ORDER
R. Jayasimha Babu, J.
1. The orders of detention were made on 30-9-2002 on the ground that the detenus are Goondas, who had on 27-7-2002, attacked the witness who was to have deposed during the trial of a case arising out of an incident which had occurred some years earlier on 14-12-1998, in which the detenus had been charged with offences under Sections 307 and 302 I.P.C., which offences were alleged to have committed in association with others.
2. The detenus had filed an application for bail in Crl.O.P. No. 21002 of 2002 prior to the orders of detention, on 4-9-2002. That application was dismissed by this Court after observing as under:
“The first and second petitioners have caused injuries on the complainant with Soori knife and the third and fourth petitioners have caused injuries on the complainant with cycle chain. All the petitioners have got bad antecedents. In fact, the petitioners 1 to 3 are already facing trial under Section 302 I.P.C. apart from various offences. All the petitioners seem to be rowdy elements. When the witness viz., the complainant was brought to the Court in a case where the petitioners are facing trial, the said witness was attacked. Considering the specific overt act attributed on the part of the petitioners and also the gravity of the offence, in the event the petitioners are enlarged on bail, they will indulge in the same crime and will prevent the witnesses from coming to the Court and depose. Hence, the petition is dismissed.”
3. The said order of this Court was not placed before the detaining authority even though the sponsoring authority had filed more than one affidavit before the detaining authority, last of such affidavit has been filed on 28-9-2002. The detaining authority has proceeded to make the orders of detention by assuming that the detenus will get bail in the normal course. That assumption was made without taking note of the actual facts of the case and the decision of this Court on the bail application.
4. In the circumstances of this case, the order made by this Court in bail application was relevant material, which ought to have been placed before the detaining authority, as it had direct bearing on the formation of his opinion with regard to the need or otherwise for the detenus being preventively detained even when they were already in custody and their bail application had been rejected by this Court on the ground that having regard to their antecedents and the real possibility of their attacking other witnesses if enlarged on bail, it was not desirable to grant them bail.
5. While it is open for the detaining authority to direct preventive detention even in cases where the detenus are already in custody, it is not open for the detaining authority to assume in every case that every person in custody will be let off on bail, and therefore, the order of detention is warranted, despite the person being in custody. The facts and circumstances of each case have to be examined by the detaining authority and he cannot act merely on assumptions.
6. The Constitution Bench of the Supreme Court in the case of RAMESHWAR SHAW v. DISTRICT MAGISTRATE, BURDWAN , while holding that it is open for the detaining authority to make orders of preventive detention even in cases of persons who are in jail custody, has also cautioned that the facts of each case have to be examined by the authority before he could form an opinion with regard to the need for resorting to the preventive detention law.
7. In this case, the material which had a direct bearing on the formation of the opinion with regard to the need for resort of the preventive detention even when the detenus are in custody and their bail application has been rejected on grounds which clearly indicated that there was little likelihood of their being enlarged on bail in the near future, was not brought to the notice of the detaining authority, despite the fact that the long interval of nearly 26 days had elapsed from the date of the order of this Court till the date of the order of detention. There is no explanation at all as to why the order of this Court was not placed before the detaining authority.
8. The detention orders which have been made without reference to material which ought to have been considered, are therefore vitiated and the same are required to be interfered with. The detention orders are set aside. The petitions are allowed.
9. As the bail application of the detenus has already been rejected by this Court on 4-9-2002 for the reasons stated therein, this order, setting aside the detention orders, will have no impact on the continued custody of the detenus, who are accused of having, in association with others, committed a murder and thereafter, having assaulted the witness with a view to prevent him from deposing.