1998 (8) TMI 617 - HC - Customs

Detention order quashed for failing to consider bail application, violating detenu's right to representation

The court quashed the detention order due to the non-placement of the bail application before the detaining authority and the failure to supply its copy ... - Issues Involved:1. Validity of the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.2. Non-placement of the bail application before the detaining authority.3. Non-supply of the bail application copy to the detenu.Detailed Analysis:1. Validity of the Detention Order:The petitioner challenged the detention order dated 12th July 1995, issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detaining authority was satisfied that the detenu was involved in unauthorized transactions violating the Foreign Exchange Regulation Act, 1973, adversely affecting the country's foreign exchange resources. The detenu was arrested and released on bail, but the detention order was issued to prevent future prejudicial activities.2. Non-placement of the Bail Application Before the Detaining Authority:The petitioner argued that the bail application filed on 7th April 1995 was not forwarded to the detaining authority, leading to non-application of mind and vitiating the subjective satisfaction required for issuing the detention order. The detaining authority, in its return, claimed that the allegations in the bail application were general and found in other documents placed before the authority. However, the court found that the non-placement of the bail application was significant and affected the validity of the detention order.3. Non-supply of the Bail Application Copy to the Detenu:The petitioner contended that the non-supply of the bail application copy to the detenu violated Article 22(5) of the Constitution of India, which ensures the right to make an effective representation. The court referred to the Supreme Court's decision in Abdul Sathar Ibrahim Manik vs. Union of India, which mandates that the bail application and order are vital documents that must be placed before the detaining authority and supplied to the detenu. The failure to do so trampled upon the detenu's fundamental rights.Judgment:The court concluded that the non-placement of the bail application before the detaining authority and the non-supply of its copy to the detenu vitiated the detention order. The detaining authority's subjective satisfaction was impaired, and the detenu's fundamental right to make an effective representation was violated. Consequently, the detention order was quashed, and the petition was allowed. The court directed that a certified copy of the judgment be issued within four weeks upon request.