JUDGEMENT - A.S. VENKATCHALA MOORTHY, J. :---By this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioner, who is a friend of the detenue by name Asif Aziz Darvesh, has questioned the legality of the order of detention dated 26-8-1996 passed by the detaining authority viz., the Mr. C.D. Singh, the Principal Secretary, Government of Maharashtra, Home Department exercising his powers conferred under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) vide detention order SPL. 3(A) PSA- 0196/39 dated 26th August 1996 with a view to prevent the detenue in future from smuggling activities. 2.We do not find it necessary to refer to the grounds of detention for the purpose of considering and deciding the point that is raised by the Counsel for the petitioner and accordingly we are not adverting to the same. 3.Shri Karmali learned Counsel appearing for the petitioner would contend that the petitioner is entitled to succeed on the grounds viz., (i) non consideration of the order granting bail by the detaining authority and (ii) non supply of the copy of the said order (assuming the detaining authority considered the said order referred supra). 4.In elaborating the said points it is contended that the detenue was arrested by customs department for an alleged offence under Customs Act, 1962 on 17-2-1996 and was produced before Metropolitan Magistrate who remanded the detenue to the custody of customs till 19-2-1996. A bail application was filed by the detenue on 17-2-1996 before the learned Chief Metropolitan Magistrate, Esplanade Bombay. According to the learned Counsel for the petitioner by a reasoned order the learned Metropolitan Magistrate granted bail to the detenue as well as the other co accused. It is a specific plea of the Counsel for the petitioner that a careful perusal of the bail order would show that it is a reasoned order and further the learned Magistrate also imposed stringent conditions. According to him, the bail order containing reasons and imposing conditions was not placed before the detaining authority and consequently the same was not considered by the said authority and that even if it is assumed that the same was placed and considered by the detaining authority inasmuch as the copy of the said order not having been furnished to the detenue the order of detention is illegal, mala fide and void. 5.Mr. 5.Mr. Karmali learned Counsel appearing for the petitioner would in support of his above contention rely on the following rulings. First he would refer to the ruling of the Apex Court in the case of (Abdul Sathar Ibrahim Manik v. Union of India ors.)1, A.I.R. 1991 S.C. 2261 and draw a pointed attention of this Court to para 12 of the same. The relevant portion is extracted as under :- "Having regard to the various above cited decisions on the points often raised we find it appropriate to set down our conclusions as under :- 1)..................... 2).................... 3).................... 4).................... 5).................... 6)In a case where detenue 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 detenue." Similarly the learned Counsel would rely on the judgement in Criminal Writ Petition No. 74 of 1995 of the Division Bench of this Court to which one of us (Moorthy, J.) was a party. In particular the learned Counsel would place reliance on para 4 of the said judgment and would contend that the case on hand is identical one and as such the said judgment in Criminal Writ Petition No. 74 of 1995 would apply equally to the facts of this case. According to him that was also a case where the accused was released on bail as investigation was already over. 6.Mrs. Tahilramani, learned Additional Public Prosecutor would inter alia contend that the order granting bail dated 19-2-1996 was very much before the detaining authority while passing the order of detention. In support of this contention she would draw the attention of this Court to para 14 of the grounds of detention, affidavit of Joint Secretary dated 6-12-1996 and also to the original files. In support of this contention she would draw the attention of this Court to para 14 of the grounds of detention, affidavit of Joint Secretary dated 6-12-1996 and also to the original files. The learned Additional Public Prosecutor would further submit that even though a copy of the bail order dated 19-2-1996 (granting bail) by the learned Magistrate was not furnished to the detenue along with the other documents furnished to him along with the grounds of detention, inasmuch as the said bail order contained only a technical reason, it should be construed as not a reasoned bail order. The learned Additional Public Prosecutor would further put forth the submission that the non supply of the order granting bail has not caused any prejudice to the detenue and as such the writ petition is devoid of merits and the same is liable to be dismissed. 7.The learned Additional Public Prosecutor in support of her above contention would place reliance on two decisions one by the Apex Court and the other one by the Division Bench of this Court. Relying on the decision of the Apex Court in the case of (Noor Salman Makani v. Union of India)2, reported in A.I.R. 1994 S.C. 577, with particular reference to para 6 of the same she submitted that whether a particular document is vital or not again is an issue which depends on the facts in each case and that inasmuch as in the case on hand the reasoning given by the learned Magistrate while granting bail being one of technical in nature, the same cannot be said to be a vital document in the facts and circumstances of the case and as such the non supply of this document has not caused any prejudice to the detenue. The learned Counsel appearing on behalf of the State would place reliance on a ruling of a Division Bench of this Court in the case of (Iqbal Hasanali Rupani and anr. v. The State of Maharashtra and ors.)3, reported in Bombay Cases Reporter Vo. 43 1995(2) page 78 and invite this Court to consider the discussion made in para 7 therein. v. The State of Maharashtra and ors.)3, reported in Bombay Cases Reporter Vo. 43 1995(2) page 78 and invite this Court to consider the discussion made in para 7 therein. According to her Court has, in the said judgment ruled that if the order granting bail is cryptic and does not go into the merits of the case and if the reasons are not relevant for the purpose of passing of the detention order then mere failure of the sponsoring authority to produce the bail order and the bail application before the detaining authority would not vitiate the subjective satisfaction reached in the passing of the detention order. Or in other words the sum and substance of the contention of the learned Additional Public Prosecutor is that inasmuch as the reason given in the order granting bail is of a technical in nature, non supply of the same would not vitiate the order of detention. 8.The first limb of the argument of the learned Counsel for the petitioner is that the order granting bail dated 19-2-1996 passed by the learned Magistrate containing the reasons and imposing conditions not having been placed and not having been considered by the detaining authority, would vitiate the impugned order of detention. We may straight away state that there is no substance in this point. The learned Additional Public Prosecutor drew our attention to : i)Para 14 of the grounds of detention dated 26th August 1996; ii)para 5 of the Affidavit dated 6-12-1996 of the joint Secretary to the Government of Maharashtra, Home Department; iii)The files containing the correspondence between the sponsoring authority and the detaining authority. A close scrutiny of the above would show that the order granting bail to the detenue was very much before the detaining authority at the time of passing the order of detention and the detaining authority had also considered the same. 9.The second submission made by the learned Counsel for the petitioner is that even assuming that the detaining authority considered the order granting bail to the detenue inasmuch as the copy of the same not having been furnished to the detenue the order of detention is illegal and mala fide etc. 9.The second submission made by the learned Counsel for the petitioner is that even assuming that the detaining authority considered the order granting bail to the detenue inasmuch as the copy of the same not having been furnished to the detenue the order of detention is illegal and mala fide etc. The learned Additional Public Prosecutor would repell this contention of the Counsel for the petitioner by submitting that the order granting bail is not vital document as the reason given by the learned Magistrate while granting bail is one of technical in nature. The learned Additional Public Prosecutor would plead that non furnishing a copy of the said document viz., would not vitiate the order of detention in any manner. 10.The fact that the order granting bail does contain a reason is not disputed by the parties. This reasoning, as already pointed out according to the learned Additional Public Prosecutor, is of technical in nature. The Apex Court in the decision referred to supra A.I.R. 1991 S.C. 2261 has clearly laid down that in a case where the detenue 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 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 detenue. Here in this case even though the detaining authority furnished to the detenue a copy of the bail application, a copy of the order granting bail, admittedly has not been furnished. 11.In this context a reference may be made to a decision of this Court in Writ Petition No. 343 of 1992 rendered by Division Bench consisting of Tipnis and Moharir, JJ., which in para 21 observed thus :- "When the Apex Court on consideration of various cases has thought it appropriate to set down the above conclusions, we are of the opinion that we are bound to follow those conclusions and it is not permissible for this Court to interpret sub-clause (6) on the basis of other observations in the said judgement. The conclusions set down by the Apex Court in para 6, leave no scope for ambiguity. The conclusions set down by the Apex Court in para 6, leave no scope for ambiguity. In a very categorical term the Apex Court has set down that in case where the detenue 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 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. In this context the word "them" very clearly refers to the application for the bail and the order of the Court passed thereon." 22. In view of this position and in view of the aforesaid decision in Abdul Sathar's case and in view of the admitted position that the application for bail and the order granting bail were not placed before the detaining authority, it will have to be held that the subjective satisfaction reached by the detaining authority has been impaired." 12.In another decision placed before this Court rendered by this Court in Criminal Writ Petition No. 702 of 1995 (Mohamed Yunus Faju Boxwala v. Union of India)4, this Court has observed in para 9 as under :- ".....The necessity of placing the application for bail before the detaining authority is obviously to make the detaining authority aware of the grounds which were urged by the concerned detenu for seeking bail and therefore when the Supreme Court requires that along with the bail application an order granting bail also should be placed before the Detaining Authority, it obviously means that the necessity is that the reasons that weighed with the Court for granting bail should also be brought to the notice of the detaining authority. In a case where an order of bail has been made without recording reasons, placing of an operative part of the order granting bail which indicates the fact that bail has been granted and the terms and conditions on which the bail has been granted, may be sufficient. But in a case where the Court has given reasons for grant of bail, the detaining authority must consider the entire order granting bail. But in a case where the Court has given reasons for grant of bail, the detaining authority must consider the entire order granting bail. Considering the conclusion of the Supreme Court in para 12(6) of its judgment in Abdul Sathar's case , the same view that we have taken has been taken by this Court in a catena of decisions which were relied upon before us. However, in our view, the law laid down by the Supreme Court in Abdul Sathar's case is absolutely clear and therefore we do not consider it necessary to refer to the settled principle which has been enunciated by different Division Benches of this Court." 13.In another case this Court in the case of (Hemaram Chopaji Devashi v. The Union of India ors.)5, Criminal Writ Petition No. 1276 of 1995 while dealing with similar point that when a detenue must be furnished a copy of the bail order has clearly held as follows : "On behalf of the respondents, it was contended that the bail order and the application for bail do not contain any material which could have made any difference in the subjective satisfaction of the detaining authority and therefore non placement of the complete bail order and the application for bail is not material., It is to be seen that the necessity of placing the application for bail before the detaining authority is obviously to make the detaining authority aware of the grounds which were urged by the concerned detenu for seeking bail and therefore when the Supreme Court required that along with the bail application an order granting bail also should be placed before the detaining authority, it obviously means that it is necessary that the reasons that weighed with the Court for granting bail should also be brought to the notice of the detaining authority. In a case where bail has been granted without giving reasons, placing of an operative part of the order granting bail which indicate the fact that bail has been granted and the terms and conditions on which the bail has been granted, may be sufficient. In a case where bail has been granted without giving reasons, placing of an operative part of the order granting bail which indicate the fact that bail has been granted and the terms and conditions on which the bail has been granted, may be sufficient. But in a case where, in the application for bail the detenue urges grounds in support of his plea for bail and the Court grants bail by a reasoned order, copy of the complete order of the Court granting bail and the bail application on the basis of which that order has been made, are vital and material for recording subjective satisfaction regarding preventive detention of the person concerned. Perusal of the order granting bail to the detenu in the present case would show that the Court has given reasons for releasing the detenue on bail. Whether a person is to be preventively detained or not depends on the subjective satisfaction of the detaining authority. In our opinion, it would not be proper to visualise as to whether the disclosure of the reasons, for which the Court released the detenu on bail, to the detaining authority would have made any change in the subjective satisfaction that it ultimately reached. An identical contention raised on behalf of the respondents in Mohamed Yunus's case has been dealt with in detail by us and has been rejected. It is clear that non placement of the application for bail and the complete order granting bail before the detaining authority and non supply thereof to the detenue vitiate the detention". 14.On a careful consideration of the above rulings the following propositions would emerge : (i)the copy of the bail application is necessary for the purpose of ascertaining the grounds raised by the detenue and a copy of the bail application must be furnished to the detenue; (ii)the order granting bail is a vital document and the same must be communicated to the detenue when it contains reasons for granting bail so as to enable him to make an effective representation; (iii)In a case where bail has been granted without giving reasons, placing of an operative part of the order granting bail which indicate the fact that bail has been granted and the terms and conditions on which the bail has been granted, may be sufficient. But in a case where, in the application for bail the detenue urges grounds in support of his plea for bail and the Court grants bail by a reasoned order, copy of the complete order of the Court granting bail and the bail application on the basis of which that order has been made, are vital and material for recording subjective satisfaction regarding preventive detention of the person concerned. (iv)Once the order granting bail is a reasoned order the detenue must be furnished with the copy of the order whatever may be the nature of reasoning. 15.We have no reason to take a different view. 16.As far as this case is concerned we are of the view that the points raised by the detenue in the bail application when read along with the entire bail order; would show that the order granting bail is a vital document. Consequently we hold that non communication of the copy of the order granting bail which is a reasoned order would vitiate the impugned order of detention. 17.The Counsel for the petitioner would also place reliance on the decision of this Court in Criminal Writ Petition No. 74 of 1995 with Criminal Writ Petition No, 75 of 1995 and points out that in almost identical circumstances a Division Bench of this Court to which one of us (Moorthy, J.) was a party, this Court allowed the same. In that case also the order granting bail to the detenue mentioned that the bail was granted on the ground that the investigation of the case was already over. 18.The learned Additional Public Prosecutor would rely on a ruling of this Court supra and contend that inasmuch as the reason contained in the order of granting bail does not go into the merits of the case and the reason is not relevant for the purpose of passing the detention order, non supply of the bail order would not cause any prejudice to the detenue in any manner. But however we find the two subsequent decisions of the Division Bench of this Court laid down that once a detenue is granted bail by a reasoned order then such a document is a vital document. But however we find the two subsequent decisions of the Division Bench of this Court laid down that once a detenue is granted bail by a reasoned order then such a document is a vital document. 19.For the foregoing reasons we accept the contention of the petitioner that the non supply of copy of the order granting bail dated 19-2-1996 by the Chief Metropolitan Magistrate vitiates the impugned order of detention as it would be violative of Article 22(5) of the Constitution of India, which guarantees to the detenue certain fundamental rights. 20.We place on record our appreciation for the clarity and thoroughness with which learned Addl. Public Prosecutor Mrs. Vijaya Kapse Tahelramani argued the case. 20.Hence the writ petition is allowed. The impugned detention order is quashed and set aside. Rule is made absolute. The detenu is directed to be released forthwith if not required in any other case. Petition allowed. *****