Bombay High Court
Smt. Sajjanbai Arjunlal Jain vs State Of Maharashtra And Others on 13 December, 1991
Equivalent citations: 1992(2)BOMCR392, 1992CRILJ3612, 1992(2)MHLJ953
JUDGMENT S.W. Puranik, J.
1. The petitioner who is the mother of the detenu Rajendra Kumar Arjunlal Jain has preferred the present petition inter alia challenging the order of detention dated 29th September 1989 passed by the 2nd respondent against the detenu under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. The detenu was intercepted on a road in Bombay and on examination of his brief case he was found to be in possession of 193 gold bars of 10 Tolas each bearing foreign markings. His father Arjunlal Jain was also with him and on his search also he was found to be in possession of gold bars with foreign markings. Both were taken into custody and interrogations made. This incident took place on 20th April 1989. The investigation was over and on the basis of the solitary incident an order of detention came to be passed on 29th September 1989, 5 months thereafter. Annexure 'A' to the Petition is the order of detention; Annexure 'B' are the grounds of detention while Annexure 'C' to the petition is the list of documents.
3. The only ground of challenge to the order of detention is that the subjective satisfaction of the detaining authority has been impaired for non-placement of relevant documents of the bail order. It was also contended that having referred to the bail order in the grounds of detention, the detaining authority ought to have furnished the full text of the bail order to the detenu.
4. A perusal of the grounds of detention, Annexure 'B' to the Petition, shows that the detenu was arrested under S. 104 of the Customs Act, 1962, on 20th April, 1989 and produced before the Chief Metropolitan Magistrate, Esplanade, Bombay. His father Arjunlal was granted bail of Rs. 5 lakhs with one surety or Rs. 4,50,000/- cash deposit each. The Customs Department filed Criminal Application No. 987 of 1989 in the High Court of Bombay on 24th April 1989 against the bail order passed by the Chief Metropolitan Magistrate. The bail order issued by the Chief Metropolitan Magistrate was cancelled. The detenu availed of bail of Rs. 3,00,000/- on 9th June 1989 and his father Arjunlal was granted bail of Rs. 10,00,000/- surety bond which he availed of on 8th June 1989.
5. From the list of documents, Annexure 'C' to the Petition, it is seen that the order of cancellation of the earlier bail by the order of the High Court was duly placed before the detaining authority. However, when a fresh bail order was passed by the Chief Metropolitan Magistrate on 2nd June 1989, the detaining authority was not made aware of the full text of the bail order as the same was not placed before him. Instead, only an extract under the bail certificate was placed before the detaining authority.
6. Shri Karmali, learned Counsel appearing for the petitioner, on the basis of these facts, submitted that when the order of bail has been referred to in the grounds of detention, the full text of the bail order was neither placed before the detaining authority nor was copy thereof furnished to the detenu and, therefore, the subjective satisfaction of the detaining authority has been seriously impaired while at the same time impeaching the right of the detenu under Art. 22(5) of the Constitution of India for making an effective representation.
7. This contention was seriously opposed by the learned Public Prosecutor Smt. R. P. Desai appearing for the State. She contended on the basis of several rulings that it is sufficient that the detaining authority was aware of the fact that the detenu was released on bail by the Court and the full text of the bail order is neither vital nor was is necessarily to be placed before the detaining authority.
8. The latest ruling on the point is of the Supreme Court in Abdul Sathar Ibrahim Manik v. Union of India reported in December 1991 issue of All India Reporter . In the said ruling, the Supreme Court has exhaustively dealt with and reviewed the case law in so far as the relevant nature of a bail order or order refusing bail is concerned. Their Lordships have also considered the ground of compelling necessity in the case where the detenu is refused bail and continues in judicial custody. At the end of paragraph 12 of the judgment. Their Lordships have drawn their conclusions which are set down at items (1) to (6). The conclusion at item (6) in the said judgment is of direct relevance to the present case. The same reads as follows :-
"(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."
9. This conclusion of the Supreme Court squarely applies to the facts of the present case inasmuch as the detenu was in fact released on bail and he was set at liberty after he had availed of the bail at the time of the passing of the order of detention. The bail order was, therefore, a vital document which the detaining authority would necessarily rely upon while ordering detention of the detenu. The same has not been placed before the detaining authority nor has the copy thereof been supplied to the detenu. Non-placement of this vital document has, therefore, vitiated the subjective satisfaction of the detaining authority and non-supply of copy thereof to the detenu at the same time has breached the right of the detenu for making an effective representation guaranteed under Art. 22(5) of the Constitution of India. On this ground, therefore, we have no hesitation to quash the impugned order of detention.
10. In the result, therefore, the Petition succeeds and is allowed. The impugned order of detention dated 29th September 1989 passed against the detenu is quashed and set aside. The detenu be released forth with, if not otherwise required. Rule is made absolute accordingly.
11. Petition allowed.