# Anil Bhati v. Union of India &Ors

- **Citation:** (2019) 1 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Civil Misc. Habeas Corpus Writ Petition No. 329 of 2019
- **Bench:** Manoj Misra, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-bhati-v-union-of-india-ors-44504
- **Pages:** 16

## Headnote

A. Bail order, doubting credibility of
prosecution evidence having potentiality
to influence mind of detaining authority
was relevant and ought to be placed and
considered by detaining authority.

Whether bail order of High Court is relevant
material
requiring
consideration
by
the
detaining authority and whether in absence of
such consideration, subjective satisfaction
stood vitiated - Due to non-application of mind
on relevant material, subjective satisfaction
stood vitiated - Detention order cannot be
saved u/s 5-A of N.S. Act and quashed. (E-1)

## Text

_Characters 0–39,924 of 54,820. This is a partial read: ask again with offset=39924 for what follows._

926 INDIAN LAW REPORTS ALLAHABAD SERIES
entered into hypertechnical things while
rejecting the application for juvenility which
is contrary to the procedure provided under
the Act.

13. Considering the aforesaid law
laid down by the Supreme Court as well
as the Full Bench of this Court, I am of
the view that on the date of occurrence i.e.
08.11.1999, the age of the appellant No.2
was 16 years 6 months and 2 days and
hence was juvenile.

14. The application is, accordingly,
allowed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Civil Misc. Habeas Corpus Writ Petition No. 329 of 2019

Anil Bhati ...Petitioner
Versus
Union of India &Ors. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Sahai, Sri Chandrakesh Mishra,
Sri Daya Shankar Mishra, Sri Vikas
Chandra Srivastava

Counsel for the Respondents:
A.S.G.I., Sri Annapurna Singh, Sri Vinay
Saran, Sri Shashi Bhushan

A. Bail order, doubting credibility of
prosecution evidence having potentiality
to influence mind of detaining authority
was relevant and ought to be placed and
considered by detaining authority.

Whether bail order of High Court is relevant
material
requiring
consideration
by
the
detaining authority and whether in absence of
such consideration, subjective satisfaction
stood vitiated - Due to non-application of mind
on relevant material, subjective satisfaction
stood vitiated - Detention order cannot be
saved u/s 5-A of N.S. Act and quashed. (E-1)

(Delivered by Hon'ble Manoj Misra, J.
& Hon'ble Mrs. Manju Rani Chauhan, J.)

1. We have heard Shri D.S. Mishra,
learned senior counsel assisted by Shri
Chandrakesh Mishra and Shri Vikas
Chandra Srivastava, for the petitioner;
Shri Shashi Bhushan, Advocate, holding
brief of Shri Annapurna Singh, for the
Union of India; Shri Vinay Saran, learned
senior counsel assisted by Shri Harikesh
Kumar Gupta, for the Intervenor; the
learned A.G.A. for the state respondents;
and have perused the record.

2. By means of this habeas corpus
petition,
the
petitioner
Anil
Bhati,
currently in Jail, has questioned his
detention under the National Security Act,
1980 (for short the Act, 1980) pursuant to
the order dated 05.12.2018 passed by the
District Magistrate, Gautambudh Nagar
(for short DM) under Section 3(2) read
with Section 3(3) of the Act, 1980, which
has
been
confirmed
by
the
State
Government vide order dated 22.01.2019
and, thereafter, the detention period has
been extended. The petitioner has prayed
that after setting aside the detention order
he be released.

3. A resume of relevant facts would
be apposite. From the return filed by the
Jailor, District Jail, Kaushambhi (for short
the Jailor), it appears, the petitioner Anil
Bhati was admitted in District Jail,
Muzaffarnagar on 17.03.2018 pursuant to
remand order dated 8.12.2017 issued by
the
Chief
Judicial
Magistrate,
Gautambudh Nagar in case crime no.751
1 All. Anil Bhati Vs. Union of India & Ors.
927
of
2017,
P.S.
Bisrakh,
District
Gautambudh Nagar, which related to an
incident dated 16.11.2017. While he was
in custody, remand orders were obtained
in five other cases on the basis of
petitioner's subsequent implication in
those cases. On administrative ground, on
transfer, the petitioner was admitted in
District Jail, Kaushambhi on 07.07.2018.
While the petitioner was in jail in
connection with those cases, he was
served with the impugned detention order
dated 05.12.2018 passed by the DM. The
grounds of detention served upon the
petitioner indicate that the subjective
satisfaction to detain the petitioner under
the Act, 1980 was drawn on the basis of
his involvement in Case Crime No.751 of
2017 (supra) as the incident relating to it
had allegedly disturbed the public order.
However, for the purpose of drawing
satisfaction in respect of the propensity of
the petitioner to repeat such act, upon
being released on bail, his implication in
four
other
cases
was
narrated.
In
paragraph 8 of the grounds of detention it
was mentioned that the bail applications
of the petitioner in respect of Case Crime
No.751 of 2017 (supra) and Case Crime
No. 378 of 2018, P.S. Bisrakh, District
Gautambudh Nagar, under sections 2/3 of
U.P. Gangsters (Prevention of Anti-Social
Activities) Act, 1986, were pending in the
High Court and a date was fixed for their
consideration but because the co-accused
Arun Yadav has been granted bail in Case
Crime No. 751 of 2017, there is imminent
likelihood of the petitioner being released
on bail therefore detention under the Act,
1980 was considered necessary with a
view to prevent him from repeating
activity prejudicial to the maintenance
of public order. The grounds of
detention also indicate that the DM
was satisfied that if bail is granted in
the main case i.e. Case Crime No.751
of 2017 (supra) then securing bail in
other cases, which were not so serious,
would not be difficult.

4. The learned counsel for the
petitioner has questioned the detention
order on several grounds. However, as we
are satisfied with one of those grounds on
which the petition can be allowed, we do
not propose to address all the grounds
raised.

5. Before we proceed to notice and
discuss the relevant points urged before
us, it may be observed that the grounds of
detention reveal that at the time of passing
the detention order the DM was under the
impression that the bail application of the
petitioner in Case Crime No.751 of 2017
(supra) was pending and a date had been
fixed for its consideration by the High
Court. Such impression is reflected from
paragraph 8 of the grounds of detention
served upon the petitioner. The DM,
however, appeared to be aware that the
co-accused of that case, namely, Arun
Yadav, was granted bail. He, therefore,
expressed his satisfaction that there
existed real possibility of the petitioner
being released on bail in that case.

6. The learned counsel for the
petitioner submitted that the co-accused
Arun Yadav; the petitioner (Anil); and
another co-accused Sonu were all granted
bail by a common detailed / speaking
order dated 14.11.2018 (Annexure 2 to
the writ petition) passed by the High
Court in three connected bail applications,
namely, Criminal Misc. Bail Application
No. 21380 of 2018: Arun Yadav vs. State
of U.P.; Criminal Misc. Bail Application
No. 19942 of 2018: Anil vs. State of U.P.;
and Criminal Misc. Bail Application No.
928 INDIAN LAW REPORTS ALLAHABAD SERIES
17413 of 2018: Sonu @ Dharam Dutt
Sharma vs. State of U.P. The bail order
reveals that the bail applications of all the
three applicants was allowed. Meaning
thereby that the bail application of Anil
(the corpus) was also allowed by the same
order dated 14.11.2018 by which the bail
application of Arun Yadav had been
allowed. It has been submitted that the
existence of common bail order is averred
in paragraph 6 of the writ petition of
which there is no denial in paragraph 6 of
the counter affidavit filed by the DM.
Therefore, it is crystal clear, the DM
while issuing the detention order had not
applied his mind to the relevant material
which
has
vitiated
his
subjective
satisfaction as also the order of detention.

7. To demonstrate that there was no
application of mind on the bail order, the
learned counsel for the petitioner invited
attention of the court to paragraphs 22 and
28 of the writ petition, which are
extracted below:

"22. That it is further pertinent to
mention that the petitioner was allowed
bail by this Hon'ble Court, 21 days prior
to the impugned detention order i.e. on
14.11.2018 and just to somehow curtail
the petitioner liberty the impugned
detention order was hastily passed by the
respondent no.3 on 5.12.2018.

28. That the grounds of detention
dated 05.12.2018 signed by the District
Magistrate, vividly indicate that the
petitioner was still in jail and is
endeavoring for his bail and post bail he
may again commit act prejudicial to
public order. Here it is most humbly
stated that the petitioner was allowed bail
vide order dated 14.11.2018 passed by
Hon'ble Rajul Bhargava, J. of this
Hon'ble Court in Criminal Misc. Bail
Application No. 21380 of 2018, which
once
again
demonstrates
that
the
impugned detention order and its grounds
of
detention
have
been
passed
mechanically,
without
any
due
application of mind. It is further stated
that since the petitioner is not having any
Police record then there was no reason to
apprehend that he will again commit acts
prejudicial to public order."

8. Attention of the court has also
been invited to paragraph 15 of the
counter affidavit filed by the DM which is
a reply to paragraph 22 of the petition.
Paragraph 15 of the counter affidavit filed
by the DM reads as under:

"15. That the contents of paragraph
no.22 of the writ petition are denied being
incorrectly stated. In reply it is stated that
the petitioner had moved the bail
application, which was pending before the
court concerned and there was real
possibility of releasing him on bail and on
releasing
on
bail,
there
was
all
probability that he may indulge in
prejudicial activities, with a view to
prevent the petitioner from acting in any
manner prejudicial to the maintenance of
public order, the petitioner has been
rightly detained under section 3(2) of
National Security Act after complete
subjectively satisfaction on the basis of
material available on the record and
there is no violation of any fundamental
right as provided in Constitution of India
to every citizen of this country."

9. Attention of the court has also
been invited to the contents of paragraph
17 of the counter affidavit filed by the
DM which is a composite reply to
paragraph nos. 25 to 36 of the writ
petition. A perusal thereof would reveal
1 All. Anil Bhati Vs. Union of India & Ors.
929
that the averments made in paragraph 28
of the writ petition were not dealt with
specifically and no statement was made
by DM either denying the existence of the
bail order or claiming that he read the
entire bail order and found that it granted
bail to the petitioner also. Though, in the
last sentence of paragraph 17 of the
counter affidavit, it has been stated as
follows:

"........The
deponent
considered
possibility of petitioner being released on
bail from concerned court and upon release,
his further indulgence in similar type of
activities, which will be prejudicial to the
maintenance of public order, with a view to
prevent the petitioner from acting in any
manner prejudicial to the maintenance of
public order, the petitioner has been rightly
detained under section 3(2) of National
Security Act after complete subjectively
satisfaction on the basis of material available
on the record and there is no violation of any
fundamental
right
as
provided
in
Constitution of India to every citizen of this
country."

10. By referring to the above
extracted contents of the writ petition and
the counter affidavit filed by the DM, the
learned
counsel
for
the
petitioner
submitted that the DM had failed to apply
his mind on a relevant material i.e. the
bail order passed by the High Court
granting bail to the petitioner. It has been
urged that the bail order is a speaking
order which deals threadbare with the
prosecution case brought against the
petitioner and when read as a whole it
creates a doubt as regards involvement of
the petitioner in case crime no.751 of
2017 (supra). Hence it was a relevant
material that ought to have been placed
before
the
detaining
authority
and
considered
by
it;
and
its
nonconsideration has vitiated the subjective
satisfaction and, therefore, the detention
order is liable to be quashed.

11. The learned counsel for the
petitioner urged that it is settled legal
position that where an order of detention
is passed with reference to an activity in
respect of which the detenue has been
granted bail by a speaking order, which
suggests possibility of false implication,
then the bail application as well as the bail
granting order are relevant material and
must be placed by the sponsoring
authority before the detaining authority to
enable the detaining authority to apply its
mind on the said material and be satisfied
whether to pass an order of detention or
not. It has been urged that the bail
application and the bail granting order are
both relevant because they contain the
defence taken by the detenue which has
impressed the Court to direct release of
the detenue on bail. It has been urged that
here the detaining authority was not even
aware that the detenue has been granted
bail in the concerned case. It is thus clear
that he did not even peruse the bail
granting order which related not only to
the co-accused but also the detenue.
Hence, it is a case of complete nonapplication of mind on relevant material
thereby vitiating the order of detention.

12. Per Contra, the learned A.G.A.
as well as the learned counsel appearing
for the intervenor have submitted that the
relevance of the bail order was only to
indicate the imminent possibility of the
detenu being released from jail and as
satisfaction has been recorded in that
regard, mere statement in the grounds of
detention that the bail application of the
petitioner was pending whilst that of the
930 INDIAN LAW REPORTS ALLAHABAD SERIES
co-accused Arun Yadav was granted
would not vitiate the order of detention,
particularly, when, otherwise, the grounds
of detention disclose existence of cogent
material to draw satisfaction that the
activity of the petitioner had been
prejudicial to the maintenance of public
order and that on his release he was likely
to repeat such activity and, therefore, to
prevent him from doing so, detention
order was necessary. In addition to above,
it has been urged by them that this court
had dismissed the petition of co-accused
Arun Yadav challenging the order of
detention upon finding that the activity
pertaining to case crime no.751 of 2017
(supra) had breached public order. It was
also pointed out that the order dismissing
the petition of the co-accused was
challenged before the Apex Court but the
Apex Court summarily dismissed the
Special Leave Petition.

13. Before we proceed to consider
the weight of the rival submissions, it
would be apposite for us to observe that
the order dated 03.05.2019 passed by a
co-ordinate Bench of this Court in Habeas
Corpus Writ Petition No. 171 of 2019
filed by co-accused Arun Yadav was
produced before us during the course of
arguments. From a perusal of the said
order we find that the point raised by the
learned counsel for the petitioner that the
satisfaction of the detaining authority
stood vitiated due to non-application of
mind on the bail order passed in favour of
the petitioner was neither pressed nor
discussed in the petition of the coaccused. Moreover the point raised in this
petition, in all probability, might not have
been available to co-accused Arun Yadav
because from the grounds of detention of
the present petitioner it appears that the
detaining authority was aware that the coaccused Arun Yadav had been granted
bail, whereas in respect of the petitioner it
is stated in the grounds of detention that
the bail application is pending. Hence, we
are of the considered view that dismissal
of the writ petition filed by the co-accused
Arun Yadav against the order of detention
is of no consequence on the merit of the
points
urged
in
this
petition
and,
therefore, we would have to examine the
merit of the points raised in this petition
regardless of dismissal of the writ petition
filed by the co-accused.

14. To appreciate the weight of the
points urged by the learned counsel for
the petitioner, it would be apposite for us
to take a conspectus of various decisions
of the apex court on the requirement of
placement of all the relevant material
available with the sponsoring authority
before the detaining authority at the time
of issuance of the order of detention.

15. In Ashadevi v. K. Shivraj,
Addl. Chief Secy. to the Govt. of
Gujarat, (1979) 1 SCC 222, the apex
court in paragraph 6 of the judgement, as
reported, held as follows:

"6. It is well-settled that the
subjective satisfaction requisite on the
part of the detaining authority, the
formation of which is a condition
precedent to the passing of the detention
order will get vitiated if material or vital
facts which would have a bearing on the
issue and would influence the mind of the
detaining authority one way or the other
are ignored or not considered by the
detaining authority before issuing the
detention order. In Sk. Nizamuddin v.
State of West Bengal the order of
detention was made on September 10,
1973 under Section 3(2)(a) of MISA based
1 All. Anil Bhati Vs. Union of India & Ors.
931
on the subjective satisfaction of the
District Magistrate that it was necessary
to detain the petitioner with a view to
preventing him from acting in a manner
prejudicial to the maintenance of supplies
and services essential to the community
and this subjective satisfaction, according
to the grounds of detention furnished to
the petitioner, was founded on a solitary
incident of theft of aluminium wire
alleged to have been committed by the
petitioner on April 14, 1973. In respect of
this incident of theft a criminal case was
filed inter alia against the petitioner in
the
Court
of
the
Sub-Divisional
Magistrate, Asansol, but the criminal case
was ultimately dropped as witnesses were
not willing to come forward to give
evidence for fear of danger to their life
and the petitioner was discharged. It
appeared clear on record that the historysheet of the petitioner which was before
the District Magistrate when he made the
order of detention did not make any
reference to the criminal case launched
against the petitioner, much less to the
fact that the prosecution had been
dropped or the date when the petitioner
was discharged from that case. In
connection with this aspect this Court
observed as follows:

"We should have thought that the
fact that a criminal case is pending
against the person who is sought to be
proceeded against by way of preventive
detention is a very material circumstance
which ought to be placed before the
District Magistrate. That circumstance
might quite possibly have an impact on
his decision whether or not to make an
order of detention. It is not altogether
unlikely that the District Magistrate may
in a given case take the view that since a
criminal case is pending against the
person sought to be detained, no order of
detention should be made for the present,
but the criminal case should be allowed to
run its full course and only if it fails to
result in conviction, then preventive
detention should be resorted to. It would
be most unfair to the person sought to be
detained not to disclose the pendency of a
criminal case against him to the District
Magistrate."

It is true that the detention order in
that case was ultimately set aside on other
grounds but the observations are quite
significant. These
observations
were
approved by this Court in Suresh Mahato
v. District Magistrate, Burdwan. The
principle that could be clearly deduced
from the above observations is that if
material or vital facts which would
influence the mind of the detaining
authority one way or the other on the
question whether or not to make the
detention order, are not placed before or
are not considered by the detaining
authority it would vitiate its subjective
satisfaction rendering the detention
order illegal. After all the detaining
authority must exercise due care and
caution and act fairly and justly in
exercising the power of detention and if
taking into account matters extraneous
to the scope and purpose of the statute
vitiates the subjective satisfaction and
renders the detention order invalid then
failure to take into consideration the
most material or vital facts likely to
influence the mind of the authority one
way or the other would equally vitiate the
subjective satisfaction and invalidate the
detention order."

(Emphasis Supplied)

16.

In
Dharamdas
Shamlal
Agarwal v. Police Commr., (1989) 2
932 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 370, in paragraph 12 of the
judgement, as reported, after taking a
conspectus of the authorities, the apex
court reiterated the same principles as laid
in the judgement in Ashadevi's case
(supra). The relevant portion is extracted
below:

"12. From the above decisions it
emerges that the requisite subjective
satisfaction, the formation of which is
a condition precedent to passing of a
detention order will get vitiated if
material or vital facts which would
have bearing on the issue and weighed
the
satisfaction
of
the
detaining
authority one way or the other and
influenced
his
mind
are
either
withheld
or
suppressed
by
the
sponsoring authority or ignored and
not
considered
by
the
detaining
authority before issuing the detention
order."

17. Reiterating the law laid down
in Ashadevi's case (supra), in Ahamed
Nassar v. State of T.N., (1999) 8
SCC 473, the apex court in paragraph
20 of the judgement, as reported,
observed as follows:

".....A man is to be detained in the
prison based on the subjective satisfaction
of
the
detaining
authority.
Every
conceivable material which is relevant
and vital which may have a bearing on
the issue should be placed before the
detaining
authority.
The
sponsoring
authority should not keep it back, based
on his interpretation that it would not be
of any help to a prospective detenu. The
decision is not to be made by the
sponsoring authority. The law on this
subject is well settled; a detention order
vitiates if any relevant document is not
placed before the detaining authority
which
reasonably
could
affect
his
decision."

18. After observing as above, the
apex court went on to observe that all
relevant material that could be available at
the time of issuance of the order of
detention must be placed before the
detaining authority and considered by it.
Non-consideration of relevant material
which could influence the mind either
way
would
vitiate
the
subjective
satisfaction due to non-application of
mind and would render the order of
detention vulnerable. The relevant portion
of the judgement in Ahamed Nassar's
case (supra) is extracted below:

27...........Thus,
there
should
be
consideration of all relevant materials in
case such materials were within the reach
of the detaining authority till a formal
detention order was issued.

28. In the case of Mohd. Shakeel
Wahid Ahmed v. State of Maharashtra
also detention was challenged as relevant
material came into existence after signing
of the detention order but before issuance
of a formal order. The Advisory Board
opined in the case of another detenu
Shamsi that there was no sufficient cause
for Shamsi's detention but this material
was not placed before the detaining
authority. The defence taken by the State
was that the detention order is dated 810-1981 while the Advisory Board's
opinion
is
dated
19-10-1981.
The
Constitution Bench of this Court rejected
this contention and held:

"The explanation offered by Shri
Capoor as to why the opinion of the
Advisory Board in Shamsi's case was not
placed before him is that the report of the
Advisory Board in Shamsi's case which is
dated October 19, 1981, was not in
existence when he ''formulated and
1 All. Anil Bhati Vs. Union of India & Ors.
933
ordered to issue the detention order
against the petitioner' in this case. We see
quite some difficulty in accepting this
explanation. In the first place, the fact
that it was on October 8, 1981 that Shri
Capoor had directed the detention of the
petitioner is a matter of no consequence.
The order of detention was issued, that is
to say passed, on November 7, 1981 and
we must have regard to the state of
circumstances which were in existence on
that date. Shri Capoor seems to suggest
that the Advisory Board's opinion dated
October 19, 1981 came into existence
after he had made up his mind to pass an
order of detention against the petitioner
on October 8, 1981 and therefore he
could not take, or need not have taken,
that opinion into account. The infirmity of
this explanation is that the order of
detention
was
passed
against
the
petitioner on November 7, 1981 and the
Advisory Board's opinion in Shamsi's case
was available to the State Government
nearly three weeks before that date."

29. The above was a case where
detention order was signed on 8th
October but formal order was only signed
on 7-11-1981. The relevant material, viz.,
opinion of the Advisory Board came into
existence on 19-10-1991, i.e., between the
aforesaid two dates. Non-placement of the
opinion, which came into existence after
signing of the detention order before the
detaining authority was held to vitiate the
detention. Thus issuance of the formal
order is held to be the relevant date up to
which if any relevant material comes in
possession of the authority concerned it
has to be placed before the detaining
authority. In the present case, we find the
letter of the detenu dated 23-4-1999 was
received on 26-4-1999, i.e., before
issuance of formal detention order dated
28-4-1999. It was incumbent for the
Secretary concerned to have placed it
before the detaining authority. So we
conclude, non-placement of those two
letters which were relevant, vitiates the
impugned detention order.
(Emphasis Supplied)

19. From a conspectus of the
judgements noticed above, the legal
principle deducible is that if material or
vital facts which would influence the
mind of the detaining authority one way
or the other on the question whether or
not to make the detention order, are not
placed before or are not considered by the
detaining authority it would vitiate its
subjective
satisfaction
rendering
the
detention order illegal. Therefore, every
conceivable material which is relevant
and vital which may have a bearing on the
issue and available, or could with
ordinary diligence be available, with the
sponsoring authority, up to the date of
issuance of the detention order, should be
placed before the detaining authority. The
sponsoring authority should not keep it
back, based on its interpretation that it
would not be of any help to a prospective
detenue. What is important is that such
material should have been placed before
the detaining authority, and considered by
it, before issuance of the detention order.
Once such material is placed before the
detaining authority, after consideration of
such material, the detaining authority may
still be subjectively satisfied that a case
has been made out to preventively detain
the detenue. Whether the material is
relevant or not, the test is whether it has
the potentiality to influence the mind of
the detaining authority one way or the
other as to whether an order of detention
be issued. As to whether the material
could be considered relevant depends
upon the facts of each case and the court,
934 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising its power of judicial review, is
empowered to examine that aspect. But
once such material has been considered
by the detaining authority before issuance
of the order of detention, the subjective
satisfaction of the detaining authority
cannot be questioned on the ground that
upon consideration of that material it
could
not
have
been
satisfied
to
preventively detain the detenue.

20. Now, we shall examine the law
as to whether copy of the bail application
and the order granting bail to the detenue
is a relevant material which ought to be
placed before the detaining authority and
considered by it before issuance of
detention order.

21. Before we notice the decisions
on the aspect it would be apposite to
observe that an order granting bail to the
detenue may be of relevance for two
reasons. Firstly, to indicate the imminent
likelihood of the detenue being released
from jail and, secondly, to disclose the
aspects which might have weighed with
the court to grant bail to the detenue and,
in some cases, the conditions of bail may
also be relevant. Where bail granting
order is a speaking order, throwing light
on the possibility of false implication, or
where it deals with the defence of the
detenue, ordinarily, such bail granting
orders are considered relevant and they
ought to be placed before the detaining
authority and considered by it before
issuance of the detention order.

22. In M. Ahamedkutty v. Union
of India, (1990) 2 SCC 1, the apex court
had taken the view that ordinarily a bail
application and the order granting bail to
the detenu would be relevant, if the
grounds of detention are based on that
case, and must be placed before and
considered by the detaining authority and,
if so considered, copy thereof must be
supplied to the detenue to enable him to
make an effective representation. A
failure in that regard would violate the
fundamental right to make effective
representation against order of preventive
detention guaranteed by Article 22(5) of
the Constitution of India. The aforesaid
legal principle was applied and followed
by a three-judges bench of the apex court
in P.U. Abdul Rahiman v. Union of
India, 1991 Supp (2) SCC 274.

23. In Abdul Sathar Ibrahim
Manik v. Union of India, (1992) 1 SCC
1, a two-judges bench of the apex court
had the occasion to deal with a situation
where the bail application of the detenue
was rejected. The argument raised on
behalf of the detenue that the bail
application and the bail rejecting order
was relevant document and ought to have
been placed before the detaining authority
and if placed ought to have been supplied
to the detenue, was rejected by the court
by distinguishing the law laid down in M.
Ahamed
Kutty's
case
(supra).
The
relevant portion of this judgement is
extracted below:

"In Ahamedkutty case no doubt there
is an observation having regard to the
facts therein that non-consideration of the
bail application and the order of
releasing
would
amount
to
nonapplication of mind and that would affect
the detention order. The Division Bench
made
these
observations
while
considering the contention that the order
granting bail and the bail application,
though referred to, were not relied upon.
It is not laid down clearly as a principle
that in all cases non-consideration of the
1 All. Anil Bhati Vs. Union of India & Ors.
935
bail application and the order refusing
bail would automatically affect the
detention. The relevant observations in
this context made by this Court in
Ahamedkutty case may be noted:

"If in the instant case the bail
order on condition of the detenu's
reporting to the customs authorities was
not considered the detention order itself
would have been affected. Therefore, it
cannot be held that while passing the
detention order the bail order was not
relied on by the detaining authority. In S.
Gurdip Singh v. Union of India, following
Icchu Devi Choraria v. Union of India
and Shalini Soni v. Union of India, it was
reiterated that if the documents which
formed the basis of the order of detention
were not served on the detenu along with
the grounds of detention, in the eye of law
there would be no service of the grounds
of detention and that circumstance would
vitiate his detention and make it void ab
initio."

It is further observed in this case
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 themthe
grounds themselves could not be said to
have been complete. We have, therefore,
no alternative but to hold that it 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
and entitling the detenu to be set at liberty
in this case."

Placing considerable reliance on this
passage, the learned counsel contended
inter alia that in the instant case from
either point of view namely (i) if the bail
application and the order refusing bail
were not considered or (ii) if considered
the non-supply of the copies of the same
to the detenu would affect the detention
order. In other words, according to him,
non-consideration of these two documents
by the detaining authority would itself
affect the satisfaction of the detaining
authority. If on the other hand they are
taken into consideration and relied upon
the non-supply of the same to the detenu
would result in violation of Article 22(5)
of
the
Constitution
rendering
the
detention invalid. We are unable to agree
with the learned counsel. We are satisfied
that the above observations made by the
Division Bench of this Court do 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 upon before passing the detention
936 INDIAN LAW REPORTS ALLAHABAD SERIES
order and therefore they had to be
supplied.
(Emphasis supplied)

24. In K. Varadharaj v. State of
T.N., (2002) 6 SCC 735, a two-judges
bench of the apex court had the occasion
to discuss and reconcile the two earlier
decisions of the apex court, that is, in M.
Ahamedkutty's case (supra) and Abdul
Satthar's case (supra), and in paragraphs 5
to 7 of the judgement, as reported, the
apex court held as follows:

"5. We have considered the argument
advanced on behalf of the parties as also
perused the records. The issue that arises
for our consideration in this case is not
really res integra. In the case of
Ahamedkutty this Court held:

Considering
the
facts
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, ....

It is based on this observation of the
Court that learned counsel for the
appellant argued that non-consideration
of the bail application and order made
thereon would vitiate the order of
detention. But we should notice that the
said observation of this Court was made
on facts of that case, therefore, we cannot
read into that observation of this Court
that in every case where there is an
application for bail and an order made
thereon, the detaining authority must as a
rule be made aware of the said
application and order made thereon. In
our opinion the need of placing such
application
and
order
before
the
detaining authority would arise on the
contents of those documents. If the
documents do contain some material
which on facts of that case would have
some
bearing
on
the
subjective
satisfaction of the detaining authority
then like any other vital material even this
document may have to be placed before
the detaining authority. In our opinion,
the judgment of this Court in Ahamedkutty
does not lay down a mandatory principle
in law that in every case the application
for bail and the order made thereon
should be placed before the court. We are
supported in this view of ours by the
judgment relied on by the State in Abdul
Sathar. In the said case considering the
earlier judgment in Ahamedkutty and
explaining the observation quoted by us in
the said judgment of Ahamedkutty this
Court held:

"We are satisfied that the above
observations made by the Division Bench
of this Court do 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 upon
before passing the detention order and
therefore they had to be supplied."

6. From the above observations, it is
clear that placing of the application for
bail and the order made thereon are not
always mandatory and such requirement
1 All. Anil Bhati Vs. Union of India & Ors.
937
would depend upon the facts of each case.
We are in respectful agreement with the
view expressed by the abovesaid two
judgments which in our opinion are not
conflicting.

7. We will now consider the question
whether in the instant case the facts
required the detaining authority to be
aware of the contents of the bail
application as also the order of the court
thereon. From the facts of this case, we
must note that the fact that the detenu was
in custody was taken note of by the
detaining authority by reference to his
remand order therefore that is a vital fact
which is taken note of by the court. The
contents of the bail application also in
our opinion do not contain any vital
material notice of which the detaining
authority had to take. However, in our
opinion there was a vital fact in the order
of the court notice of which ought to have
been taken by the detaining authority. The
said fact is that the court specifically
noted in the bail order that the Public
Prosecutor had no objection for grant of
bail therefore the court was inclined to
grant bail to the appellant. This is a
circumstance, in our opinion, which ought
to have been noticed by the detaining
authority
because
the
counsel
representing the State in express terms
said that he, which would also mean his
client which is the State, did not have any
objection to the grant of bail. Therefore,
in our opinion this is a vital fact notice of
which the detaining authority ought to
have taken. We do not say that merely
because a concession was made by a
counsel for the State in a bail application
that would be binding on the detaining
authority but it is necessary that such
opinion expressed by a counsel for the
State ought to have been taken note of and
since
this
is
a
vital
fact,
nonconsideration of this fact in our opinion
vitiates the order of detention."

25. In Sunila Jain v. Union of
India, (2006) 3 SCC 321, the apex court
after taking a conspectus of previous
judgements on the issue as to whether
under all circumstances bail application
and bail granting order would be relevant,
in paragraphs 18 and 19 of the judgement,
as reported, laid down certain legal
principles. The relevant paragraphs are
extracted below:

"18. The decisions of this Court
referred to hereinbefore must be read in
their entirety.