Bombay High Court
Rashid @ Nari Khan @ Noor Mohamed vs K.L. Verma Jt. Secy. And Ors. on 30 January, 1989
Equivalent citations: 1989(25)ECR521(BOMBAY)
JUDGMENT D.N. Mehta, J.
1. The Petitioner herein Rash id @ Nari Khan @ Noor Mohamed, who will hereinafter be referred to as "the Detenu" has filed this Writ Petition through jail impugning the Order of detention dated 16th August, 1988 passed against him by the Joint Secretary to the Government of India under Section 3 Sub-section (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (ORD. 7 of 1988).
2. This Petition can be disposed of on a short point that a vital and, material document which had influenced the subjective satisfaction of the detaining authority had not been supplied to the detenu by the detaining authority, Shri Jethmalani, learned Counsel appearing on behalf of the detenu, drew our attention to paragraph IL of the grounds of detention supplied to the detenu in which the detaining authority had made the following observations:
The interim bail petition came up for hearing en i0.8.1988 and further date was fixed for 17.8.1988. Even though you are in police custody, there is every likelihood of your being granted bail.
Shri Jethmalani pointed out that it was on the basis of this interim bail application dated 8th August, 1988 that the detaining authority arrived at the conclusion that although the detenu was in police custody, there was an apprehension that he would be granted bail by the learned Magistrate. It was this interim bail application which had influenced the detaining authority in arriving at his subjective satisfaction that the Detenu would obtain a bail order from the Court and thereafter be free to continue to indulge in the prejudicial activities complained of in the Order. Shri Jethmalani submitted that this is a vital and material document, a copy of which ought to have been supplied to the detenu. The failure to do so would indicate non-application of mind on the part of the detaining authority.
3. Shri Satpute the learned Advocate appearing on behalf of the Union of India submitted that the interim bail application is not a vital or a material document and failure to furnish a copy thereof to the detenu cannot affect the order of detention. Shri Satpute stated that the law nowhere laid down that a copy of each and every document should be furnished to the detenu. It is only a vita] and a material document in the sense that it was a document which influenced the subjective satisfaction of the detaining authority which ought to be supplied to the detenu. The bail application in question was not a document of that genre.
4. We are unable to accept the submission made by Shri Satpute that the interim bail application is not a vital and material document. From the extracts cited by us from the grounds, it is evident that the detaining authority had entertained some apprehension that the detenu was likely to be granted bail and would be released from custody. Therefore, the detaining authority had not only relied on and referred to this document but further had arrived at the conclusion on the basis thereof that the detenu would be granted bail.
5. There is another aspect from which the matter can be viewed. The interim application for bail is a material document for the reason that thereunder the detenu claimed to be an Indian citizen holding an Indian Passport, whereas on an earlier occasion he had claimed to be an Afghan National who had settled in India and was doing business. Therefore, it became necessary for the detaining authority to arrive at the conclusion whether the detenu was an Indian citizen or a foreigner. From that point of view also the interim bail application becomes a material and a vital document. We are convinced that failure to supply this vital and material document to the detenu reflects non-application of mind on the part of the detaining authority. This in turn must affect the order of detention, which we proceed to strike down. In view of the fact that we are striking down the order of detention on this ground alone, we do not consider it necessary to deal with the other two grounds canvassed before us by learned Counsel.
6. In the result, the Rule is made absolute. The order of detention dated 16th August, 1988 is quashed. The detenu shall be released forthwith, unless required in any other case.