SAIRA SHAHID KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE above writ petition has been filed by Smt.Saira Shahid Khan, the wife of the detenu, Shahid Khan Tayyab Khan, praying this Court to quash and set aside the order of detention bearing no.SPL.3(A)/PND 0194/57 dated 1/11/1994 issued by Shri C.D.Singh, the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Mantralaya, Bombay and to release the detenu forthwith.

(2.) MR. Karmali, learned Counsel for the Petitioner, states that the impugned order of detention is liable to be quashed and set aside on the sole ground that the order granting bail to the detenu by the Additional Sessions Judge, Greater Bombay, dated 8/4/1994, was not placed before the detaining authority. The learned counsel would further submit that the said bail order is a speaking order running into about 23 pages. Non-placing the same before the detaining authority has caused great prejudice to the detenu and therefore there is infraction of Article 22(5) of the Constitution of India.In support of his contention,he would rely upon the two decisions of the Supreme Court in the case of Union of India and ors Vs. Manoharlal Narang reported in A.I.R. 1987 SC 1472 and "Abdul Sathar Ibrahim Mani Vs. Union of India & ors - AIR 1991 S.C. 2261. In the case of Union of India & ors Vs Manoharlal Narang _ AIR 1987 SC 1472, the Supreme Court has observed as under :- "9. ... ... ... .... .... ... .... By this order Ramlal was permitted 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 Bombay High Court on 29th April, 1986. The specific contention raised in ground `Q` was that vital and material facts which would have weighed on the mind of the detaining authority one way or the other, have been suppressed 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-affidavit 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 otherwise." 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 whether 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 Government carry out different types of work in different ways and the detaining authority is not required 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 authorities which are not required under the law to submit their reports or communicate their actions to the detaining authority. The detaining 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 authorities for the purpose of issuance of a detention order. The contents of the paragraph refer to such proceedings which are not required to be collected by the detaining authority from such authorities or courts)" 10. "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 attitude, to put mildly, that lacks grace. Be it understood that the bracketed 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." 11. "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 passing 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 considering 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 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. 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 detention order invalid." In the case of "Abdul Sathar Ibrahim Mani Vs. Union of India & ors - A.I.R. 1991 SC 2261" the Apex Court has observed 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."

(3.) FOR all these reasons, the order of detention bearing no.SPL-3(A)/PND 0194/57 dated 1/11/1994 issued by Shri C.D.Singh, Secretary to the Government of Maharashtra (Preventive Detention) Home Department, and Detaining Authority, is quashed and set aside. The detenu Shahid Khan Tayyab Khan be set at liberty forthwith, unless required in some other case. Rule is made absolute. Petition allowed.