9911796707
TMI Blog2012 (10) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 He submitted that the said application was withdrawn on 22nd November, 2011 and the said order was not placed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion cannot be set aside on that count. She has placed reliance on the decision of the Apex Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary, government of Kerala and Others (1985 (Supp) SCC 144 ). She, therefore, submitted that there is no merit in the challenge to the order of detention. The learned APP appearing for the detaining authority and the State of Maharashtra made similar submissions. By way of rejoinder, the learned counsel appearing for the Petitioner submitted that in the bail order, there are stringent restraints imposed on the detinue and that is the reason why it was a vital document. 5. We have given careful consideration to the submissions. It is contended by the Respondents that there is no reliance placed on the offence which is subject matter of RA No.29 of 2011 in which the detinue was enlarged on bail on 18th August, 2011. This was a case where it was alleged that on 17th May, 2011, the detinue was arrested at Chhatrapati Shivaji International Airport which resulted in the recovery of Iridium concealed in his undergarments and recovery of electronic goods such as mobile phones, ipads and 68 kgs of some white chemical powder. The va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anting bail dated 18th May, 2011 in the case relating to aforesaid incident of 17th May, 2011 referred to in the grounds. The relevant part of which reads thus:::: "Perused heard. As per complainant he is regular traveller and hence bail may be granted with certain condition. The Ld. APP clearly mentioned in writing and orally submitted that the offence is bailable. So considering the same accused be released on PR and solvent surety (one or two) of Rs.Two lacs. He is at liberty to deposit cash bail of same amount provisionally for 8 weeks. The accused is directed to attend the concerned department/I.O. once in a week. The I.O. is hereby directed to retain the passport in further orders. The accused is hereby directed not to leave Mumbai without permission and/or consent of the I.O. and not to leave India without permission of the Court. Pronounce in open court." ( underline added ) 7. At this stage, it is necessary to make a reference to the decision of the Apex Court in the case of Ahamed Nassar v. State of Tamil Nadu & Others [(1999)8 SCC 473]. In Paragraph 20, the Apex Court has observed thus:" 20. …..A man is to be detained in the prison based on the subjective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance to and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu. 19. The decisions relied upon by Mr. Mani in our opinion do not lay down as universal rule that irrespective of the facts and circumstances of the case it would be imperative to place all applications for bail as also the orders passed thereupon before the detaining authority and copies thereof supplied to the detenu. On the petitioner's own showing, only that part f the application for grant of bail that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detaining authority. Every document which may affect the subjective satisfaction of the detaining authority one way or the other is a vital document and the said document should not be kept back from the detaining authority. This Court cannot go into the question as to what could have been the effect on the subjective satisfaction of the detaining authority on consideration of a vital and relevant document. This Court has to consider only the question whether a vital document which may have affected the subjective satisfaction is kept away from the detaining authority. The reason being that nonplacement or nonconsideration of a vital document affects the decision making process of the detaining authority of recording subjective satisfaction. As far as the order granting bail is concerned, as held by the Apex Court in the case of Sunila Jain (supra), irrespective of the nature of application for bail or irrespective of the nature of restrictions imposed by releasing the detinue on bail, the same does not become vital document. In paragraph 12 of the decision in the case of Sunila Jain (supra), the Apex Court observed that the question as to whether the offence is bailable or not is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Act was not invoked. The detinue was also prevented from leaving India by virtue of grant of bail and by virtue of the fact that his passport was to remain with the Investigating Officer. These conditions are certainly vital. 12. Considering the drastic conditions imposed while granting bail, the order granting bail becomes relevant and vital document as the same would have influenced the subjective satisfaction of the detaining authority. We must note here that admittedly the sponsoring authority had placed a copy of the application for cancellation of the same bail order before the detaining authority. In the present case, there is no dispute that the bail order was not placed before the detaining authority and, therefore, was not considered by the detaining authority. As we have pointed out earlier, in Paragraph 7 of the grounds of detention, there is a specific reference to the arrest of the detinue in the said case on 18th May, 2011. In the ground of detention, reliance has been placed on the incident of 17th May, 2011 apart from the subsequent incident of 26th August, 2011. Therefore, the submission of the learned counsel appearing for the Petitioner that the bail order w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
