Preventive detention requires composite service of grounds and documents, plus real consideration of custody and bail risk.

Preventive detention under COFEPOSA failed because the grounds of detention and relied upon documents had to be served as one composite communication to permit an effective representation; since the documents were supplied later, the statutory safeguard under Article 22(5) was breached and the order was invalid. The Court also found non-application of mind where the detaining authority did not clearly record the detenue's custody status, a real and live possibility of bail, or proper consideration of the bail opposition material. The detention order was therefore unsustainable and liable to be quashed.

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Issues: (i) Whether the detention order was vitiated because the grounds of detention and the relied upon documents were not served together and in the manner required by law; (ii) Whether the detention order was unsustainable for want of proper application of mind to the petitioners' custody status, the likelihood of release on bail, and the material placed in opposition to bail.

Issue (i): Whether the detention order was vitiated because the grounds of detention and the relied upon documents were not served together and in the manner required by law.

Analysis: Article 22(5) of the Constitution of India and section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 require communication of the grounds of detention so that an effective representation can be made. The Court held that the grounds and the relied upon documents formed one composite communication and could not be split into separate service on different dates. The detention record itself stated that the relied upon documents were being served along with the grounds, and the statutory safeguard was breached when the documents were in fact supplied later.

Conclusion: The detention order was invalid on this ground and was liable to be quashed.

Issue (ii): Whether the detention order was unsustainable for want of proper application of mind to the petitioners' custody status, the likelihood of release on bail, and the material placed in opposition to bail.

Analysis: For detention of a person already in custody, the detaining authority must be aware of that custody and must record a real and live possibility of release on bail, together with satisfaction that preventive detention remains necessary. The Court found no clear finding in the detention order showing such likelihood of release. It further found that the reply filed by the sponsoring agency opposing bail was merely added in the list of documents, without any demonstrated evaluation of its effect on the authority's satisfaction. That omission amounted to non-application of mind.

Conclusion: The detention order was unsustainable on this ground as well.

Final Conclusion: The preventive detention order could not be sustained, as the mandatory procedural safeguards under the constitutional and statutory scheme were not complied with and the requisite subjective satisfaction was not properly formed.

Ratio Decidendi: In preventive detention matters, the grounds of detention and relied upon documents must be communicated together to enable effective representation, and where the detenue is already in custody the detaining authority must expressly show awareness of custody, a real possibility of release on bail, and proper consideration of all material bearing on that question.

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