(1.) ONE Sunila Jain wife of detenue D. K. Jain s/o Padamsen Jain has filed this habeas corpus petition challenging the detention order dated 12-6-2003 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 (as amended)hereinafter called 'cofeposa' ).
(2.) IT is stated that the second respondent on the basis of specific information that the husband of the petitioner was making undue monetary gains by use of duty-free imported mulberry raw silk yarn and exporting bricks and other waste material instead of power grade silk yarn after making use of the duty free imported material i. e. , mulberry raw silk yarn. Surveillance was kept by the officials of the Directorate of revenue Intelligence (DRI) Bangalore. On 29-1-2003, a detailed examination of the contents of the container revealed that there were 110 bales of polythene sacks in it, each bale had 16 brown paper packets tied with plastic string, each such packet was found to contain a brick wrapped in tangled textile yarn waste and covered with cardboard on two sides and tied with plastice string. The authority also found that despite the suspension of the duty free licence granted to M/s Amisha International at Bangalore and the fact that the petitioner-detenu has been released on bail having regard to the magnitude of the operation and well organised manner in which prejudicial activities were being carried out and nature and gravity of the offence and also the propensity and high potentiaity of the detenu to indulge in such prejudicial activities in future, the detention order has been passed under Section 3 (1) of COFEPOSA as stated, The grounds of detention were served on 12-6-2003 along with the list of documents. Representations were filed. Further representation was made to the Government. The matter was referred to the Advisory Board and the same was confirmed on 14-8-2003.
(3.) KIRAN S. Javali, learned counsel for the petitioner submits that the detention order is liable to be set aside as the petitioner was on bail and the detaining authority failed to furnish him a copy of the bail application and to consider the same. He further submits that the licence granted to M/s Amisha International has been suspended and subsequently cancelled. Therefore the question of Indulging in activities as alleged by the detaining authority does not arise. The show cause notice and suspension of the licence have not been considered by the detaining authority although they were relevant for arriving at the subjective satisfaction. It is also submitted that when the petitioner was released on bail, the conclusion that the petitioner would continue to indulge in such activities is unfounded and baseless and therefore the detention order and the confirmation order are liable to be set aside. He relied on the decisions in Abdul Sathar Ibrahim Manik v. Union of India (AIR 1991 SC 2261) : (1991 cri LJ 3291); Shaban Abdul Rahiman v. Union of India, 1993 Cri LJ 1515 (Kant); kurjibhai Dhanjibhai Patel v. State of gujarat 1985 (1) Scale 964; Smt. Jyoti nandlal Manglani v. State of Maharashtra, (Criminal Appeal No. 305/94 (SC) and in abdul Sathar v. Union of India, Crl. W. P. Nos. 105 with 106/1991: AIR 1991 SC 2261 : (1991 Cri LJ 329 ).