1996(2) ALL MR 295
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ASHOK AGARWAL AND A.S.V. MOORTHY, JJ.
Shri. Mohammad Sharif Farid Vs. Shri. Satish Sahney & Ors.
Criminal Writ Petition No.1523 of 1994
20th July, 1995
Petitioner Counsel: Shri. M.S.MOHITE and J.L.VERMA
Respondent Counsel: Shri. S.G.PAGEShri. J.C.SATPUTE
(A) National Security Act (1980), S.3(2) - Satisfaction of detaining authority - Non-placement of bail application before detaining authority - Remand application and bail order placed before detaining authority - Bail application only containing an averment that detenu was falsely implicated but not containing any other material relevant for consideration of detaining authority - Detention order clamped on detenu even before he could avail of bail - Held in the circumstances non-placement of bail application would not vitiate order of detention. AIR 1991, SC 2261, 1989 Crl. L.J. 392 Referred. (1990)2 SCC 1 Explained Crl. W.P.No.297 of 1994 dt. 5-8-1994 (Bombay) Relied on. (Para 15)
(B) National Security Act (1980), S.3(2) Delay in consideration of representation - Central government awaiting report of Advisory Board - Report furnished within a day or two - Held though strictly speaking Central government need not have awaited the report, undue delay could not be said to have been thereby caused in considering the representation of detenu. (Para 19)
AGARWAL, J.- By the present habeas corpus petition, petitioner seeks to impugn an order of detention dated 30th November, 1994 bearing D.O.No.95/PCB/Zone-VI/1994 passed by Shri. Satish Sahney, Commissioner of Police, Greater Bombay under Section 3 (2) of the National Security Act. Incidents which gave rise to the passing of the said order took place on the 26th of June, 1994 and 23rd of September, 1994. The said incidents have been described by the Detaining Authority in the grounds of detention, as under:-
"3(a) Mulund Police Station C.R.No.369/94 U/Sec.452, 395, 397, 427, 34 I.P.c. r/w 3, 25 Arms Act, r/w 37(1) (a) -135 B.P.Act.
On 26.6.1994, at about 21.45 hours, Shri Kailashchand Shoblal Bohara H/22 yrs., Salesman working in Monika Jewellers, situated at 16, Shankar Smruti Bldg., Opp. Dena Bank, Mahatma Gandhi Road, Mulund (West), Bombay -80, called at the Mulund Police Station and complained as under:
"Shri Kailashchand Bohara stated that on 26.6.1994 at about 21.15 hours he was standing near the cash counter and the show case of gold ornaments in the said jewellery shop. At the same time Shri Ravindrakumar Ratanlal Chaudhari, owner of the said Jewellery shop was standing near gold ornaments show case, kept in the inner side of the shop. so also customers, police constable Dnyandeo Appa Kahtal H/34 yrs., attached Mulund Police Station alongwith his wife and two children and one gujarati couple were present in the shop. At about 21, 20 hrs. you alongwith your associates Pappu, Saeed, Kumud and Ahmedulla entered the said jewellery shop and whipped out revolvers, choppers and threatened Shri Kailashchand Bohara, Ravindrakumar Chaudhari and the customers present in the shop saying "In Hindi chalo andar nahi to marega". Therefore, the occupants of the shop entered the small room inside the shop and stood inside the room. Thereafter, you and your associates broke open the show case and removed gold bars, ornaments and cash of Rs.35,000/- (collectively valued at Rs.11,47,500/-) and started to get away. However, your associate Pappu was caught by Ravindrakumar Chaudhari. therefore, you and your other associates assaulted Shri Ravindrakumar Chaudhari and Pappu was freed by you. Due to assault Ravindrakumar had sustained bleeding injuries. You and your associate then ran away from the place. Injured Ravindrakumar Chaudhari was removed to Raj Orthopaedic Hospital, Devidayal Road, Mulund (West), Bombay where he was admitted for treatment.
"3(a-i) In this connection a case U/Sec.452, 395, 397, 427, 34 IPC r/w 3,25 Arms Act r/w 37(1)(a)-135 B.P.Act, was registered at Mulund Police Station vide C.R.No.369/94.
"3(a-iii) You and your associates Saeed, Kumud and Ahmedulla were arrested in connection with subsequent dacoity case known as 'Yamuna Jewellers' case registered at Mulund Police Station vide C.R.No. 587/94. You confessed that you alongwith your other associates Pappu @ Wasim Shabbir Siddiqui, Nafis Ahmed, Hasan Mustakin Shaikh and Vahidali, had committed dacoity at Monika Jewellers shop on the day in question. Therefore, you and your above mentioned three associates were shown arrested in the said case on 11-10-1994."... ...
"3(b) Mulund Police Station C.R.No.587/94 U/Sec. 395, 397, 452, 341, 120(B) IPC.
On 23-9-1994, at about 21.05 hours, Sr.P.I. Naik of Mulund Police Station received a telephonic information from an unknown person that a jeweller's shop named and styled as 'Yamuna Jewellers', situated at Nehru Road, Mulund (West), has been robbed and that one of the robbers is caught on the spot. On receipt of the information, Sr.P.I. Naik, PI Garje, API. Panaskar, S.H.O. PSI. Jawalkar and posse of policemen rushed to the spot and contacted Shri Babulal Nanhelal Jain, H/42 yrs., owner of Yamuna Jewellers, shop No.7, Gajanan Apartment, Jawaharlal Nehru Road, Mulund (West), Bombay -80. Shri Babulal Jain informed the police party that you alongwith your associates armed with deadly weapons entered his jewellery shop and robbed gold ornaments and cash. While doing so he (Babulal Jain) and witnesses were assaulted as a result of which they sustained injuries. However, Shri. Babulal Jain and other witnesses succeeded in apprehending your associate Rahul Sonawane, who was in possession of the country made revolver (Katta) of which he was disarmed. Injured Shri Babulal Jain, witnesses and your associate Rahul Sonawane, who had also sustained injuries, were removed to Mulund General Hospital (West) for treatment. Shri Babulal Jain and witnesses instead of taking treatment in Mulund General Hospital decided to take treatment in private nursing home and went to Laxmi Nursing Home, situated at Jawaharlal Nehru Road, Mulund (W), Shri Babulal Jain and witnesses after treatment were allowed to go.
"3(b-i) Shri Babulal Nanhelal Jain in his complaint narrated the following facts.
On 23-09-1994, at about 20.30 hours, Shri Babulal Nanhelal Jain was standing at the counter of his jewellery shop and Ramesh Jain (his son), Prakash Jain (his brother) and servants Rasik and Shrikrishna were present in t he shop. At that time your associate Phiroz @ Hasarat Akbarali Pathan entered the said jewellery shop and asked Shri Babulal Jain saying "In Hindi mujhe sone ki anguthi batau". On this Shri Babulal Jain pointed out a tray containing various designs of rings which was in the show case. Your associate Phiroz pointed out one of the rings and asked Babulal saying "In Hindi yah anguthi chahiye" On this Shri Babulal Jain was took out the keys of the show cases from the drawer. At the time you and your other associates viz. Saeed Ahmed Farid Khan, Kumud Narsingh Panigrahi, Ahmedulla Rafiulla shaikh, Vijay Kanhai Kuswah, Rahul Ankush Sonawane and Gulam Hussein Hakikulla Khan and forcibly brought in Shri Rambhavan Mangru Prasad, the security guard standing out sid e the said jewellery shop. Your associates Rahul Sonawane and Gulam were armed with revolvers (country made revolvers-kattas). Your associates Ahmedulla and Vijay Kanhai Kuswah were carrying choppers in their hands. You and your associates threatened Shri Babulal Jain, his son Ramesh, his brother Prakash, servants Rasik and Shrikrishna and watchman Rambhavar and directed them not to move their places. You were standing at the door of jewellery shop at that time and was smoking. Your associates Saeed Ahmed Farid Khan and Kumud Narsingh Panigrahi jumped over the counter and opened the show case cupboard and removed gold bangles, mangalsutras, chains, bracelets, ear ring sets and handed over to your associate Aslam, who took the ornaments in a gunny bag. At the same time your associates Ahmedulla and Vijay Kanhai Kuswah, who were armed with Choppers removed necklaces and zumke (ear rings) and put the same in their pockets. You and your associates armed with weapons were constantly threatening Shri Babulal Jain and his son, brother and servants. Thereafter, you and your all associates, except Sonawane slipped out of the jewellery shop. However, when your associate Sonawane was leaving, Shri Babulal's brother Prakash and son Ramesh pounced upon him (your associate Sonawane) and pulled him inside. Shri Babulal joined them and your associate pulled down on the ground with the result his (your associate Sonawane's) country made revolver and two rounds dropped on the ground. Your associate Sonawane then tried to run away and in that process he (your associate Sonawane) broke the show case glass and assaulted with the piece of it on Babulal's left ear and Ramesh's head. Your associate Sonawane was thereafter overpowered and in that scuffle he (your associate Sonawane) also sustained injuries. Shri Babulal's servant Shri Rasik informed Mulund Police Station on phone, whereas Shri Babulal requested Shri Rajesh of the next door plywood shop to inform police control room. On hearing commotion number of people from the vicinity collected there but none dared to intervene. Shri Babulal after examining his jewellery shop found that gold ornaments like 'Kudya, Patlya, Chains, Bangles, Zumke (ear rings), bracelets, rings, necklaces, pendents and mangalsutras' etc., and cash of Rs.35,000/- (collectively valued at Rs.32,03,000/-) were robbed. Your associate Sonawane who was apprehended on the spot, was put under arrest and country made revolver with three live cartridges were seized under a panchanama on the spot."
"3(b-ii) In this connection a case under Section 395, 397, 452, 427, 341, 120 (B) IPC r/w 3,25 Arms Act was registered at Mulund Police Station vide C.R.No.587/94."
2. In connection with the aforesaid offences Petitioner and his associates were arrested on 27th of September, 1994. On 29th of November, 1994 application was filed on behalf of the petitioner and his co-accused for bail and by an order passed on the very same day the accused were directed to be released on bail with a direction that they will attend police station from 6.00 p.m. to 7.00 p.m. from the date of release until further orders. On the very next day i.e. on 30th of November 1994 the impugned order of detention was issued and the same was served upon the petitioner and his associates before they could avail of the bail and they were taken in detention.
3. Shri. Mohite, the learned Advocate appearing on behalf of the petitioner, has impugned the order of detention and the consequent detention of the petitioner firstly on the ground that the petitioner was not served with the copies of the order of detention and grounds of detention in the language known to or understood by the detenu. To put in the words, of the petitioner himself, this is what has been averred in para 6 of the petition.
"6. The Petitioner states that he is an illiterate person who has never gone to school. His mother tongue is urdu and he can speak Urdu. The petitioner is not (in) a position to write or read English, Hindi or Marathi. The Petitioner states that he has been also supplied with Hindi translations of the original documents which are either in English or Marathi. The petitioner states that he is not in a position to read or understand any of the documents supplied to him. The petitioner further states that the documents supplied to him which consist of more than 600 pages were never read out or explained to him by any authority after his detention. In any case this is a physical impossibility as the 75 documents consist of over 600 pages. This has caused major handicap to the petitioner in making any effective representation to the Respondents which is his constitutional right".
4. In short, it is contended on behalf of the petitioner that, the petitioner is illiterate. he has never gone to school and he, therefore, does not read and write any language. hence, furnishing of documents alongwith the translations in Hindi did not communicate the grounds of detention to the petitioner and this has prejudicially affected his right to make an effective representation. This has violated petitioner's right guaranteed under Article 22(5) of the constitution which in turn has rendered continued detention of the petitioner null and void.
5. We have on record, an affidavit dated the 11th of July, 1995, sworn by the Commissioner of Police. In para 6 of the affidavit he has averred that at the time of executing the order of detention statement of the petitioner was recorded by A.P.I. Jagtap of Mulund Police Station in which the Petitioner stated that he knows Hindi language very well and, therefore, all the documents were served on the petitioner in Hindi. He has further gone on to deny that the petitioner's right to make an effective representation has been affected. In addition to the aforesaid affidavit, we have a further affidavit dated the 26th of June, 1995 sworn by Shri S.B.Jagtap who has served the order of detention on the petitioner. In para 2 of the affidavit he has averred that the detention order, grounds of detention and material in support thereof were served on the detenu in the language in which they were recorded alongwith their Hindi translation on 1st of December, 1994 at Mulund Police Station. All the documents were explained to the detenu in Hindi on the same day and the detenu has put his left hand thumb impression on copies thereof, in token of having served the documents and having explained the contents thereof to him in Hindi. the left thumb impression has been counter-signed by Shri. Jagtap. Shri Jagtap has further stated that in his statement recorded on the same day the detenu has stated that he knows Hindi language very well and hence all the documents were served on him in Hindi.
6. We have perused the original record in the light of the controversy raised and we have verified that in his statement which was recorded at the time of service of the order of detention on him, the petitioner has stated to the effect that 'I do not know reading or writing, all the same I know Hindi language very well, I have been served with the order of detention alongwith all other documents and the same have been explained to me in Hindi.' The statement contains the left hand thumb impression of the petitioner and the same is attested by Assistant Inspector Jagtap. In addition to the above statement, the order of detention, grounds of detention and translations thereof in Hindi bear an endorsement that contents of the same have been explained to the petitioner. It is true that as far as this endorsement is concerned, the same is not made on each and every document but the same will be of no consequence in view of the statement of the petitioner which was recorded at the time of service of the order of detention. We are satisfied on the basis of the aforesaid material that the order of detention, grounds in support thereof, as also the documents which are served on the detenu have been duly explained to him in Hindi which is a language known to the detenu. There is, therefore, no infraction of the provisions of Article 22(5) of the Constitution and hence the first ground urged by Shri Mohite to assail the order of detention is rejected.
7. It is next contended by Shri. Mohite that the petitioner, alongwith the other co-accused, had on the 29th of November, 1994 filed an application for bail. The petitioner, however, was not served with a copy of the application for bail but was merely served with the copy of the order granting bail. Similarly, the said application for bail was not placed before the Detaining Authority. To put it in the words of the petitioner himself, this is what has been stated in ground (e) of paragraph 13 of the petition:
"(e) That the Petitioner has not been served with copies of bail applications dated 29-11-1994 made on his behalf to the learned Magistrate in connection with his release on bail in Mulund Police Station C.R.No.369/94 and C.R.No.587/94. The petitioner states that from the documents supplied to him an impression is created the bail orders were granted on the remand applications made by the police seeking further custody. These two remand applications were in fact disposed off by the learned Magistrate in the morning session on 29-11-1994 and the petitioner was remanded to jail custody and the bail applications were kept at 3.00 p.m. on that day for hearing the said bail orders were granted on the said bail applications at 3.00 p.m. and not on the remand applications as alleged, the petitioner submits that the two bail applications made on his behalf are important and vital documents which were not placed for consideration before the first Respondent nor were they supplied to the petitioner. There is therefore non-application of mind by the first respondent to these vital and important documents as well as non-communication of grounds of detention to the petitioner as required in law. On both these counts the impugned order of detention stands vitiated. the petitioner craves leave to refer to and rely upon the certified copies of the remand applications, bail applications and orders passed thereon which have been subsequently obtained by his Advocate from the Court at the time of hearing of this petition, to support his aforesaid contentions. Copies of these applications are hereto annexed and collectively marked as Annexure 'D' Colly. The petitioner further submits that non-supply of these vital and important documents has also affected his right to make an effective representation at the earliest against the impugned order of detention."
8. As far as the order of bail is concerned, the same is not a reasoned order. It merely directs the accused to be released on bail with a direction of reporting. The order further recites that the investigation of the case is complete. The entire text of the order has been served on the petitioner. The same forms a part of remand applications filed by the prosecution on the very same day i.e. 29th of November, 1994. The question that arises for consideration is, whether the copy of the application for bail is a vital document, non-placement of which before the Detaining Authority has affected the subjective satisfaction of the Detaining Authority in the matter of passing the order of detention and whether the non-furnishing of which to the petitioner has affected the right of the petitioner to make an effective representation ?
9. On the one hand it is contended by Shri Mohite that application filed by the petitioner and other for bail is a vital document. In the application it has been asserted that the petitioner and his co-accused have been falsely implicated. The application, therefore, is a relevant and vital piece of evidence which ought to have been placed before the Detaining Authority. A copy of the said application ought to have been served on the petitioner alongwith the grounds of detention. On the other hand it is the contention of Shri Page, the learned Public Prosecutor and Shri R.M.Agrawal appearing for the Union of India and if one peruses the application for bail and the order passed thereon it cannot be said that the application is a vital document, more so, as the order granting bail is not a speaking order. None of the contentions which are raised in the bail application are reflected in the order of bail. As far as the order of bail is concerned the same has duly been placed before the Detaining Authority. As far as the petitioner is concerned, he has himself filed the application of bail. He is, therefore, aware of the contents of the application. Hence, non-furnishing of the copy will not prejudicially affect his right to make an effective representation. It is not each and every document, the non-placement and non-furnishing of which will vitiate the order of detention. Whether a document is a vital document would depend on facts of each individual case. Whether a particular application for bail is a relevant or vital document would depend upon facts and circumstances of each individual case.
10. In support of his contention Shri Mohite has placed reliance on the case of "M.Ahmedkutty Vs. Union of India and another" (1990) 2 Supreme Court Cases 1". In the said case various documents such as bail application, the bail order, show cause notice and the reply to the show cause notice etc. were not placed before the Detaining Authority. In the context, the Supreme Court observed that non-consideration of the bail order will have, therefore, in this case amounted to non-application of mind. It is further observed in paragraph 27 of the judgment that, considering the facts in the instant case the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the Detaining Authority itself would have been impaired, and if those had been considered they would be documents relied on by the Detaining Authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounts to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.
11. The aforesaid case, in our view, does not lay down a bald proposition that non-furnishing of a bail application is necessarily fatal to an order of detention. The observations have to be appreciated in the context in which they are made. The observations "considering the facts in the instant case" the bail application and the bail order were vital material for consideration" are significant.
In the case at hand the remand application as also the bail order was very much before the Detaining Authority and copies of the same have been duly furnished to the petitioner. We have perused the application for bail. There is, no doubt, an averment that the accused have been falsely, implicated. Apart from this the application does not contain any material on merits of the application for bail. As already pointed out, the order of bail has also not given any reasons for granting bail. the order merely grants bail on condition of reporting and the said order has been duly placed before the Detaining Authority and has been furnished to the petitioner.
12. Shri Mohite relied upon the case of "Abdul Sathar Ibrahim Manik Vs. Union of India and Others" with "Ibrahim Shareef M. Madhafushi Vs. Union of India and Others" reported in "A.I.R. 1991 Supreme Court 2661". In that case, bail application had been rejected and the submission in that case was that copies of the bail application filed by the detenu and the order refusing bail which are relevant documents were suppressed and not placed before the Detaining Authority, nor they were supplied to the detenu and, therefore, there was non-application of mind and the detenu was denied a reasonable opportunity under Article 22(5) of the Constitution of India. In the context, the Supreme Court held, as under :
"If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
"Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same."
The Supreme Court, after referring to various decisions earlier rendered by it has laid down certain guidelines. As far as bail application and bail order is concerned, it is observed, as under:
"(6) 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."
13. Shri Mohite next placed reliance on a decision of this Court in the case of "Siraj Khan Vs. L.Himingliana and others" reported in "1989 Cri. L.J.392" wherein it was contended on behalf of the State that copies of documents were not supplied to the detenu as the detenu was already aware of the contents of the documents. Repelling the contentions, this Court observed that - "that is hardly an answer to the submission made on behalf of the detenu. The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents." - Based on the aforesaid decision Shri Mohite contended that the application, pursuant to which an order of bail was granted, is a vital document. Merely because the petitioner had filed the said application is no answer to the non-supply thereof to the petitioner. The petitioner has, therefore, been prejudiced in making an effective representation against the order of detention.
14. This Court has had an occasion to consider both the aforesaid Supreme Court cases in the case of "Shri Iqbal Hasanali Rupani Vs. The State of Maharashtra and others" Criminal Writ Petition No.297 of 1994 AND Criminal Writ Petition No.355 of 1994, decided by V.A.Mohta & Vijay Bahuguna, JJ. (as they then were) on the 5th of August, 1994. It is observed, thus:
"6. Learned counsel for the detenus has challenged the validity of the detention orders on three grounds. The first submission is that the order of detention was vitiated so far as detenu Firoz is concerned, as the bail application moved by the said detenu and the order granting bail to him was not placed for consideration of the detaining authority and as both the documents were relevant, the detention order is vitiated for non-consideration of vital documents having significant effect on the detention......."
"7. The learned counsel for the petitioners placed reliance on a decision of the Supreme Court in the case of M.Ahmedkutty Vs. Union of India, reported in (1990) 2 Supreme Court Cases, page 1, wherein the Apex Court held that the non-furnishing of the bail application and the bail order which are vital material for consideration, vitiates the satisfaction of the detaining authority and if such documents have been considered by the sponsoring and the detaining authorities, the same should have been furnished along with the other documents to the detenu." Whether the failure of the sponsoring authority to place the bail application and the bail order before the detaining authority would impair the satisfaction of the detaining authority will depend upon the facts and circumstances of each case and the nature of the bail order passed by the Court. If the bail has been granted by a reasoned order and the reasons are relevant for the purpose of detention of the detenu and pertains to the merits of the case, then the failure to place the bail order would definitely vitiate the satisfaction of the authority as the reasons for the grant of bail could have influenced his decision in passing the detention order. If however the order granting bail is cryptic and does not go into the merits of the case and if the reasons are not relevant for the purpose of passing of the detention order then mere failure of the sponsoring authority to produce the bail order and the bail application before the detaining authority would in our view not vitiate the subjective satisfaction reached in the passing of the said detention order. The effect of the non-placing of the bail application and the bail order and its consequences will have to be examined in the facts and circumstances of each case and whether the reasons contained in the application and the bail order would effect the necessity or the urgency in passing the detention order. In the instant case the bail was granted on the reasoning that the statements of the co-accused involving the detenu in the trafficking of drugs was not admissible in evidence. This reason may be justifiable for grant of bail to an accused, but will have no relevance in arriving at the subjective satisfaction of the detaining authority in the passing of the detention order. the statement of the co-accused and also of the detenu can be taken into account by the detaining authority for the purpose of passing a detention order to prevent the detenu from indulging in trafficking in Narcotic Drugs.
... ... ... ... ...
"9. The Supreme Court in the case of Abdul Sathar Ibrahim Manik Vs. Union of India, reported in A.I.R. 1991, Supreme Court, page 2261, while considering the Ahmedkutty's case (1990 (2) SCC 1) took the view on facts of the said case that the failure to place the bail order before the detaining authority had vitiated the detention order. After examining the aforesaid decision, the Court held :-
"We are unable to agree with the learned counsel. We are satisfied that the above observations made by the division Bench of this Court d not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied. The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that "considering the facts .... the bail application and the bail order were vital materials". In that view these observations were made. Further that was a case where the detenu was released on bail and was not in custody. This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied."
.... .... .... ...
"From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference that there was suppression of relevant material or in the alternative that there was non-application of mind or that subjective satisfaction was impaired. when these documents are neither referred to nor relied upon, there (is) no need to supply the same to the detenu. ... ..."
"In view of the above position of law, the first submission made by the learned counsel for the detenu fails and is to be rejected as the detenu was not at liberty at the time of passing of the detention order and was in custody, the significance of the order granting bail had lost its relevance and the non-consideration of such an order by the detaining authority would not vitiate the subjective satisfaction on the ground of non-application of mind."
The aforesaid decision makes it clear that there could be no hard and fast rule. The effect of non-placement of bail application and the bail orders and its consequences will have to be examined in the facts and circumstances of each case.
15. We have examined the application for bail in the light of the observations contained in the aforesaid decisions and we find that the bail application in the instant case does not contain any facts which can be said to be material either in the matter of passing an order of detention or for making an effective representation. Moreover, petitioner had not been enlarged on bail. Merely an order granting bail has been passed. Before he could avail of bail the detention order has been clamped upon him. Hence, this is not a case where he has been released on bail and was at liberty at the time of passing of the order of detention. In the circumstances, we have no hesitation in holding that the said document is not a vital or material document, non-placement of which before the detaining authority or non-supply thereof to the petitioner would affect the impugned order of detention. The second contention of Shri Mohite is accordingly rejected.
16. Shri Mohite next contended that as far as the recital regarding grant of bail to the petitioner is concerned, the same has been subsequently inserted by way of para 3 (a-vii) of the grounds of detention. The said para reads as under:
"3(a-vii) On 29-11-94, you were produced for remand before the M.M. 27th Court, Mulund, when you were ordered to be released on bail of Rs.10,000/- with one surety in the like amount by the Hon'ble Court."
Shri Mohite has contended that a certain portion had been kept blank between paras 3 (a-vi) and para 3(b) and the said space was utilised for incorporating the aforesaid averments after the order of bail was passed. Shri Mohite has further pointed out that the index in respect of the documents furnished to the petitioner bears the date 1st December, 1994. The same is inconsistent with the order of detention and the grounds of detention having been issued on 30th November, 1994.
17. In our Judgment, not much capital can be made on the discrepancy sought to be raised. All that can be said, at the highest, is that the grounds of detention alongwith the documents in support had been kept ready and the order of detention has been issued only after an order of bail is passed. If the detaining authority has chosen not to issue an order of detention while the petitioner is in custody and has chosen to issue the same only after an order of bail is passed and has served the same on the detenu before he has availed of bail no fault can be found in this regard. Similarly no capital can also be had by the date 1.12.1994 placed on the index of documents. the index recites number and date of detention order. Date of detention order has been given as 30-11-1994. It is possible that the date of the index had remained to be filled up and the same might have been filled up on 1-12-1994. We fail to see how the aforesaid discrepancy can affect the validity of the detention order sought to be impugned herein. The third submission of Shri Mohite is accordingly rejected.
18. Shri Mohite lastly contended that there has been an inordinate and unexplained delay on the part of the Central Government in considering the representation of the petitioner. The representation in question is dated the 15th of December, 1994. the same was received by the Central Government on the 19th of December, 1994. On 20th December, 1994 a crash wireless message was sent by the Central Government calling for (i) factual information, (ii) parawise comments and (iii) opinion of the Advisory Board. The said wireless message was received by the State Government on 21st of December, 1994. On the very day i.e. on 21st of December, 1994 State Government sent factual information to the Central Government. It asked the Central Government to send the copy of the representation to the police Commissioner. It also asked the Police Commissioner to do the needful in the matter. It also informed the Central Government that the report of the Advisory Board was awaited. On that very day i.e. on 21st December, 1994 the Central Government dispatched a copy of the representation to the State government. Since the copy of the representation had not reached the Police Commissioner, the later on the 23rd of December 1994 sent a crash wireless message to the Central Government asking for a copy of the representation. A further wireless message was sent for the very same purpose by the Police Commissioner on the 28th of December, 1994. On 31st of December, 1994 a copy of the representation was received by the State government and the same was forwarded to the police Commissioner. Police Commissioner, on the 5th of January, 1995 sent his parawise comments to the Central Government and the same were received by the Central Government on 9th of January, 1995. On 10th of January, 1995 a wireless message dated 9th of January, 1995 was issued by the Central government to the State Government inquiring about the report of the Advisory Board. On the very same day i.e. on the 10th of January, 1995 the State government received the report of the Advisory Board. On 11th of January, 1995 a copy of the report was forwarded to the Central Government. On 12th January, 1995 Central Government received certain additional information. The file was placed before the Joint Secretary and the Special Secretary on 13th January, 1995. On 14th and 15th January, 1995 were holidays being Saturday and Sunday. The file was placed before the Home Minister on the 17th of January, 1995 who considered the same and rejected the representation on 18th January, 1995. The rejection was served on the detenu by crash wireless message on the 19th of January, 1995.
19. In our Judgment, if one has regard to the aforesaid dates it can hardly be said that there has been an inordinate or unexplained delay in the consideration of the representation by the Central Government. It is true that the Central government in the instant case has called for the report of the Advisory Board which was not necessary for the independent consideration of the representation by the Central Government. But, hardly any time has been spent awaiting the report of the Advisory Board. The report of the Advisory Board has been furnished within a day or two. Hence, it cannot be said that there has been an undue delay on the ground that the Central Government has unnecessarily awaited the report of the Advisory Board. In the circumstances, we are constrained to hold that the last contention of Shri Mohite is devoid of merit and the same is rejected.
20. For the foregoing reasons we find that the petition is devoid of merit. The impugned order of detention dated 30th November, 1994 bearing D.O.No.95/PCB/Zone-VI/1994 passed by Shri Satish Sahney, commissioner of Police, Greater Bombay is accordingly maintained and rule is discharged.