TMI Blog1998 (8) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... on, we would like to mention that Mr. M. G. Karmali learned counsel for the petitioner candidly stated that the period of detention of the detenu having been over, he has been ordered to be released from the Yerwada Central Prison, wherein he was detained but as the impugned order of detention could form a foundation of consequential actions, it could be challenged through the present petition, as laid down by the Apex Court in para 5 of the decision reported in 1996 SCC (Criminal)269, Nutan J. Patel (Ms) vs. S. V. Prasad, we have examined para 5 of the said decision and we find that the said proposition has been laid down in it. 2. The grounds of detention in short mention that the detaining authority was satisfied that the detenu had been engaged in unauthorised transactions ,in violation of the provisions of foreign Exchange Regulation Act, 1973, which had affected foreign exchange resources of the country adversely and therefore his detention under the conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 with a view to prevent him in future from acting in any manner prejudicial to the augmentation of the country s foreign exchange resources was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detaining authority (respondent No. 2) in issuing the detention order was vitiated on account of non-application of mind; and(b) the bail application being a vital document, its non-placement before the detaining authority trampled upon the fundamental right of the detenu, contained in Article 22 (5) of the Constitution of India, to make a representation at the earliest opportunity; 3. Ground No. 5 (ii) pleaded in the petition has been replied to in para 3 of the return Filed by the detaining authority. In substance, the reply of the detaining authority incorporated in the said para is that the allegations made in the bail application dated 7th April, 1995 were of a general nature; they were found in two documents which were placed before the detaining authority namely the bail order dated 7th April, 1995 passed by the court and further retraction of the detenu dated 15th April, 1995; the bail application was not served on the department which is clear from the reply dated 20th April, 1993; the allegations in the bail application which are of a casual nature have been duly referred by the Magistrate in his bail order; and the retraction of the detenu dated 7th May, 1995, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a perusal of para 12 (6) of AIR 1991 SC 2261 (supra) would show that the result of non-placing of the bail application before the detaining authority and non-furnishing of its copy to the detenu would be to vitiate the detention order. Mr. R. M. Agarwal learned counsel for the respondents Nos. 1 and 2 and Mr. D. G. Bagwe learned counsel for the respondents Nos. 3 to 5 strenuously urged that the non-placement of the bail application of the detenu before the detaining authority and non-furnishing of its copy to the detenu would not vitiate the detention order. Mr. Agarwal urged that the ratio laid down in air 1991 SC 2261 (supra) would have no application to this case because, the bail order was not passed on the bail application but, was passed on an application moved from the side of the respondent, seeking remand of the detenu. In this connection, he specifically invited our attention to the bail order which was passed on the remand applications No. 71/95 and 56/95 dated 7th April, 1995. Mr. Karmali strenuously repudiated the correctness of Mr. Agarwal s contention. He furnished before us a certified copy of the bail application dated 7th April, 1995. A perusal of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot anticipate what his subjective satisfaction would have been had the bail application been placed before him. In this connection, it would be necessary to advert to two decisions of the Supreme Court namely : (i) AIR 1988 SC 208, State of U. P. , Appellant vs. Kamal Kishore Saini, Respondent. (ii) AIR 1989 SC 34, Ayya alias Ayab, Petitioner vs. State of U. P. and another. Respondents. In the former decision, a perusal of para 7 shows that certain vital documents like statement of witnesses under section 161, Criminal Procedure code the bail applications of co-accused and the detenu and the police reports thereon had not been placed before the detaining authority and the assertion made in the return by the detaining authority was that even had the said material been placed before him, he would have not changed his subjective satisfaction. Repelling the said assertion of the detaining authority, the Apex court observed thus in the said para : The High Court therefore was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detenu was a vital document and the effect of its non-placement before the detaining authority has been considered. The said decisions in our Judgment have no bearing. Mr. Agarwal cried hoarse that in Criminal writ Petition No. 1061 of 1991, this Court has taken the view that the bail order may not on the facts of the case be a vital document and therefore urged that it followed as a logical imperative that the bail application in the given facts of a case, as is the case here, may not be a vital document. Weighed purely on the anvil of logic, the submission sounds attractive but we regret that we cannot accept it for in doing that we would be laying down law contrary to AIR 1991 sc 2261 (supra), which by the mandate of Article 141 of the Constitution of India is binding on us and wherein it has been laid down, in para 12 (6)that where the detenu is on bail at the time of the passing of the detention order the bail application and bail order are vital documents and their copy has to be supplied to the detenu. For the said reasons, in our view the failure on the part of the sponsoring authority to place the bail application of the detenu before the detaining authority has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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