2002 (9) TMI 898 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention order under the COFEPOSA Act.
2. Consideration of bail application and bail order by the detaining authority.
3. Procedural infirmities in the detention process.
4. Possibility of issuing a fresh detention order after curing procedural defects.

Detailed Analysis:

1. Legality of the Detention Order under the COFEPOSA Act:
The detenu was apprehended on 20.11.2001 while carrying contraband items and was detained under the COFEPOSA Act by an order dated 27.12.2001. The detenu was on bail at the time of the detention order. The counsel for the petitioner argued that the bail application and the order granting bail were not considered by the detaining authority, rendering the detention order invalid. The court emphasized that the bail application and the bail order are vital documents for consideration by the detaining authority, as established by precedents from the Supreme Court and this court.

2. Consideration of Bail Application and Bail Order by the Detaining Authority:
The court referred to the Supreme Court's judgments in M. Ahamedkutty v. Union of India and Abdul Sathar Ibrahim Sait v. Union of India, which held that the bail application and the bail order are essential for the detaining authority's satisfaction. The court reiterated that these documents must be supplied to the detenu to enable an effective representation. The failure to consider these documents impairs the detaining authority's satisfaction and violates Article 22(5) of the Constitution, rendering the detention illegal.

3. Procedural Infirmities in the Detention Process:
The court noted that the detaining authority did not refer to the bail application and the bail order in the detention order. This omission indicated a lack of due consideration of vital documents, which is a procedural infirmity. The court emphasized that the detaining authority must consider whether the conditions imposed by the criminal court while granting bail are sufficient to safeguard its interest or if continued detention is necessary under the COFEPOSA Act.

4. Possibility of Issuing a Fresh Detention Order after Curing Procedural Defects:
The respondents argued that the detaining authority should be permitted to pass fresh orders rectifying procedural defects. The court acknowledged that in appropriate cases, where there are procedural infirmities, the detaining authority can pass fresh orders after clearing the defects. However, in this case, the period of detention was about to expire, making it impractical to issue a fresh order. The court cited the Supreme Court's decision in Naranjan Singh Nathawan v. State of Punjab, which allows for the revocation or modification of a detention order and the issuance of a fresh order under Section 3 of the Act.

Conclusion:
The court quashed the detention order due to the detaining authority's failure to consider the bail application and the bail order, which are vital documents. The court set the detenu at liberty unless required in connection with any other case, while noting that in appropriate cases, fresh detention orders could be issued after curing procedural defects.