JUDGMENT
G.T. Nanavati, J.
1. The District Magistrate, Panchmahals, on being satisfied that the petitioner is a dangerous person and that his activities have created an atmosphere of fear and terror in Dahod Town, passed an order on 22-8-1989, for detention of the petitioner, with a view to prevent him from carrying on the said activities. That order is challenged in the petition by the detenu himself.
2. In the grounds of detention, it is mentioned that on 23-5-1984 the petitioner, alongwith his associates, was involved in commission of an offence punishable under Section 323 of the Indian penal Code and his said act had also created an atmosphere of fear and terror at that time. For that incident, an offence was registered against the petitioner and on 13-9-1984 it was compromised at the instance of some good persons. Next incident mentioned is of 30-6-1989. It is alleged that, on that day at about 11-00 O’clock, in Darpan talkies, the petitioner had behaved in a high-handed manner and had thereafter given blows with a knife to one Kamlesh Varma and his friend Rajiv who had tried to intervene. As a result thereof an atmosphere of fear and terror had developed amongst the spectators sitting in the said theatre. For that incident also a case has been registered for offences punishable under Sections 307 and 323 of the Indian Penal Code. The petitioner was arrested on 4-7-1989 and was released on bail on 26-7-1989. Another incident which took place in June, 1989 is also referred to in the grounds. That incident had happened near S.T. Stand of Dahod. The petitioner is alleged to have beaten his victim with a cycle chain. The victim had not reported this incident to the Police because of fear of the petitioner. This incident had also led to breach of public order in that locality. One incident which had taken place in or about April, 1989 is also mentioned and it is alleged that the petitioner had beaten one person on that occasion and had given threats of killing him. Two other incidents – one of October, 1988 and another of December, 1988 – are also relied upon as grounds for detention and with respect to both these incidents, it is alleged that the petitioner had beatten some persons and that because of fear of the petitioner, they had not complained to the police about the offences committed by the petitioner. After referring to all these incidents, it is stated that because of such activities of the petitioner, an atmosphere of fear and terror has developed in Dahod Town and the only way to prevent him from committing such activities is to detain him.
3. First contention raised by the learned Counsel for the petitioner is that the District Magistrate did rely upon the fact that the petitioner was released on bail in connection with the offence which had taken place on 30-6-1989 and in respect of which a case being Crime Register No. 69 of 1989 was registered. But neither a copy of the bail application made by the petitioner nor a copy of the bail order passed by the Court were produced before the detaining authority. Therefore, it should be held that as these relevant materials were not produced before the District Magistrate, the requisite satisfaction arrived at by him got vitiated. He drew our attention to the bail application made by the petitioner wherein it is clearly stated that the petitioner was innocent and had not committed the said offence. He also drew our attention to the order passed by the Court wherein it is observed that prima facie no case under Section 307 of the Indian Penal Code was made out by the prosecution and that the incident in question had happened as a result of sudden quarrel between the petitioner and Kamlesh Varma. Relying upon the aforesaid averments made in the application and the observations made in the bail order, the learned Counsel submitted that the same were very must relevant and, therefore, should have been treated as vital materials. As these vital materials could have affected the mind of the District Magistrate one way or the other, these vital materials ought to have been placed before the District Magistrate by the Sponsoring Authority. As the same was withheld from the District Magistrate, and as it is not possible to say how this material would have affected the ultimate conclusion of the District Magistrate, it being a matter of his subjective satisfaction, the order passed by him must be regarded as having been vitiated on that ground.
4. In support of this submission, the learned Counsel relied upon the decision of the Supreme Court in M. Ahamedkutty v. Union of India 1990 (1) JT 143 (SC). In that case the detenu was intercepted at Trivandrum Air-port while he was smuggling into India gold concealed in his suitcase. A case under the Customs Act, Foreign Exchange Regulation Act and Import and Export (Control) Act was registered against him for the said act. Relying upon the said incident, an order for his detention was also passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. In an application for bail made by him, it was stated that he was falsely implicated at the instance of persons who were inimically disposed towards him. The Court, while releasing him on bail, had imposed certain conditions. Considering the said facts, the Supreme Court held that the bail application and the bail order were vital materials for consideration and “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 the grounds themselves could not be said to have been complete”. For that reason, the Supreme Court held that withholding of the said documents amounted 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.
5. The learned Counsel submitted that in cases where in the grounds of detention, the detaining authority refers to an application for bail made by the detenu and the bail order passed by the Court, but such documents were not produced before the detaining authority, it should be held that his satisfaction got impaired on the ground that relevant and vital materials were withheld from him and if the same were placed before the detaining authority, they should be regarded as documents relied on by the detaining authority and, therefore, treated as part of the grounds. We are afraid we cannot accept such a wide proposition canvassed by the learned Counsel for the petitioner. It is not possible to agree with him that the Supreme Court in M. Ahmedkutty’s case (supra) has laid down such a wide proposition of law. the Supreme Court has carefully pointed out in that case how the averments made in the bail application and the observations made in the bail order – the conditions imposed by the bail order – had become vital materials. In paragraph 27 of the judgment, the Supreme Court has further stated that considering the facts of that case, the bail application and the bail order were vital materials for consideration. It was under those circumstances that the Supreme Court made the aforesaid observations.
6. Therefore, not in all cases it would be necessary for the sponsoring authority to place before the detaining authority the bail application made by the person with respect to whom the proposal for detention is made and the bail order. They should be placed for his consideration in those cases where they can be regarded as vital materials. If the bail application does not contain any averment or the bail order does not contain any observation likely to influence the mind of the detaining authority in arriving at the requisite satisfaction, the same need not be placed before him. Even when they are placed before the detaining authority, considering the facts of the case if it appears that they were not likely to have any influence or import on the satisfaction of the detaining authority, not supplying copies thereof to the detenu would not render his detention illegal.
7. Only in those cases where it appears to the Court that the averments made in the bail application on the observations made in the bail order were likely to influence the mind of the detaining authority in arriving at the requisite satisfaction, it can be said that they were documents relied upon by the detaining authority for the purpose of arriving at the requisite satisfaction and thus formed part of the grounds on the basis of which the detention order came to be passed. In such cases no doubt copies of the documents must be supplied to the detenu so as to enable him to make an effective representation.
8. So far as this case is concerned, as we have pointed out above, apart from the averment made in the bail application that the petitioner was innocent and not involved in the incident, the observations made in the bail order were really relevant as they clearly indicated that the incident was not that serious and that it had happened as a result of sudden quarrel, between two individuals. The Court clearly observed in the bail order that the offence punishable under Section 307 of the Indian Penal Code was not made out. It further showed that the bail application was not opposed on the ground that he had disturbed the public order on that day or that the incident had happened as the petitioner is a communal minded person. It was reported to the detaining authority that the said incident had taken place without any reason and only because the petitioner is a head-strong and communal minded person, and that as a result of that incident an atmosphere of fear had developed inside the theatre. The bail application does not appear to have been opposed on that ground and the order passed by the Court clearly showed that the incident was not a planned assault but it had taken place all of a sudden because of a sudden quarrel between two spectators. In this facts-situation, it cannot be denied that the averment regarding denial made in the bail application and the observations made by the Court in the bail order were not relevant and vital.
9. Therefore, considering the facts of the case, these vital material ought to have been placed by the sponsoring authority before the detaining authority for his consideration and as the same were withheld, the satisfaction arrived at by the detaining authority must be regarded as impaired. For that reason, following the decision of the Supreme Court in M. Ahmedkutty’s case (supra), this petition will have to be allowed. In the result, this petition is allowed. The impugned order of detention is quashed and set aside. The petitioner is ordered to be set at liberty forthwith unless his presence in Jail is required in connection with some other case. Rule is made absolute accordingly with no order as to costs.