Holding

The order of preventive detention is not vitiated by the non‑furnishing of the bail application because it was not a vital document and the detaining authority’s satisfaction was not impaired.

Summary

Sunila Jain appealed against a preventive detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) against her husband, D.K. Jain, who had been released on bail by the Special Court of Economic Offences on the ground that the alleged offence was bailable. The detaining authority later passed a detention order on 12 June 2003 without having placed a copy of the bail application before it or supplying it to the detenu. The appellant contended that this omission violated Article 22(5) of the Constitution and Section 3(3) of COFEPOSA, rendering the detention order void. The Supreme Court examined whether the non‑furnishing of the bail application impaired the detaining authority’s subjective satisfaction, especially when the application did not contain any vital facts beyond the bailability of the offence. The Court held that the bail application was not a vital document, the authority was aware of the bail release, and therefore the order of detention was not vitiated. Consequently, the appeal was dismissed.

Issues considered

Whether the failure to place a copy of the bail application before the detaining authority vitiates a preventive detention order under COFEPOSA.
Whether the detaining authority's subjective satisfaction is impaired when the bail application is not considered, particularly when the detenu is out of custody at the time of the detention order.
Whether the fact that the offence is bailable constitutes a vital fact that must be placed before the detaining authority.

Legislation cited

Subjects

preventive detentionbailCOFEPOSAArticle 22(5)subjective satisfactionvital documentsconstitutional lawcustoms law

Judgment

). '-y SUNILA JAIN A
v.
UNION OF INDIA AND ANR.

FEBRUARY 24, 2006

[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] B

f
J. Preventive Detention:

Detaining authority-Subjective satisfaction of-Detenu had earlier been
released on bail by Special Court of Economic Offences on ground that the
c
offence was bailable-Order of detention passed subsequently-If vitiated for
non1urnishing of copy of the bail application before detaining authority-
Held: Not vitiated since there was no impairment in the subjective satisfaction
of the detaining authority-Detaining authority was shown to have knowledge
that the detenu had already been released on bail-Constitution of India, D
1950-Article 22(5)-Conservation of Foreign Exchange and Prevention of
. "i Smuggling Activities Act, 1974-Section 3(1)-Customs Act-Section 108.
j

Detenu is husband. of the Appellant. He had earlier been released
on bail by the Special Court of Economic Offences. Copy of the Bail
application moved by the detenu was not placed before the detaining E
authority for its consideration. Order of detention was subsequently passed
by the detaining authority.

The question which arose for consideration in the present appeal is
whether the order of detention was vitiated for non-furnishing of copy of
F
bail application before it.
---1
Dismissing the appeal, the Court

HELD: 1. Application of mind to the averments made in a bail
application may be relevant where the grounds stated therein reveal
G
certain facts which are vital for passing an order of detention. In a case
of such nature, it may be said the application for bail was necessary to be
:1 placed before the detaining authority and non-furnishing of a copy thereof
~·
to the detenu would vitiate the order of detention. [482-E)
"
.:
475 H
476 SUPREME COURT REPORTS [2006] 2 S.C.R.

A Abdul Sathar Ibrahim Manik v. Union of India & Ors., [199211 SCC
1; M. Ahmedkutty v. Union of India & Ors.(19901 2 SCC 1 and P. U. Abdul ( ~
Rahiman v. Union of India & Ors.,(19911supp2 SCC 274, distinguished

Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi & Ors.,
(19871 2 sec 69, referred to.
B
2. Whether a detenu on the date of the passing of the order of
detention was in custody or not would be a relevant fact. It would also be
a relevant fact that whether he is free on that date and if he is, whether
he is subjected to certain condition in pursuance of and in furtherance of A

the order of bail. If pursuant to or in furtherance of such conditions he
c may not be able to flee from justice, that may be held to be relevant
consideration for the purpose of passing an order of detention but the
converse is not true. Some such other grounds raised in the application
for bail and forming the basis of passing an order of bail may also be held
to be relevant. It would, however, not be correct to contend that
D irrespective of the nature of the application for bail or irrespective of the
nature of the restrictions, if any, placed by the Court of competent
jurisdiction in releasing the detenu on bail, the same must invariably and
l-
mandatorily be placed before the detaining authority and the copies
thereof supplied to the detenu. (482-D-E-F-Gl
E 3. On the petitioner's own showing, only that part of the application
for grant of bail that the offence in question is bailable, was relevant. No
other submission had been raised. Whether a provision of law is bailable
or not is a question of law. The same is presum.ed to be known to courts
and I or the detaining authority. It may not be necessary even to be stated
F in the application for bail. If a person had been released on bail on the
ground that the offence is bailable, it would not be necessary to bring the
said fact before the detaining authority. The detaining authority will have ....
to satisfy himself on the basis of the materials placed on record, as to
whether the order of preventive detention should be passed against the
detenu or not. The constitutional mandate can be said to be violated,
G provided: (1) the impairment has been caused to the subjective satisfaction
to be arrived at by the detaining authority, and (2) if relevant facts had
not been considered or the relevant or vital d.ocuments have not been
placed before the detaining authority. (483-A, B, C, D) >-

H 4.1. In the instant case the order of detention has taken note of the
'
}
SUNILA JAIN v. U.0.1. [SINHA, J ] 477
fact that the detenu had already been released on bail. 1483-DI A
Ji --y·
4.2. It is.also not in dispute that a copy of the order granting bail
and order of remand has been furnished to the detenu. In this view of the
matter non furnishing of a copy of the application of bail cannot be said
to be a ground which impaired the subjective satisfaction of the detaining
authority or the same was a relevant fact which was required to be taken B
into consideration by him and the application for bail was required to be
supplied to the detenu. It is now well settled that all the documents placed
.. before the detaining authority are not required to be supplied; only
).
relevant and vital documents are required to be supplied. [483-E, F, GI

4.3. As in the fact of this case the application for bail was not a vital
c
document copy whereof was required to be supplied to the detenu, the
order of detention is not vitiated. [483-HI

Smt. Icchu Devi Choraria v. Union of India & Ors., [1980) 4 SCC 531,
distinguished D
· K. Varadharaj v. State of T.N. & Anr., [20021 6 SCC 735 and
~ Radhakrishnan Prabhakaran v. State of T.N. and Ors., [2000] 9 SCC 170,
f relied on

Johney D' Couto v. State of Tamil Nadu, [1988] 1 SCC 116, referred E
to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 245
of 2006.

From the Judgment and Order dated 30.3.2004 of the _Karnataka High F
Court in W.P. (H.C.) No. 93/2003.

K.K. Mani for the Appellant.

Gopal Subramanimum, A.S.G. Navin Prakash, B.K. Prasad and Mrs. G
Anil Katiyar for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.

H
478 SUPREME COURT Rl~PORTS [20061 2 S.C.R.

A Whether a copy of the bail applicatio~ is required to be taken into
consideration for the purpose of passing an order of preventive detention in
' &
tenns of Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to a:; 'COFEPOSA') is the question
involved in this appeal which arises out of a judgment and order dated 30th
B March, 2004 passed by the High Court of Karnataka in Writ Petition No. 92/
2003 whereby and whereunder the writ of habeas corpus filed by the appellant
was dismissed.

The appellant's husband D.K. Jain was a licensee under Foreign Trade
(Development and Regulation) Act, 1992. He was carrying on business under
C the name and style of Mis. Amisha lntemat:onal. On or about 9.6.1997 the
said finn obtained a letter of pennission for manufacturing powder grade silk
yam under the 100% Export Oriented Unit Scheme and Importer Exporter
Code issued by the Development Commissioner, Cochin Special Economic
zone (CEPZ). In terms of the said letter of pennission the firm was required
to fulfill export obligations specified therein and to achieve the value addition.
D Having obtained an infonnation that the said firm was diverting duty free
mulberry raw silk yarn imported under the said scheme to the domestic
market for undue monetary gains instead of using the same for manufacturing
purpose wherefor the said permission had been granted and in place of
exporting powder grade silk yarn, had been exporting bricks and other waste
E material, raids were conducted at Bangalore and at Cochin Port on 29.1.2003.
Several incriminating documents and prop(:rties were seized.

The statement of the husband of the appellant (the detenu) in tenns of
Section 108 of the Customs Act was recorded. Another statement of his was
recorded under the said provision on 30th January, 2003. He was also arrested
F on the said date. An application for bail was moved by him before the
Special Economic Offences Court on the said date itself, the contents whereof
are as under:

"Application UIS 436 of the Crim nal Procedure Code.

G 1. The above complainant customs have registered a case against
accused for or an offence punishable under section 135 of the Customs
Act.
...
2. The said offence is bailable in nature and accused is an innocent 1

of the said alleged offence.
H
SUNILA JAIN v.U.0.1. (SINHA, J.] 479
3. The accused is a pennanent residence of Bangalore and peace A
loving citizen of Bangalore.

4. The accused is willing to pay security to this Hon 'ble Court for
release of the accused."

On the premise that offence under Section 108 of the Customs Act is B
bailable, he was granted bail on the same day.

The detaining authority passed an order of detention against the detenu
-~
on 12.6.2003. Questioning the said order of detention, a writ petition praying
for issuance of habeas corpus was moved before the High Court ofKamataka
at Bangalore. By reason of the impugned judgment the said writ petition has C
been dismissed. Before the High Court principally two contentions were
raised on behalfof the detenu. ( 1) A copy of the application for bail having
not been supplied by the detaining authority, the impugned order of detention
is vitiated in law; and (2) In view of the fact that the licence granted in favour
of the said finn was suspended, the question of passing an order of detention D
for preventing the detenu from carrying out the activities which could be
detrimental to the provisions of the Customs Act did not arise. Both the
contentions have been rejected by the High Court by reason of the impugned
judgment.

Before us, however, Mr. K.K. Mani, learned counsel appearing on behalf E
of the appellant pressed only the first contention, in support whereof the
learned counsel relied upon the decisions of this Court in M Ahamedkutty v.
Union of India & Ors., [1990] 2 SCC 1, P. U. Abdul Rahiman v. Union of
India & Ors. [1991] supp. 2 SCC 274 and Abdul Sathar Ibrahim Manik v.
Union of India & Ors., [1992] 1 SCC 1. It was submitted that a distinction F
must be made in the matter of supply of a copy of the bail application in a
case where the detenu is in custody and in a case where he was free on the
date of passing of the order of detention. The learned counsel would submit
that whereas in the former case neither a copy of the bail application nor an
order of bail is required to be placed before the detaining authority by the
sponsoring authority, in the latter case, the same is imperative in nature. It G
was urged that in the instant case it is evident from the records that neither
the copy of the bail application nor the order of the court granting bail to the
detenu had been placed before the detaining authority. It was furthennore
argued that the High Court committed a manifest error in rejecting the said
contention of the appellant stating that he must have been aware of the
H
480 SUPREME COURT REPORTS [2006j 2 S.C.R.

A contents of the bail application and, th us, was not prejudiced in any manner
whatsoever. The constitutional mandate contained in Article 22 of the f 4

Constitution of India, Mr. Mani would argue, must be complied with wherefor
supply of relevant material is imperative. In support of the said contention
reliance was placed in Mrs. Tsering Dl'lkar v. Administrator, Union Territory
B of Delhi & Ors. [1987] 2 SCC 69, Johney D'Couto v. State of Tamil Nadu,
[I 988] I SCC 116 and Smt. !cchu Devi Choraria v. Union of ndia & Ors.,
[I 980] 4 sec 531.

Mr. Gopal Subramanium, learned Additional Solicitor General appearing
on behalf of the respondents, on the oi:her hand, submitted that in the instant
C case a copy of the bail application was not required to be placed before the
detaining authority. It was urged that the ordt:r of detention dated 12.6.2003
shows that the fact, that the detenu had been released on bail, was within the
knowledge of the detaining authority and such vital fact having been taken
into consideration the order of detention cannot be said to be vitiated for non-
placement of the application for bail before him.
D
It is not disputed before us and furthermore it would appear from the
impugned judgment of the High Cou11 that the order of bail passed by the
learned magistrate as also the order of remand were furnished to the detenu.

It is not doubt true that clau~e (5) of th1: Article 22 of the Constitution
E of India mandates that all procedural requirements contemplated thereby as
also the relevant provisions of COFEPOSA are required to be strictly complied
with in a case of preventive detention.

Apart from the fact, that a copy of the application for bail was available
F with the detenu, a bare perusal thereof would show that save and except the
submission that the offence is bailable in nature, no other contention which
was required to be brought to the notice of the detaining authority was put
forward.

The question as to whether an offence is bailable or not is not a vital
G fact whereupon an order of bail can be passed. Application of mind to the
averments made in a bail applicatio~. may be relevant where the grounds
stated therein reveal certain facts which are vital for passing an order of
detention. In a case of such nature, it may be said the application for bail was
f
necessary to be placed before the detaining authority and non-furnishing a
H copy thereof to the detenu would vitiate the order of detention.
SUNILA JAIN v.U.0.1. (SINHA, .I.] 481

In Abdul Sathar Ibrahim Manik v. Union of India & Ors., [1992] 1 A
J 'f SCC 1 this court inter a/ia held:

" ..... (3) If the detenu has moved for bail then the application and the
order thereon refusing bail even if not placed before the detaining
authority it does not amount to suppression of relevant material. The
question of non-application of mind and satisfaction being impaired B
does not arise as long as the detaining authority was aware of the fact
that the detenu was in actual custody."

It was, however, observed:

"(6) In a case where detenu is released on bail and is at liberty at the C
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." D
We do not think that the aforementioned enunciation of law is of
·i universal application. We would deal with this aspect of this matter a little
J. later.

In M Ahamedkutty (supra) this Court was dealing with a case where an E
order of bail was passed on the condition that he would report before the
Customs Authority on every Wednesday and would not change his residence
without prior permission of court. This Court in the aforementioned fact
situation opined that non-consideration of the order passed on the said petition
for bail would amount to non-application of mind on the part of the detaining
authority holding: F
"Considering the facts in the instant case, the bail application and the
bail order were vital materials for consideration. If those were not
considered the satisfaction of the detaining authority itself would
have been impaired, and if those had been considered, they would be G
documents relied on by the detaining authority though not specifically
mentioned in the annexure to the order of detention and those ought
to have formed part of the documents supplied to the detenu with the .
grounds of detention and without them the grounds themselves could
not be said to have been complete. We have, therefore, no alternative
H
482 SUPREME COURT REPORTS [2006] 2 S.C.R.

A but to hold that it amounted to denial of the detenu's right to make
an effective representation and that it resulted in violation of Article r ' •
22(5) of the Constitution of India rendering the continued detention
of the detenu illegal and entitling th1: detenu to be set at liberty in this
case."

B The said decision has no application to the present case.

In P. U. Abdul Rahiman (supra) this Court held:

"The appellant had been arrested on June 4, 1988 under the Narcotic
Drugs and Psychotropic Substances Act, 1985. On June 9, 1988 he
c had moved an application before the Judicial First Class Magistrate,
Kasargod for bail. That application was rejected. On June IO, 1988
the appellant moved an application for bail, as C.M.P. No. 104 of
1988, before the District Sessions Judge, Kasargod. On June 17, 1988
the appellant was released on bail subject to certain conditions. In the
D two applications for bail the appellant had specifically stated that he
had retracted from the statement made by him. The co-accused, who
had also made a statement, had retracted from his statement."

The bail petition filed by the detenu therein contained material facts
which were required to be taken into consideration by the detaining authority.
E Such is not the case here.

The decisions of this Court referred to herein before must be read in
their entirety. It is no doubt true that whether a detenu on the date of the
passing of the order of detention was in custody or not, would be a relevant
fact. It would also be a relevant fact that whether he is free on that date and
F if he is, whether he is subjected to certain conditions in pursuance of and in
furtherance of the order of bail. If pursuant to or in furtherance of such .,.... -
conditions he may not be able to flee from justice, that may be held to be
relevant consideration for the purpose of passing an order of detention but
the converse is not true. Some such other grounds raised in the application
G for bail and forming the basis of passing an order of bail may also be held
to be relevant. It would, however, not be correct to contend that irrespective
of the nature of the application for bail or irrespective of the nature of the
restrictions, if any, placed by the court of competent jurisdiction in releasing ...
the detenu on bail, the same must invariably and mandatorily be placed i
before the detaining authority and the copies thereof supplied to the detenu.
H
I

SUNILA JAIN v.U.0.1. [SINHA. J.) 483
The decisions relied upon by Mr. Mani in our opinion do not lay down A
as universal rule that irrespective of the facts and circumstances of the case
it would be imperative to place all applications for bail as also the orders
passed thereupon before the detaining authority and copies thereof supplied
to the detenu. On the petitioner's own showing, only that part of the application
for grant of bail that the offence in question is a bailable, was relevant. No B
other submission had been raised at the bar. Whether a provision of law is
bailable or not is a question of law. The same is presumed to be known to
courts and/or the detaining authority. It may not be necessary even to be
stated in the application for bail. If a person had been released on bail on the
ground that the offence is bailable, it would not be necessary to bring the said
fact before the detaining authority. The detaining authority will have to satisfy C
himself on the basis of the materials placed on record, as to whether the order
of preventive detention should be passed against the detenu or not. The
constitutional mandate can be said to be violated provided: (I) the impairment
has been caused to the subjective satisfaction to be arrived at by the detaining
authority; and (2) if relevant facts had not been considered or the relevant or
vital documents have not been placed before the detaining authority. D
In the instant case the order of detention has been taken note of the
fact that the detenu had already been released on bail in the following terms:

"You were arrested on 30.1.2003 and released on bail by the Hon'ble E
Judge, Special Court of Economic Offences, Bangalore, upon
executing a personal Bond for an amount of Rs. I0,000/- and Security
in the form of cash for the like sum."

It is also not in dispute that a copy of the order granting bail and order
of remand has been furnished to the detenu. In this view of the matter we are p
__ --! of the opinion that non-furnishing of a copy of the application of bail cannot
be said to be a ground which impaired the subjective satisfaction of the
detaining authority or the same was a relevant fact which was required to be
taken into consideration by him and the application for bail was required to
be supplied to the detenu. It is now well settled that all the documents placed
before the detaining authority are not required to be supplied; only relevant G
and vital documents are required to be supplied.
-I
) As in the fact of this case, we are satisfied that the application for bail
was not a vital document copy whereof was required to be supplied to the
detenu, in our opinion, the order of detention is not vitiated. A Division-_ H
484 Sl:PREME COURT REPORTS [20061 2 S.C.R.

A Bench of this Court in K. Varadharaj v. Stale a/TN. & Anr.. (2002] 6 SCC
735] upon noticing some of the decisions relied upon by Mr. Mani inter alia
held:

"From the above observations, it is clear that placing of the application
for bail and the order made thereon are not always mandatory and
B such requirement would depend upon the facts of each case."

In Radhakrishnan Prabhakaran v. State of r.N. and Ors., [(2000) 9
...
SCC 170], this Court clearly held that only such documents are required to
be supplied which are relevant stating :

c "8. We may make it clear that there is no legal requirement that
a copy of every document mentioned in the order shall invariably be
supplied to the detenu. What is important is that copies of only such
of those documents as have been relied on by the detaining authority
for reaching the satisfaction that preventive detention of the detenu is
D necessary shall be supplied to him. It is admitted by the learned
counsel for the petitioner that the order granting bail has been supplied
to him. Application for bail has been submitted by the detenu himself
when the order of detention was passed which was subsequent to the
order granting bail. We cannot comprehenG as to how a prior order
•
rejecting bail would be of any relevance in the matter when it was
E later succeeded by the order granting bail"

In Smt. /cchu Devi Choraria (supra) , this Court emphasized that the
right to be supplied copies of the documents., statements and other materials
relied upon in the grounds of detention without any undue delay is a part of
F constitutional right under Article 22(5) as also statutory right under Section
3(3) of the COFEPOSA Act. We have held hereinbdore that the copy of the
r·
bail application, in the facts and circumstances of the case, was not a document
supplied by the detaining authority was imper~tiv'e in character. The said
decision has, therefore, no application to th•! facts of the present case.

G The question as to whether the detenu was prejudiced by non-supply of
a copy of the application for bail or not, in th'! facts and circumstances of this
case, does not arise. The decisions relied upon by Mr. Mani in this behalf are
clearly distinguishable. (

Johney D 'Couto, (supra) relates to a case wherein the grounds of
H detention were not supplied in the language known to the detenu. In case of
SUNILA JAIN v.U.0.1. [SINHA. J.] 485
that nature only, it was held that the question as to whether the detenu had A i
knowledge or prejudice could be irrelevant.

For the foregoing reasons, we are of the opinion that there is no merit
in the present appeal and it is accordingly dismissed. In the facts and
circumstances of the case, the parties shall bear their own costs.
B
B.B.B. Appeal dismissed.

'