TMI Blog2002 (9) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... d at 10.00 p.m. and was produced before the Chief Judicial Magistrate, Manjeri at 11.00 a.m. on 21.11.2001 and was remanded to judicial custody till 4.12.2001. He moved bail application. Crl. M.P. No. 11415 of 2001 in O.S. No. 18 of 2001 before the Additional Chief Judicial Magistrate (Economic Offence) Ernakulam. Bail was granted to him on 11.12.2001. While he was on bail order of detention was passed on 27.12.2001 detaining him in Central Prison, Thiruvananthapuram. 3. The only contention raised by the counsel for the petitioner is that while the detenu was detained under the COFEPOSA Act he was on bail granted by a competent criminal court. Counsel submitted that application for bail and the order granting bail are vital documents but were not noticed, adverted to and considered by the detaining authority and consequently the order of detention is vitiated. Counsel made reference to the decisions of the apex Court in M. Ahamedkutty v. Union of India (1990 (2) S.C.C. 1), Abdul Sathar Ibrahim Sait v. Union of India (1992 (1) SCC) and the decisions of this court in Ashraf v. State of Kerala (: 2001 (1) KLJ 684) and Hajra v. State of Kerala 1997 (1) KLT 597 Reference was also mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A Bench of this Court in Ashraff v. State of Kerala (2001 (1) KLJ 684) followed the abovementioned decision and held that bail application and the order of bail are all vital documents and the detaining authority is bound to consider the same. The court also held that the contents of the bail application and the manner in which bail application was considered by the Magistrate and the ground on which he was satisfied of granting bail would also have a bearing in the formation of the subjective satisfaction of the detaining authority in passing the detention order since those documents are vital documents. 5. In this connection we may also refer to the recent decision of the apex court in Chowdarabu Raghunandan v. State of Tamil Nadu and Ors. (2002 S.C.C. Crl. 714). In that case apex court was considering the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions imposed while granting bail and consequently continued to be in custody. Order of detention was passed on 8.11.2001. When the detention order was passed, detaining authority did not have before it the application for bail nor the order passed thereon by the Sessions Judge. However, detaining authority took into consideration remand order made by the court to note the fact that the detenu was in police custody. Contention was raised before the High Court by the detenu that application for bail preferred by him as well as the order on it were not placed before the detaining authority. Consequently order of detention was vitiated. The High Court however rejected the contention noticing that the detenu did not come out on bail and he had remained to be on remand in prison on the basis of the order bail application or the order made thereon were on relevant material. The apex court after considering its earlier decision in Abdul Sathar's case held as follows: We have considered the argument advanced on behalf of the parties as also perused the records. The issue that arises for our consideration in this case is not really res integra. In the case of Ahamedkutty (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presenting the State in express terms said that he which would also mean his client which is the State, did not have any objection to the grant of bail. Therefore in our opinion this is a vital fact notice of which the detaining authority ought to have taken. Counsel for the respondents submitted that as opined by the apex court in Ahamedkutty's case , there is no general proposition that whenever bail is granted on application made by the detenu application and the bail order are vital documents to be considered by the detaining authority, consequently non mentioning of the bail application and the bail order in the detention order would not vitiate the order of detention. 7. We find it difficult to accept the above contention of the respondents. Apex court in Varadaraj's case has noted that it is not correct to say in every case there is an application for bail and the order made thereon and the detaining authority must as a rule be made aware of the said application and the order made thereon. Need of placing such an order and the application would arise on the contents of those documents. If the document do contain some materials which wold enable to form subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Dutt v. State (1994(5) SCC 410). Counsel appearing for the detenu however submitted that if the court finds that the order of detention is invalid and it is set aside, the detaining authority has no jurisdiction to pass fresh orders. In any view of the matter, counsel submitted that in the instant case such a power cannot be exercised since the period of detention is about to expire. We are of the view in the instant case it may not be possible for the detaining authority to pass fresh detention order since only a few more months remain for the detenu to be released. However, we may add in appropriate cases where there are procedural infirmities, the detaining authority can pass fresh orders after clearing the procedural defects. We find in this case detaining authority had failed to take note of the bail application and the order granting bail. Consequently mandatory requirement has not been complied with by the detaining authority. 9. We are of the view in appropriate case it would be possible to cure such defects and pass fresh detention orders. We are fortified in this view by the decision of the apex court in Naranjan Singh's case , supra, (AIR 1952 S.C. 106) whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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