Smt. Lilavati Ramchandra Gaikwad vs Shri Satish Sahney, Commissioner … on 24 April, 1996

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Bombay High Court
Smt. Lilavati Ramchandra Gaikwad vs Shri Satish Sahney, Commissioner … on 24 April, 1996
Author: R Vaidyanatha
Bench: V Sahai, R Vaidyanatha


JUDGMENT

R.G. Vaidyanatha, J.

1. This is a petition under Article 226 of the Constitution of India challenging the order dated 7th August, 1995. Heard Mr. Shirish Gupte, the learned Counsel for the petitioner, Mr. Rajiv Patil, the learned Additional Public Prosecutor for the State and Mr. H.V. Mehta, the learned Counsel for the Union of India.

2. Few facts which are necessary for the disposal of this petition are as follows:—

The petitioner is the mother of the detenu Vasant Ramchandra Gaikwad. The Commissioner of Police, Bombay passed the impugned order dated 7th August, 1995 under section 3 of the National Security Act, 1980 for detaining the detenu to prevent him from doing prejudicial activities as mentioned in the grounds of detention. The grounds of detention are annexed to the petition as per annexure ‘B’.

Being aggrieved by the order of detention, the mother of the detenu has come up with the present petition. The grounds of detention are not necessary since the petition has been argued on a question of law by the learned Counsel for the petitioner.

3. The learned Counsel for the petitioner contended that the copy of the order of bail granted by the learned Sessions Judge to the detenu dated 17th July, 1995 was not placed before the detaining authority, and therefore, subjective satisfaction of the detaining authority has been impaired. On the other hand, the learned Additional Public Prosecutor submitted that the detaining authority was aware of pendency of the bail application and mere non-placing of the copy of the order of bail before the detaining authority will not vitiate the subjective satisfaction of the detaining authority. Both the sides have placed reliance on some decisions.

4. In the grounds of detention, in Para 4(c)(iii) it is mentioned that the learned Magistrate rejected the bail application of the petitioner on 3-7-1995. Then in Para 4(d)(iv) it is mentioned that the detenu has filed a bail application in the Sessions Court and it is pending. Then there is no mention in the grounds of detention about the detenu being released on bail. As already stated, the detention order is dated 7-8-1995, whereas the detenu was granted bail by the Sessions Judge on 17th July, 1995. This copy of the order of bail dated 17th July, 1995 was not placed before the detaining authority. The question is whether this non-placing of a vital document impaired the subjective satisfaction of the detaining authority or not?

A perusal of the bail order reveals certain conditions placed on the detenu by the learned Sessions Judge. The learned Counsel for the petitioner has made available a copy of the order dated 17th July, 1995. The learned Sessions Judge has mentioned that he is taking precautions to impose certain conditions on the applicant before him so that his further activities can be monitored. Then in operative portion of the order, it is observed as follows:—

“He shall not enter the local limits of Andheri Police Station and shall attend Vile Parle Police Station every Sunday between 6.00 and 7.00 p.m. until trial is over.”

It is, therefore, seen that the learned Sessions Judge has taken precautions to impose stringent conditions to monitor and supervise the activities of the petitioner. If this copy of the order of bail had been placed before the detaining authority and he was made aware of the conditions imposed by the bail order, the question is whether the detaining authority would still have passed an order of detention or he would not have passed such an order. It is purely left to the subjective satisfaction of the detaining authority. We are concerned only with the question as to what is the effect of non-placing of a vital document before the detaining authority.

5. The matter is no longer res integra, but is covered by a direct authority of the Supreme Court , Abdul Sattar Ibrahim Manik v. Union of India and others. After surveying the case law on the point, the Supreme Court reached certain conclusions. One such conclusion is that if the bail had been refused, then non-placing of such an order before the detaining authority will not vitiate the order of detention. As far as non-placing the copy of order where bail had been granted to the detenu is concerned, the Supreme Court has observed as under at page 2271:—

“(6) In a case where the 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.”

We, therefore, see that the Apex Court has ruled that 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.

The learned Counsel for the petitioner also invited our attention to two decisions of this Court , Sajjanbai Arjunlal Jain v. The State of Maharashtra, and , Amina Akbar Ansari v. State of Maharashtra, where this Court has taken the view that non-placing of the order of bail before the detaining authority impairs the subjective satisfaction of the detaining authority which renders the detention order invalid.

6. On the other hand, the learned Additional Public Prosecutor invited our attention to some authorities.

In 1992 Supp. (3) S.C.C. 65, Ram Surya Mhatra v. R.D. Tyagi and others, the question that is raised in this case about not placing the order of bail was not raised in that case. In that case what was pointed out was that after the detenu was released on bail, there was no subsequent untoward act creating any disturbance in public order before passing the order of detention. In the facts and circumstances of that case it was held that in view of the affidavit filed by the detaining authority that he had taken into consideration that fact, it was not a case of non-application of mind. But the present question with which we are concerned in the present case was neither raised nor decided in that case.

In Smt. Hawabi Sayed v. L. Hmingliana, it was a case where the detenu was in judicial custody and was making successive bail applications, and therefore, the detaining authority felt that the detenu may be released on bail, and therefore, he could pass an order of detention. The present case with which we are now concerned about the detenu already obtaining order of bail and copy of that order of bail not being placed before the detaining authority was neither raised nor decided in that case.

In 1995 Supreme Court Cases (Cri.) 847, Kishore Sukanraj Jain and others v. State of Rajasthan and others, it was a case where the detenu had been granted bail subject to certain conditions. On that basis, the detaining authority passed the order of detention. It appears there was a subsequent order under which the bail conditions had been modified and that modification order was not placed before the detaining authority. The Apex Court observed that in the circumstances of that case, the non-production of subsequent order of modification of bail conditions has not affected the subjective satisfaction of the detaining authority because the detaining authority relied on the fact that the detenu had slipped out of Rajasthan and his where abouts were not known.

In our view, none of the above three decisions have any bearing on the point under consideration.

As already stated, in the present case, the bail was granted on certain conditions. If the bail order had been placed before the detaining authority it was left to him on his subjective satisfaction to decide that inspite of such stringent conditions of bail, he felt it necessary to pass the order of detention or it may be a case where he may not exercise that discretion in view of stringent conditions of bail order. In what manner the detaining authority would have felt if such a bail order had been placed before him is anybody’s guess, and the question is only whether a vital and material document was not placed before the detaining authority. In our view in the facts and circumstances of this case the copy of the order of bail which was a vital and material document should have been placed before the detaining authority and since it was not placed before him, it has impaired the subjective satisfaction of the detaining authority.

This is a case where even as late as 7th August, 1995, the detaining authority is under the impression that the bail application is still pending and the detenu is still in custody, whereas the detenu had been released on bail on 17th July, 1995. We do not know what view the detaining authority would have taken if the subsequent event had been brought to his notice. The sponsoring authority should have sent a subsequent report about the release of the detenu on bail on certain conditions and place copy of the order of bail before the detaining authority. In the absence of such a vital material being placed before the detaining authority it is a case of suppression of vital document or non application of mind or impairment of subjective satisfaction of the detaining authority. In the circumstances of this case, we hold that the order of detention is bad and cannot be sustained.

7. In the result, the petition is allowed. The impugned order of detention dated 7th August, 1995, is hereby quashed. The detenu Vasant Ramchandra Gaikwad shall be released forthwith if not required in any other case. Rule made absolute.

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