ABUBAKAR SULEMAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned counsel appearing for the Petitioner and the learned APP for the Respondents. By this Petition under Article 226 of the Constitution of India, the Petitioner, a friend of the Detenue, is seeking a writ of habeas corpus for quashing and setting aside the order of detention dated 4th October, 2011 passed by the detaining authority in exercise of powers under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 thereinafter referred to as "the COFEPOSA Act"). The order of detention has been passed with a view to prevent the detenu in future from indulging any smuggling of goods. It is not in dispute that the detaining authority has invoked Clause (i) of Sub-section (1) of Section 3 of the COFEPOSA Act.

(2.) Learned counsel appearing for the Petitioner amongst other grounds has invited our attention to the Ground Nos. 8 and 9 in the Petition. Her contention is that bail was granted to the detenue on 11th November, 2010 and passport of the detenu was retained by the Sponsoring Authority. The learned counsel pointed out that the order granting bail was placed before the detaining authority which forms part of compilation of the documents supplied to the detenue. The learned counsel submitted that the detaining authority has not considered the vital aspect that the detenue's passport was retained by the Sponsoring Authority. Learned counsel invited our attention to the affidavit-in-reply of the Sponsoring Authority as well as the affidavit-in-reply of the detaining authority which show that the said aspect was not considered by the detaining authority. Learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Gimik Piotr v. State of Tamil Nadu & Others, 2010 1 SCC 609 in support of her contentions. The learned APP opposed the Petition and supported the impugned order of detention. The learned APP relying upon a decision of the Apex court in the case of Abdul Sathar Ibrahim Manik v. Union of India & Others, 1992 1 SCC 1 submitted that merely because the passport was in the custody of the sponsoring authority and the said fact was not considered by the detaining authority, the subjective satisfaction will not be vitiated.

(3.) We have carefully considered the submissions. We have perused the Grounds 8 and 9 of the Petition. The specific case made out is that from the date on which the bail was granted to the Petitioner, the sponsoring authority retained the passport of the detenue. We have perused the affidavit of Ravindra Kumar Das, Deputy Commissioner of Customs (COFEPOSA CELL), C.S.I. Airport, Mumbai, filed on behalf of the sponsoring authority. While dealing with the Grounds 8 and 9 of the Petition, he has merely stated that for the said grounds, the reply of the detaining authority is required to be considered.