Judgment :- S.R.Singharavelu, J. The detenus have filed these petitions agitating the orders of detention dated 29.9.2003 (HCP.NOS.1705 and 1707 of 2003) and 5.10.2003 (rest of the HCPS) based on a ground case considering that their activities were prejudicial to the maintenance of public order and public peace. The detaining authority had exercised the powers conferred under Section 3(2) of the National Security Act in passing such orders of detention. 2. The ground case relates to Crime No.185 of 2003 of Ponmalai Police Station under Section 302 read with Sections 109 and 34 of the Indian Penal Code along with other offences under the Indian Penal Code. That was a case of double murder. 3. The orders of detention based on a solitary case, however heinous offence involved therein, may not stand to judicial scrutiny, because before ever the orders of detention are passed, there must be compelling reasons for passing the same and the mere surmise that the offenders may again indulge in such serious offences causing threat to public order may not at all be sufficient. In the case of Surya Prakash Sharma Vs. State of U.P. (1994 SCC (Cri) 1691, the following observation was made : ".....'The expression 'compelling reasons' in the context of making an order of detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.' To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified." 4. Learned counsel for the detenus next argued that though the representations of the detenus dated 25.10.2003 were received by the Government on 27.10.2003, they have not been placed before the Advisory Board. The meeting was held at Chennai on 30.10.2003 and they were given reply only on 14.11.2003. Learned counsel for the detenus next argued that though the representations of the detenus dated 25.10.2003 were received by the Government on 27.10.2003, they have not been placed before the Advisory Board. The meeting was held at Chennai on 30.10.2003 and they were given reply only on 14.11.2003. This, according to the learned counsel for the detenus, constituted serious prejudice to them. 5. For this purpose, reliance was placed in the case of Gandhi Vs. State rep.by the Collector of North Arcot Ambedkar District, Vellore (1994 II LW (Crl) 396). That was a case where the representation was received on 13.12.1993. The period of seven days available with the Government was held to be sufficient for processing the representation and on 22.12.1993 itself, the order of detention was passed. The non-consideration at that time was held as causing serious prejudice to the detenus. 6. The next point that was argued by the learned counsel for the detenus was that there is no application of mind by the detaining authority inasmuch as, the order of remand extension subsequent to 23.9.2003, was not made available to him, for arriving the subjective satisfaction, that while passing the orders of detention on 29.9.2003, it is actually a fact that the detenus were in custody by that time. In other words, it is the paramount duty of the detaining authority to consider that during such time of passing the orders whether the detenus were shown, on record, to have been in custody and especially in judicial custody. 7. We are able to see in the text of the sponsoring authority addressed to the detaining authority that in the above said crime number of Ponmalai Police Station (double murder case), the detenus were caused to be remanded till 7.10.2003. Relying upon the same in paragraph 11 of the grounds of detention, the detaining authority mentioned as follows : "The Judicial Magistrate ordered to remand him in the Central Prison, Tiruchirapalli. Last remand extended till 7.10.2003. The bail application filed by the accused was dismissed by the Principal Sessions Judge, Tiruchirapalli on 24.9.2003 and there is every possibility that he is likely to be enlarged on bail by filing bail application after lapse of some time...." 8. Last remand extended till 7.10.2003. The bail application filed by the accused was dismissed by the Principal Sessions Judge, Tiruchirapalli on 24.9.2003 and there is every possibility that he is likely to be enlarged on bail by filing bail application after lapse of some time...." 8. It is only by relying upon the above sentences found in the detention orders, learned counsel for the detenus has submitted that there was no record or material in the paper book supplied to them in order to show that such material was relied upon by the detaining authority to come to understand that the detenus were actually in judicial custody till 7.10.2003. 9. It is true that no copy of order of extension of judicial remand from 23.9.2003 to 7.10.2003 was shown to have been produced before the detaining authority, to get himself convinced that the detenus were actually in custody during the time of passing the orders of detention, and that such a copy of order of extension of remand does not form part of the paper book that was supplied to the detenus. That is to say, the detaining authority did not rely upon such document nor the copy of the same was supplied to the detenus. In the absence of such materials, it is not known as to how the detaining authority could come to a conclusion that the detenus, by then, were in custody so as to pass an orders of detention. In fact, there should be some materials for the authority to get himself convinced that the detenus were in custody and that they could be put under detention by passing the orders to that effect. In other words, before passing the orders of detention, it is the sine quonon to see that the person sought to be detained is already in custody. The exact contention of the learned counsel for the detenus is that there are no materials before the detaining authority. 10. Reliance was placed upon the judgment in the case of Moses Vs. The Commissioner of Police (2000 II LW (Crl) 638). The exact contention of the learned counsel for the detenus is that there are no materials before the detaining authority. 10. Reliance was placed upon the judgment in the case of Moses Vs. The Commissioner of Police (2000 II LW (Crl) 638). It was a case where the information regarding extension of remand has not been made available even to the sponsoring authority and it was held that it raised serious doubt as to whether the special report was placed before the detaining authority while the detention order was passed and that the detention got vitiated. 11. In the judgment in the case of Hidaya Banu Vs. State of Tamilnadu (2002 MLJ (Crl) 608), it was held that the detenu was originally remanded, but his remand was not extended by the Magistrate as he was not produced before him and the detention order mentioning that he was a remand prisoner and that he was lodged in the Central Jail was found to have got non application of mind by the authority. It was further held that for arriving at a finding of non application of mind by the detaining authority, it will have to be essentially found whether the detaining authority has in fact failed to consider any relevant situation which would have affected his decision of clamping the detention order. Since in that particular case the remand extension was not at all made at the time of passing the order of detention, there was no remand order in existence on the date when the detention order was passed and as such, the detenu could not be said to be a remand prisoner. Therefore, it was also held that the awareness on the part of the detaining authority of the facts of non extension of the remand was writ large in paragraph (xxx) of the detention order and yet ultimately, the concerned detaining authority described the detenu as a remand prisoner. This was held as a classic example of non application of mind. 12. In this case, it is not as if there was no order of remand extension upto 7.10.2003. In fact, the copy of such order was supplied to the detenus on demand, that too, only on 14.11.2003 long after the Advisory Board meeting. This was held as a classic example of non application of mind. 12. In this case, it is not as if there was no order of remand extension upto 7.10.2003. In fact, the copy of such order was supplied to the detenus on demand, that too, only on 14.11.2003 long after the Advisory Board meeting. The point is that even though such order was in existence, the same was neither produced before nor taken cognizance of by the detaining authority. Therefore, it was argued that it amounted to non application of mind inasmuch as it was shown to have been relied upon in the grounds of detention without actually been seen or perused by the said authority. 13. In this connection, learned Additional Public Prosecutor relied upon respective copies of the forms signed on 26.9.2003 by the Superintendent, Central Jail, Trichy wherein it was found at columns 8 and 9 that the detenus were remanded on 26.8.2003 and that the next date of hearing was on 7.10.2003 before the Judicial Magistrate No.5, Trichy. 14. Learned Additional Public Prosecutor, by relying upon the special report, has contended that similar special report was considered as a material for making the detaining authority to get himself convinced that the detenus were in custody during the time of passing the orders of detention. He has relied upon the order dated 24.11.2003 of a Division Bench of our High Court in HCP.NO.690 of 2003 wherein it was mentioned as follows : "In the report dated 10.12.2002 filed by the Inspector of Police found at page 210 of the booklet, he has stated that the remand of the detenu and six other persons were extended from 29.11.2002 to 13.12.2002 and that they are presently at the Central Jail. The special report refers to the detenu and five others. The detaining authority has chosen to accept the said report and based on the information, has taken note of the fact that the detenu being on remand" 15. But, in this case, the special report simply denoted that the last remand was made on 26.8.2003 and without mentioning as to whether it was extended upto 7.10.2003, it had simply mentioned the next date of hearing as 7.10.2003. Therefore, there is nothing to indicate to the detaining authority that from 26.8.2003, the detenus was remanded till 7.10.2003. But, in this case, the special report simply denoted that the last remand was made on 26.8.2003 and without mentioning as to whether it was extended upto 7.10.2003, it had simply mentioned the next date of hearing as 7.10.2003. Therefore, there is nothing to indicate to the detaining authority that from 26.8.2003, the detenus was remanded till 7.10.2003. Even to a normal prudent person it may appear that there cannot be any extension of remand to such a long period between the last week of August 2003 to the first week of October 2003. Therefore, the facts of the above cited case are not applicable to the present case. 16. In the judgment in the case of Abdul Alim Vs. State of Tamilnadu (2003 I CTC 673), it was held as follows : "The same issue arose for consideration before the Full Bench and the Full Bench after considering the entire issue has held in their judgment more than once that any statement made by the detaining authority to the effect that on the date of the passing of the detention order, the detenu was a remand prisoner even though there was actually no remand order by the concerned Magistrate, it would amount to a clear non application of mind." 17. It may be that the last cited case law and the judgment reported in 2002 MLJ (Crl) 608 (supra) may deal with a situation where there was no extension of remand order at all. Even though in this particular case, the remand extension order till 7.10.2003 was passed by the Judicial Magistrate concerned, the point is that no such copy of remand extension order was placed before the detaining authority for his perusal and getting him convinced that during the time of detention order, the detenus were in custody or not. That is to say, even though the detaining authority mentioned in the grounds that by relying upon the order of extension of remand till 7.10.2003 he passed the orders of detention, he has not actually seen the copy of such order and get himself convinced that the detenus were actually by then in custody. 18. That is to say, even though the detaining authority mentioned in the grounds that by relying upon the order of extension of remand till 7.10.2003 he passed the orders of detention, he has not actually seen the copy of such order and get himself convinced that the detenus were actually by then in custody. 18. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for exercise of the powers conferred on the Executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not so, the condition precedent to exercise the power would not be fulfilled and the exercise of power would be considered as bad. 19. Thus, it is found that inasmuch as the detaining authority mentioned in the grounds of detention that they are relying upon the factor of order of remand extension till 7.10.2003 and such material has not been looked into by them to get satisfied subjectively shows that there is no proper application of mind and on this ground, the detention orders will get vitiated. 20. Learned counsel for the detenus next submitted that although a demand was made for supply of copy of such order by their representation dated 25.10.2003, the order of extension till 7.10.2003 was supplied to them only on 14.11.2003, which is subsequent to the meeting of the Advisory Board. In this connection, it was argued that the right to make effective representation was snapped. 21. The answer given by the learned Additional Public Prosecutor that they have supplied in time a copy of the letter of the Superintendent of Central Jail showing that the last remand was made on 26.8.2003 and the subsequent date of hearing was 7.10.2003 is of no use at all. This is so, because there is a lot of difference between the supply of copy of such letter of the Superintendent of Central Jail, which will never contain the complaint, if any, made by the detenus before the Magistrate during the time of remand extension. Such complaint, if any, could be seen only in the order of remand extension. It is, therefore, the following observations were made in the case of Chinna Ponnu Vs. Such complaint, if any, could be seen only in the order of remand extension. It is, therefore, the following observations were made in the case of Chinna Ponnu Vs. The Secretary, Prohibition & Excise Department and another (2000 I LW (Crl) 474) : "...the remand order is not only a judicial order, but one which would contain the complaint if any made by the detenu at the time of the detenu's production before the Magistrate regarding the ill-treatment, if any, suffered by the detenu at the hands of the sponsoring authority. The fact that no such complaint had been made has only been established by the production of the remand order. That fact cannot be expected to be gathered from the special report which may or may not correctly set out all that had transpired at the time the remand was ordered... The detaining authority, therefore, cannot on the basis of his own assessment as to which document should be furnished, and which should not be furnished, deny to the detenu the document which is necessary for the purpose of enabling the detenu to make an effective representation." 22. If any document is relied upon by the authorities, the same must be supplied to the detenus. This was fortified in the order dated 16.8.1999 by a Division Bench of our High Court in HCP.No.1684 of 1999 (Devarajan Vs. State - 1999 MLJ (Crl) 716) in the following words : "The straight law is that once any document is relied on by the authority, it has to be supplied to the detenu. In our considered opinion the reports of recent death have been referred in the grounds have definitely been relied upon. Therefore, it is bound to be supplied." 23. In yet another judgment in the case of Pownammal Vs. State of Tamilnadu (1999 SCC (Crl) 231), the Supreme Court considered the situation where the order of remand to judicial custody relied upon in the grounds of detention was passed in English. But, the Tamil version of that document was not supplied to the detenu, even though specific demand thereof was made. It was held that the non supply of the Tamil version of the remand order was fatal to the detention. 24. But, the Tamil version of that document was not supplied to the detenu, even though specific demand thereof was made. It was held that the non supply of the Tamil version of the remand order was fatal to the detention. 24. To repeat again, in paragraph 11 of the grounds of detention, the following words were found : "The Judicial Magistrate ordered to remand him in the Central Prison, Tiruchirapalli. The last remand extended till 7.10.2003. " Inasmuch as this was found to have been grounded in the orders of detention, there should have been materials to that effect produced before the detaining authority and only if such materials were placed before him, we may consider that the same was perused by the authority and there was subjective satisfaction thereof after application of mind to those records. Since those materials were not shown to have been produced before such authority, naturally there is lack of application of mind. Simultaneously, the orders get vitiated also by the fact that there was no supply of such copy of the order made to the detenus in time despite the fact that there was specific demand made thereto. Such supply subsequent to the Advisory Board meeting is no supply at all. 25. The next argument was with respect to the imminent possibility of coming out on bail. It has already been culled out from paragraph 11 of the grounds of detention that the detaining authority thought that there was every possibility that the detenus were likely to be enlarged on bail by filing bail applications after lapse of some time. 26. In the judgment in the case of Binod Singh Vs. District Magistrate, Dhanbad (1986 SC 2090), the following was observed : "There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. And if that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody.... If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. And if that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody.... ...therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release." 27. In the judgment in the case of Rivadeneyta Ricardo Agustin Vs. Govt. Of Delhi (1994 Supp. (1) Supreme Court Cases 597), it was observed as follows : "In the grounds of detention, the following statement occurs in para 9 : 'The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court (s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released.' The above statement merely speaks of a 'possibility' of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunnissa (1991 I SCC 128 : 1991 SCC (Crl) 88). Even in the return filed in this petition, the authority has not stated (in response to Ground 'B' of the writ petition) that there was material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent." 28. In the judgment in the case of Amritlal Vs. Even in the return filed in this petition, the authority has not stated (in response to Ground 'B' of the writ petition) that there was material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent." 28. In the judgment in the case of Amritlal Vs. Union Government (2001 SCC (Crl) 147), the following observation was made : "As held in Binod Singh Case ( 1986 4 SCC 416 ), if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention....The reasoning available is the 'likelihood of his moving an application for bail' which is different from 'likelihood to be released on bail'. This reasoning is not sufficient compliance with the requirements as laid down. The available cogent material in this case was the likelihood of having a bail application moved in the matter, but not obtaining a bail order. Therefore, the detention order is liable to be quashed." 29. The judgment in the case of Thangam Vs. State and another (2000 II MWN (Crl) 16) is one such case wherein the following observation was made : "Therefore from the very nature of the offences registered as noticed above, it is not possible to arrive at the subjective satisfaction about the imminent possibility of the intended detenue coming out on bail. We are of the opinion that in the backdrop of the offences already registered, which includes the offence punishable under Section 302 of the Indian Penal Code and offences punishable under Section 307 of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the possibility of the intended detenu to come out on bail as matter of course does not appear to be as bright as the detaining authority thought of." 30. Leave alone 'imminent possibility' or likely to be released on bail', the fact in this case remains that in order to believe that they would come out on bail, first the detaining authority should have enough material to hold that they were in the custody on the date of detention. This is so because custody has to precede over bail. To substantiate this aspect, there is no material placed before him, as was observed earlier. In this view of the matter, the possibilities of the detenus coming out on bail do not arise. Such a ground for detention is also fallacious. 31. The other following kinds of arguments advanced by the learned counsel for the detenus may not be of any help to him. So far as HCP.Nos.1705 and 1707 of 2003 are concerned, there were amended orders of detention passed on 31.10.2003 showing that the detenus have a right of making a representation within twelve days from the dates of orders detention. This factor was not available in the original orders of detention and that therefore, by way of abundant caution, the detaining authority had chosen to pass the amended orders by including these words that the detenus have a right to make a representation within twelve days. 32. Learned Additional Public Prosecutor has contended that the amended orders are redundant by themselves and that the earlier detention orders are very well sustainable even without amendments. 33. As a last point, learned counsel for the Central Government replied to the contention of the learned counsel for the detenus that the Government has not considered the subsequent representations made by the detenus. Learned counsel for the Central Government contended that whether it is second or third representation, when once they dealt with the common subject and if the materials are found to be the same in all the subsequent representations and when once they are given due consideration, then, it is unnecessary on the part of the Government to air its view continuously on each representation of the same subject. No other factor was argued. For reasons set out above, the detention orders are vitiated. 34. Accordingly, the impugned orders of detention are set aside and the habeas corpus petitions are allowed. The detenus are directed to be set at liberty forthwith unless their detention is required in connection with any other cause.