preventive detention in  terms  of  Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act, 1974 (hereinafter referred to as ’COFEPOSA’) is the  question  involved in this appeal which arises out of a judgment and order  dated 30th 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.   

The appellant’s husband D.K. Jain was a licensee under Foreign Trade   (Development and Regulation) Act, 1992. He was carrying on business  under the name and style of M/s. Amisha International.  On or about  9.6.1997 the said firm obtained a letter of permission  for manufacturing   powder grade silk yarn  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 permission the  firm was required to fulfill export obligations specified therein and to  achieve the value addition.  Having obtained an information 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 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.  Several incriminating documents and properties  were seized.   

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

"Application U/S 436 of the Criminal  Procedure  Code.  

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

2.      The said offence is bailable in nature and

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accused is an innocent of the said alleged offence.  

3.      The accused is a permanent 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."

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

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  of  Karnataka 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 behalf of 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 firm 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.            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 furthermore 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, thus, 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 Dolkar v.  Administrator, Union Territory of Delhi & Ors.  [1987 (2) SCC  69], Johney  D’Couto v. State of Tamil Nadu [1988 (1) SCC 116] and Smt. Icchu Devi  Choraria  v. Union of ndia & Ors. [1980(4) SCC 531].    

       Mr. Gopal Subramanium, learned Additional Solicitor General  appearing on behalf of the respondents, on the other 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 order 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 non-placement of the application for bail before him.  

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

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It is not doubt true that clause (5) of the 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.  

       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.           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 application 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.           In Abdul Sathar Ibrahim Manik v. Union of India & Ors. [1992 (1)  SCC 1] this court inter alia held:  

"\005.(3) If the detenu has moved for bail then the  application and the order thereon refusing bail  even if not placed before the detaining authority it  does not amount to suppression of relevant  material. The question of non-application of mind  and satisfaction being impaired does not arise as  long as the detaining authority was aware of the  fact 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 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."

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

       In  M. Ahamedkutty (supra) this Court was dealing with a case where   an order of bail was passed on  the condition that  he would report before the  Customs Authority on every Wednesday  and would not change his  residence without prior permission of court.  This Court in the  aforementioned fact 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:  

"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 the grounds  of detention and without them the grounds

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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."

       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 10, 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."

       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.           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.   

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 : (1) the impairment  has been caused to the subjective

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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.

 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:  

"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. 10,000/- and  Security in the form of cash for the like sum."

       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.  

       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. State of T.N. & Anr. [2002 (6)  SCC 735] upon noticing some of the decisions relied upon by Mr. Mani inter  alia held:             "From  the above observations, it is clear that  placing of the application for bail and the order  made thereon are not always mandatory and such  requirement would depend upon the facts of each  case."

          In Radhakrishnan Prabhakaran v. State of T.N. and Others [(2000) 9  SCC 170], this Court clearly held that only such documents are required to  be supplied which are relevant stating :   "8. We may make it clear that there is no legal  requirement that a copy of every document mentioned in  the order shall invariably be supplied to the detenu. What  is important is that copies of only such of those  documents as have been relied on by the detaining  authority for reaching the satisfaction that preventive  detention of the detenu is necessary shall be supplied to  him. It is admitted by the learned counsel for the  petitioner that the order granting bail has been supplied to  him. Application for bail has been submitted by the  detenu himself when the order of detention was passed  which was subsequent to the order granting bail. We  cannot comprehend as to how a prior order rejecting bail  would be of any relevance in the matter when it was later  succeeded by the order granting bail\005"           

In  Smt. Icchu Devi Choraria (supra) , this Court  emphasized that the  right to be supplied copies of the documents, statements and other materials  relied upon in the grounds of detention without any undue delay is a part of  constitutional right under Article 22(5) as also statutory right under Section  3(3) of the COFEPOSA  Act.  We have held hereinbefore that the copy of  the bail application, in the facts and circumstances of the case, was not a  document supplied by the detaining authority was imperative in character.  

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The said decision has, therefore, no application to the facts of the present  case.   

       The question as to whether the detenu was prejudiced  by non-supply  of a copy of the application for bail or not, in the facts and circumstances of  this case, does not arise.  The decisions relied upon by Mr. Mani in this  behalf are clearly distinguishable.  

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

For the foregoing reasons, we are of the opinion that there is no merit   in the present appeal and it is accordingly dismissed. In the facts and  circumstances of the case, the parties shall bear their own costs.