Anant Sakharam Raut & Ors Vs.
State of Maharashtra & ANR  INSC 235 (14 November 1986)
KHALID, V. (J) KHALID, V. (J) PATHAK, R.S.
CITATION: 1987 AIR 137 1987 SCR (1) 221 1986
SCC (4) 771 JT 1986 847 1986 SCALE (2)796
R 1987 SC1472 (16)
National Security Act 1980, s.
3(2)--Detention Order--Order not mentioning that detenu was an under--Trial
prisoner, arrested in three cases & released on bail--Clear indication of
non-application of mind by the detaining authority--Detention order quashed.
The petitioner-detenue was detained pursuant
to an order of detention passed under s. 3(2) of the National Security Act 1980.
The detention was based on three incidents in respect of which criminal Cases
were already pending against the petitioner. Before the detention order was
passed, he had moved applications for bail and was released on three successive
days in the three cases. The detention order did not mention the fact that the
detenue had made application for bail in the three criminal cases relating to
the afore- said incidents and was enlarged on bail. The petitioner moved the
High Courts for quashing the order of detention.
The High Court dismissed the petition.
The petitioner in special leave petition
against the judgment of the High Court and his wife in a Writ Petition under
Art. 32 of the Constitution prayed for quashing the aforesaid order of
detention on the ground that there was clear indication of non-application of
mind by the detaining authority when it passed the detention order.
Allowing the petitions,
HELD: (1) This is not a fit case to resort to
preventive detention. As there was clear non-application of mind on the part of
the detaining authority, the judgment of the High Court under appeal is set
aside and the order of detention is quashed and it is directed that the
petitioner be re- leased forthwith. [223E-G] (2) There is absolutely no mention
in the order about the fact that the petitioner 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 indicates a total absence of application of mind on the part
of detaining 222 authority while passing the order of detention. [223C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 575 of 1986.
From the Judgment and Order dated 31.3.1986
of the Bombay High Court in Crl. W.P. No. 153 of 1986.
M.S. Gupte, Rajendra Desai and V.B. Joshi for
the Appel- lant/ Petitioner.
S.V. Deshpande, A.M. Khanwilkar and A.S. Bhasme
for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. The same questions of law and facts are involved in these two cases.
One is a Criminal Writ Petition under Article 32 filed by the detenue's wife
and the other a Special Leave Petition filed by him against the Judgment of the
Bombay High Court rejecting his plea to quash the order of detention. Special
Leave granted. Both are being disposed of by this common Judgment. We will
refer to the detenue as the petitioner in this Judgment.
The petitioner was detained pursuant to an
order of detention dated 15th January, 1986, issued by the Commis- sioner of
Police, Bombay who is respondent No. 2 herein, under Section 3(2) of the National
Security Act, 1980. The grounds of detention are given in Annexure-C. The
detention is based on three incidents; one on 16-9-1985, the other on 1-12-1985
and the third on 25-12-1985; the offences involved in the three cases being 324
& 336 I.P.C., 324 & 506(ii) I.P.C. and 452 I.P.C. respectively. There
are three cases pending in respect of these three incidents.
The order of detention discloses that the
people within the jurisdiction of Bandra Police Station in Greater Bombay are
experiencing a sense of insecurity and fear to their lives due to the
petitioner's activities which are "prejudi- cial to the maintenance of
public order in the said locali- ties and areas." From the materials
placed before us we find that the first two incidents involve the same person
between whom and the petitioner there appears to be some enmity. The third
incident relates to some 223 other person. The petitioner was an under trial
prisoner at the time the detention order was made.
We do not think it necessary to go into all
the grounds urged before us by the petitioner's counsel in support of his
prayer to quash the order of detention. The one conten- tion strongly pressed
before us by the petitioner's counsel is that the detaining authority was not
made aware at the time the detention order was made that the detenue had moved
applications for bail in the three pending cases and that he was enlarged on
bail on 13-1-1986, 14-1-1986 & 15-1-1986. We have gone through the
detention order carefully. There is absolutely no mention in the order about
the fact that the petitioner 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 succes- sive days in the three cases. This
indicates a total absence of application of mind on the part of detaining
authority while passing the order of detention.
In our view this is the short manner in which
the two cases can be disposed of. If the petitioner is found dis- turbing law
and order or misusing the bail granted to him, the authorities would be at
liberty to move the appropriate Court to get the bail orders cancelled. One
does not know how the detaining authority would have acted if he was made aware
of the above details.
We are not satisfied that this is a fit case
to resort to preventive detention. We refrain from referring to the other
grounds urged before us and from examining them. The petitioner is entitled to
succeed on the first ground.
We hold that there was clear non-application
of mind on the part of the detaining authority about the fact that the
petitioner was granted bail when the order of detention was passed. In the
result we set aside the Judgment of the Bombay High Court under appeal, quash
the order of detention and direct that the petitioner be released forthwith.
The Appeal and the Writ Petition are allowed without any order as to costs.
M.L.A. Appeal & Petition allowed.