Gujarat High Court
Rajnikant Uttamram Vankawala vs P.K. Bansal, Police Commissioner And ... on 1 March, 1988
Equivalent citations: (1988)1GLR633
Author: S.B. Majmudar
Bench: S.B. Majmudar
JUDGMENT S.B. Majmudar, J.
1. In this petition for a writ of habeas corpus the petitioner who is at present detained in the Baroda Central Jail has brought in challenge the order of his detention dated 22-8-1987 passed by the Commissioner of Police, Surat city in exercise of his power under Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act 1985 ('PASA' for short). The petition is moved through the younger brother of the detenu. The order of detention is supported by grounds of detention of even date. They were served on the detenu along with the order of detention when he was taken in detention pursuant to the impugned order. The relevant recitals in the grounds of detention show that the detenu was involved in four prohibition cases under Sections 66(b) and 65(e) of the Bombay Prohibition Act and these offences were committed on diverse dates ranging from 13-10-1985 to 12-1-1987. These four criminal cases have been listed in para 1 of the grounds and the last column of the table listing these prohibition cases indicated that they were all pending trial meaning thereby that these criminal cases were pending for disposal. It has been further recited in the grounds of detention that the petitioner is listed at SI. No. 47 amongst the list of bootleggers published by the Commissioner of Police, Surat. Thereafter follows ground No. 3 which recites that the detenu is running a den for selling foreign liquor at Ramji's Pole, Nanavat, Surat and because of his aforesaid activities as a bootlegger, many customers used to collect at his den and under the influence of liquor, were misbehaving in public and their activities disturbed public order. Statements of four witnesses have thereafter been listed in this para to highlight the aforesaid allegations against the detenu. These statements showed as to how the detenu as a bootlegger had disturbed the public order on various occasions deposed to by the concerned witnesses and how he and his accomplices and persons taking liquor at his den were misbehaving with the members of public and how public order got disturbed on the concerned in occasions deposed to by the witnesses. On the basis of these grounds alleged against the detenu, the impugned order of detention has been passed against him.
2. This petition, at the time of final hearing, was supported on diverse grounds for challenging the impugned order. However, amongst others, one of the contentions canvassed by the learned Counsel Mr. Patel for the petitioner was to the effect that the detaining authority had not kept in view the vital fact that the detenu was already enlarged on bail in the concerned criminal cases which was pending trial against him and which were listed in para 1 of the grounds and as this vital aspect was not kept in view, the subjective satisfaction about need to preventively detain the detenu on account of his involvement in the nefarious activities got vitiated and consequently, on that ground alone, detention order was required to be quashed.
3. In our view, as the aforesaid contention goes to the root of the matter and on that contention, the petitioner is entitled to succeed, we have not thought it fit to consider other contentions canvassed by Mr. Patel in support of the petition and Mr. Patel has not, therefore, ultimately pressed these other contentions.
4. So far as the aforesaid contention is concerned, we may first refer to the averments made in the petition in this connection. By ground No. 15-M, at page 18/A, it has been submitted that "the sponsoring authority had arrested the detenu in the alleged offences which are non-bailable offences and the petitioner applied for bail and the sponsoring authority had not opposed the bail application and the bail was granted to him. Why bail application was not opposed by the sponsoring authority, the alleged offences against the petitioner being non-bailable. That material aspect regarding releasing the petitioner on bail is not considered by the detaining authority in the grounds of detention. So, non-consideration of this material aspect will vitiate the detention order against the petitioner".
5. The detaining authority has filed the affidavit-in-reply. So far as the aforesaid contention is concerned, the reply is found in the further affidavit filed by the Commissioner of Police on 11-2-1988. In para 3 of the said affidavit, while meeting the aforesaid contention in para 15-M of the petition, it has been averred that "the four prohibition cases which are pending trial against the detenu have been taken into consideration by me for the purpose of satisfying myself that the detenu is a bootlegger as defined by the provisions of the PASA Act. That in all the four cases, the petitioner is being prosecuted for the offence under Sections 66(b) and 65(e) of the Bombay Prohibition Act and so far as the offence punishable under Section 65(e) is concerned, the same is non-bailable". It has been further averred that "the material on record shows that the detenu had indulged into prejudicial activities on 29-7-1987 and 7-8-1987. This fact itself shows that the detenu must have been released on bail otherwise he would not have indulged into the prejudicial activities on the above referred two dates. Thus, the fact that the detenu was released in the cases in which he had been held for the offence under Section 65(e). was taken into consideration is writ large in the grounds of detention themselves".
6. In view of the aforesaid stand taken by the detaining authority in the affidavit-in-reply, it becomes at once clear that the detaining authority does not say that he had expressly considered the fact that the detenu was released on bail in the concerned criminal cases and still he was subjectively satisfied about the need to preventively detain him with a view to seeing that he does not indulge in such activities in future, and the sole repository of his subjective satisfaction on this vital aspect are the grounds of detention themselves. We have, therefore, to turn to the grounds of detention on which reliance has been placed by the detaining authority to find out as to whether he was subjectively satisfied on this vital aspect or not. When we turn to the grounds of detention, we find that in para 1 of the grounds of detention, in a tabular form are listed four criminal cases which are pending trial against the detenu. Supporting material in connection with these pending criminal cases is also furnished to the detenu alongwith the grounds and index whereof is also supplied to the detenu alongwilh the grounds and this index shows that 13 documents were supplied to him alongwith the grounds of detention at the time when he was taken in detention. At item No. 1 is found a copy of the first information report in connection with Crime Register No. 957 of 1985 pertaining to an offence dated 13-10-1985. Alongwith this FIR is found a statement about identification of the concerned accused. Detenu's name is shown as the concerned accused and so far as last column regarding remarks is concerned, it is mentioned that the accused was arrested at 17-35 hours on 13-10-1985 in connection with this case. Similarly, copies of FIR for rest of the cases are also furnished to the detenu in the same compilation, and in these FIRs for remaining cases also, similar identical statements are found in connection with the detenu who is styled as accused in all these cases and the endorsements in the last column of these statements shows the time and date of arrest of the concerned accused in these cases. It is pertinent to note that nowhere in these statements or even otherwise, it is mentioned in connection with these cases as to whether the detenu was released on bail and if so, under which order and subject to which conditions. It is, however, to be noted that in para 4 of the grounds of detention, the detaining authority has observed in general terms that bootlegging activities of the detenu could not be curbed by resorting to proceedings under Section 93 of the Bombay Prohibition Act. It is further mentioned that even if such steps are taken, the Court proceedings will take lot of time. That his activities had increased recently and time is not left for curbing these activities by taking steps against the detenu under general law and consequently, there is no other way but to detain the detenu under the PASA Act. In para 4 itself, earlier proceedings for externing the detenu under the Bombay Police Act were kept in view. It is mentioned that on 28-9-1984, the detenu was ordered to be externed from the locality mentioned in the order. The detenu had gone in appeal to the State Government against the said order and had obtained stay of operation of the externment order and ultimately, the State of Gujarat by its order dated 9-8-1985 had quashed the externment order. Then, in para 5 of the grounds, it has been mentioned that looking to the evidence listed in paras 1 to 4 of the grounds and also considering the material stated in para 1, the detaining authority was satisfied that the detenu was carrying on business in English liquor, was storing it and that he was a well-known bootlegger. That his name was in the list of bootleggers. That from what is stated in para 3 of the grounds, the detaining authority was satisfied that the detenu was indulging in nefarious activities by keeping in his possession dangerous weapons like Hockey stick etc. and he used to beat in public persons who tried to interfere with the said activities of the detenu and consequently, public order was reached and that he was involved knee deep in these activities and that the steps under the ordinary law had no effect on him. In these circumstances, it was found necessary to detain the detenu under the provisions of the PASA Act as a bootlegger.
7. The aforesaid resume of the recitals in the grounds of detention as supported by relevant documents supplied to the detenu as supporting material, makes it clear that nowhere, the detaining authority had in express terms mentioned that he was aware that the detenu was released on bail in the concerned pending criminal cases and that despite he being released on bail, he was indulging in the concerned nefarious activities thereafter. We are conscious of the fact and it goes without saying that the order of preventive detention is based on the subjective satisfaction of the detaining authority and the Court cannot sit in appeal against such subjective satisfaction. But the question is as to whether the subjective satisfaction was arrived at by the detaining authority on consideration of all relevant and vital facts and circumstances. If any vital and relevant fact was not kept in view, it would be obvious that the subjective satisfaction would not remain comprehensive genuine subjective satisfaction about the need to detain the detenu under the provisions of the Act and in the absence of such comprehensive subjective satisfaction based on relevant data, the very exercise of power under Section 3(1) would get vitiated on the ground of absence of condition precedent, viz. genuine subjective satisfaction based on all relevant material.
8. Mr. Patel for the petitioner in support of his aforesaid contention vehemently submitted that by series of judgments of this Court and the Supreme Court, it has been held that if the detaining authority does not keep in view this relevant vital factor while arriving at subjective satisfaction and reaches his subjective satisfaction, the subjective satisfaction would fail and the detention order would equally fail. In this connection, he invited our attention to some of the decisions of the Division Bench of this Court consisting of one of us (B.S. Kapadia, J.) sitting with A.P. Ravani, J. In Special Criminal Application No. 831 of 1987 (Kathi Dilubhai Tabubhai v. G.K. Makwana) decided by the said Bench on 29-12-1987, the Division Bench speaking through Ravani, J. had to consider the question whether the detaining authority had taken into consideration all the details regarding criminal cases registered against the detenu in that case including the fact that the concerned detenu was already enlarged on bail by the competent Criminal Court before the passing of the detention order. The learned Counsel for the respondents in that case fairly conceded that in the file of the detaining authority, there was nothing to show that the detaining authority was aware of the fact that the petitioner was arrested in respect of the offence of abduction and rape of a girl named Dhiru and that it was undisputed position that this case was also made the basis of detention order. It is in the aforesaid admitted factual background that the Division Bench took the view that when this vital aspect was not kept in view by the detaining authority, the subjective satisfaction of the detaining authority got vitiated. Now, so far as the facts of the present case are concerned, we have to consider the relevant averments found in the grounds of detention with a view to finding out as to whether such defect also exists on the facts of the present case.
9. The next decision to which our attention was invited was delivered by the same Bench in Special Criminal Application No. 807 of 1987 decided on 7-12-1987 (Salamkhan Bachchekhan Pathan v. Commissioner of Police, Baroda 1988 (1) GLR 450). In that case, Ravani J. speaking for the Division Bench considered the factual background of the case. It was found that the grounds of detention furnished to the detenu indicated that the detaining authority had taken into consideration the fact that the detenu was in custody. But it transpired that by the time detention order came to be passed, the detenu was already released on bail by the competent Criminal Court on 28-3-1986, though he was involved in a non-bailable offence. This vital aspect was not considered by the detaining authority presumably because the detaining authority was not alive to this aspect. Consequently, it was held that the order proceeded on misapprehension of the correct fact and the detaining authority wrongly assumed that the detenu was already in custody while in fact, he was released on bail. As this aspect which had a direct impact on the subjective satisfaction was not kept in view by the detaining authority, it was held that the subjective satisfaction was vitiated on account of non-application of mind on this most relevant aspect. It becomes clear that even this decision proceeded on the peculiar facts of its own case. So far as the facts of the present case are concerned, they stand on an entirely different footing. It is, therefore, of no assistance to the learned Advocate for the petitioner.
10. We were then taken to another Division Bench judgment of the Court in Special Criminal Application No. 595 of 1987 decided by the very Division Bench on 17-12-1987 (Arvindbhai Fulabhai Patel v. State of Gujarat). The facts of that case and the ratio of the decision based on these facts come very near to the facts of the present case and, therefore, they are required to be noted in details. The question before the Division Bench of this Court in the said case was as to whether the subjective satisfaction arrived at by the detaining authority about the need to preventively detain the detenu who was alleged to be a dangerous person was comprehensively arrived at or not. The detaining authority in the grounds of detention had relied upon involvement of the detenu in different criminal cases wherein he was alleged to have caused injuries to the concerned victims. Three such instances were relied upon. The third offence pertained to an incident dated 16-3-1987. There were also statements of various persons recorded by the Police Sub-Inspector, Vankaner pointing out illegal activities of the detenu and the impact thereof on public order. Details of these cases as well as statements of witnesses were placed before the detaining authority and on the basis of that material, the detaining authority passed the detention order. It was contended by the learned Counsel for the petitioner before the said Division Bench that the vital circumstance about release of the petitioner-detenu on bail by competent Criminal Court in the cases in which he was involved, was not taken into consideration by the detaining authority and that had vitiated its subjective satisfaction and, therefore, the order was liable to fail. This contention was examined by the Division Bench. It was found that neither on the record of the detaining authority nor in the grounds, there was any indication that the detaining authority had considered the fact that the detenu was released on bail earlier by the competent Criminal Court. It was submitted before the Division Bench that the very fact that involvement of the detenu in three successive criminal cases was relied upon by the detaining authority, clearly showed that the detenu must have been enlarged on bail by the competent Criminal Court in earlier criminal cases otherwise, he could not have committed the last of the criminal offence alleged against him. Negativing this contention, the Division Bench in paras 7 and 8 of the report took the view that no such inference can be drawn on the basis of the grounds of detention supplied to the detenu which showed that he was involved in successive criminal offences and that it should be borne out from the record of the file before the detaining authority or from the grounds of detention that this aspect was considered by the detaining authority, with a view to arriving at comprehensive subjective satisfaction on the need to detain the detenu. Strongly relying on this judgment, Mr. Patel for the petitioner submitted that in the present case also, there is nothing in the grounds of detention to indicate that the detaining authority had kept in view the fact that the detenu was released on bail by the competent Criminal Court in the offences under the Bombay Prohibition Act with which he was charged and that merely from the sequence of criminal offences with which he was charged, it cannot be inferred, of necessity, that the detaining authority was alive to this aspect. It is true that while deciding this question, the Division Bench in Para 8 of the judgment has observed that such argument of inferring subjective satisfaction on this vital aspect amounted to putting logic in reverse. But in our view, these observations have been made in Para 8 of the judgment on the peculiar facts of that case and in the light of the nature of averments in the grounds of detention with the ratio of the Division Bench on the effect that vital aspect has to be kept in view by the detaining authority for arriving at comprehensive subjective satisfaction about the need to detain the detenu and it is a condition precedent to the passing of the detention order, we should not be treated to have fully indorsed the wider observations made in Para 8 of the said judgment that trying the ratio such an inference of consideration of this vital aspect from the sequence of events that may have been reflected by the grounds of detention, would necessarily amount to putting logic in reverse. In our view, it would all depend upon the facts of each case and the nature of averments found in the ground of detention in the supporting material and on the file of the detaining authority which reflects contemporaneous record about the subjective satisfaction arrived at by the detaining authority in connection, with the need to detain the concerned detenu. In this connection, we may also refer to a decision of the Supreme Court in case of Anant v. State of Maharastra . In that case, the division Bench of Supreme Court consisting of R.S. Pathak and V. Khalid, JJ. (as they then where) considered the facts situation centering round the detention order of the detenu who was an under trial prisoner, but the detaining authority was no aware; at the time of passing of the detention order, of the fact that detenu had moved an application for bail. In this factual background, it was found that there was total absence of application of mind on the part of detaining authority on this aspect and that vitiated the detention order. It is, therefore, well settled that the detaining authority has to be aware and has to take into consideration all relevant vital aspects touching upon the need in detain the detenu and if any such vital aspect is not kept in view, the subject satisfaction permeating the detention order gets vitiated.
11. In the light of the aforesaid settled legal position, we have to proceed to find out as to whether on the facts of the present case, there is anything on the record of the detaining authority or in the grounds of detention and in the supporting material to point out that the detaining authority was alive to the vital fact that the detenu was released on bail by the competent Criminal Court in criminal cases in which he was involved. We have already referred in details to the relevant averments found in the grounds of detention and in the supporting material. Nowhere it is discernible from this material that the detaining authority was alive to the fact that in any of the Criminal cases, the detenu was already released on bail and as to what were the conditions on which he was so released. However, Mr. Divetia for the respondents vehemently submitted that as stated by the detaining authority in his affidavit in reply, to which we have made a reference earlier, this satisfaction is writ large in the grounds. Even on a close look at the grounds and relevant recitals therein, does not bring out any such recorded satisfaction. It is true that in the grounds the detaining authority has mentioned, after going to the relevant evidence, that no time is left to restrain the activities of the detenu by taking steps under the ordinary law and that no effect is made on the detenu by the steps taken under ordinary law. But these are general observations which are far away from the observations pertaining to the fact that the detenu even though enlarged on bail is required to be detained in view of the fact that despite the circumstances that he is already released on bail, he had not desisted from his illegal activities nor is there any indication from these general observations that no useful purpose would be served by getting bail cancelled. Such type of satisfaction has to be culled out from the express indication to that effect discernible even by making efforts to read between the lines. It is interesting to note that the detaining authority itself in para 4 of the grounds after summarising material against the detenu, has referred to the proceedings under the Bombay Police Act for externing the detenu and has come to the conclusion that these proceedings were not of any useful purpose and the proceedings ultimately got quashed. He also referred to the provisions of Section 93 of the Bombay Prohibition Act and has taken the view that even taking a bond from the detenu would not serve the purpose. When he has expressly referred to these provisions, it is obvious that while arriving at his subjective satisfaction, he was conscious of this vital aspect of the matter. But so far as releasing of detenu on bail by the competent Criminal Court is concerned no such indication is found anywhere from any of the paras of the grounds much less from the supporting material. We were also shown relevant file by the learned Advocate for the respondents in connection with the detention order against the detenu. The summary of the subjective satisfaction which was signed by the detaining authority while passing the detention order was also perused by us. After going through the summary, we found that even there, there was no indication that the detaining authority was alive to the fact that the detenu was earlier released by the competent Criminal Court and despite that fact, it was necessary to detain the detenu by way of preventive detention. Consequently, even apart from the grounds of detention and the supporting material, even contemporaneous record by way of summary of subjective satisfaction signed by the detaining authority does not help the respondents in this connection.
12. Mr. Divetia for the respondents, however, strongly relied upon a Division Bench judgment of this Court in the case of Jusab Haji v. Additional Secretary, Government of India and Ors. 26(2) GLR 692. He heavily relied upon the observations of the Division Bench in para 13 of the report wherein the Division Bench speaking through R.A. Mehta, J. had to consider the question whether the detaining authority had taken into consideration the fact that the detenu was facing prosecution and had moved an application for being released on bail pending criminal prosecution. The submission before the Division Bench was that as the detenu was already released on bail by the competent Court, he cannot be preventively detained and if at all, bail could have been got cancelled with a view to putting the detenu out of harm's way. This contention was rejected by the Division Bench, relying upon a decision of the Supreme Court in the case of Vijay Narayan Singh v. State of Bihar . However, while taking this view, the Division Bench noted the factual background of the case in that very para of the report and held that the detaining authority was aware that the prosecution was not yet launched because in the detention order, it had been stated that the prosecution is likely to be initiated. The bail application and the orders thereon had also been taken into consideration and the time between the date of incident and the order of detention had also been taken into consideration. Thus, in the aforesaid case, it was clearly borne out from the record that the detaining authority was actually aware of the fact that the detenu had moved a bail application and had obtained certain orders and these facts were kept in view by the detaining authority while passing the detention order. If on the facts of the present case, we find similar facts situation then ofcourse the learned Advocate for the respondents would be entitled to urge before us that this contention canvassed by the learned Advocate for the petitioner is required to be rejected. It is also axiomatic that merely because the detenu has been released on bail by the competent Criminal Court, possibility of preventive detention cannot be ruled out as held by the Supreme Court in Vijay Narayan's case (supra) and as held by the Division Bench of this Court in Jusab's case (supra). But unfortunately for the respondents on the facts of this case, we find that the fact that the detenu was released on bail was not at all kept in view by the detaining authority while passing the impugned order and, therefore, the subjective satisfaction reached by the detaining authority about the need to detain the detenu by way of preventive detention got vitiated on account of non-consideration of this vital aspect. This conclusion of ours which flows from the facts situation of the present case gets fully supported by the ratio of the Division Bench judgment of this case in Special Criminal Application No. 595 of 1987 (Arvindbhai Fulabhai Pat el v. State of Gujarat) (supra).
13. Mr. Divetia for the respondents then invited our attention to the decision of the Supreme Court in the case of Alijan Mian v. District Magistrate, Dhanbad . In para 8 of the report, various contentions canvassed before the Supreme Court have been listed and the first contention was that the petitioners were in jail when the detention orders were passed, when there was absolutely no apprehension of breach of public order from them. It was, therefore, contended before the Supreme Court that when the petitioners were already in Jail, there was no occasion or any need to preventively detain them. So far as this contention is concerned, in para 9 of the report, the Supreme Court speaking through Misra, J. made the following pertinent observations:
It may be pointed out at the very outset that the detaining authority was alive to the fact that the petitioners were in Jail custody on the date of the passing of detention orders as will be clear from the following statement....
It has been further observed:
The position would have been entirely different if the petitioner were in Jail and had to remain in Jail for a pretty long time. In such a situation, there could be no apprehension of breach of 'public order' from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged on bail of which there was every likelihood, it was necessary to prevent them from acting in a manner prejudicial to public order.
It, therefore, becomes clear that the facts situation in Alijan's case (supra) with which the Supreme Court was concerned was entirely different. There, the detaining authority, while passing the order, was alive to the fact that the detenus were in Jail custody, but they were likely to be released on bail. Once this aspect was kept in view by the detaining authority, the matter ended. It would not then be open to the Court to permit the detenu to submit that the subjective satisfaction was not correctly arrived at. It would be in the realm of arriving at a genuine subjective satisfaction on relevant material and the Court cannot sit in appeal against such subjective satisfaction based on relevant vital facts. We fail to appreciate how this judgment can be of any avail to the respondents on the peculiar facts of this case.
14. Mr. Divetia also invited our attention to the decision of the Supreme Court in the case of I.M.S. Ummu Saleema v. B.B. Gujarat . This decision was pressed in service to point out that when the detaining authority stated on affidavit before the Court that he had arrived at subjective satisfaction that it was not necessary to detain the concerned detenu for preventing him from engaging in transporting smuggled goods, the averments made by the detaining authority in that affidavit in reply should be accepted. In para 9 of the report, the Supreme Court speaking through Chinappa Reddy, J. expressed the nature of averments found in the affidavit of the detaining authority. It was stated therein as under:
Having regard to the nature of the activities in which the detenu was engaged and after having applied my mind very carefully to all the facts and circumstances of the case and the material placed before me, I arrived at the subjective satisfaction that it was necessary to detain Shri Jahaubar Moulana for preventing him from engaging in transporting smuggled goods. The adjudication of the case under the Customs Act and prosecution of the detenu are entirely on a different footing. I say that the detention order was passed by me with due care and after careful consideration of all the materials placed before me.
The Supreme Court in the light of these averments, made in the affidavit, noted that the detenu (detaining authority) may not have stated in express words that when he made the order of detention he also considered the question whether a prosecution under the ordinary criminal law would not meet the situation and would not be sufficient to prevent Jahaubar Moulana from engaging himself in the objectionable activities. But a reading of the entire counter-affidavit made it clear that in the opinion of the detaining authority, prosecution or no prosecution, the only effective way of preventing Jahaubar Moulana from engaging himself in objectionable activities was to detain him. It must be kept in view that the aforesaid observations were made in the aforesaid decision in the light of the averments found in the affidavit of the detaining authority. So far as the present case is concerned, in the affidavit-in-reply of the detaining authority to which we have made a reference earlier, there is nothing to show that he was satisfied, after considering the fact that the detenu was released on bail by the concerned Criminal Court that it was necessary to pass the detention order. But all that he has stated is that such satisfaction was writ large on the grounds of detention. Consequently, the grounds of detention would supply only evidence, if at all of subjective satisfaction of the detaining authority on this vital aspect. We have already seen earlier that the grounds of detention fall short of indicating such subjective satisfaction on this vital aspect. Consequently, the observations of the Supreme Court in I.M.S. Ummu Saleema (supra) cannot be of any assistance to the respondents on the facts of the present case.
15. We may, however, in this connection, usefully refer to a decision of the Supreme Court in the case of Merugu Satyanarayan v. State of Andhra Pradesh . A Division Bench of that Court consisting of D.A. Desai and R.B Misra, JJ. (as they then were) in para 14 of the report made a reference to the decision of the Constitution Bench of the Supreme Court in the case of Rameshwar Shaw v. District Magistrate, Burdwan , and made the following pertinent observations:
Mr. Mukhoty next contended that even if a hypothetical case can be envisaged as contemplated by the decision of this Court in Rameshwar Shaw that a preventive detention order becomes necessitous in respect of a person already confined to Jail, the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in Jail and yet a detention order is a compelling necessity. It was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order. Otherwise, according to Mr. Mukhoty, the detention, order would suffer from the vice of non-application of mind. The awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason. This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. The absence of this awareness would permit an inference that the detaining authority was not even aware of the vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non-application of mind to the most relevant fact and any order of serious consequence resulting in deprivation of liberty, of mechanically passed without application of mind is obviously liable to be set aside as invalid. And that is the case here.
It is, therefore, clear that if the detaining authority had expressly stated in his affidavit-in-reply that he had considered the relevant vital aspect while arriving at his subjective satisfaction on which the detention order was passed, the matter would have stood on a different footing. The subjective satisfaction of the detaining authority on this vital aspect can be seen from the grounds of detention, supporting material or from the contemporaneous record in the shape of relevant file and the notings therein preceding the detention order. If on that basis, the detaining authority makes a statement on oath before the Court when subjective satisfaction is challenged, that he had considered all the relevant facts, obviously the averments made by the detaining authority on oath have to be given full effect and weight as laid down in the aforesaid decision. But as we have seen earlier, on the facts of the present case, neither there is any indication about consideration of this vital aspect by the detaining authority as emering from the grounds of detention nor from the supporting material nor is there anything to indicate in this connection from the contemporaneous record on the file of the detaining authority and even in his affidavit before this Court, he has not stated that he had kept this aspect in consideration while passing the detention order. He has simply relied on the grounds of detention with a view to enabling this Court to infer that such aspect was kept in view by him. Therefore, on the facts of this case, there is no escape from the conclusion that the material aspect touching upon the subjective satisfaction of the detaining authority viz., that the detenu though released on bail by the competent Criminal Court was required to be preventively detained on the facts of the case, was not kept in view by the detaining authority while passing the impugned order and, therefore, his subjective satisfaction in this connection got vitiated and once this conclusion is reached, the result is obvious. The detention order based on such vitiated and truncated subjective satisfaction cannot sustain the detention order based on such vitiated subjective satisfaction.
16. However, the learned Counsel for the respondents made a valiant attempt to salvage the situation by submitting that atleast Section 6 of the Act can be pressed in service to support the detention order. In our view, even that section cannot be of any avail to the respondents on the facts of this case. It is not as if that one of the grounds of detention is found to be invalid on any ground and that the order has to be supported on the remaining valid grounds. This is a case in which subjective satisfaction underlying the order of detention under Section 3 of the Act got vitiated on account of non-consideration of vital aspect which results in vitiating the subjective satisfaction which is condition precedent to the exercise of the power and it does not amount to vitiating any one of the communicated grounds supporting the detention order, leaving in the field other valid grounds. Even this aspect of the matter has been squarely covered by a decision of the Division Bench of this Court in Special Criminal Application No. 595 of 1987 wherein in para 6 of the report it has in terms been observed by the Division Bench that 'In view of this position, even if the ground regarding the offence under Section 307 of the Indian Penal Code is considered to be non-existent or irrelevant under the provisions of Section 6 of the Act, the question as to whether the petitioner was released on bail or not remains a vital circumstance which ought to have been takes into consideration by the detaining authority. Without considering the same, the satisfaction arrived at by the detaining authority stands vitiated'.
17. In view of this settled legal position in the background of the facts as discussed above, the conclusion is inevitable that the subjective satisfaction on which the detention order is based got vitiated on account of non-consideration by the detaining authority of the vital aspect about the detenu being already released on bail by the competent Criminal Court and consequently, the detention order fails and is liable, to be quashed.
18. In the result, the petition is allowed.
19. Rule is made absolute. The impugned order of detention quashed and set aside. Respondents are directed to release the detenu forthwith if not otherwise required in connection with any other order.