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2006 (2) TMI 600 - SC - CustomsWhether a copy of the bail application is required to be taken into consideration for the purpose of passing an order of preventive detention in terms of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974? Held that - As in the fact of this case, we are satisfied that the application for bail was not a vital document copy whereof was required to be supplied to the detenu, in our opinion, the order of detention is not vitiated. There is no merit in the present appeal and it is accordingly dismissed.
Issues Involved:
1. Whether a copy of the bail application is required to be taken into consideration for the purpose of passing an order of preventive detention under COFEPOSA. 2. Whether the non-supply of a copy of the bail application to the detenu vitiates the order of detention. Detailed Analysis: Issue 1: Consideration of the Bail Application for Preventive Detention The primary question in this appeal was whether a copy of the bail application must be considered for passing an order of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu's husband was involved in alleged illegal activities, including diverting duty-free imported silk yarn into the domestic market and exporting waste materials instead of the specified goods. This led to raids and his subsequent arrest, followed by a bail application on the grounds that the offense under Section 108 of the Customs Act was bailable. The detaining authority issued a detention order on 12.6.2003, which was challenged on the basis that the bail application was not supplied to the detenu. Issue 2: Non-Supply of Bail Application and Its Impact The appellant contended that non-supply of the bail application to the detenu impaired the legality of the detention order. The High Court dismissed the writ petition, rejecting the argument that non-supply of the bail application vitiated the detention order. The appellant's counsel argued that the detaining authority must consider the bail application, especially when the detenu is free at the time of the detention order, relying on precedents like M. Ahamedkutty v. Union of India, P.U. Abdul Rahiman v. Union of India, and Abdul Sathar Ibrahim Manik v. Union of India. The Supreme Court, however, held that the non-supply of the bail application did not impair the detention order. The Court noted that the bail application merely stated the offense was bailable, which is a legal fact presumed to be known to the authorities. The Court emphasized that the detaining authority was aware of the detenu's release on bail, and the order of detention explicitly mentioned this fact. The Court further clarified that only relevant and vital documents need to be supplied to the detenu, and the bail application in this case was not deemed vital. The Court distinguished the present case from previous rulings, asserting that the necessity to supply the bail application depends on the facts and circumstances of each case. The Court cited K. Varadharaj v. State of T.N., which held that the requirement to place the bail application before the detaining authority is not always mandatory. The Court also referred to Radhakrishnan Prabhakaran v. State of T.N., which stated that only documents relied upon by the detaining authority must be supplied. In conclusion, the Supreme Court dismissed the appeal, holding that the non-supply of the bail application did not vitiate the detention order as it was not a vital document in this context. The Court reiterated that the constitutional mandate under Article 22(5) was not violated as the detaining authority was aware of the detenu's bail status and had considered it in the detention order.
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