MAYURI SANJAY BAVISHI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is one point petition challenging the order of detention on the solitary ground that the full text of the bail order containing the reasons was not placed before the detaining authority and, therefore, the subjective satisfaction of the detaining authority was vitiated and consequently the order of detention is liable to be set aside.

(2.) THE petition is filed by the wife of the detenu who has challenged the detention of her husband by name Sanjay K. Bavishi, son of Shri K. M. Bavishi under the provisions of the COFEPOSA Act by an order of detention dated 12th December 1994 issued by the Respondent No.2 which is annexed as Annexure 'a' to the petition. THE impugned order of detention along with the grounds of detention dated 12-12-94 annexed as Annexure 'b' to the petition were served on the detenu on 29th January 1997. THE circumstances leading to the issue of the impugned order of detention can be briefly stated as follows.

(3.) IT is not in dispute that along with the ground of detention, inter alia, application dated 27th October 1994 made on behalf of the accused for grant of bail in the Court of the Chief Metropolitan Magistrate, Esplanade, Bombay and the operative portion of the order dated 27th October 1994 granting bail to the detenu were placed before the detaining authority and the copies thereof were served on the detenu. The operative order appearing at page 157 of the compilation served on the detenu is titled as "final Order" containing only the operative order granting bail and the terms and conditions of the said order. The grievance made on behalf of the petitioner is that instead of placing before the detaining authority and serving copy on the detenu of the full text of the order including the reasons of the learned Magistrate, only the operative part of the order dated 27th October 1994 was placed before the detaining authority. In this connection reliance was placed by Mr. Karmali, the learned counsel appearing on behalf of the petitioner on the decision of the Supreme Court rendered in the case of Abdul Sathar Ibrahim Manik V. Union of India reported in AIR 1991 SC 2261. In that case the question was whether the application for bail and the order refusing bail were required to be placed before the detaining authority. The Supreme Court after considering its earlier decisions on the point set out six conclusions in para 12 of the Judgment. The sixth conclusion set down in para 12 (6) is as follows: " In the 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. "