Shri Irfan Ibrahim Qadri vs Medha Gadgil & Others
2012 Latest Caselaw 264 Bom

     ash                                                 1                     CRWP-1900.12




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                       CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL WRIT PETITION NO. 1900 OF 2012




                                                         
     Shri Irfan Ibrahim Qadri.                          ..   Petitioner
            Vs
     Medha Gadgil & Others.                             ..   Respondents




                                                        
            -
     Shri D.S. Mhaispurkar for the Petitioner.
     Smt. P.H. Kantharia, APP for the Respondent Nos.1 to 5.
     Smt. A.S. Pai, Special Public Prosecutor for Respondent No.6 (DRI).




                                           
            --
                         
                           CORAM  : A.S. OKA & SMT. SADHANA S. JADHAV, JJ 
                        
     DATE ON WHICH SUBMISSIONS WERE HEARD :     29TH OCTOBER, 2012


     DATE ON WHICH JUDGMENT IS PRONOUNCED:                        6TH NOVEMBER, 2012
      
   



     JUDGMENT ( PER A.S. OKA, J )

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 Sub-section (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.

ash 2 CRWP-1900.12

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 18th 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 22nd 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

ash 3 CRWP-1900.12

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 non-placement and

non-consideration 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 23rd 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

ash 4 CRWP-1900.12

held by the Apex Court in Paragraphs 19 to 22 of the same decision in

the case of Sunila Jain (supra). 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 (supra), the Apex Court held that the order granting bail in

case of a bailable offence is not at all a vital document.

4.

She relied upon Section 5A of the COFEPOSA Act and

submitted that the grounds of detention are severable. She submitted

that in view of Section 5A of the COFEPOSA Act, the grounds of

detention being severable, even assuming that the submission made by

the Petitioner has some merit, the order of detention 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.

ash 5 CRWP-1900.12

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 17 th 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, i-pads and 68 kgs of some white chemical

powder. The value of the goods was Rs.61,65,000/-. After recording

his statement under Section 108 of the Customs Act, 1962, he was

produced before the learned Metropolitan Magistrate on 18 th May, 2011

when the bail was granted to the detinue. In the order of detention,

reliance is placed on the incident of 26 th August, 2011 when DRI

intercepted two passengers viz. Khatib Shamshouddin Shaukat and

Khalid Mohamed Idris Qureshi who arrived from Hong Kong to

Mumbai. They were found carrying Iridium powder worth

Rs.30,00,000/-. The said Khatib disclosed that the detinue had given

him the job of carrier. It is alleged that one statement of detinue was

recorded under Section 108 of the Customs Act, 1962 on 18 th October,

2011 in which he stated that he was given assignment of smuggling

Iridium by one Vicky. Paragraph 7 of the grounds reads thus:-

"7. Your statement was recorded under section 108 of the Customs Act, 1962. On 18.10.2011 at DRI Mumbai office in which you stated that you are running transport business of your proprietorship

ash 6 CRWP-1900.12

firm of M/s. Anupam Logistics. During your stay at Hong Kong, one Shri Vicky, had given you assignment of smuggling of Iridium from Hong Kong

to India for monetary consideration of Rs.30,000/- per kg. Shri Vicky gave you one consignment of 68

kgs of white powder which was 'anti malaria' and 'anti cancer' drug for smuggling from Hong Kong to India for monetary consideration of Rs.1500/- per kg. You also smuggled 12 I-Phones and 3 I-Pads from Hong Kong to India for one of your friend Shri

Raju without monetary consideration. You were apprehended by DRI, Mumbai on 17.05.2011 at CSI, Airport, Mumbai along with above mentioned smuggled 'Iridium Powder', 'White Powder', 12 i-

phones and 3 i-pads and were arrested in the same case on 18.05.2011."

ig (underline added )

Moreover in Paragraph 9 of the ground, it is stated that "you have

engaged in such prejudicial activities, it is imperative that you should be

detained.....". Thus, in the grounds, there is a reference to the incident

of 17th May, 2011 in which case, the bail was granted on 18th May, 2011.

Thus, the submission made by learned Special Public Prosecutor on

behalf of the sixth Respondents that the incident of 17 th May, 2011 is

not a part of grounds of detention is factually incorrect and is contrary

to record.

6. It will be necessary to make a reference to the order

granting 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:-

ash 7 CRWP-1900.12

"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 satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the

issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision."

ash 8 CRWP-1900.12

8. As far as the order on bail application is concerned, in

Clause 12(6) of Paragraph 13 of the decision of the Apex Court in the

case of Abdul Sathar Ibrahim Manik v. Union of India (supra), the Apex

Court held thus:-

"12(6) In a case where detenu is released on bail and is at liberty at the time of passing the order

of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should

necessarily be placed before the authority and the copies should also be supplied to the detenu."

9. The decision in the case of Abdul Sathar Ibrahim Manik

(supra) was considered in the case of Sunila Jain (supra). In Paragraph

12 of the decision in the case of Sunila Jain (supra), it was held thus:-

"12. The question as to whether an offence is

bailable or not is not a vital fact whereupon an order of bail can be passed. Application of mind to the averments made in a bail application may be relevant where the grounds stated therein reveal

certain facts which are vital for passing an order of detention. In a case of such nature, it may be said that the application for bail was necessary to be placed before the detaining authority and non- furnishing a copy thereof to the detenu would

vitiate the order of detention."

10. In Paragraphs 18 to 21 of the decision in the case of Sunila

Jain (supra) the Apex Court has held thus:-

"18. The decisions of this Court referred to hereinbefore must be read in their entirety.

It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a

ash 9 CRWP-1900.12

relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain

conditions in pursuance 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 offence in question is bailable, was relevant. No other submission

had been raised at the Bar. Whether a provision of law is bailable or not is a question of law. The same is presumed to be known to the courts and/or the detaining authority. It may not be necessary even to be stated in the application for bail. If a person had been released on bail on the ground that the offence is bailable, it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of the materials placed on record, as to whether the

ash 10 CRWP-1900.12

order of preventive detention should be passed against the detenu or not. The constitutional mandate can be said to be

violated, provided; (1) the impairment has been caused to the subjective satisfaction to

be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority.

20. In the instant case the order of detention has taken note of the fact that the detenu had already been released on bail in the following terms:

ig "You were arrested on 30-1-2003 and released on bail by the Hon'ble Judge, Special Court of Economic Offences, Bangalore, upon executing a personal

bond for an amount of Rs.10,000/-

and security in the form of cash for the like sum."

21. It is also not in dispute that a copy of the order granting bail and order of remand has

been furnished to the detenu. In this view of the matter we are of the opinion that non-

furnishing of a copy of the application of bail cannot be said to be a ground which impaired

the subjective satisfaction of the detaining authority or the same was a relevant fact which was required to be taken into consideration by him and the application for bail was required to be supplied to the

detenu. It is now well settled that all the documents placed before the detaining authority are not required to be supplied; only relevant and vital documents are required to be supplied."

(Underlines supplied)

11. Before dealing with the issue whether the bail order is a

vital document, it must be noted here that this Court is not examining

ash 11 CRWP-1900.12

the correctness of the decision of the detaining authority, but this Court

is examining the decision making process. An order of preventive

detention is always based on subjective satisfaction of the 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 non-placement or non-consideration 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 not a vital fact whereupon an order of bail can be

passed. Paragraph 18 clearly lays down parameters to decide whether

the bail order is a vital document. There are two considerations. One

ash 12 CRWP-1900.12

is the nature of application for bail and the other is the nature of

restrictions imposed while granting bail. If offence alleged against the

detinue is bailable, and if there are no restrictions or conditions

imposed while granting bail, except for the condition of executing bond

and furnishing surety, the order granting bail may not be a vital

document as it may not affect the subjective satisfaction of the

detaining authority. In case of bailable offence, while granting bail, if a

condition is imposed to ensure that the detinue does not flee from

justice, such order will certainly become a vital document looking to the

nature of condition. Discussion made in Paragraphs 19 and 20 of the

decision in the case of Sunila Jain (supra) shows that in the facts of the

case before the Apex Court, the bail was granted in a bailable offence

without imposing any constraint except the condition of executing

personal bond and furnishing cash surety. The argument before the

Apex Court of the Petitioner was that only that part of the bail

application which disclosed that the offence was bailable was relevant.

In the facts of the present case, apart from the condition of furnishing

personal bond and one or two solvent sureties to make up the amount

of Rs.2 lakhs, the learned Magistrate directed that the passport of the

detinue should be retained by the Investigating Officer and he was

directed to attend the office of the Investigating Officer once in a week.

Moreover, further condition was imposed on the detinue not to leave

Mumbai without prior permission and/or consent of the Investigating

ash 13 CRWP-1900.12

Officer and not to leave India without permission of the Court. Thus,

restraints of substantial nature were imposed on the detinue as a

condition for grant of bail to ensure that he should not flee from justice.

He was deprived of the custody of passport and that he was prevented

from leaving the city of Mumbai. We may note here that the order of

detention has been passed with a view to prevent detinue in future from

smuggling goods. Thus, the order is passed by invoking clause (i) of

Sub-section (1) of Section 3 of the COFEPOSA Act. The clause (ii) of

Sub-section (1) of Section 3 of the COFEPOSA 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

ash 14 CRWP-1900.12

on 18th May, 2011. In the ground of detention, reliance has been

placed on the incident of 17 th 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 was a vital

document will have to be accepted.

13. The Special Public Prosecutor appearing for the

Respondent No.6 has relied upon Section 5A of the COFEPOSA which

reads thus:-

"5A. Grounds of detention severable.- Where a

person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made

separately on each of such grounds and accordingly -

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -

                            (i)     vague, 

                            (ii)    non-existent,

                            (iii)   not relevant,





                            (iv)    not connected 

                            (v)     invalid for any other reason whatsoever,

and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub- section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;

ash 15 CRWP-1900.12

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under

the said sub-section (1) after being satisfied as provided in that sub-section

with reference to the remaining ground or grounds."

14. In Paragraph 71 of the decision of the Apex Court in the

case of Prakash Chandra Mehta (supra), it is held thus:-

"71. Section 5-A stipulates that when the

detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds

and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad."

15. In the present case, the subjective satisfaction of the

detaining authority is vitiated due to non-consideration of the bail order

imposing drastic conditions. It is not the case of the Respondents that

on the date of passing of the detention order, the conditions in bail

order were no longer in force. On account of non-consideration of vital

document of bail order, the subjective satisfaction of the detaining

authority stands vitiated. Therefore, reliance placed on Section 5A of

the COFEPOSA Act will not save the order of detention. Therefore,

the Petition must succeed and we pass the following order.

      ash                                            16                    CRWP-1900.12

                               ORDER :




                                                                            

The Rule is made absolute in terms of prayer clause (a)

which reads thus:-

"(a) That this Hon'ble Court be pleased to issue a

Writ of Habeas Corpus or any other appropriate

writ, order or direction quashing and setting aside

the said order of detention bearing No.PSA-

1211/CR-110/SPL/3(A) dated 7.4.2012 and be

pleased to direct that the detenu Imran Ibrahim

Qadri be set at liberty."

      ( SMT. SADHANA S. JADHAV, J )                          ( A.S. OKA, J )