IRFAN IBRAHIM QADRI Vs. MEDHA GADGIL

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India seeking a writ of habeas corpus, the Petitioner is praying for quashing and setting aside the order dated 17 th April, 2012 passed by the first Respondent in exercise of powers conferred by Subsection (1) of Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act"). The Petitioner's brother has been ordered to be detained with a view to prevent him in future from smuggling goods.

(2.) Learned counsel appearing for the Petitioner submitted that the detinue was arrested for the offence under Section 135(1)(ii) of the Customs Act on 18 th May, 2011 and was ordered to be released on bail by the learned Magistrate on the same day. He submitted that apart from directing the detinue to furnish PR bond and solvent surety (one or two) in the sum of Rs.2 lakhs, he was directed to attend the concerned department/Investigating Officer once in a week. A condition was imposed of not leaving Mumbai without prior permission of the Investigating Officer. He was directed not to leave India without permission of the Court. He pointed out that under the same order, the detinue's passport was ordered to be retained with the Department. He submitted that admittedly the said order was not placed before the detaining authority. He submitted that the order granting bail in the present case was a vital document. He submitted that the subjective satisfaction of the detaining authority was vitiated as the bail order was not considered by the detaining authority as the same was not placed before her. He submitted that the sponsoring authority had placed before the detaining authority an application made for cancellation of the said bail order. He submitted that the said application was withdrawn on 22 nd November, 2011 and the said order was not placed before the detaining authority. Learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Sunila Jain v. Union of India & Another, 2006 3 SCC 321. Relying upon Paragraphs 18 of the said decision, he submitted that in the facts of the case, the bail order was a vital document and the nonplacement and nonconsideration of the bail order vitiates the detention order. He placed reliance on a decision of the Division Bench of this Court in the case of Baban Prakash Ranware v. Commissioner of Police, Pune & Others decided on 23 rd July, 2012. He, therefore, urged that as the subjective satisfaction is vitiated, the impugned order deserves to be quashed and set aside.

(3.) The learned Special Public Prosecutor appearing for the sixth Respondent urged that the offence in relation to which the bail was granted to the detinue does not form part of the grounds of detention. The detention order is based on subsequent incident of 26 th August, 2011 and subsequent prejudicial conduct of the detinue. She, therefore, urged that it was not at all necessary for the sponsoring authority to place the bail order before the detaining authority and in any case, it was not a vital document at all as the offence in connection with which bail was granted is not even referred to in the grounds. She pointed out that the application for cancellation of bail may be a part of the documents submitted by the sponsoring authority before the detaining authority but the same has not been considered by the detaining authority. She invited the attention of the Court to what is held by the Apex Court in Paragraphs 19 to 22 of the same decision in the case of Sunila Jain . She submitted that in any event the bail order was passed in case of a bailable offence and, therefore, it was not necessary to place the said fact before the detaining authority. She submitted that in the facts of the case before the Apex Court in Sunila Jain's case , the Apex Court held that the order granting bail in case of a bailable offence is not at all a vital document.