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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: MANOHARLAL NARANG

DATE OF JUDGMENT02/03/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1472            1987 SCR  (2) 454  1987 SCC  (2) 241        JT 1987 (1)   583  1987 SCALE  (1)468

ACT:     Smugglers and Foreign Exchange Manipulators  (Forfeiture of  Property) Act, 1976, section 6(1) read with  section  2, scope--Right of a relative to raise all grounds available to him though such grounds were raised and found against in  an earlier proceedings against the detenuprinciple of  Resjudi- cata will not apply.     Doctrine of the application of the mind, scope Constitu- tion  of India, 1950, Articles 141 and 144, scope  of-Condi- tional order passed by the Supreme Court for the release  of a  detenu--Condition  imposed by the Supreme  Court  in  its order dated 1.5. 1975 is a material and relevant factor, but not  taken into account-Counter affidavit filed that  it  is not necessary to take note of--Propriety of the order.

HEADNOTE:     Respondent  and Ramlal Narang are brothers. An order  of detention  passed  on 19.12.1974 under section 3(1)  of  the COFEPOSA  against Ramlal Narang was successfully  challenged by  W.P.  10/75 before the Delhi High Court. An  appeal  was filed  against  that order before the Supreme Court  by  the Union  of  India. Refusing a stay application,  the  Supreme Court  passed  an order imposing certain conditions  on  the movement  of Ramlal Narang. On 25.6.1975 Emergency  was  de- clared.  On 1.7.1975 a fresh order of detention  was  passed against  Ramlal on the same facts and grounds.  The  earlier appeal  filed by Union of India against W.P. 10/75 was  dis- missed  in 1977. Ramlal was detained under the second  order of detention. A writ petition No. 115/75 flied by his  rela- tive  before  the Delhi High Court  challenging  the  second detention  was dismissed on 25.11.1975. An appeal was  filed by  certificate against that order before the Supreme  Court as  Crl. Appeal No. 399/75. In the meanwhile, notices  under sections  6  and  7 of the Smugglers  and  Foreign  Exchange Manipulators (Forfeiture of Property) Act, 1976 were  issued against  Ramlal.  These notices were challenged  by  him  by filing W.P. No. 720/75 in the Delhi High Court. Subsequently Crl.  Appeal  No. 399/75 was disposed of observing  that  it would  be open to raise all contentions available to him  in W.P.  720/75  notwithstanding  what  is  contained  in  W.P. 115/75.  The  Delhi  High Court having  dismissed  W.P.  NO.

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720/75, Crl. Appeal No. 2790/85 was preferred to the Supreme 455 Court  and is now pending before the Constitution  Bench  on the  question  of  competency of the  authorities  to  issue second detention order on the name grounds and facts.     While Respondents Manoharlal was in England an order  of detention   under  COFEPOSA  was  issued  against   him   on 31.1.1975.  He was brought to India on some  express  under- standing given to the Government of the United Kingdom.  His order  of  detention was quashed by the Bombay  High  Court, wile allowing his writ petition No. 2752/75 on 8.7.1980. The Union appeal against the same was dismissed on 4.11.1980  by the Supreme Court.     A further notice under section 6 of the SAFEMA read with section  2 was issued to the Respondent on 29.10.83  on  the basis  of the detention order dated 1.7.1975 issued  against Ramlal.  A full Bench of the Bombay High Court  quashed  the said notice resulting in the present Crl. Appeal No.  662/86 by  Union  of India. The appellants plea to  have  the  case tagged  on  to Crl. Appeal No. 2790/85  pending  before  the Constitution Bench was opposed by respondent since he  could succeed on merits. Dismissing the appeal, the Court,     HELD:  1. In this case, the provisions of Smugglers  and Foreign Exchange Manipulators (Forfeiture of Property)  Act, 1976  were being pressed into service because he is a  rela- tive  answering  the description given in Explanation  2  to sub-section  (2) of section 2 was available.  Therefore,  in such  cases,  the  person against whom action  is  taken  by invoking the Explanation to Sub-section 2 referred to above, is  at liberty to raise all grounds available to him  though such grounds were raised and found against in a  proceedings initiated by the relative. [459C-D]     2. An order of the Supreme Court is not an  inconsequen- tial  order. If the detaining authority has  considered  the order  of Supreme Court, one cannot state with  definiteness which  way  is subjective satisfaction would  have  reacted. This  order could have persuaded the detaining authority  to desist  from  passing the order of detention  since  Supreme Court  had allowed freedom of movement. Detention is only  a preventive Act. The Supreme Court did not find it  necessary to restrict the liberty of Ramlal when the order on the stay application  was passed. It may also be that  the  detaining authority  after considering the order of the Supreme  Court carefully  could still feel, that an order of  detention  is necessary  with reference to other materials which  outweigh the  effect  of Supreme Court’s order. In all  these  cases, non-application of mind 456 on  a vital and relevant material need not necessarily  lead to the conclusion that application of mind on such materials would,  always  be in favour of the detenu.  Application  of mind in such cases is insisted upon to enable the  detaining authority  to  consider  one way or the other,  as  to  what effect a relevant material could have, on the authority that decides the detention. The absence of consideration of  this important document amounts to non-application of mind on the part  of  the detaining authority  rendering  the  detention order invalid. [462A-D]     Ibrahim Bachu Bafen v. State of Gujarat & Ors., [1985] 2 SCC  24;  Ashadevi v. K. Shivraj, [1979] 1  SCC  222;  Mohd. Shakeel Wahid Ahmed v. State of Maharashtra & Ors.,[1983]  2 SCC  392 and Sita Ram Somani v. State of Rajasthan  &  Ors., [1986] 2 SCC 86, referred to.

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 662 of 1986.     From  the  Judgment and Order dated  24.10.1986  of  the Bombay High Court in W.P. No. 743 of 1986.     Dr.  V.  Gauri  Shanker, Ms. Halida Khatun  and  Ms.  A. Subhashini for the Appellants. Ram Jethmalani and Herjinder Singh for the Respondent. The Judgment of the Court was delivered by     KHALID, J. The Union of India has brought this appeal by special  leave against the Judgment of a full Bench  of  the Bombay High Court quashing the notice under Section 6(1)  of the Smugglers and Foreign Exchange Manipulators  (Forfeiture of  Property) Act, 1976, hereinafter referred to as  SAFEMA. It is necessary to set out the brief facts to appreciate the questions involved in this appeal.     Manoharlal  Narang,  the respondent in this  appeal  and Ramlal Narang are brothers. An order of detention was passed on  19th December 1974, under Section 3(1) of  the  COFEPOSA Act against Ramlal Narang. This order was challenged  before the  Delhi  High Court, in Writ Petition No. 10/75  and  the High Court quashed the order of detention by its order dated 30th  April,  1975. An appeal was filed against  that  order before this Court by the Union of India. Though an  applica- tion  for stay was moved, this Court declined to grant  stay but  passed an order on the 1st May, 1975  imposing  certain condi- 457 tions on the movement of Ramlal Narang. On 25th June,  1975, Emergency was declared. On 1st July, 1975, a fresh order  of detention  was passed against Ramlal on the same  facts  and grounds.  In the meantime the appeal filed by the  Union  of India against the order of ’the Delhi High Court relating to the earlier order of detention, was dismissed by this  Court in 1977, for want of prosecution. Ramlal was detained  under the second order. A relative of his, filed Writ Petition No. 115  of  1975,  in the Delhi High  Court,  challenging  this detention.  That  petition was dismissed on  25th  November, 1975.     An  appeal was filed by Certificate, against that  order before  this Court as Appeal No. 399 of 1975. In  the  mean- while, notices under Section 6 & 7 of the SAFEMA were issued against  Ramlal.  These notices were challenged  by  him  by filing  Writ  Petition No. 720 of 1975, in  the  Delhi  High Court.  Subsequently, this Court took up appeal  No.  399/75 and  disposed  it  of saying that it would be  open  to  the petitioner to raise all contentions available to him in Writ Petition  No. 720 of 1975 notwithstanding what is  contained in the Judgment in Writ Petition No. 115/75. The Delhi  High Court heard Writ Petition No. 720 of 1975 and dismissed  it. Against  that  dismissal order Ramlal  filed  special  leave petition  No.  9361/82 before this Court.  In  this  special leave petition, notice was issued limited only to the  ques- tion  of  the  competency of the authorities  to  issue  the second  detention order on the same facts and grounds.  That petition  was  thereafter admitted and the  criminal  appeal arising therefrom is criminal Appeal No. 2790 of 1985, which has  been  referred to a Constitution Bench and  is  pending disposal at present.     That  learned Counsel for the appellants made a  fervent plea before us that since the question of competency of  the authorities  to issue the second detention order is  pending consideration  before  a Constitution Bench of  this  Court,

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this appeal also should be directed to be posted along  with that appeal. The respondent’s counsel met this plea  stating that  for the purpose of this appeal, this question is  cov- ered by a three Judge Bench decision of this Court in  Ibra- him  Bachu Bafan v. State of Gujarat and Ors., [1985] 2  SCC 24 and that it was not necessary to direct this appeal to be tagged  with  Civil Appeal No. 2790/85.  After  hearing  the counsel  for some time, we indicated to the learned  counsel for  the  respondent, that we were inclined to  direct  this appeal to be posted along with the appeal pending before the Constitution Bench but were still willing to hear the matter if  he could sustain the Judgment under appeal,  on  grounds other  than the one referred to the Constitution  Bench.  He was willing to do so and he argued the case 458 on  the other grounds raised by him. We will now proceed  to consider  those other grounds and see whether  the  Judgment could be sustained or whether it has to be reversed.     The facts and the relevant dates have been stated above. A few more facts are necessary. An order of detention  under COFEPOSA  was issued against the present respondent on  31st January,  1975.  At  that time he was  in  England.  He  was brought to India on some express understanding given to  the Government of the United Kingdom. His order of detention was challenged before the Bombay High Court being Writ  Petition No. 2752/75, and the High Court quashed that order of deten- tion  as  per order dated 8th July, 1980. The  appeal  filed against  that order before this Court was dismissed  on  4th November, 1980.     The notice under challenge in this appeal was issued  to the respondent under Section 6 of the SAFEMA with the aid of Section 2 of the Act. Section 2 reads as follows: "2. Application.-(1) The provisions of this Act shall  apply only to the persons specified in sub-section (2)." Sub-section (2), relevant for our purpose, reads as follows:       "(2)  The persons referred to in sub-section  (1)  are the following, namely:- (a)  ............................................ (b).............................................. (c)  every person who is a relative of a person referred  to in clause (a) or clause (b) (d) ................................................... (e) .................................................. Explanation 2. states "For the purpose of clause (c)   rela- tive" in relation to a person, means- ........................................................... (ii) brother or sister of the person; ............................................................. 459     The  learned counsel for the respondent  contended  that the  respondent  could  challenge  the  order  of  detention against  his brother, to get the notice issued  against  him under  SAFEMA quashed on all the grounds available  to  him, though  they were raised by his brother or not. He  was  not seeking  to get the order of detention against  his  brother quashed for his brother’s benefit nor was he doing it on his behalf,  but he was invoking the jurisdiction of  the  Court only for his own benefit. While doing so he is not  lettered by what happened to his brother’s petition or to the grounds raised  by  him.  Nothing held against  his  brother  would, according  to the learned counsel, operate as  res  judicata against the respondent. The provisions of SAFEMA were  being pressed  into service because a relative answering  the  de- scription  given  in  Explanation 2 to  Sub-section  (2)  of Section  2 of the Act was available. He cannot be  prevented

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from  urging all the grounds available to him to get out  of the mischief of the notice issued to him under Section 6  of the SAFEMA. We find that this submission is well founded. We hold  that in such cases, the person against whom action  is taken  by  invoking the Explanation to Sub-section  (2)  re- ferred  to above, is at liberty to raise all grounds  avail- able  to  him  though such grounds  were  raised  and  found against in a proceedings initiated by the relative.     The ground that found favour with the Bombay High  Court in  this case is that the detaining authority did not  apply its mind to the order passed by this Court on 1st May, 1975, in  the special leave petition against the decision  of  the Delhi High Court which quashed the detention of Ramlal.  The appellants  before us sought a stay of the order  passed  by the  Delhi High Court. This Court declined the  request  but passed the following order:               "We  grant Special Leave on usual  terms.  The               petitioner  appellant should have gone to  the               High Court first for a certificate. In view of               the arguments heard, we give special leave  in               this  matter as a very special case, and  this               is  not to be treated as precedent in  future.               We  are unable to grant any stay. We impose  a               condition  on Ram Lal Narang,  Detenu  pending               the disposal of the appeal in this Court  that               he will report to the police station in  whose               jurisdiction he reside either at Bombay or  at               Delhi, once every day at 10 A.M. or at 5  P.M.               and whenever he will leave for Delhi, he  will               inform the police as to when he is leaving and               when  he will arrive at Delhi, similarly  when               he  will leave for Bombay, he will inform  the               police as to when he is leaving               460               for Bombay and when he will arrive at  Bombay.               Certified copy of the judgment impugned  shall               be filed as soon as possible." It  is not disputed that the detenu Ramlal was reporting  to the  officer-in-charge of the Bandra Police station,  Bombay regularly, in due compliance with the above order passed  by the Supreme Court.     We  have already adverted to the fact  that  proceedings against  the  respondent taken under SAFEMA  were  abandoned after  the order of this Court on 4th November, 1980. It  is nearly  3 years later, on 29th October, 1983, that the  pro- ceedings,  from  which this appeal  arises,  were  initiated under  Section  6 of SAFEMA on the basis  of  the  detention order  dated  1st July, 1975, issued against Ramlal.  It  is necessary  to bear in mind that on 1st July, 1975, when  the order  of detention against Ramlal was passed, the  authori- ties  had  before them the order of  this  Court,  extracted above, dated 1st May, 1975. By this order Ramlal was permit- ted  to be at large on condition that he will report to  the Police  Station as mentioned therein. It cannot be  disputed that this order of the Supreme Court is a relevant  material for  the detaining authority to consider when the  detention order  was passed. From the records it is not seen that  the Union  of India had specifically put forward a case  at  any time  that  this order was not a relevant material  or  that this  order was considered by the detaining  authority.  The first respondent had specifically raised this contention  in paragraph  ’Q’  of the grounds of the Writ Petition,  by  an amendment  which  was allowed by the order of  the  Division Bench  of  the Bombay High Court on 29th  April,  1986.  The specific contention raised in ground ’Q’ was "that vital and

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material  facts  which would have weighed the  mind  of  the detaining  authority  one way or the other, have  been  sup- pressed  from  him, thus vitiating the  order  of  detention dated 1st July, 1975, and consequent declaration made  under Section  12(a) of the COFEPOSA". After that,  reference  was made to the order of this Court extracted above, accompanied by an assertion that Ramlal was complying meticulously  with the orders of the Supreme Court. This specific assertion  is met by the appellants in paragraph 53 of the Counter Affida- vit  filed by Under secretary. Ministry of Finance  ’  which reads as follows: "With  reference to para 24-Q, additional ground--it is  not admitted  that any detaining authority as alleged or  other- wise. 461 In  paragraph 54, this ground is met more  elaborately  with the following observations:               "   .......  At any rate it is submitted  that               the contents pertain to the proceedings in the               High  Court  and  the Supreme  Court  and  the               detention  law does not contemplate  that  the               detaining  authority is required to take  into               account the different court proceedings wheth-               er independent proceedings, under the law  not               initiated, conducted, managed or looked  after               by  the detaining authority It is  well  known               that  the different Ministries of the  Govern-               ment  carry  out different types  of  work  in               different  ways and the detaining is  not  re-               quired under the law to take notice of work of               the Ministries or Court proceedings. The Court               proceedings  and adjudication proceedings  are               initiated and conducted by different  authori-               ties  which are not required under the law  to               submit  their  reports  or  communicate  their               actions  to the detaining authority.  The  de-               taining  authority, in turn, is  not  required               under  the  law to carry out  the  process  of               collection  of  any material about  any  Court               proceeding or proceedings before other author-               ities for the purpose of issuance of a  deten-               tion  order.  The contents  of  the  paragraph               refers  to  such  proceedings  which  are  not               required  to  be collected  by  the  detaining               authority from such authorities or courts. ]"     We  are  not very happy with the manner  in  which  this important contention has been met in the Counter  Affidavit. An order of this Court is not an inconsequential matter.  It cannot be assumed for a moment that the detaining  authority or  the sponsoring authority did not know, at the  time  the detention order was passed, that this Court had refused stay of the Judgment of the Delhi High Court and that Ramlal  was allowed  freedom of movement subject to certain  conditions. It is to be regretted that the portion extracted above  from the  Counter Affidavit (shown in bracket) betrays  an  atti- tude,  to put it mildly, that lacks grace. Be it  understood that  the  braketted portion was made to meet  a  case  that there  existed an order of this Court which was  a  relevant and vital material. We can use stronger language to  express our  displeasure at the manner in which reference  was  made indirectly  to this Court’s order but we desist  from  doing so. If the sponsoring authority and the detaining  authority are to adopt such cavalier attitude towards orders of courts and of this Court in particular, their orders will meet with the same fate as the one under review.

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462     If  the detaining authority had considered the order  of this Court, one cannot state with definiteness which way his subjective satisfaction would have reacted. This order could have persuaded the detaining authority to desist from  pass- ing  the  order of detention since this  Court  had  allowed freedom  of  movement. Detention is only a  preventive  Act. This Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed. It may also be that the detaining authority after  consider- ing the order of this Court carefully could still feel, that an  order of detention is necessary with reference to  other materials  which outweigh the effect of this Court’s  order. In  all these cases, non-application of mind on a vital  and relevant  material need not necessarily lead to the  conclu- sion  that  application  of mind on  such  materials  would, always  be in favour of the detenu. Application of  mind  in such cases is insisted upon to enable the detaining authori- ty  to  consider one way or the other, as to what  effect  a relevant material could have, on the authority that  decides the  detention. In our view the absence of consideration  of this  important document amounts to non-application of  mind on the part of the detaining authority rendering the  deten- tion order invalid.     In  Ashadevi v. K. Shivraj, [1979] 1 SCC 222 this  Court had occasion to consider the plea whether an order of deten- tion would be vitiated if relevant or vital facts, essential to the formation of subjective satisfaction, were kept  away from  the consideration of the detaining authority. This  is how this Court dealt with this aspect:               "It is well-settled that the subjective satis-               faction requisite on the part of the detaining               authority, the formation of which is a  condi-               tion 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  on  the               subjective satisfaction of the District Magis-               trate  that  it was necessary  to  detain  the               petitioner with a view to preventing him  from               acting in a manner prejudicial to the  mainte-               nance  of supplies and services  essential  to               the  community and this  subjective  satisfac-               tion,  according to the grounds  of  detention               furnished to the petitioner, was founded on  a               solitary incident of theft of aluminium wire               463               alleged  to have been committed by  the  peti-               tioner  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 history-sheet of  the               petitioner  which  was  before  the   District               Magistrate when he made the order of detention

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             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." Then this-Court, referred to a decision reported in [1975] 3 SCC  395  and extracted the following in  support  of  their view:               "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  de-               tained,  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 preven-               tive 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." The  material not placed before the detaining  authority  is mentioned  in  paragraph 7 of the Judgment  which  reads  as follows:               "7. In the instant case admittedly three facts               were not communicated to or placed before  the               detaining  authority  before  it  passed   the               impugned order against the detenu, namely, (i)               that  during interrogation of the  detenu,  in               spite of request, neither the presence nor the               consultation  of the Advocate  was  permitted;               (ii) that in spite of intimation to               464               the Advocate in that behalf the detenu was not               produced before the Magistrate on December 14,               1977,  and (iii) that the confessional  state-               ments were squarely retracted by the detenu on               December  22,  1977  at  the  first  available               opportunity while he was in judicial  custody;               the  first two had a beating on  the  question               whether  the confessional statements had  been               extorted  under  duress from  detenu  or  not,               while  the third obviously was in relation  to               the  confessional statements which formed  the               main  foundation of the impugned order and  as               such were vital facts having a bearing on  the               main issue before the detaining authority."     Ultimately  the order of detention was  quashed  because the  retracted confessional statement of the detenu was  not placed before the detaining authority who passed the  deten- tion  order  on the detenu’s confessional  statements.  This Court  observed:  "it cannot be disputed that  the  fact  of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention and also to see whether the confessional statements recorded were  voluntary statements or were statements obtained from the detenu under

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duress and also whether the retracted confession was in  the nature  of an after-thought." On the facts of this case,  by way  of  reiteration, we wish to state that the  facts  that Ramlal  was  detained,  that he  had  undergone  substantive period  of detention did not weigh with this Court when  the above  order was passed, which clearly indicated  that  this Court  felt  that there was no need to  detain  him  further pending appeal.     In Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Ors.,  [1983] 2 SCC 392 a Constitution Bench of  this  Court had to deal with a somewhat similar situation. There, one of the grounds of detention on which the appellant before  this Court  was  detained was the same as the one  on  which  one Shamsi  was detained. The Advisory Board had  reported  that there was no sufficient cause for Shamsi’s detention. A case was pleaded before this Court that the report of the Adviso- ry  Board  to  the above effect ought to  have  been  placed before  the  detaining authority which passed the  order  of detention  against the petitioner before this court in  that case. It was contended that if this material had been placed before  the  detaining authority it may not have  passed  an order of detention against the petitioner in that case. This court accepted this plea and observed as follows:               "This  submission is well-founded and must  be               accepted. It               465               is clear that Shamsi was detained for engaging               in  a  smuggling activity arising out  of  the               same incident and transaction which forms  the               subject-matter  of  ground 1  in  the  instant               case.  The opinion of the Advisory Board  that               there  was  no sufficient cause  for  Shamsi’s               detention  may  not have been binding  on  the               detaining  authority which ordered the  deten-               tion  of  the  petitioner but,  it  cannot  be               gainsaid that the fact that the Advisory Board               had  recorded  such an  opinion  on  identical               facts  involving a common ground was at  least               relevant circumstance which ought to have been               placed before the detaining authority in  this               case.  Since three out of the four grounds  on               which  the petitioner was detained  have  been               held  to be bad by the High Court, we have  to               proceed  on the basis that the petitioner  was               detained and could validly be detained on  the               remaining ground only. That ground is  similar               to  one  of the grounds on  which  Shamsi  was               detained,  the transaction being one  and  the               same,  as also the incident on which  the  two               orders of detention are based. That is why the               opinion of the Advisory Board in Shamsi’s case               becomes relevant in the petitioner’s case. The               failure  of  the  State  Government  to  place               before the detaining authority in the  instant               case, the opinion which the Advisory Board had               recorded  in  favour of a detenu who  was  de-               tained partly on a ground relating to the same               incident  deprived the detaining authority  of               an opportunity to apply its mind to a piece of               evidence  which was relevant, if not  binding.               In  other words, the detaining  authority  did               not, because it could not, apply its mind to a               circumstance  which,  reasonably,  could  have               affected  its decision whether or not to  pass               an order of detention against the petitioner."

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This  Court observed further the scope of the  consideration of the relevant materials in the following words:               "..........   But the question for  considera-               tion  is not whether the  detaining  authority               would have been justified in passing the order               of  detention  against  the  petitioner,  even               after  being  apprised of the opinion  of  the               Advisory Board in Shamsi’s case. The  question               is  whether the order of detention was  passed               in  this case after applying the mind  to  the               relevant  facts which bear upon the  detention               of  the petitioner. It seems to us plain  that               the opinion of the Advisory Board in               466               Shamsi’s  case was, at any rate, an  important               consideration  which would and ought  to  have               been  taken  into  account  by  the  detaining               authority in the instant case. That opportuni-               ty was denied to it."      The  Constitution Bench has in unambiguous  terms  out- lined  the scope of the doctrine of the application of  mind and the purpose being it, in the above observation.     In a recent case, Sita Ram Somani v. State of  Rajasthan and Ors., [1986] 2 SCC 86 to which one of us was a party, it was held that non-application of mind about the bail  appli- cations  of  the  detenu in pending criminal  case  and  his applications to the Collector of Customs, informing him that he  had  retracted his earlier confessional  statements  not having been placed before the detaining authority, the order of  detention  was  held to be vitiated.  In  another  case, Criminal Writ Petition No. 397 of 1986, in a Judgment  given by  one  of us along with Pathak J. (as he  then  was),  the detention order which was based on three separate incidents, was  quashed on the ground that the detaining authority  did not  apply its mind while passing the detention order,  that the  detenu had moved an application for bail, in the  three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986  and 15-1-1986. Since the order of  detention  did not  mention  that the detenu in these cases  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  Court had to observe that there  was  a  total absence of application of mind on the part of the  detaining authority while passing the detention order and quashed  the order of detention.     Appellants’  counsel in this case found it difficult  to get  over  this plea made by the  respondent,  supported  by weighty authorities. He could not put forward any persuasive submissions  to  compel us to disagree with  the  consistent view  taken  by this Court in such matters.  He  acted  with propriety in not adopting the argument put forward in the  Counter Affidavit that it was not the function  of  the authorities  to go after all proceedings that take place  in Courts of Law, relating to a detenu.     In  view  of the above conclusions we do  not  think  it necessary  to consider the question whether the  authorities acted rightly in not considering the representation made  by the  respondent.  It cannot be disputed that  provisions  of SAFEMA cannot be invoked in cases where 467 there is no valid order of detention. We agree with the High Court  that  the  order of detention is bad  on  the  ground discussed  above. Consequently we hold that the  High  Court was justified in quashing the notice issued under Section  6

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and the proceeding initiated under Section 7 of the  SAFEMA. We accordingly dismiss the appeal. S.R.                                            Appeal  dis- missed. 468