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Smt. Hajara v. State Of Kerala & Anr.
Case Summary — S. Sankarasubban, J.
Factual and Procedural Background
The petitioner sought a writ of habeas corpus (or other appropriate writ) directing respondents to produce and release her husband, Abdul Razak Kodoor (the detenu), who had been detained in Central Prison, Trivandrum under a detention order dated 1.4.1996 purporting to be under Section 3(1)(i) of the COFEPOSA Act (the opinion also refers earlier to the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act as the "COFSPOSA Act"). The factual matrix in the opinion records that the detenu, an employee in Saudi Arabia, returned to Kerala on 2.2.1996 and was detained at Calicut Airport by Customs officers; 69 gold biscuits weighing 8,043.33 grams were seized concealed in electrical appliances. Prosecution was initiated under the Customs Act and the detenu was remanded to judicial custody after being produced before the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam on 3.2.1996.
Bail proceedings: an initial bail application was rejected by the Magistrate by order dated 15.2.1996. An application before the Sessions Judge, Ernakulam was initially rejected, but a subsequent application resulted in an order dated 26.3.1996 granting bail subject to conditions (reporting to the Investigating Officer once in two weeks, surrender of passport, and a restriction on leaving Kozhikode and Malappuram without permission). A detention order was thereafter issued on 1.4.1996; the detenu was apprehended and detained in Central Prison, Trivandrum on 5.4.1996. The detenu's representation (Ext. P5) pointed out that bail had been granted on 26.3.1996 but that the bail application and order were not placed before the detaining authority; that representation was rejected by the detaining authority and the Central Government, and the detention order was confirmed and extended for one year from 5.4.1996.
Legal Issues Presented
- Whether the bail application and the order granting bail (granted on 26.3.1996) were relevant documents that ought to have been placed before the detaining authority when a detention order was passed on 1.4.1996, and whether failure to place them vitiates the detention order.
- Whether the grounds of detention, having been furnished in English and not translated into Malayalam, deprived the detenu of an opportunity to give a proper explanation.
Arguments of the Parties
Petitioner's Arguments
- The bail application and the bail order (26.3.1996) were not placed before the detaining authority and therefore the detaining authority had no opportunity to consider them when issuing the detention order dated 1.4.1996.
- The grounds of detention were in English and had not been translated into Malayalam, resulting in the detenu not being given a proper explanation or opportunity to make an effective representation.
Respondents' Arguments (First Respondent as articulated in counter-affidavit)
- The detaining authority considered the circumstances and materials on record and applied its mind before issuing the detention order.
- Prosecution proceedings under the Customs Act and any bail granted in those proceedings were said to have "no bearing" on preventive detention under the COFEPOSA Act; the detaining authority treated prosecutorial measures as distinct from the preventive detention measures and thus viewed the bail order as irrelevant. The counter-affidavit asserts that "All the relevant documents were produced before the Detaining Authority and only after consideration of all these documents detaining authority had issued detention order." (Para. 13).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1 : AIR 1991 SC 2261 | The Bench formulated points on detention of a person already in prison. It held that failure to supply the bail application and the order refusing bail will not always cause prejudice. Crucially, where the detenu was already at liberty on bail at the time the detention order was passed, the bail application and the bail order are vital documents which must be placed before the detaining authority and copies supplied to the detenu. | The court relied on this distinction to conclude that where bail had been granted prior to the detention order (as in the present case), the bail application and bail order were relevant and should have been placed before the detaining authority; failure to do so made the detention order invalid. |
| Noor Salman Makani v. Union of India, (1994) 1 SCC 381 : AIR 1994 SC 575 | The Court observed that whether a document is "vital" depends on facts. If the detention order was passed when the detenu was in jail and if he is subsequently released on bail, that subsequent release may not constitute a material change; indeed, release on bail might indicate a greater likelihood of re-engaging in prejudicial activities. | The court used this decision to explain the factual distinction between detention passed while in custody and detention passed while the person is at liberty: the timing of bail vis-à-vis the detention order affects whether the bail order is a vital document. This assisted the court in determining that, because bail in the present case preceded detention, the bail documents were vital. |
| Dr. Hannan Gulam Husain Chougle v. Union of India (Bombay High Court), Cri. Writ Petition No. 1384 of 1991 | The decision was cited for the proposition that if a detenu is already on bail and subsequent conditions are imposed restricting movement, those conditions may be a vital fact for consideration in preventive detention proceedings. | The court cited this authority as an example to show circumstances in which bail conditions could be vital; it assisted the court's analysis in distinguishing when bail-related documents and conditions must be treated as material by the detaining authority. |
Court's Reasoning and Analysis
The court proceeded step-by-step from the factual record to the legal rule established by higher authorities:
- Fact-finding on record: the bail order in question was dated 26.3.1996; the detention order was dated 1.4.1996. The detaining authority, in its counter-affidavit, did not explicitly state that the bail application and the bail order had been produced to or considered by it; instead it asserted that prosecution and bail under the Customs Act had no bearing on preventive detention under the COFEPOSA Act.
- Legal framework from precedent: the court reviewed relevant Supreme Court decisions (primarily Abdul Sathar Ibrahim Manik and Noor Salman Makani) and noted the controlling distinction: where the detenu is already at liberty on bail at the time the detention order is made, the bail application and bail order are "vital" documents which the detaining authority must place before itself and supply to the detenu. By contrast, if the detention order is passed while the person is in custody and the bail is granted later, the later bail may not materially change the reasoning for detention.
- Application to the present facts: because bail had been granted on 26.3.1996 and the detention order followed on 1.4.1996, the bail application and bail order were relevant and should have been placed before the detaining authority. The detaining authority's stance that the bail order was irrelevant (rooted in a perceived distinction between prosecution under the Customs Act and preventive detention under COFEPOSA) was incorrect in law, given the precedents cited.
- Conclusion from analysis: the detention order suffered from legal infirmity because the detaining authority had not properly considered (or at least had not demonstrated that it considered) vital documents—namely the bail application and the bail order—and therefore the detention order was set aside. The court expressly did not decide the separate ground concerning translation of the grounds into Malayalam because the petition was allowed on the bail-related ground.
Holding and Implications
Primary Holding: The Original Petition is allowed; the detention order dated 1.4.1996 is set aside because the bail application and the order granting bail (26.3.1996) were relevant documents that ought to have been placed before the detaining authority and were not properly considered.
Consequence: The detenu, Abdul Razak Kodoor, detained under the COFEPOSA/COFSPOSA order, is directed to be released forthwith if he is not required in any other case. The court did not consider or rule on the second ground (translation of grounds into Malayalam) because the petition succeeded on the first ground.
The opinion does not state any explicit intention to lay down a new principle of law beyond applying the distinctions already articulated in the cited Supreme Court decisions; the decision's immediate effect is the setting aside of the specific detention order and the consequent release of the detenu subject to any other legal obligations.
S. Sankarasubban, J.:— This Original Petition is filed for a direction to the respondents to produce the corpus of the petitioner's husband Sri. Abdul Razak Kodoor, who has been detained in Central Prison, Trivandrum, under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter called as ‘the COFSPOSA Act’) and set him at liberty by issuing a writ of habeas corpus or any other appropriate writ. Husband of the petitioner (hereinafter called as ‘the detenu’) was employed in Saudi Arabia. On 2.2.1996, he came to Kerala from Siyadh and on reaching the Airport at Calicut, Customs Officers detained him and on search of his body 69 gold biscuits weighing 8043.33 gms. were seized. The gold biscuits were concealed inside some electircal appliances brought by him. Prosecution steps were taken under the Customs Act. He was arrested and produced before the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam on 3.2.1996 and was remanded to judicial custody till 16.2.1996 An application for bail was moved before the learned Magistrate, which was opposed by the Superintendent (Intelligence), Air Customs, Calicut Airport. The learned Magistrate rejected the bail application by his order dated 15.2.1996 Thereafter, another application for bail was moved on behalf of the detenu before the Court of the Sessions Judge, Ernakulam, which was rejected. Subsequently, a second application was moved before the Sessions court, Ernakulam. The learned Sessions Judge, as per order dated 26.3.1996 ordered release of the detenu overruling the objections of the Superintendent, Air Customs (Intelligence), Karipur Airport, Calicut. The bail was granted with the following conditions:
“i) On release, detenu will report before the Investigating Officer once in two weeks on all alternate Mondays until further orders.
ii) The detenu will surrender his passport before the Investigating Officer or the Additional Chief Judicial Magistrate (E.O) Ernakulam, if not already done.
iii) The detenu will not leave Kozhikode and Malappuram without permission of the Additional Chief Judicial Magistrate Court (E.O), Emakulam, except for appearing before the Investigating Officer or in Court”.
2. On 1.4.1996 a detention order was issued by the first respondent, under Section 3(1)(i) of the COFEPOSA Act. The detenu was issued grounds of detention and he was apprehended and detained in the Central Prison, Trivandrum on 5.4.1996 The ground of detention are produced as Ext. P1 in the case. The detenu filed Ext. P5 representation wherein the detenu has clearly stated that he was granted bail by the Sessions Court, Ernakulam in Crl. M.P No. 490/96. He has further stated that the bail application and the order were not placed before the detaining authority. The representation was rejected by the first respondent by Ext. P6 dated 23.5.1996 and by the Central Government by Ext. P7 dated 7.6.1996 The detention order was confirmed by the first respondent by Ext. P8 dated 1996 and the detenu was ordered to be detained for a period of one year from 5.4.1996
3. Learned counsel for the petitioner urged two grounds. (1) The bail application and the bail order were not placed before the detaining authority and the detaining authority had no opportunity to consider the same. (2) The grounds of detention were in English and they were not translated into Malayalam and hence the detenu has not given a proper explanation.
4. Counter affidavits have been filed by the first and second respondents. According to the first respondent, the detaining authority has considered the circumstances of the case and the materials on record and the detention order was legal in as much as it was issued with due application of mind and after considering all evidence on record. With regard to the contention of non placement of the bail application and the bail order, in paragraph 13 of the counter affidavit of the first respondent, it is stated as follows:
“It is to prevent the detenu from further smuggling. Prosecution proceedings are part of measures adopted under the Customs Act which had no bearing on preventive detention under COFEPOSA Act. Granting of bail under Customs Act has no bearing on preventive detention under COFEPOSA Act. All the relevant documents were produced before the Detaining Authority and only after consideration of all these documents detaining authority had issued detention order”.
5. Thus, the counter affidavit does not say that the bail application and the bail order were placed before the detaining authority, since the authorities were of the view that they are irrelevant. The counter affidavit filed on behalf of the second respondent has also not adverted to this aspect.
6. The question regarding the relevancy of the bail application and the bail order has come up for consideration before the Supreme Court. In Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1 : AIR 1991 SC 2261 - Jayachandra Reddy, J. speaking on behalf of the Bench formulated six points with regard to the ordering of detention of a person who is already in prison. Under point No. 5, it was held that failure to supply bail application and order refusing bail will not cause any prejudice to the detenu. Under point No. 6, the court held as follows: “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”. The question was again considered in Noor Salman Makani v. Union of India, (1994) 1 SCC 381 : AIR 1994 SC 575. In that case, when the detention order was passed, the detenu was already in jail. Subsequently, he was granted bail. In the detention proceedings the argument was that the order granting bail and the bail application were not considered by the detaining authority. Referring to the above contention, the court held as follows:
“Whether a particular document is vital or not again is an issue which depends on the facts in each case. The detention order itself was passed when the detenu was in jail and the detaining authority noted this fact and being satisfied that there was every possibility of his being released on bail, passed the detention order. If subsequently the detenu is released on bail even subject to certain conditions that does not bring about any material change. On the other hand, release on bail is a stronger ground showing that the detenu who is not in custody is likely to indulge in the prejudicial activities again”.
7. Their Lordships further referred to the conditions of bail and said that the conditions imposed would show that the detenu could move about freely in the vast area of Calcutta Municipal Corporation and therefore the order of release on bail with conditions cannot be said to be a vital document. The decision of the Bombay High Court in Dr. Hannan Gulam Husain Chougle v. Union of India - Cri. Writ Petition No. 1384 of 1991 - was cited before the court and then the court held as follows:
“In Dr. Hannan Gulam Husain Chougule's case, the detenu was already on bail and later certain conditions were imposed restricting the movements of the detenu. That would be a vital fact. But in the instant case, as stated above, the subsequent release cannot be a vital fact.”
(Emphasis added)
8. Thus, the Supreme Court has made a distinction between the bail being granted before the order of detention and the bail being granted subsequent to the order of detention and has taken the view that when the detenu was already on bail before the detention order was passed, the bail order and the bail application are vital documents which are to be considered by the detaining authority. In the present case, the conditions of bail order show that the detenu has to surrender his passport before the Investigating Officer, he has to report before the Investigating Officer once in two weeks and he will not leave Kozhikode and Malappuram without permission of the additional Cheif Judicial Magistrate Court (E.O), Emakulam.
9. In the light of the above decisions, we are of the view that the bail application and the order granting bail were relevant documents, which were to be placed before the detaining authority. The order of detention was passed on 1.4.1996, whereas the bail was granted on 26.3.1996 The detaining authority was of the view that the order granting bail has no relevance. This is not the correct legal position in view of the above decisions. Hence according to us, the order of detention is bad and it is hereby set aside.
10. In view of the fact that this Original Petition is being allowed on the first ground, we are not considering the second ground raised by the petitioner. Hence the detenu, Abdul Razak Kodoor, S/o. Abdul Rahiman, Kodoor House, Koduvally P.O, Kozhikode, who is detained under the COFEPOSA Act as per detention order No. 7206.SSA4/96.Home 1.4.1996 is directed to be released forthwith, if he is not required in any other case.
11. Original Petition is allowed.
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