MAHESH N GAWDE Vs. C D SINGH

JUDGEMENT

(1.) BY the present habeas corpus petition, the petitioner seeks to impugn an order of detention dated 6th of December, 1994 bearing No.SPL.3(A)/PND 0194/733 passed by Shri C.D.Singh, Secretary to the Government of Maharashtra (Preventive Detention), Home Department and Detaining Authority under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988).

(2.) IT is undisputed that the petitioner had filed an application for bail being N.D.P.S. Application No.142 of 1994 in the Court of Sessions for Greater Bombay and by a Judgment and order passed on 4th of May, 1994 petitioner was directed to be released on bail in a sum of Rs.50,000/- with one surety in the like amount with a direction to remain present once a week in the office of the Narcotic Cell, Ghatkopar Unit on every Tuesday between 5.00 to 6.00 p.m. and not to tamper with the prosecution witnesses. IT is further not disputed that pursuant to the aforesaid order the petitioner furnished bond and the same was approved by the Sessions Court on 27th June, 1994. IT is apparent that petitioner was, thereafter, released on bail and was a free agent on the date of passing of the impugned order of detention and this also is not disputed by the learned Public Prosecutor before us. Despite this, we find the following recitals in the grounds of detention : "13. The bail applications preferred by Mohd. Vakil, Akbar Ali and Ayub were rejected by the Special Court for Greater Bombay. However, you were granted bail in the sum of Rs.50,000/- with a surety of a like amount on 4.5.1994. You have not availed the bail." (Emphasis provided).

(3.) THE order granting bail, it is apparent, is a speaking order. THE said order granting bail was, therefore, a vital and material piece of evidence which would have a bearing in forming the subjective satisfaction for passing an order of detention. Non-placement of the said piece of material has, therefore, prejudicially affected the subjective satisfaction of the Detaining Authority in the matter of passing the impugned order of detention. Similarly, non-furnishing of the said document to the petitioner has adversely affected his right to make an effective representation. This has, therefore, violated both the facets of Article 22(5) of the Constitution of India. THE order of detention and the consequent detention of the petitioner is, therefore, liable to be set aside on this additional ground also.