BARSKI MAREK Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner by filing this petition has challenged the detention order dated October 19, 1989 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act', by respondent No. 2 with a view to preventing the petitioner from abetting the smuggling of goods.

(2.) It is not necessary to refer to various grounds pleaded by the petitioner in support of the petition as this petition is liable to succeed on a very short point.

(3.) The detention order dated October 19, 1989, was admittedly served on the detenu in Jail on October 27, 1989. It is recorded in the grounds of detention that the detaining authority was aware that the petitioner is in ludeial custody but, however, the possibility of the petitioner filing bail application and getting enlarged on bail cannot be ruled out and unless prevented the petitioner may indulge in prejudicial activities in the similar manner or otherwise. A bail application dated October 16, 1989, moved on behalf of the petitioner was pending in the court and the same is one of the relied upon documents but still the detaining authority in the grounds of detention did not make any reference to the factum of any bail application being pending on the date the detention order was passed. At any rate, the bail application came to be rejected on October 19, 1989, but still the said fact was not brought to the notice of the detaining authority before service of the retention order on the detenu in Jail. The Supreme Court in its latest judgment in the case of Dharmendra Suganchand Chelawat v. Union of India & others, JT 1990(1) S.C. 184, has now settled the law and laid down as follows :