Aysha Nazreem vs Government of Kerala

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Ker) 569

Judges : K.S.RADHAKRISHNAN,K.PADMANABHAN NAIR
Aysha Nazreem - Appellant
Versus
Government of Kerala and others - Respondent
Case No : O.P. No. 15734 of 2002
Decided On : 09/18/2002
Advocates Appeared :
For Petitioner : Sunny Mathew, Mohammed Zahir and T.V.Asharaf, Advocates. For Respondent: R2 – P.S.Sreedharan Pillai, SCGSC., R1 and R3 - Roy Chacko, Govt. Pleader.

Headnote:
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 – Sections 3(1)(i) and 3(1)(ii) – Bail – Grant of – Held, Court 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 – Court is of the view in appropriate case it would be possible to cure such defects and pass fresh detention orders – 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 – Court is 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 authority 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 form its subjective satisfaction while passing the detention order –Court find detenu was already on bail subject to certain conditions – Detaining authority had not noticed, adverted to and considered that fact – Order of detention is vitiated.

Judgment :-

K.S.RADHAKRISHNAN, J.

This writ of habeas corpus is preferred by the wife of Abdus Salam Abu, S/o Adbu 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 the Conservation Act, 194 (for short ‘COFEPOSA Act’).

2. Detenu was apprehended on 20.11.2001. He was a passenger of IC of Indian 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 Sathat 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 Hajara v. State of Kerala (1997 (1) KLT 597). Reference was also made to the decision of the apex court in Chowdarapu 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 Section 3(1) (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 court in M.Ahamedkutty’s case, supra (1990 (2) 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 others (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 docum

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