IMPORTANT POINT
Non-placing of bail application & bail order before detaining authority and non-furnishing of their copies to detenu result in violation of Art. 22 (5) of Constitution and vitiates order of detention.

JUDGMENT

K.N. Saikia, J. - Special leave granted.

2. After the Appellant landed at Trivandrum Airport from Abu Dhabi, he was intercepted by the customs officials detecting that he smuggled 13 gold sheets weighing 1280 gms. valued at Rs. 4,26,240/- concealed inside the plywood panels of his blue suitcase which was seized along with his two passports, old and new. He was arrested on 31-1-1988 and was produced before the Chief Judicial Magistrate (Economic Offences), Ernakulam who remanded him to judicial custody till 12-2-1988. On 12-2-1988 he was granted bail on condition, inter alia, that he would report before the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday until further orders, and that he would not change his residence without prior permission of Court to "25-2-1988." The impugned detention order dated 25-6-1988 was passed by the Home Secretary, Government of Kerala. It stated that the Government of Kerala was satisfied with respect to the appellant that with a view to preventing him from smuggling gold it was necessary to detain him and, therefore, in exercise of 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), hereinafter referred to as 'the COFEPOSA Act, the Government of Kerala directed that he be detained and kept in custody in the Central Prison, Trivandrum. The grounds of detention, which were also served, inter alia, gave the details as to how the smuggled gold was detected in his possession having been smuggled into India in violation of the provisions of the Customs Act, 1962, Foreign Exchange Regulation Act, 1973 and Import and Export Control Act, 1947; what were his statements at the time of seizure of his blue suitcase, his new and old passports and the air ticket used for the journey from Dubai to Trivandrum and the return open air ticket from Bombay to Abu Dhabi; and the gist of his statements given on 30/31-1-1988 under Section 108 of the Customs Act, 1962 before the Intelligence Superintendent, Air Customs, Trivandrum. It was also stated that after his arrest on 31-1-1988 he was produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam on the same date and he was remanded to judicial custody and was subsequently released on bail; and that even though the departmental adjudication and prosecution proceedings under Customs Act were pending against him, the detaining authority was satisfied that he should be detained under Section 3 (1) (i) of the CUFEPOSA Act with a view to prevent him from smuggling gold to Trivandrum. On 23-8-1988 the appropriate authority declared that he was satisfied that the detenu was likely to smuggle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9 (1) of the COFEPOSA Act. On 24th September, 1988, the detenu appeared before the Advisory Board which reported that there was sufficient cause for his detention.

2A. The detenu challenged his detention moving a Habeas Corpus petition under Article 226 of the Constitution of India read with Section 482 Cr. P.C. in the High Court of Delhi and the same having been dismissed in limine the appellant appeals therefrom by special leave. In para 11 of the Special Leave Petition it has been stated that the various grounds urged in the writ petition before the High Court have also been added in this petition and the writ petition itself has been annexed as Vol. II to the Special Leave Petition.

3. The main grounds on which the detention order is being challenged by the learned counsel for the appellant Mr. C.S. Vaidyanathan, inter alia, are that after the event there was inordinate delay in passing the detention order which showed that there was no genuine need for detention of the appellant; that there was inordinate and unexplained delay of 38 days in execution of the detention order; that all the document