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PETITIONER: ANANT SAKHARAM RAUT & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ANR. ETC.

DATE OF JUDGMENT14/11/1986

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) PATHAK, R.S.

CITATION:  1987 AIR  137            1987 SCR  (1) 221  1986 SCC  (4) 771        JT 1986   847  1986 SCALE  (2)796  CITATOR INFO :  R          1987 SC1472  (16)

ACT:     National   Security   Act   1980,   s.   3(2)--Detention Order--Order not mentioning that detenu was an  under--Trial prisoner, arrested in three cases & released on  bail--Clear indication  of  non-application  of mind  by  the  detaining authority--Detention order quashed.

HEADNOTE:     The petitioner-detenue was detained pursuant to an order of  detention passed under s. 3(2) of the National  Security Act  1980.  The detention was based on  three  incidents  in respect of which criminal Cases were already pending against the  petitioner. Before the detention order was  passed,  he had  moved applications for bail and was released  on  three successive days in the three cases. The detention order  did not  mention the fact that the detenue had made  application for bail in the three criminal cases relating to the  afore- said  incidents  and was enlarged on  bail.  The  petitioner moved  the High Courts for quashing the order of  detention. The High Court dismissed the petition.     The  petitioner  in special leave petition  against  the judgment  of the High Court and his wife in a Writ  Petition under  Art. 32 of the Constitution prayed for  quashing  the aforesaid  order of detention on the ground that  there  was clear indication of non-application of mind by the detaining authority when it passed the detention order. Allowing the petitions,     HELD: (1) This is not a fit case to resort to preventive detention. As there was clear non-application of mind on the part  of the detaining authority, the judgment of  the  High Court  under appeal is set aside and the order of  detention is  quashed  and it is directed that the petitioner  be  re- leased forthwith. [223E-G]     (2)  There is absolutely no mention in the  order  about the  fact that the petitioner was an  under-trial  prisoner, that  he  was arrested in connection with the  three  cases, that  applications  for bail were pending and  that  he  was released  on three successive days in the three cases.  This indicates a total absence of application of mind on the part

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of detaining 222 authority while passing the order of detention. [223C]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 575 of 1986.     From  the  Judgment  and Order dated  31.3.1986  of  the Bombay High Court in Crl. W.P. No. 153 of 1986.     M.S. Gupte, Rajendra Desai and V.B. Joshi for the Appel- lant/ Petitioner.     S.V. Deshpande, A.M. Khanwilkar and A.S. Bhasme for  the Respondents. The Judgment of the Court was delivered by     KHALID,  J.  The  same questions of law  and  facts  are involved in these two cases. One is a Criminal Writ Petition under Article 32 filed by the detenue’s wife and the other a Special Leave Petition filed by him against the Judgment  of the Bombay High Court rejecting his plea to quash the  order of detention. Special Leave granted. Both are being disposed of by this common Judgment. We will refer to the detenue  as the petitioner in this Judgment.     The  petitioner  was detained pursuant to  an  order  of detention  dated 15th January, 1986, issued by  the  Commis- sioner  of  Police, Bombay who is respondent No.  2  herein, under  Section 3(2) of the National Security Act, 1980.  The grounds of detention are given in Annexure-C. The  detention is based on three incidents; one on 16-9-1985, the other  on 1-12-1985 and the third on 25-12-1985; the offences involved in  the  three cases being 324 & 336 I.P.C., 324  &  506(ii) I.P.C.  and 452 I.P.C. respectively. There are  three  cases pending in respect of these three incidents.     The order of detention discloses that the people  within the jurisdiction of Bandra Police Station in Greater  Bombay are  experiencing  a sense of insecurity and fear  to  their lives due to the petitioner’s activities which are "prejudi- cial to the maintenance of public order in the said  locali- ties and areas."     From  the  materials placed before us we find  that  the first two incidents involve the same person between whom and the  petitioner there appears to be some enmity.  The  third incident relates to some 223 other person. The petitioner was an under trial prisoner  at the time the detention order was made.     We do not think it necessary to go into all the  grounds urged  before us by the petitioner’s counsel in  support  of his prayer to quash the order of detention. The one  conten- tion strongly pressed before us by the petitioner’s  counsel is  that the detaining authority was not made aware  at  the time the detention order was made that the detenue had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have  gone through the detention order carefully.  There  is absolutely  no mention in the order about the fact that  the petitioner was an under trial prisoner, that he was arrested in  connection with the three cases, that  applications  for bail were pending and that he was released on three  succes- sive days in the three cases. This indicates a total absence of  application of mind on the part of  detaining  authority while passing the order of detention.     In  our view this is the short manner in which  the  two cases  can be disposed of. If the petitioner is  found  dis-

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turbing  law and order or misusing the bail granted to  him, the authorities would be at liberty to move the  appropriate Court  to get the bail orders cancelled. One does  not  know how the detaining authority would have acted if he was  made aware of the above details.     We  are not satisfied that this is a fit case to  resort to  preventive detention. We refrain from referring  to  the other  grounds urged before us and from examining them.  The petitioner is entitled to succeed on the first ground.     We hold that there was clear non-application of mind  on the part of the detaining authority about the fact that  the petitioner was granted bail when the order of detention  was passed.  In  the  result we set aside the  Judgment  of  the Bombay High Court under appeal, quash the order of detention and  direct that the petitioner be released  forthwith.  The Appeal  and the Writ Petition are allowed without any  order as to costs. M.L.A.                            Appeal & Petition allowed. 224