ABBAD ALI KHAN Vs. R H MENDONCA

JUDGEMENT

(1.) HAVING heard learned counsel for the parties, we are implicitly satisfied that the impugned detention order dated 17th February 1999 passed by the First Respondent Mr. R. H. Mendonca, Commissioner of Police, Greater Bombay detaining the detenu under sub-section (1) of section (3) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 1996) cannot be sustained because the detenu was on bail at the time of the passing of the detention order and para 12 (6) of the decision of the Supreme Court reported in AIR 1991 Supreme Court page 2261 (Abdul Sathar Ibrahim Manik, Petitioner v. Union of India & others, Respondents) makes it obligatory that if the detenu is on bail at the time of passing of the detention order, the bail application should be placed before the Detaining Authority and its copy supplied to the detenu. The latter requirement is to enable the detenu to make a representation under Article 22 (5) of the Constitutions of India. We are extracting para 12 (6) of AIR 1991 Supreme Court page 2261 supra which reads thus :- " In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. "

(2.) SINCE the bail application was not placed before the Detaining Authority and its copy not furnished to the detenu, the impugned detention order is vitiated on a dual count :- (a)the subjective satisfaction of the Detaining Authority to preventively detain the detenu under the aforesaid provision is vitiated in law ; and (b)since the copy of a vital document has not been furnished to the detenu, his fundamental right to make a representation guaranteed by Article 22 (5) of the Constitution of India, is impaired.