Arshad Alam @ Babla vs The State of Bihar and Others

S.N. Jha, J.—The Petitioner has filed this application under articles 226 and 227 of the Constitution of India for issuance of a writ of habeas-corpus for his release, who has been detained u/s 12(2) of the Bihar, Control of Crimes Act, (for short Crime Control Act) vide order dated 5.1.1989 approved and confirmed by the State Government at Patna, a copy of which is appended as Annexure-1 to this writ application.

The Petitioner was detained purusant to an order of detention dated 5.1.1989 issued by the District Magistrate, Dhanbad, Respondent No. 2, which has been approved by the State Government as indicated above vide Annexure-2 to this application.

Along with the order of the detention, the Petitioner was served with the grounds of detention; on 8.1.1989, a copy of which is appended as Annexure-3 to this application. The State Government has also confirmed the detention of the Petitioner vide annexure-4 u/s 21(1) read with Section 22 of the Crime Control Act.

From perusal of Annexure-3 it appears that the Petitioner has been detained on three grounds enumerated in it and besides the above grounds, certain cases have also been referred to as background of the criminal activities of the Petitioner.

From the order sheet dated 15.4.1989, it appears that this case was referred to before a larger Bench for reconsideration of a decision reported in 1986 B.B.C.J. 219 in the light of the Supreme Court decision reported in Sri Nasiruddin Vs. State Transport Appellate Tribunal, and the case was listed before a Bench presided over by Hon''ble Chief Justice and four Hon''ble Judges including my-self which was disposed of vide order dated 29.11.89 with a direction to place this case for final hearing before an appropriate Bench and thus this case was listed before me for final hearing.

Mr. Braj Kishore Prasad, Senior advocate, has assailed the order of the detention, as contained in Annexure-1, on the ground that the order of detention is illegal and not in confirmity with the provisions of the Crime Control Act and in accordance with the Constitutional safeguard. It was also submitted that Respondent No. 2 was not made aware of the fact that in cases referred to in the memo of ground the Petitioner was released on bail by this Court and the Sessions Court as well, therefore, he had not applied his mind properly in accordance with law. Since there has been non-application of mind, the impugned order be quashed and the Petitioner be released forthwith.

It was further pointed out by the learned Counsel that the background which has been taken into consideration for passing the impugned order, no papers of those cases were supplied to the Petitioner and thus the Petitioner was deprived of the opportunity of making an effective representation as envisaged under Article 22(5) of the Constitution of India According to Mr. Prasad, all the eight cases mentioned as background are of the years 1982, 83, 85 and 86 and they have become stale having no proximity with the detention, hence these could not be taken into consideration for subjective satisfaction of any requirement for detention.

In support of his contention, Mr. Prasad has relied upon a decision in the case of Anant Sakharam Raul v. State of Maharashtra and Anr. reported in 1987 CLJ 323 equivalent to Anant Sakharam Raut Vs. State of Maharashtra and Another, . He has also relied upon Avtar Singh and Others Vs. State of Jammu and Kashmir and Others, .

A counter-affidavit has been filed on behalf of Respondent No. 2 where it has been stated that the detention order is legal and the detaining-authority had full knowledge that the detenu-Petitioner was on bail, but the activities were such that the detaining authority has considered that his remaining at large would be prejudicial to the maintenance of public order and as such the detaining authority had parsed the impugned order. It was further stated that the detaining-authority had passed the detention order after considering all the relevant materials available before him and he was always conscious of the aforesaid fact before coming to his subjective satisfaction. According to the detaining authority if the Petitioner was allowed to remain at large it would be prejudicial to the maintenance of public order. It was further submitted on behalf of the State that granting bail to the detenu in no way restrain the detaining authority in passing the impugned order if the detaining authority, is satisfied that in case he would be allowed to remain at large it would be prejudicial to the maintenance of public order. According to the earned Counsel those eight cases which were shown in the memo of ground are only the "background" and they arc not the grounds, therefore, no relevant papers were supplied to the detenu and for that the impugned order cannot be said to be bad in law.

Mr. Prasad, submitted that he had never argued that the grant of bail, in any way restrain the power of the detaining authority in using the provision of Bihar Crime Control Act, if he is otherwise satisfied but his whole argument was that the detaining authority was not made aware of the fact that at the time of passing the order, the detenu had already been released on bail in those three criminal cases, which have been made the ground for passing the impugned order. Non-awareness of the detaining authority of this fact amounts to non-application of mind. According to the learned Counsel, the ground of the impugned order does not indicate that the detaining-authority was conscious of the fact that the Petitioner has already been released on tail and if he would be allowed to remain at large, it would be prejudicial to the maintenance of public order. Therefore, it is necessary to put him behind the bar to prevent him from acting in any manner prejudicial to the maintenance of public order. I find force in this contention.

In the case of Anant Sakharam Raut Vs. State of Maharashtra and Another, the Hon''ble Supreme Court has quashed the detention order on the ground that the detaining authority was not made aware of the fact that detenu had moved application for bail and that he was enlarged on bail. The Hon''ble Supreme Court has observed as follows:

We do not think it necessary to go into all the grounds urged before us by the Petitioners counsel in support of his prayer to quash the order of detention. The one contention 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 detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 13.1.1986, 14.1.1986 and 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 successive 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 the instant case also the grounds of detention does not indicate that the detaining authority was aware that the detenu was already in detention for some months nor does it indicate whether the detaining-authority considered the question. In the absence of any indication from the record, it leads mo to hold that the detention order was made in mechanical fashion without application of mind, the detaining authority has not applied its mind properly and it is squarely covered by the decision, in the case of Anant Sakharam Raut Vs. State of Maharashtra and Another, and also by a decision in the case of Avtar Singh and Others Vs. State of Jammu and Kashmir and Others, .

To meet the argument of the learned State counsel that these eight cases mentioned in the memo of ground are only the "background" and it is not a part of grounds, Mr. Prasad, submitted that the grounds cannot be dissected or trisected as introduction and ''background''. "It is as good as ground". Whatever taken into consideration are grounds. In support of his contention he had relied upon a decision in the case of Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, where it has been held that:

it is not permissible to dissect or trisect the grounds of detention into introduction, background and ''grounds'' as such. There is no warrant for any such division. So far as grounds of detention are concerned : no distinction can be made between introductory facts, background facts, and grounds as such and it could not be said that even if introductory facts or background facts are vague or irrelevant, the same would not vitiate detention.

In view of the aforesaid observations by the Hon''ble Supreme Court, it is not possible to accept the argument that those eight cases referred to in the memo of grounds were merely background and was not part of the grounds as submitted by the learned State Counsel.

In view of the aforesaid findings it is not necessary to go into the question of staleness and any other ground taken by the Petitioner. I am of the view that there was clear non-application of mind on the part of the detaining authority when the order of detention was passed and on this ground itself the Petitioner is entitled to succeed. Reference may also be made to the recent decision of the Hon''ble Supreme Court in the case of Ayya alias Ayub Vs. State of U.P. and Another, where it has been held that:

there would be vitiation of the detention on grounds of non-application of mind of a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case, the omission to consider the material assumes materiality.

Quite apart the impugned order is going to lapse on 5.1.1990.

In the result, for the foregoing reasons, this writ application is allowed, the order of detention impugned in the petition is quashed and the Petitioner is directed to be set at liberty forthwith unless he is held in custody pursuant to any other order under any lawful authority. There will be no order as to costs.