C P ABDUL LATHEEF Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition for habeas corpus under Article 226 of the Constitution of India has been moved by C.P.Abdul Latheef for issuance of writ/order of direction calling upon the respondents UOI and others to forthwith set the petitioner at liberty. It has further been prayed that the detention order, dated 9.1.1997 passed under Section 3(1)(i) of the COFEPOSA and the declaration dated 11.2.1997 under Section 9(1) of the said Act be quashed and set aside. The facts of the case appearing from the petition and not disputed are that the impugned detention order under Section 3(1) of the COFEPOSA was passed against the petitioner by respondent No.3, namely, State of Kerala through Shri M.Mohankumar, Additional Chief Secretary, Home and declaration under Section 9(1)(i) of the COFEPOSA was passed on 11.2.1997 by respondent No.2, namely, Shri S.D.Mohile, Additional Secretary to the Government of India, Ministry of Finance.

(2.) Besides other grounds taken by the petitioner to challenge the aforesaid detention order one ground is that before the detention order was passed the petitioner was granted bail on 7.1.1997 with imposition of strict conditions but the bail application and the bail order were not placed before the detaining authority and as such non-consideration of those most material documents for subjective satisfaction of the detaining authority amounted to non-application of mind on his part and non supply of the copies of application for bail and the bail order amounted to violation of the rights of detenu as enshrined in Article 22(5) of the Constitution of India.

(3.) In the counter-affidavit filed on behalf of respondent No.3(the state of Kerala), in paras 26 and 27, there is categorical admission that the bail application dated 31.12.1996 and bail order dated 7.1.1997 were not the documents relied upon though the detaining authority was aware of the fact that the petitioner had been granted bail. It has been categorically admitted therein that copy of bail application and bail order dated 7.1.1997 were subsequently placed before the detaining authority. In para 28 of this very counter it has further been admitted that the detaining authority was aware that the petitioner was released bail at the time of issuance of detention order. From these admissions, it is clear that the copy of the bail application and the bail order were not placed before the detaining authority prior to the date of issuance of the detention order.