2012 (10) TMI 1004 - HC - Customs

Summary

Issues Involved:
1. Non-placement of bail order before the detaining authority.
2. Relevance of the bail order as a vital document.
3. Application of Section 5A of the COFEPOSA Act.

Summary:

1. Non-placement of bail order before the detaining authority:
The Petitioner filed a Writ Petition u/s Article 226 of the Constitution of India seeking a writ of habeas corpus to quash the detention order dated 17th April 2012 u/s 3(1) of the COFEPOSA Act. The Petitioner argued that the bail order dated 18th May 2011, which imposed stringent conditions on the detinue, was not placed before the detaining authority, thereby vitiating the subjective satisfaction of the detaining authority. The Respondent contended that the bail order was not relevant as the detention was based on a subsequent incident on 26th August 2011.

2. Relevance of the bail order as a vital document:
The Court noted that the bail order imposed significant restraints, such as retaining the detinue's passport, requiring weekly attendance at the Investigating Officer's office, and prohibiting the detinue from leaving Mumbai or India without permission. The Court held that these conditions were vital and relevant to the detaining authority's subjective satisfaction. The Court referenced the Apex Court's decisions in Sunila Jain v. Union of India and Ahamed Nassar v. State of Tamil Nadu, emphasizing that every relevant and vital document must be placed before the detaining authority to ensure a fair decision-making process.

3. Application of Section 5A of the COFEPOSA Act:
The Respondent argued that u/s 5A of the COFEPOSA Act, the grounds of detention are severable, and even if one ground is invalid, the detention order can still stand on the remaining grounds. However, the Court held that the subjective satisfaction of the detaining authority was vitiated due to the non-consideration of the bail order, which imposed drastic conditions. Therefore, reliance on Section 5A could not save the detention order.

Conclusion:
The Court concluded that the non-placement and non-consideration of the bail order, which imposed significant conditions, vitiated the subjective satisfaction of the detaining authority. Consequently, the detention order was quashed, and the detinue was ordered to be set at liberty. The Rule was made absolute in terms of prayer clause (a) of the Petition.