1988 (11) TMI 343 - SC - Indian Laws

Whether there has been any excessive detention? Held that - Appeal allowed & the order of detention impugned in the petition quashed and the petitioner is directed to be set at liberty. There would be vitiation of the detention on grounds of non-application, of mind if 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.

Issues Involved:
1. Legality of the detention order under Section 3(2) of the National Security Act, 1980.
2. Distinction between "public order" and "law and order."
3. Non-application of mind by the detaining authority.
4. Validity of detention while the petitioner was already in judicial custody.
5. Consideration of relevant material by the detaining authority.

Detailed Analysis:

1. Legality of the Detention Order under Section 3(2) of the National Security Act, 1980
The petitioner challenged the detention order dated 28/2/1988 under Section 3(2) of the National Security Act, 1980. The detaining authority justified the detention to prevent the petitioner from acting in a manner prejudicial to the maintenance of "public order." The court examined whether the grounds for detention were valid under the Act and whether the detaining authority had the requisite satisfaction that the detention was necessary for the maintenance of public order.

2. Distinction between "Public Order" and "Law and Order"
The court scrutinized the grounds of detention to determine if they pertained to "public order" or merely "law and order." The first two grounds involved non-cognizable offenses, which the court found insufficient to constitute a "public order" situation. The court emphasized that the activities attributed to the petitioner in these grounds did not have the requisite gravity to affect public order and were merely law and order issues.

3. Non-application of Mind by the Detaining Authority
The petitioner argued that the detaining authority failed to consider material capable of influencing its satisfaction. Specifically, a telegram sent by Mirazuddin at 12.30 A.M. on 18.2.1988, asserting that the petitioner was taken into custody at 8.00 P.M. on 18.2.1988, was not considered. The court held that the non-consideration of this relevant material indicated non-application of mind, thereby vitiating the detention order.

4. Validity of Detention While the Petitioner Was Already in Judicial Custody
The court addressed the issue of whether a detention order could be validly passed against a person already in judicial custody. The court acknowledged that preventive detention could be justified even if the person was in custody, provided there was an imminent possibility of release on bail and a likelihood of the person engaging in activities prejudicial to public order. However, the court found that the primary grounds for detention were insufficient to justify such preventive measures.

5. Consideration of Relevant Material by the Detaining Authority
The court noted that the detaining authority must consider all relevant material before passing a detention order. The failure to consider the telegram sent by Mirazuddin, which could have impacted the decision, constituted a significant lapse. The court emphasized that the procedural safeguards must be meticulously followed, and any omission in considering relevant evidence would invalidate the detention.

Conclusion
The court concluded that the detention order was vitiated due to the non-application of mind and the failure to consider relevant material. The grounds for detention did not establish a sufficient nexus to "public order" and were more appropriately addressed under ordinary law. Consequently, the writ petition was allowed, the detention order was quashed, and the petitioner was directed to be released forthwith unless held under any other lawful authority.

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