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1987 (3) TMI 241 - SC - FEMAPreventive detention orders - Held that - Since the order of detention did not mention that the detenue in these cases 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 Court had to observe that there was d total absence of application of mind on the part of the detaining authority while passing the detention order and quashed the order of detention. We do not think it necessary to consider the question whether the authorities acted rightly in not considering the representation made by the respondent. It cannot be disputed that provisions of SAFEMA cannot be invoked in cases where there is no valid order of detention. We agree with the High Court that the order of detention is bad on the ground discussed above. Consequently we hold that the High Court was justified in quashing the notice issued under Section 6 and the proceeding initiated under Section 7 of the SAFEMA. We accordingly dismiss the appeal.
Issues Involved:
1. Competency of authorities to issue a second detention order on the same facts and grounds. 2. Validity of the detention order under COFEPOSA. 3. Application of SAFEMA provisions to relatives of a detainee. 4. Non-application of mind by the detaining authority regarding relevant and vital facts. 5. Impact of judicial orders on the subjective satisfaction of the detaining authority. Issue-wise Detailed Analysis: 1. Competency of Authorities to Issue a Second Detention Order on the Same Facts and Grounds: The appeal raised the issue of whether the authorities were competent to issue a second detention order under COFEPOSA based on the same facts and grounds as the first order. This matter was pending before a Constitution Bench of the Supreme Court in a related civil appeal. The respondent's counsel argued that this issue was already covered by a three-judge bench decision in Ibrahim Bachu Batan v. State of Gujarat and Ors., and thus, it was not necessary to tag this appeal with the pending civil appeal. The Supreme Court considered this argument and decided to proceed with the appeal on other grounds. 2. Validity of the Detention Order under COFEPOSA: The respondent's detention order under COFEPOSA was previously quashed by the Bombay High Court, and the appeal against that order was dismissed by the Supreme Court. The validity of the detention order was questioned on the grounds that the detaining authority did not consider the Supreme Court's order dated 1st May 1975, which allowed Ramlal Narang, the respondent's brother, conditional freedom of movement. The Court held that non-consideration of this vital order amounted to non-application of mind, rendering the detention order invalid. 3. Application of SAFEMA Provisions to Relatives of a Detainee: The respondent challenged the notice issued under Section 6 of SAFEMA, which was based on the detention order against his brother, Ramlal Narang. The Court held that the respondent, as a relative under Explanation 2 to sub-section (2) of Section 2 of SAFEMA, could raise all grounds available to him to challenge the notice, irrespective of the grounds raised by his brother. The Court found this submission well-founded and upheld the respondent's right to challenge the notice on all available grounds. 4. Non-application of Mind by the Detaining Authority Regarding Relevant and Vital Facts: The Court emphasized that the detaining authority must consider all relevant and vital facts before issuing a detention order. The Supreme Court's order dated 1st May 1975, which allowed Ramlal conditional freedom, was a crucial piece of evidence that should have been considered by the detaining authority. The failure to consider this order indicated non-application of mind, which vitiated the detention order. The Court reiterated that the detaining authority must apply its mind to all relevant materials, and the absence of such consideration renders the detention order invalid. 5. Impact of Judicial Orders on the Subjective Satisfaction of the Detaining Authority: The Court discussed the importance of judicial orders in the formation of the subjective satisfaction of the detaining authority. It cited previous judgments, including Ashadevi v. K. Shivraj and Mohd. Shakeel Wahid Ahmed v. State of Maharashtra, to highlight that the non-consideration of relevant judicial orders affects the validity of the detention order. The Court held that the detaining authority's failure to consider the Supreme Court's order allowing Ramlal conditional freedom was a significant omission that impacted the subjective satisfaction required for issuing the detention order. Conclusion: The Supreme Court concluded that the order of detention against the respondent was invalid due to non-application of mind by the detaining authority regarding the Supreme Court's order dated 1st May 1975. Consequently, the notice issued under Section 6 and the proceedings initiated under Section 7 of SAFEMA were quashed. The appeal by the Union of India was dismissed, upholding the Bombay High Court's judgment.
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