Allowed

Prakash Hemandas Java v. the State of Maharashtra and Anr..

Bombay HC1 Oct 2004WP/1767/2004

Case brief

AI extract

What is this about?

In a COFEPOSA case, the Bombay High Court held that the detaining authority's failure to consider an order permitting the detenu to travel abroad vitiated the subjective satisfaction required for detention, leading to the petitioner's release.

What did the court decide?

The petition was allowed and the detenu was ordered to be released forthwith.

Prakash Hemandas Java Vs the State of Maharashtra and Anr.. — Arbitration | Bombay HC (2004)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL WRIT PETITION NO. 1767 OF 2004

¶4

Prakash Hemandas Javan, an Indian Inhabitant, residing at 106, "The Swing", Marve Road, Malad (West) Mumbai 400 064. ... Petitioner. Versus. 1. The State of Maharashtra, through the Secretary to the Govt. of Maharashtra, Home Department, Mantralaya, Mumbai 400 032. 2. Neela Satyanarayana, the Principal Secretary to the Govt.of Maharashtra, Home Department (Appeals and Security) and Detaining Authority, Mantralaya, Mumbai 400 032. 3. Union of India, through the Joint Commissioner of Customs, Chhatrapati Shivaji International Airport, Sahar, Mumbai 400 099. 4. The Superintendent of Prison, Nashik Road Central Prison, Nashik. ... Respondents. Shri Maqsood Khan for the Petitioner. Ms.A.S.Pai, A.P.P. for the Respondent-State. Shri H.V.Mehta, P.P. for Respondetn No.3.

¶5

CORAM ; SMT.RANJANA DESAI, & ABHAY S. OKA, JJ.

¶6

DATED : 1st October, 2004.

¶7

: 2 :

¶8

ORAL JUDGMENT (Per Abhay S.Oka, J.)

¶9

By this petition under Article 226 of the

¶10

Constitution of India, the Petitioner who is the

¶11

brother of	the detenu,	has	take	n exceptio	n to	the	order
of detention	dated 13th		April	2004	passed	by	the
Respondent No.1	under the	pr	ovisions	of sec	tion	3 of	the
Conservation of	Foreign		Exchange	and	Pre	vention	of
Smuggling	Activities	Act,	1974	(hereina	fter	referred	to
as "COFEPOSA	Act").	The	order	impugned	was	passed	with
a view t	o prevent	the	detenu	in future	from	sm	uggling

¶12

goods and acting in a manner prejudicial to the

¶13

conservation of foreign exchange.

¶14

2.	The	challeng	e to the	orde	r of	det	ention	is	pressed
only	on	one	ground.		The		said	ground	is
non-conside	ration	of	Order dat	ed	1st	April	20	04	passed
by	the	learned	Addl.Chief	M	etropolita	n	Magist	rate,	3rd
Court,	Esplan	ade,	Mumbai,	in	Notice		No.7	3/N/2004	in
R.A.No.108	/RA/2003.		By the		said	order	,	the	learned
Magistrate		directed	the Cust	oms	depar	tment	to	hand	over
the	passport	to	the detenu	and	permi	tted	the	detenu	to
visit	Dubai	from	15th April	2004	for	a	period	of	one
month	on	furn	ishing addition	al	cash	securi	ty	of	Rs.1

¶15

lakh subject to other conditions incorporated in the

¶16

said Order.

¶17

: 3 :

¶18

3.	Shri Khan, the learned Counsel appearing fo	r the
Petitioner	pointed out that while passing the order	of
detention,	the detaining authority had relied upon	the
order	enlarging the detenu on bail which was	passed
prior	to the order of detention. He submitted	that the
application	for bail made by the detenu and the	order
granting	bail were the vital documents which	were
referred	to and relied upon by the Detaining	Authority.
He	submitted that the subsequent order dated 1st	April
2004	passed by the learned Magistrate is also a	vital
document	as the learned Magistrate after recording	the
opposition	by the Customs Department directed that	the
passport	of the detenu should be returned to him	and
permitted	the detenu to visit Dubai for a period	of one
month.	He submitted that the said order	substantially
modifies	the earlier order of the learned	Magistrate
granting	bail in favour of the detenu. He	submitted
that	the said order being a material and vital	document
ought	to have been placed before the	detaining
authority.	As the said document was not placed	before
the	detaining authority, the subjective satisfacti	on of
the	detaining authority has been vitiated. He	relied
upon	a judgment of the Division bench of this	Court
reported	in 1997 IV LJ 453 (Anil Kesarinath Patil	v/s.
State	of Maharashtra & others) which was followe	d by
another	Division Bench of this Court in the	judgment
dated	24th February 2004 delivered in Writ	Petition

¶19

: 4 :

¶20

No.748	of	2003	(Sanjay	Ku	mar	v/s.the	State	of
Maharashtra	&	ot	hers). He	submitt	ed that	in	case	of
Anil Kesa	rinath	Patil	(supra) th	e	Division	Ben	ch of	this
Court h	as	taken	a view that	the	order	of	the	learned
Magistrate	direc	ting	return of	the	p	assport	to	the

¶21

detenu and granting permission to the detenu to go

¶22

abroad for a limited period is itself a vital document.

¶23

4.	Mrs.Pai, the learned A.P.P. appearing	for	the
Responde	nt No.1, relied upon the affidavit	of	the
detaining	authority. The learned Counsel submi	tted	that
the	Judgment of the Division Bench of this Court		in the
case	of Anil Patil (supra) has been deliv	ered	by
applying	the ratio of the judgment of the Apex	C	ourt in
the	case Abdul Sathar Ibrahim Manik v/s. U	nio	n of
India,	reported in AIR 1991 SC page 2261. She		submitted
that	the law laid down in the case of Abdul Sa	thar	by
the	Apex Court has subseqeuntly undergone a		drastic
change	and the view now taken by the Apex Court		is that
whether	the application for bail and the orde	r	granting
bail	in favour of a detenu are a vital documents		or not
depends	on the facts and circumstances of each		case.
The	learned A.P.P. relied upon the judgment of	the	Apex
Court	reported in 1994 Cr.L.J. page 602 (Noor		Salman
Makani	v/s. Union of India & others), (1989) 1		S.C.C.
page	250 (Haridas Amarchand Shah of Bom	bay	v/s.
K.L.Verm	a & others), and (2002) 6 S.C.C. p	age	735

¶24

: 5 :

¶25

(K.Varad	haraj	v/s.		State	of	T	amilnadu	&	anr.)	in
support		of	her	content	ion.	She	submitted	that	in	the
facts	of	the	present	ca	se,	the	application	for	bail	made
by	the	detenu	and	the	order	passe	d thereon	were	not	at
all	vital	docume	nts	and	ther	efore,	the s	ubsequent		order
of	the	learned		Magistr	ate	which	had	the	effect	of
modifying		the		condition	s i	mposed	while	gran	ting	bail
cannot		be a	vital	docum	ent.	She	submitted	that	as	the
law	laid	down	by	the	Apex	court	in the	case	of	Abdul
Sattar		has un	dergone	cha	nge,	both	the jud	gments	of	the
Division		Bench	of	this	Court	in t	he case	of	Arun	Patil

¶26

and Sanjay Kumar (supra) do not lay down correct

¶27

proposition of law.

¶28

5.	We	h	ave ca	refully co	nsidered	the	rival subm	issions.
We	have	also	perused	the va	rious	judgme	nts cited by	the
learned	Counsel		appearing	for	the	parties.	We	have
perused	the		Affidav	it-in-reply	filed	by	the d	etaining
authority.		We	have	also	been	t	aken through	the
Affidzvit	made	by	Shri	Sanjeev	K	umar,	Joint Comm	issioner
of	Customs,	CO	FEPOSA	Cell, on	behalf	of	the Union	of

¶29

India. The detaining authority in the

¶30

affidavit-in-reply has stated that :

¶31

. "It is submitted that at the time of

¶32

issuance of the detention order, I was

¶33

fully	aware	that	the	detenu	was	arrested	on
22.11.2003	and	was		released	on	bail	on

¶34

: 6 :

¶35

8.12.2003. I state that since I have referred and relied upon the order granting the bail to the detenu, copy of the same was furnished to the detenu along with the

¶36

documents furnished to the detenu. I state that by virtue of the said order the detenu

¶37

was	ordered			to be rele	ased		on bail	on	his
furnishing	bail			of Rs.1,50,	000/-		with	one	or
two	sureties			of like a	mount		or	cash	bail
with	the			condition that	he		should	not	leave
India	without			prior permis	sion		of	the	Court.
I	was	a	lso	aware that	the		passport	of	the
detenu	was	to		remain with	th	e	depart	ment.	I
was	also			aware that	the		detenu	was	directed
to	attend			the office of	AIU		Customs	on	10

¶38

working days between 11 a.m. to 1.00 p.m.

¶39

and the detenu was also directed not to

¶40

indulge in any kind of criminal activities.

¶41

. I	state	that	thus I	was	aware	about the
restrictions	imp	osed	upon	the	detenu	by the
Ld.Addl.C.M.M.		while	granting		bail.	I state
that	cons	idering	the		prejudicial	activities
of the	detenu	as	is appa	rent	from	the papers
placed	before	me,	I		was	subjectively
satisfied	that	in	spite		of the	restrictions
imposed	upon	him	by	the	learned	Addl.C.M.M.

¶42

: 7 :

¶43

while granting bail to the detenu, unless prevented by taking the preventive action

¶44

the detenu was likely to indulge in the

¶45

similar prejudicial activities in future."

¶46

After	stating	t	hat	the	order date	d	1st April	2004	passed
by	the			learned	Addl.Ch	ief	Metropolitan		Magistrate
granting	perm	is	sion	to	the detenu	to	go abroad	was	not
placed	before			him	at the time	of	passing the	order	of

¶47

detention, the detaining authority proceeded to state in

¶48

the affidavit :

¶49

I state that on perusal of the said	order
dated 1.4.2004, it is apparent that	by
permitting the detenu to go abroad,	the
learned Magistrate has partially modified	the
order granting bail to the detenu. I	state
that the learned Magistrate has not given	any
reasons for granting permission to the	detenu
to go abroad which would have been	relevant
for the purposes of arriving at my	subjective
satisfaction. I state that I was aware	that
the detenu was resident of Dubai and	his
family was staying there and the	learned
Magistrate has merely permitted him to g	o to
Dubai for a period of one month as the	visa
of his wife and son was to put an end.	I

¶50

: 8 :

¶51

state that the learned Magistrate has not given any reason or expressed any opinion such as the detenu was going for his gainful purposes or he has been falsely implicated on the earlier occasion. I state that the said order is not at all vital document which would have affected my subjective satisfaction one way or the other hence, non placement and non consideration of the same

¶52

cannot be said to have affected my subjective

¶53

satisfaction."

¶54

In the light of the stand taken in the affidavit, we will have to consider the decision of a Division Bench of this Court in the case of Anil Kesarinath Patil (supra). The Division bench of this Court referred to the law laid down by the Apex Court in the case of Abdul Sattar (supra) and in particular sixth conclusion in

¶55

para 12 of the said judgment of the Apex Court which

¶56

reads thus:

¶57

: 9 :

¶58

bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu." After referring to the said six conclusions in the

¶59

Judgment of Abdul Sathar, the Division Bench proceeded to hold in paragraph 7 of the judgment as under:

¶60

"If	the application for bail and th	e	order
granting	bail has necessarily to be		placed
before	the detaining authority	and	the
copies	thereof are required to be		supplied
to the	detenu, the application for	ret	urn of
the pas	sport for the purpose of g	oing	abroad
and	the order of the court dire	cting	the
return	of the passport and permitt	ing	the
detenu	to go abroad are, in	our	view,
relevant	material which would be vi	tal	for
consideration	by the detaining		authority
before	arriving at the		subjective
satisfaction	one way or the other	whet	her to
clamp	down the order of detenition	on	the
detenu	or not. The order for retu	rn	of the
passport	and granting permission for		going
abroad	would amount to the relaxation		of the
conditions	of the original order	of	release

¶61

: 10 :

¶62

of	the	detenu on b	ail as passpor	t was	lying
with	the	authorities	which had	curbed	the
freedom	of	the detenu	to go abroad.		There
is	a	vital difference	when the	detenu	is
released	on	bail on	his passport	having	been
surrendered		to the	authorities,	from	the
situation		when the	Court directs	the	return
of	the	passport and	permits the	detenu	to
leave	the	country and	go abroad.	Like	the
order	granti	ng bail,	the permission	to	go
abroad		pending prose	cution would		certainly
be	required	to be	considered	by	the

¶63

detaining authority before issuing the order

¶64

of detention."

¶65

Thus th	e Division Bench relying	upo	n the Judgment	of	the
Apex	Court in the case of	Abdul	Sathar came	to	the
conclusion	that the application	for	bail and the		order
granting	bail in favour of	the	detenu has	to	be
necessarily	placed before	the	detaining authority		and
copies	thereof are required	to	be supplied	to	the
detenu.	The Division Bench	fur	ther held that	the	order
subsequently	passed by the		learned Magis	trate	for
granting	permission in favour	of	the detenu to		travel
abroad	amounts to modific	ation	or relaxation	of	the
conditions	of the original	order	of release	of	the
detenu	on bail and therefo	re,	the said subseq	uent	order

¶66

: 11 :

¶67

becomes	a vital	docu	ment,	which	ought	to be	c	onsidered
by	the detaining	auth	ority	before	pass	ing the	order	of
detention.	This	Court	came	to	the	conclusion	that	the
subjective	satisfacti	on	of	the	detaini	ng authori	ty	was
vitiated	as a	result	of	the	non-co	nsideration	of	the
subsequent	order	pass	ed by	the	learn	ed Ma	gistrate	by
which	permission	was	granted	to	the	detenu	to	travel
abroad.	The	said	judgment	of	the	Division	Bench	has

¶68

been followed by another Division Bench in the case of

¶69

Sanjay Kumar (supra).

¶70

Noor Salman Makani (supra) in which the Apex Court held:

¶71

"Whether		a partic	ular d	ocument	is	vital	or
not	again	is an	issue	which	depends	on	the
facts	in	each	case.	The	dete	ntion	order
itself	was	passed	when	the	detenu	was	in
jail	and	the	detaini	ng	authority	noted	this
fact	and	being	sati	sfied	that	there	was
every	pos	sibility	of his	be	ing rele	ased	on

¶72

: 12 :

¶73

	bail,		passed the	deten	tion orde	r.	If
	subsequ	ently	the detenu	is	released	on	bail
	even	subj	ect to certain	c	onditions	that	does
	not	bring	about any mate	rial	change.	On	the
	other	h	and, release on	ba	il is a		stronger
	ground	show	ing that the d	etenu	who is	not	in
Reference	custody prejudic will	is likely ial activiti have	to indulge in the es again." to be made to	the	recent	judgmen	t of
the	Supreme	Court	in the case	of	K.Varadharaj		(Supra).
The	Apex	Court	in the said case	co	nsidered the	law	laid
down	in the	case	of Abdul Sathar	as	well as in	the	case
of M.A	hamedkutty	v/s.	Union of	India	reported	in	(1990)

¶74

2 SCC page 1. The Apex Court came to the following

¶75

conclusion :

¶76

"6.	From the above	obser	vations,	it	is
clear	that placing of	the	applic	ation	for
bail	and the order ma	de th	ereon	are	not
always	mandatory and	such	requir	ement	would
depend	upon the facts of	each	case.	W	e are
in	respectful agreement	w	ith	the	view

¶77

expressed by the abovesaid two judgments

¶78

which in our opinion are not conflicting."

¶79

: 13 :

¶80

Therefore,	the	Apex	Court	was	of	th	e	vie	w t	hat	even	the
case	of Abd	ul	Sathar	lays	down	tha	t		the	placi	ng	of
application	for	bail	and	the	orde	r	mad	e	there	on		before
the det	aining a	uthority	is	alw	ays	not		ma	ndatory	an	d	such
requirement	will	depe	nd on	th	e fact	s	of		each	case.		The
same	is the	view	taken	by	the A	pex	Co	urt	in	the	case	of
Noor	Salman	Maka	ni (su	pra).	Th	e	decis	ion	of	the		Apex
Court	in the	case	of	Noor	Salma	n	Mak	ani	(su	pra)	was	not
brought	to	the	notice	of	the	Divi	sion		Bench	o	f	this
Court	while	deciding	the	ca	se of		Anil		Kesari	nath		Patil
(supra)	and	there	fore,	it	appea	rs	that		t	he	D	ivision
Bench	proceeded		on the	fo	oting	that	in		every	case		the

¶81

application for bail and the order granting bail has to

¶82

be placed before the detaining authority.

¶83

However, the law as pronounced by the Apex Court in the case of K.Varadharaj (supra) is very clear which lays down that whether the application for bail made by the detenu and the order granting bail thereon are vital documents or not depends on the facts of each case. In

¶84

the light of this decision, we will have to examine the

¶85

facts of the present case.

¶86

In the facts of the present case, it is an admitted position reflected from the order of detention and the affidavit-in-reply filed by the detaining authority that

¶87

: 14 :

¶88

the	detaining	authority was	of the	v	iew	that	the
Application	for	bail made	by the	Petition	er	and	order
granting	bail	were vital	documents	and	ther	efore,	the
said	documents	were not	only referred	to	but	the	same
were	relied	upon by the	detaining auth	ority.		When	the
detenu	applied	for permissio	n to go	abroad,		the	said
application	was	opposed	by the		Depar	tment	and
notwithstan	ding	the oppositio	n, the	learned			Magistrate
permitted	the	detenu to go	abroad to	Duba	i	for a	period
of	one mon	th. In the	order of	detent	ion	passed	against
the	detenu	the allegation	is that the	d	etenu	was	a
frequent	visitor	to Dubai and	he had	made	18	visits	to
Dubai.	Insp	ite of oppos	ition of the		Depa	rtment,	the
learned	Magi	strate permitted	the detenu	to	vis	it	Dubai
for	a per	iod of one mo	nth. Consi	dering	the	nature	of
allegations	m	ade against th	e Petitioner	in	the	orde	r of
detention,	we	are of the	opinion that	in	the	facts	of
the	present	case, application	made by	the		detenu	for
seeking	permis	sion to travel	abroad and	the	o	rder	made
thereon	were	vital docume	nts and the	refore,		ought	to
have	been	placed before	the detaining	au	thority.		Non
placing	of	the said	documents	and		the	resultant

¶89

non-consideration thereof by the detaining authority has

¶90

therefore vitiated the order of detention.

¶91

10.	The		learned	A.P.P.	trie	d to	submit	that	the
application		and	the	order	have	been	considered	by	the

¶92

: 15 :

¶93

detaining	authority	while	consideri	ng	the	rep	resentation
made by	the	detenu agains	t the	ord	er of		detention.
However,	the	subsequent con	sideration	of	the	said	order
while	considering	the represe	ntation	made	by	the	detenu
will not	cure	the earlier	defect.	If	the		subjective
satisfaction	of the	detaining	authority	is	vitiated		as a
result	of no	n-placement and	non-	considerat	ion	of	the
vital	documents,	the order		of	detention		becomes
vulnerable	and	therefore,	the	subseque	nt	co	nsideration
of such	vital	documents will	not	make	the	orde	r of
detention lawful. and we pass the f	In the result the ollowing order:	petition succeeds,
11.	The Petitio	n is allowed	in	terms	of praye	r	clause
(a) of	the	petition. W	e acco	rdingly	order	that	the
detenu	Vijay He	mandas Java	shall	be	released		forthwith
unless otherwise case.	required in conn	ection with any other

¶94

(Smt.Ranjana Desai, J.)

¶95

(Abhay S.Oka, J.)

Prakash Hemandas Java v. the State of Maharashtra and Anr..

Case brief

What is this about?

What did the court decide?

Prakash Hemandas Java v. the State of Maharashtra and Anr..

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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