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1987 DIGILAW 160 (BOM)

Dataram Shantaram Bagkar v. Gopal Singh

1987-04-28

G.D.KAMAT, G.F.COUTO

body1987
JUDGMENT G. D. Kamat, J.- This petition prays for a writ of habeas corpus for the release of Vasant Shantaram Bagkar from detention and for an appropriate writ or order for quashing and setting aside the order of detention dated 26th December, 1986 (exhibit P-l to the petition). 2. The petitioner is the brother of Vasant Shaotaram Bagkar (for short "the detenu") who has been detained in Central Jail, Aguada, since 5th January, 1987, pursuant to an order bearing No. 14/25/86-HD(G) dated 26th December, 1986, made by the Administrator of Goa, Daman and Diu in exercise of the powers conferred by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the "COFEPOSA Act") with a view to preventing him from abetting the smuggling of goods. 3. Several challenges have been made in this petition to the aforesaid order of detention for getting the detenu released. But, however, the learned counsel Mr. Dessai appearing for the petitioner bas restricted challenge to ground No- (i) of Para 5 of the petition. In that the ground is that the detention order is, void ab initio on account of non-application of mind by the detaining authority, which is a condition precedent to the exercise of the powers under section 3 of the Act. 10 support of this cha1lenge, reliance is placed on paras 16 and 17 of the grounds on which die detention is based and which were pari passu served on the detenu along with the order of detention. Grounds 16 and 17 read thus: "16. I have considered your anticipatory bail application and the Court's orders thereon. I am also aware of your arrest and your subsequent release on bait. 17. I have also considered the anticipatory bail application of Shri Anil alias Shrikant Sukhanand Halornkar and the Court's orders thereon." According to the learned counsel for the petitioner in fact, there arose no occasion for the petitioner to have filed any anticipatory bail application before any Court nor an occasion arose for the court to make any order thereof. It is, therefore, contended that the detaining authority has placed reliance on extraneous matter namely, the anticipatory bail application and its rejection and thereby the subjective satisfaction of the detaining authority has impaired and, therefore, the impugned order is vitiated. 4. It is, therefore, contended that the detaining authority has placed reliance on extraneous matter namely, the anticipatory bail application and its rejection and thereby the subjective satisfaction of the detaining authority has impaired and, therefore, the impugned order is vitiated. 4. It has been pointed out to us by the learned counsel for the petitioner that in the grounds furnished to the detenu the incident of contraband having been landed is narrated and that reference is to the landing by the Arab Dhow off the Aguada Light House on the night of 14/15.11.1986. He further mentions that the detenu was picked up in the early hours of 16/17.11.1986 and, thereafter, released. He was re-arrested on 17.11.1986 and as he did not return home in the night his son Manguesh Bagkar was perforce to make inquiries, which revealed that the detenu was at the Customs House at Vasco-de. Gama. He accordingly, moved an application for regular bail in the court of the Chief Judicial Magistrate at Panaji on 19th November, 1986. While opposing that bail sought for by the son of the detenu, a contention was raised by the Customs Department that the detenu has never been, arrested till then and he was merely being interrogated under the provisions of section 108 of the Customs Act. On the basis of such statement of the Department, the bail application was rejected. 5. The learned counsel for the petitioner now urges that there is a great distinction between an application for regular bail and an application for anticipatory bail and the two fields are entirely different. There is enough justification in the contention raised on behalf of the petitioner that insofar as the anticipatory bail is concerned, it is sought before the arrest and in anticipation of the arrest that the person apprehending arrest be released in the event of his arrest. It is common knowledge that a regular bail application follows only after the arrest and for the release on such terms as the Court may impose. It is common knowledge that a regular bail application follows only after the arrest and for the release on such terms as the Court may impose. The learned counsel for the petitioner placed reliance on a judgment delivered by this Bench in Criminal Writ Petition No. 21 of 1987 on 22nd April, 1987, saying that the facts of this case are squarely covered by the facts of that case in which the detenu therein was released on acceptance of similar challenge, namely, of referring to and relying upon the extraneous fact of an anticipatory bail which was never there. 6. Mr. Bhobe, the learned Public Prosecutor, however, urged before us that there is a distinction between the facts of the present case and the facts which were available in Criminal Writ Petition No. 21 of 1987 decided on 22nd April, 1987. According to Mr. Bbobe, the fact remains that in the name of the detenu his son Manguesh Bagkar did move an application for bail on 19th November, 1986, and that application was rejected by the Chief Judicial Magistrate Panaji. He further mentions that inasmuch as it was the case of the Department that the Detenu had not been arrested even when that bail application had been moved, the same could be styled as an anticipatory bail application and, therefore, it was so referred to in the grounds of detention which were pari passu served on the detenu along with the detention order. In support of his contention he further mentions that the fact that the Chief Judicial Magistrate, Panaji, having once accepted the contention of the Department that the detenu had, not been already arrested then lends support to his case. 7. We are, however, unable to see as to bow Mr. Bhobe could be permitted to take up this position. We have already adverted to the distinction between a regular bail application and an anticipatory bail application. It is clear that the detaining authority bas clearly relied upon in Para 16 of the grounds that the anticipatory bail application had been filed by the detenu himself, which in reality is not the case at all and to that extent it is an extraneous matter. The regular bail application filed on 19th November, 1986, was by the son of the detenu Manguesh Bagkar though be did mention the name of his father in the said application. The regular bail application filed on 19th November, 1986, was by the son of the detenu Manguesh Bagkar though be did mention the name of his father in the said application. In Para 16 of the grounds the detaining authority has made the matter very clear. The first reference is to the anticipatory bail application and the order made thereon. The second reference is to the regular bail application and the detenu's release. Admittedly, reference to the anticipatory bail application a copy where of is not supplied to the detenu, amounts to violation of Article 22(5) of the Constitution, viz. both facets firstly of non-communication and secondly impairment of effective representation. Having regard to the distinction already spoken to between bail application and anticipatory bail application and this being a preventive detention, we are unable to depart from the view that we took in Criminal Writ Petition No. 21 of 1987, which is again based on well, settled law. We have therefore, no hesitation in quashing and setting aside the impugned detention order dated 26th December, 1986. 8. We, therefore, make the rule absolute in terms of prayer (a) of the petition. The detenu Vasant Shantaram Bagkar is set at liberty forthwith, if not wanted in any other case. Detention order set aside.