Important PointIf 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 and 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.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3—Constitution of India—Article 22(5)—Order of Preventive detention—Appellants husband was a licensee under Foreign Trade Act of 1992—His firm obtained a letter of permission for manufacturing powder grade silk yarn under 100% Export Oriented Unit Scheme—Allegations that the 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—Appellant’s husband was arrested and granted bail on the same day as offence u/s 108 of the Customs Act is bailable—Detaining authority passed an order of detention against him—Whether copy of the bail application was required to be taken into consideration for the purpose of passing order of preventive detention—(No)—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—Application for bail was not a vital document copy whereof was required to be supplied to the detenu.
       Held : 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. (Paras 10 to 12)
       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. (Para 18)
       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 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. (Paras 19 & 20)
       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. (Para 21)
       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. (Para 25)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. 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.

3. 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.

4. 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 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."

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

6. 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.

7. 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

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2006 Supreme(SC) 159

Cases Referred (7)