Important Point
When the detenu was already on bail before the detention order was passed bail order & bail application are vital documents to be considered by detaining authority.

JUDGMENT

Sankarasubban, J. - This Original Petition is filed for a direction to the respondents to produce the corpus of the petitioner's husband Sri. Abdul custody till 16-2-1996. An application for bail was moved before the learned Magistrate, which was opposed by the Superintendent (Intelligence), Air Customs, Calicut Airport. The learned Magistrate rejected the bail application by his order dated 15-2-1996. Thereafter, another application for bail was moved on behalf of the detenu before the Court of Sessions Judge, Ernakulam, which was rejected. Subsequently, a second application was moved before the Sessions court, Ernakulam. The learned Sessions Judge, as per order dated 263-1996 ordered release of the detenu overruling the objections of the Superintendent, Air Customs (Intelligence), Karipur Airport, Calicuit. The bail was granted with the following conditions:

(i) On release, detenu will report before the Investigating Officer once in two weeks on all alternate Mondays until further orders.

(ii) The detenu will surrender his passport before the Investigating Officer or the Additional Chief Judicial Magistrate (E.O.), Ernakulam, if not already done.

(iii) The detenu will not leave Kozhikode and Malappuram without permission of the Additional Chief Judicial Magistrate Court (E.O.) Ernakulam, except for appearing before the Investigating Officer: or in Court."

2. On 1-4-1996 a detention order was issued by the first respondent, under S. 3 (1) (i) of the COFEPOSA Act. The detenu was issued grounds of detention and he was apprehended and detained in the Central Prison. Trivandrum on 5-4-1996. The grounds of detention are produced as Ext. P 1 in the case. The detenu filed Ext. P 5 representation wherein the detenu has clearly stated that he was granted bail by the Sessions Court. Ernakulam in Crl. M.P. No. 490/96. He has further stated that the bail application and the orders were not placed before the detaining authority. The representation was rejected by the first respondent by Ext. P. 6 dated 23-5-1996 and by the Central Government by Ext. P 7 dated 76-1996. The detention order was confirmed by the first respondent by Ext. P 8 dated 18-6-1996 and the detenu was ordered to be detained for a period of one year from 5-4-1996.

3. Learned counsel for the petitioner urged two grounds. (1) The bail application and the bail order were not placed before the detaining authority and the detaining authority had no opportunity to consider the same. (2) The grounds of detention were in English and they were not translated into malayalam and hence, the detenu has not given a proper explanation.

4. Counter affidavits have been filed by the first and second respondents. According to the first respondent, the detaining authority has considered the circumstances of the case and the materials on record and the detention order was legal in as much as it was issued with due application of mind and after considering all evidence on record. With regard to the contention of non- placement of the bail application and the bail order in paragraph 13 of the counter affidavit of the first respondent, it is stated as follows:

"It is to prevent the detenu from further smuggling. Prosecution proceedings are part of measure adopted under the Customs Act which had no bearing on preventive detention under COFEPOSA Act. Granting of bail under Customs Act has no bearing on preventive detention under COFEPOSA Act. All the relevant documents were produced before the Detaining Authority and only after consideration of all these documents detaining authority had issued detention order."

Thus, the counter affidavit does not say that the bail application and the bail order were placed before the detaining authority since the authorities were of the view that they are irrelevant. The counter affidavit filed on behalf of the second respondent has also not adverted to this aspect.

5. The question regarding the relevancy of the bail application and the b