Jaikumar Raj vs State of Tamil Nadu and Union of India

Arunachalam, J.—Both these Habeas Corpus Petitions are disposed of together by a common order, since the detenu concerned had arrived at the Madras International Airport by the same flight and were found in possession of gold concealed in their chappals. Further, the ground urged is identical.

Jai Kumar, petitioner in H.C.P. No. 351 of 1994 is the husband of Blaisylda, who has been preventively detained, in pursuance of an order dated 21.9.1993 passed by the first respondent in exercise of the powers conferred by Section 3(l)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (Central Act 52 of 1974) with a view to preventing the detenu from indulging in smuggling goods.

Raj, petitioner in H.C.P. No. 352 of 1994 is the husband of Masilla, who has been similarly detained by the same authority by an order dated 21.9.1993, with a view to preventing the detenu concerned from smuggling goods.

Mr. B. Kumar, learned counsel appearing on behalf of the petitioners in each one of these Habeas Corpus Petitions, submitted that along with the grounds of detention, detenue were supplied with a truncated gist of the bail order, while in pursuance of the representations pleading for supply of full text of the bail orders, they were so supplied. The full and complete bail order contains so much of vital material, which could have affected the subjective satisfaction of the Detaining Authority either way and such vital information had not been placed before the Detaining Authority, while he was engaged in the process of arriving at his subjective satisfaction. He submitted that recently, the Supreme Court has held in Abdul Sathar Ibrahim Manik v. Union of India (1992 SCC (Crl.) 1) that in cases where bail stood ordered in favour of an individual, the bail petition and bail order were vital and relevant material, which must have been placed before the Detaining Authority, while a proposal was placed before him to detain the said individual preventively.

On this ground, we have heard Mr. I. Subramanian, learned Additional Public Prosecutor. He contended that the bail applications preferred by the detenus concerned had been supplied to both of them initially along with the grounds and therefore no grievance can be made on the non-placement of the full text of the bail orders before the detaining authority at the time when the impugned orders were passed.

We have audited with care and concern the inherent merits of the divergent submissions. In Abdul Sathar Ibrahim Manik''s case (1992 SCC (Crl.) 1), referred to earlier, the Supreme Court stated as hereunder:

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.

Thus, there can be no second opinion, that bail orders were vital material, which should have been placed before the Detaining Authority even before the impugned orders were passed, so that these bail orders could have passed through the turnpike of subjective satisfaction. Merely because bail petitions contain averments, like petitioners being ladies and they had to take care of their minor children, that alone cannot exclude the necessity of placing the vital bail orders before the Detaining Authority. All that the detenus have stated in their bail applications are only their claims, while the bail orders passed in the instant cases show, that on application of mind, judicial authority had found some substance in such claims, It cannot be disputed, that acceptance, atleast to some extent, of the claims of the detenus in the bail orders, makes an ocean of difference, from mere averments to that effect, made in the bail applications preferred by the detenus concerned. We have no hesitation in holding that supply of bail petitions cannot be taken as substitutes for bail orders themselves, which should have been placed before the Detaining Authority.

Now let us look into the contents of the truncated bail orders supplied to the detenus and the true text of those orders supplied later, on requests made through their representations, by these twin detenus. The bail orders in the case of both the detenus are almost similarly worded. The truncated orders read as follows:

Bail ordered accordingly. Accused/petitioner directed not to leave India without prior permission of this Court and shall appear before the Department daily until further orders.

However, we find that the full text, of the bail orders supplied to the detenus, reads as hereunder:

Heard both counsel for petitioner and the respondent. The respondent has not filed any written objection. The learned Spl.P.P. orally objects to the release of the accused. The accused was arrested on 3.7.93 for an alleged offence u/s 135(1) and a(i) of the Custom Act. The previous application for bail was rejected. Thereafter the complainant seems to have searched the premises of the petitioner and found no incriminating document or property. There is no dispute that the petitioner is having permanent place of abode and is a citizen of India. The petitioner stated to be a sick woman and she has to look after her children and family. In view of the further development in this case and in view of the fact that the petitioner being a sick woman and there is no likelihood of jumping out bail, I think, it is expedient in the interest of justice to release the accused on some condition.

Accordingly, the petition is allowed and the petitioner/accused is ordered to be released on her executing a bond for Rs. 7500/- and depositing a cash security of Rs. 7500/- with one surety for Rs. 7500/- and on condition that the petitioner should stay at Madras and report before the respondent/complainant daily at 10:00 A.M. until further orders.

In the full and complete bail order, learned Additional Chief Metropolitan Magistrate (E.O.II), Madras, has considered all about the effect of non-availability of any incriminating document or property in the premises of the detenus concerned, which were searched. Further, he has observed that there was no dispute that the detenues concerned were having permanent places of abode and were citizens of India. He has then referred to the facts stated before him that the detenus concerned were sick women and they had to look after their children and family. The observations following are that in view of the further developments in these cases and in view of petitioners being sick women and there being no likelihood of jumping out of bail, it was his opinion that it was expedient in the interest of justice to release them on some condition. The condition imposed was that the detenus concerned should stay at Madras and report before the respondent/complainant daily at 10:00 A.M. until further orders. Apart from there being a divergence between the truncated order and the full text, about the condition imposed, the former stating that the detenus should not leave India without permission, while the latter states that they should stay at Madras, we find that the full text, of the bail orders supplied to the detenus, clearly shows application of mind by the judicial authority to certain relevant circumstances, which, in his opinion, were sufficient to enlarge them on bail. We have no hesitation in holding, that if this vital document had been placed before the Detaining Authority, which ought to have been done, in view of the law laid down by the Supreme Court in Abdul Sathar Ibrahim Nanik''s case (1992 SCC (Cri.) 1), it would have certainly affected the arrival of subjective satisfaction by the Detaining Authority either way. So long as that possibility looms large, non-placing of this vital document before the Detaining Authority when the impugned orders were passed, will certainly enure in favour of the detenus concerned. We are bound to mention in passing, that bail orders are all the more relevant in the instant cases, for the grounds of detention mention only about a solitary instance and nothing more. The detenus are bound to succeed on this single ground.

Impugned orders of detention are set aside. The detenus are directed to be set at liberty forthwith unless their detentions are otherwise required. These Habeas Corpus Petitions are allowed.