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2019 DIGILAW 1975 (ALL)

Anil Bhati v. Union of India

2019-08-19

MANJU RANI CHAUHAN, MANOJ MISRA

body2019
ORDER : 1. We have heard Shri D.S. Mishra, learned senior counsel assisted by Shri Chandrakesh Mishra and Shri Vikas Chandra Srivastava, for the petitioner; Shri Shashi Bhushan, Advocate, holding brief of Shri Annapurna Singh, for the Union of India; Shri Vinay Saran, learned senior counsel assisted by Shri Harikesh Kumar Gupta, for the Intervenor; the learned A.G.A. for the state respondents; and have perused the record. 2. By means of this habeas corpus petition, the petitioner Anil Bhati, currently in Jail, has questioned his detention under the National Security Act, 1980 (for short the Act, 1980) pursuant to the order dated 05.12.2018 passed by the District Magistrate, Gautam Buddh Nagar (for short DM) under Section 3(2) read with Section 3(3) of the Act, 1980, which has been confirmed by the State Government vide order dated 22.01.2019 and, thereafter, the detention period has been extended. The petitioner has prayed that after setting aside the detention order he be released. 3. A resume of relevant facts would be apposite. From the return filed by the Jailor, District Jail, Kaushambhi (for short the Jailor), it appears, the petitioner Anil Bhati was admitted in District Jail, Muzaffarnagar on 17.03.2018 pursuant to remand order dated 8.12.2017 issued by the Chief Judicial Magistrate, Gautam Buddh Nagar in case crime no. 751 of 2017, P.S. Bisrakh, District Gautam Buddh Nagar, which related to an incident dated 16.11.2017. While he was in custody, remand orders were obtained in five other cases on the basis of petitioner's subsequent implication in those cases. On administrative ground, on transfer, the petitioner was admitted in District Jail, Kaushambhi on 07.07.2018. While the petitioner was in jail in connection with those cases, he was served with the impugned detention order dated 05.12.2018 passed by the DM. The grounds of detention served upon the petitioner indicate that the subjective satisfaction to detain the petitioner under the Act, 1980 was drawn on the basis of his involvement in Case Crime No. 751 of 2017 (supra) as the incident relating to it had allegedly disturbed the public order. However, for the purpose of drawing satisfaction in respect of the propensity of the petitioner to repeat such act, upon being released on bail, his implication in four other cases was narrated. However, for the purpose of drawing satisfaction in respect of the propensity of the petitioner to repeat such act, upon being released on bail, his implication in four other cases was narrated. In paragraph 8 of the grounds of detention it was mentioned that the bail applications of the petitioner in respect of Case Crime No. 751 of 2017 (supra) and Case Crime No. 378 of 2018, P.S. Bisrakh, District Gautam Buddh Nagar, under sections 2/3 of U.P. Gangsters (Prevention of Anti-Social Activities) Act, 1986, were pending in the High Court and a date was fixed for their consideration but because the co-accused Arun Yadav has been granted bail in Case Crime No. 751 of 2017, there is imminent likelihood of the petitioner being released on bail therefore detention under the Act, 1980 was considered necessary with a view to prevent him from repeating activity prejudicial to the maintenance of public order. The grounds of detention also indicate that the DM was satisfied that if bail is granted in the main case i.e. Case Crime No. 751 of 2017 (supra) then securing bail in other cases, which were not so serious, would not be difficult. 4. The learned counsel for the petitioner has questioned the detention order on several grounds. However, as we are satisfied with one of those grounds on which the petition can be allowed, we do not propose to address all the grounds raised. 5. Before we proceed to notice and discuss the relevant points urged before us, it may be observed that the grounds of detention reveal that at the time of passing the detention order the DM was under the impression that the bail application of the petitioner in Case Crime No. 751 of 2017 (supra) was pending and a date had been fixed for its consideration by the High Court. Such impression is reflected from paragraph 8 of the grounds of detention served upon the petitioner. The DM, however, appeared to be aware that the co-accused of that case, namely, Arun Yadav, was granted bail. He, therefore, expressed his satisfaction that there existed real possibility of the petitioner being released on bail in that case. 6. Such impression is reflected from paragraph 8 of the grounds of detention served upon the petitioner. The DM, however, appeared to be aware that the co-accused of that case, namely, Arun Yadav, was granted bail. He, therefore, expressed his satisfaction that there existed real possibility of the petitioner being released on bail in that case. 6. The learned counsel for the petitioner submitted that the co-accused Arun Yadav; the petitioner (Anil); and another co-accused Sonu were all granted bail by a common detailed/speaking order dated 14.11.2018 (Annexure 2 to the writ petition) passed by the High Court in three connected bail applications, namely, Criminal Misc. Bail Application No. 21380 of 2018: Arun Yadav vs. State of U.P.; Criminal Misc. Bail Application No. 19942 of 2018: Anil vs. State of U.P.; and Criminal Misc. Bail Application No. 17413 of 2018: Sonu @ Dharam Dutt Sharma vs. State of U.P. The bail order reveals that the bail applications of all the three applicants was allowed. Meaning thereby that the bail application of Anil (the corpus) was also allowed by the same order dated 14.11.2018 by which the bail application of Arun Yadav had been allowed. It has been submitted that the existence of common bail order is averred in paragraph 6 of the writ petition of which there is no denial in paragraph 6 of the counter affidavit filed by the DM. Therefore, it is crystal clear, the DM while issuing the detention order had not applied his mind to the relevant material which has vitiated his subjective satisfaction as also the order of detention. 7. To demonstrate that there was no application of mind on the bail order, the learned counsel for the petitioner invited attention of the court to paragraphs 22 and 28 of the writ petition, which are extracted below: "22. That it is further pertinent to mention that the petitioner was allowed bail by this Hon'ble Court, 21 days prior to the impugned detention order i.e. on 14.11.2018 and just to somehow curtail the petitioner liberty the impugned detention order was hastily passed by the respondent no. 3 on 5.12.2018. 28. That the grounds of detention dated 05.12.2018 signed by the District Magistrate, vividly indicate that the petitioner was still in jail and is endeavoring for his bail and post bail he may again commit act prejudicial to public order. 3 on 5.12.2018. 28. That the grounds of detention dated 05.12.2018 signed by the District Magistrate, vividly indicate that the petitioner was still in jail and is endeavoring for his bail and post bail he may again commit act prejudicial to public order. Here it is most humbly stated that the petitioner was allowed bail vide order dated 14.11.2018 passed by Hon'ble Rajul Bhargava, J. of this Hon'ble Court in Criminal Misc. Bail Application No. 21380 of 2018, which once again demonstrates that the impugned detention order and its grounds of detention have been passed mechanically, without any due application of mind. It is further stated that since the petitioner is not having any Police record then there was no reason to apprehend that he will again commit acts prejudicial to public order." 8. Attention of the court has also been invited to paragraph 15 of the counter affidavit filed by the DM which is a reply to paragraph 22 of the petition. Paragraph 15 of the counter affidavit filed by the DM reads as under: "15. That the contents of paragraph no. 22 of the writ petition are denied being incorrectly stated. In reply it is stated that the petitioner had moved the bail application, which was pending before the court concerned and there was real possibility of releasing him on bail and on releasing on bail, there was all probability that he may indulge in prejudicial activities, with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, the petitioner has been rightly detained under section 3(2) of National Security Act after complete subjectively satisfaction on the basis of material available on the record and there is no violation of any fundamental right as provided in Constitution of India to every citizen of this country." 9. Attention of the court has also been invited to the contents of paragraph 17 of the counter affidavit filed by the DM which is a composite reply to paragraph nos. 25 to 36 of the writ petition. A perusal thereof would reveal that the averments made in paragraph 28 of the writ petition were not dealt with specifically and no statement was made by DM either denying the existence of the bail order or claiming that he read the entire bail order and found that it granted bail to the petitioner also. A perusal thereof would reveal that the averments made in paragraph 28 of the writ petition were not dealt with specifically and no statement was made by DM either denying the existence of the bail order or claiming that he read the entire bail order and found that it granted bail to the petitioner also. Though, in the last sentence of paragraph 17 of the counter affidavit, it has been stated as follows: " ........ The deponent considered possibility of petitioner being released on bail from concerned court and upon release, his further indulgence in similar type of activities, which will be prejudicial to the maintenance of public order, with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, the petitioner has been rightly detained under section 3(2) of National Security Act after complete subjectively satisfaction on the basis of material available on the record and there is no violation of any fundamental right as provided in Constitution of India to every citizen of this country." 10. By referring to the above extracted contents of the writ petition and the counter affidavit filed by the DM, the learned counsel for the petitioner submitted that the DM had failed to apply his mind on a relevant material i.e. the bail order passed by the High Court granting bail to the petitioner. It has been urged that the bail order is a speaking order which deals threadbare with the prosecution case brought against the petitioner and when read as a whole it creates a doubt as regards involvement of the petitioner in case crime no. 751 of 2017 (supra). Hence it was a relevant material that ought to have been placed before the detaining authority and considered by it; and its non-consideration has vitiated the subjective satisfaction and, therefore, the detention order is liable to be quashed. 11. 751 of 2017 (supra). Hence it was a relevant material that ought to have been placed before the detaining authority and considered by it; and its non-consideration has vitiated the subjective satisfaction and, therefore, the detention order is liable to be quashed. 11. The learned counsel for the petitioner urged that it is settled legal position that where an order of detention is passed with reference to an activity in respect of which the detenue has been granted bail by a speaking order, which suggests possibility of false implication, then the bail application as well as the bail granting order are relevant material and must be placed by the sponsoring authority before the detaining authority to enable the detaining authority to apply its mind on the said material and be satisfied whether to pass an order of detention or not. It has been urged that the bail application and the bail granting order are both relevant because they contain the defence taken by the detenue which has impressed the Court to direct release of the detenue on bail. It has been urged that here the detaining authority was not even aware that the detenue has been granted bail in the concerned case. It is thus clear that he did not even peruse the bail granting order which related not only to the co-accused but also the detenue. Hence, it is a case of complete non-application of mind on relevant material thereby vitiating the order of detention. 12. Per Contra, the learned A.G.A. as well as the learned counsel appearing for the intervenor have submitted that the relevance of the bail order was only to indicate the imminent possibility of the detenu being released from jail and as satisfaction has been recorded in that regard, mere statement in the grounds of detention that the bail application of the petitioner was pending whilst that of the co-accused Arun Yadav was granted would not vitiate the order of detention, particularly, when, otherwise, the grounds of detention disclose existence of cogent material to draw satisfaction that the activity of the petitioner had been prejudicial to the maintenance of public order and that on his release he was likely to repeat such activity and, therefore, to prevent him from doing so, detention order was necessary. In addition to above, it has been urged by them that this court had dismissed the petition of co-accused Arun Yadav challenging the order of detention upon finding that the activity pertaining to case crime no. 751 of 2017 (supra) had breached public order. It was also pointed out that the order dismissing the petition of the co-accused was challenged before the Apex Court but the Apex Court summarily dismissed the Special Leave Petition. 13. Before we proceed to consider the weight of the rival submissions, it would be apposite for us to observe that the order dated 03.05.2019 passed by a co-ordinate Bench of this Court in Habeas Corpus Writ Petition No. 171 of 2019 filed by co-accused Arun Yadav was produced before us during the course of arguments. From a perusal of the said order we find that the point raised by the learned counsel for the petitioner that the satisfaction of the detaining authority stood vitiated due to non-application of mind on the bail order passed in favour of the petitioner was neither pressed nor discussed in the petition of the co-accused. Moreover the point raised in this petition, in all probability, might not have been available to co-accused Arun Yadav because from the grounds of detention of the present petitioner it appears that the detaining authority was aware that the co-accused Arun Yadav had been granted bail, whereas in respect of the petitioner it is stated in the grounds of detention that the bail application is pending. Hence, we are of the considered view that dismissal of the writ petition filed by the co-accused Arun Yadav against the order of detention is of no consequence on the merit of the points urged in this petition and, therefore, we would have to examine the merit of the points raised in this petition regardless of dismissal of the writ petition filed by the co-accused. 14. To appreciate the weight of the points urged by the learned counsel for the petitioner, it would be apposite for us to take a conspectus of various decisions of the apex court on the requirement of placement of all the relevant material available with the sponsoring authority before the detaining authority at the time of issuance of the order of detention. 15. In Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. 15. In Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222 , the apex court in paragraph 6 of the judgment, as reported, held as follows: "6. It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk. Nizamuddin v. State of West Bengal the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. It appeared clear on record that the history-sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. In connection with this aspect this Court observed as follows: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate." It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato v. District Magistrate, Burdwan. The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order." (Emphasis Supplied) 16. In Dharamdas Shamlal Agarwal v. Police Commr., (1989) 2 SCC 370 , in paragraph 12 of the judgment, as reported, after taking a conspectus of the authorities, the apex court reiterated the same principles as laid in the judgment in Ashadevi's case (supra). The relevant portion is extracted below: "12. In Dharamdas Shamlal Agarwal v. Police Commr., (1989) 2 SCC 370 , in paragraph 12 of the judgment, as reported, after taking a conspectus of the authorities, the apex court reiterated the same principles as laid in the judgment in Ashadevi's case (supra). The relevant portion is extracted below: "12. From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order." 17. Reiterating the law laid down in Ashadevi's case (supra), in Ahamed Nassar v. State of T.N., (1999) 8 SCC 473 , the apex court in paragraph 20 of the judgment, as reported, observed as follows: "…..A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision." 18. After observing as above, the apex court went on to observe that all relevant material that could be available at the time of issuance of the order of detention must be placed before the detaining authority and considered by it. Non-consideration of relevant material which could influence the mind either way would vitiate the subjective satisfaction due to non-application of mind and would render the order of detention vulnerable. The relevant portion of the judgment in Ahamed Nassar's case (supra) is extracted below: 27 ........... Thus, there should be consideration of all relevant materials in case such materials were within the reach of the detaining authority till a formal detention order was issued. 28. In the case of Mohd. The relevant portion of the judgment in Ahamed Nassar's case (supra) is extracted below: 27 ........... Thus, there should be consideration of all relevant materials in case such materials were within the reach of the detaining authority till a formal detention order was issued. 28. In the case of Mohd. Shakeel Wahid Ahmed v. State of Maharashtra also detention was challenged as relevant material came into existence after signing of the detention order but before issuance of a formal order. The Advisory Board opined in the case of another detenu Shamsi that there was no sufficient cause for Shamsi's detention but this material was not placed before the detaining authority. The defence taken by the State was that the detention order is dated 8-10-1981 while the Advisory Board's opinion is dated 19-10-1981. The Constitution Bench of this Court rejected this contention and held: "The explanation offered by Shri Capoor as to why the opinion of the Advisory Board in Shamsi's case was not placed before him is that the report of the Advisory Board in Shamsi's case which is dated October 19, 1981, was not in existence when he 'formulated and ordered to issue the detention order against the petitioner' in this case. We see quite some difficulty in accepting this explanation. In the first place, the fact that it was on October 8, 1981 that Shri Capoor had directed the detention of the petitioner is a matter of no consequence. The order of detention was issued, that is to say passed, on November 7, 1981 and we must have regard to the state of circumstances which were in existence on that date. Shri Capoor seems to suggest that the Advisory Board's opinion dated October 19, 1981 came into existence after he had made up his mind to pass an order of detention against the petitioner on October 8, 1981 and therefore he could not take, or need not have taken, that opinion into account. The infirmity of this explanation is that the order of detention was passed against the petitioner on November 7, 1981 and the Advisory Board's opinion in Shamsi's case was available to the State Government nearly three weeks before that date." 29. The above was a case where detention order was signed on 8th October but formal order was only signed on 7-11-1981. The above was a case where detention order was signed on 8th October but formal order was only signed on 7-11-1981. The relevant material, viz., opinion of the Advisory Board came into existence on 19-10-1991, i.e., between the aforesaid two dates. Non-placement of the opinion, which came into existence after signing of the detention order before the detaining authority was held to vitiate the detention. Thus issuance of the formal order is held to be the relevant date up to which if any relevant material comes in possession of the authority concerned it has to be placed before the detaining authority. In the present case, we find the letter of the detenu dated 23-4-1999 was received on 26-4-1999, i.e., before issuance of formal detention order dated 28-4-1999. It was incumbent for the Secretary concerned to have placed it before the detaining authority. So we conclude, non-placement of those two letters which were relevant, vitiates the impugned detention order. (Emphasis Supplied) 19. From a conspectus of the judgments noticed above, the legal principle deducible is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. Therefore, every conceivable material which is relevant and vital which may have a bearing on the issue and available, or could with ordinary diligence be available, with the sponsoring authority, up to the date of issuance of the detention order, should be placed before the detaining authority. The sponsoring authority should not keep it back, based on its interpretation that it would not be of any help to a prospective detenue. What is important is that such material should have been placed before the detaining authority and considered by it, before issuance of the detention order. Once such material is placed before the detaining authority, after consideration of such material, the detaining authority may still be subjectively satisfied that a case has been made out to preventively detain the detenue. Whether the material is relevant or not, the test is whether it has the potentiality to influence the mind of the detaining authority one way or the other as to whether an order of detention be issued. Whether the material is relevant or not, the test is whether it has the potentiality to influence the mind of the detaining authority one way or the other as to whether an order of detention be issued. As to whether the material could be considered relevant depends upon the facts of each case and the court, exercising its power of judicial review, is empowered to examine that aspect. But once such material has been considered by the detaining authority before issuance of the order of detention, the subjective satisfaction of the detaining authority cannot be questioned on the ground that upon consideration of that material it could not have been satisfied to preventively detain the detenue. 20. Now, we shall examine the law as to whether copy of the bail application and the order granting bail to the detenue is a relevant material which ought to be placed before the detaining authority and considered by it before issuance of detention order. 21. Before we notice the decisions on the aspect it would be apposite to observe that an order granting bail to the detenue may be of relevance for two reasons. Firstly, to indicate the imminent likelihood of the detenue being released from jail and, secondly, to disclose the aspects which might have weighed with the court to grant bail to the detenue and, in some cases, the conditions of bail may also be relevant. Where bail granting order is a speaking order, throwing light on the possibility of false implication, or where it deals with the defence of the detenue, ordinarily, such bail granting orders are considered relevant and they ought to be placed before the detaining authority and considered by it before issuance of the detention order. 22. In M. Ahamedkutty v. Union of India, (1990) 2 SCC 1 , the apex court had taken the view that ordinarily a bail application and the order granting bail to the detenu would be relevant, if the grounds of detention are based on that case and must be placed before and considered by the detaining authority and, if so considered, copy thereof must be supplied to the detenue to enable him to make an effective representation. A failure in that regard would violate the fundamental right to make effective representation against order of preventive detention guaranteed by Article 22(5) of the Constitution of India. A failure in that regard would violate the fundamental right to make effective representation against order of preventive detention guaranteed by Article 22(5) of the Constitution of India. The aforesaid legal principle was applied and followed by a three-judges bench of the apex court in P.U. Abdul Rahiman v. Union of India, 1991 Supp (2) SCC 274. 23. In Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1 , a two-judges bench of the apex court had the occasion to deal with a situation where the bail application of the detenue was rejected. The argument raised on behalf of the detenue that the bail application and the bail rejecting order was relevant document and ought to have been placed before the detaining authority and if placed ought to have been supplied to the detenue, was rejected by the court by distinguishing the law laid down in M. Ahamed Kutty's case (supra). The relevant portion of this judgment is extracted below: "In Ahamedkutty case no doubt there is an observation having regard to the facts therein that non-consideration of the bail application and the order of releasing would amount to non-application of mind and that would affect the detention order. The Division Bench made these observations while considering the contention that the order granting bail and the bail application, though referred to, were not relied upon. It is not laid down clearly as a principle that in all cases non-consideration of the bail application and the order refusing bail would automatically affect the detention. The relevant observations in this context made by this Court in Ahamedkutty case may be noted: "If in the instant case the bail order on condition of the detenu's reporting to the customs authorities was not considered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. In S. Gurdip Singh v. Union of India, following Icchu Devi Choraria v. Union of India and Shalini Soni v. Union of India, it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio." It is further observed in this case that: "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenu's right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." Placing considerable reliance on this passage, the learned counsel contended inter alia that in the instant case from either point of view namely (i) if the bail application and the order refusing bail were not considered or (ii) if considered the non-supply of the copies of the same to the detenu would affect the detention order. In other words, according to him, non-consideration of these two documents by the detaining authority would itself affect the satisfaction of the detaining authority. If on the other hand they are taken into consideration and relied upon the non-supply of the same to the detenu would result in violation of Article 22(5) of the Constitution rendering the detention invalid. We are unable to agree with the learned counsel. If on the other hand they are taken into consideration and relied upon the non-supply of the same to the detenu would result in violation of Article 22(5) of the Constitution rendering the detention invalid. We are unable to agree with the learned counsel. We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied. The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that "Considering the facts … the bail application and the bail order were vital materials". In that view these observations were made. Further that was a case where the detenu was released on bail and was not in custody. This was a vital circumstance which the authority had to consider and rely upon before passing the detention order and therefore they had to be supplied. (Emphasis supplied) 24. In K. Varadharaj v. State of T.N., (2002) 6 SCC 735 , a two-judges bench of the apex court had the occasion to discuss and reconcile the two earlier decisions of the apex court, that is, in M. Ahamedkutty's case (supra) and Abdul Satthar's case (supra) and in paragraphs 5 to 7 of the judgment, as reported, the apex court held as follows: "5. We have considered the argument advanced on behalf of the parties as also perused the records. The issue that arises for our consideration in this case is not really res integra. In the case of Ahamedkutty this Court held: Considering the facts the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, …. It is based on this observation of the Court that learned counsel for the appellant argued that non-consideration of the bail application and order made thereon would vitiate the order of detention. If those were not considered the satisfaction of the detaining authority itself would have been impaired, …. It is based on this observation of the Court that learned counsel for the appellant argued that non-consideration of the bail application and order made thereon would vitiate the order of detention. But we should notice that the said observation of this Court was made on facts of that case, therefore, we cannot read into that observation of this Court that in every case where there is an application for bail and an order made thereon, the detaining authority must as a rule be made aware of the said application and order made thereon. In our opinion the need of placing such application and order before the detaining authority would arise on the contents of those documents. If the documents do contain some material which on facts of that case would have some bearing on the subjective satisfaction of the detaining authority then like any other vital material even this document may have to be placed before the detaining authority. In our opinion, the judgment of this Court in Ahamedkutty does not lay down a mandatory principle in law that in every case the application for bail and the order made thereon should be placed before the court. We are supported in this view of ours by the judgment relied on by the State in Abdul Sathar. In the said case considering the earlier judgment in Ahamedkutty and explaining the observation quoted by us in the said judgment of Ahamedkutty this Court held: "We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied. The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that 'considering the facts … the bail application and the bail order were vital materials'. In that view these observations were made. Further that was a case where the detenu was released on bail and was not in custody. The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that 'considering the facts … the bail application and the bail order were vital materials'. In that view these observations were made. Further that was a case where the detenu was released on bail and was not in custody. This was a vital circumstance which the authority had to consider and rely upon before passing the detention order and therefore they had to be supplied." 6. From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case. We are in respectful agreement with the view expressed by the abovesaid two judgments which in our opinion are not conflicting. 7. We will now consider the question whether in the instant case the facts required the detaining authority to be aware of the contents of the bail application as also the order of the court thereon. From the facts of this case, we must note that the fact that the detenu was in custody was taken note of by the detaining authority by reference to his remand order therefore that is a vital fact which is taken note of by the court. The contents of the bail application also in our opinion do not contain any vital material notice of which the detaining authority had to take. However, in our opinion there was a vital fact in the order of the court notice of which ought to have been taken by the detaining authority. The said fact is that the court specifically noted in the bail order that the Public Prosecutor had no objection for grant of bail therefore the court was inclined to grant bail to the appellant. This is a circumstance, in our opinion, which ought to have been noticed by the detaining authority because the counsel representing the State in express terms said that he, which would also mean his client which is the State, did not have any objection to the grant of bail. Therefore, in our opinion this is a vital fact notice of which the detaining authority ought to have taken. Therefore, in our opinion this is a vital fact notice of which the detaining authority ought to have taken. We do not say that merely because a concession was made by a counsel for the State in a bail application that would be binding on the detaining authority but it is necessary that such opinion expressed by a counsel for the State ought to have been taken note of and since this is a vital fact, non-consideration of this fact in our opinion vitiates the order of detention." 25. In Sunila Jain v. Union of India, (2006) 3 SCC 321 , the apex court after taking a conspectus of previous judgments on the issue as to whether under all circumstances bail application and bail granting order would be relevant, in paragraphs 18 and 19 of the judgment, as reported, laid down certain legal principles. The relevant paragraphs are extracted below: "18. The decisions of this Court referred to hereinbefore must be read in their entirety. It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance to and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu. 19. The decisions relied upon by Mr. 19. The decisions relied upon by Mr. Mani in our opinion do not lay down as universal rule that irrespective of the facts and circumstances of the case it would be imperative to place all applications for bail as also the orders passed thereupon before the detaining authority and copies thereof supplied to the detenu. On the petitioner's own showing, only that part of the application for grant of bail that the offence in question is bailable, was relevant. No other submission had been raised at the Bar. Whether a provision of law is bailable or not is a question of law. The same is presumed to be known to the courts and/or the detaining authority. It may not be necessary even to be stated in the application for bail. If a person had been released on bail on the ground that the offence is bailable, it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of the materials placed on record, as to whether the order of preventive detention should be passed against the detenu or not. The constitutional mandate can be said to be violated, provided: (1) the impairment has been caused to the subjective satisfaction to be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority. (Emphasis Supplied) 26. In Rushikesh Tanaji Bhoite v. State of Maharashtra, (2012) 2 SCC 72 , the detenue had already been released on bail but the detaining authority did not show his awareness and passed the order of detention. The apex court set aside the order on that ground itself. The relevant portion of the judgment is extracted below: "7. The admitted position is that the detenu was arrested in connection with the above crime on 15-8-2010 and he was released on bail by the Judicial Magistrate, First Class, Dharangaon on that very day. One of the conditions imposed in the order of bail was that the detenu would appear at Dharangaon Police Station on every Monday between 10.00 a.m. to 12 o'clock till the charge-sheet was filed. Later on, the detenu made an application before the Judicial Magistrate, First Class, Dharangaon seeking relaxation of the above condition. One of the conditions imposed in the order of bail was that the detenu would appear at Dharangaon Police Station on every Monday between 10.00 a.m. to 12 o'clock till the charge-sheet was filed. Later on, the detenu made an application before the Judicial Magistrate, First Class, Dharangaon seeking relaxation of the above condition. That application was allowed and the above condition was relaxed by the Judicial Magistrate concerned on 4-1-2011. 8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on 14-8-2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, First Class, Dharangaon much before the issuance of the detention order dated 10-1-2011. However, the detention order or the grounds supplied to the detenu do not show that the detaining authority was aware of the bail order granted in favour of the detenu on 15-8-2010. 9. In a case where the detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction. 10. In the present case, since the order of bail dated 15-8-2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority." (Emphasis Supplied) 27. From a conspectus of the judgments noticed above, the legal principle deducible is that if the detenue has already been granted bail, then the bail application as well as the bail granting order would be a relevant material if its contents would have a bearing on the subjective satisfaction of the detaining authority whether to pass the order of detention or not. Ordinarily, where bail application places facts or material that throws light on possibility of false implication and bail is granted by the court then in the facts and circumstances of that case it becomes a relevant material and its non-placement and non-consideration would vitiate the subjective satisfaction due to non application of mind on relevant material. Likewise, a speaking bail order dealing with or noticing various submissions that throw light on possibility of false implication would be considered relevant. Similarly, at times, conditions imposed for granting bail which may have material bearing on repeat of such activities, for prevention of which order of detention is contemplated, may also become relevant. Thus, in a nutshell, it could be summed up by observing that a bail application and a bail order would be relevant if the facts and circumstances of the case so justify. And if the facts do make them relevant then they must be supplied to the detaining authority and considered by him before issuance of the detention order. A failure in that regard would vitiate the subjective satisfaction. 28. Having noticed the legal position, we shall now examine, firstly, whether the bail application and the order granting bail to the petitioner in Case Crime No. 751 of 2017 (supra) was a relevant material; secondly, whether it was considered by the detaining authority before issuance of the order of detention; and, thirdly, if not considered whether the subjective satisfaction stood vitiated. 29. To answer first of the above three issues we have carefully perused the bail order, which has been brought on record as Annexure 2 to the writ petition of which there is no denial in paragraph 6 of the counter affidavit filed by the detaining authority. A perusal of the bail order reveals that this Court considered and allowed three bail applications by a common order dated 14.11.2018. The first bail application no. 21380 of 2018 was filed by co-accused Arun Yadav; the second bail application no. 19942 of 2018 was filed by the petitioner; and the third bail application no. 17413 of 2018 was filed by co-accused Sonu @ Dharam Dutt Sharma. The first bail application no. 21380 of 2018 was filed by co-accused Arun Yadav; the second bail application no. 19942 of 2018 was filed by the petitioner; and the third bail application no. 17413 of 2018 was filed by co-accused Sonu @ Dharam Dutt Sharma. The court while granting bail noticed the submissions that all the three applicants were not named in the first information report (for short FIR) dated 17.11.2017; that the FIR was lodged by a person who claimed himself to be an eye witness; that the informant named four persons and another in the FIR but, on 25.11.2017, changed his version thereby exonerating the named persons and implicating Arun Yadav (co-accused) and his brother Amit Yadav as suspects; thereafter, one Naresh Tevatia was arrested on 4.12.2017 who made confession about conspiracy with accused Arun Yadav and his driver Sonu. Upon their arrest a 9 mm pistol was recovered at the instance of Arun Yadav. Arun Yadav disclosed the names of shooters. Thereafter, on 21.12.2018, statement of one Sanjay was recorded who disclosed that 1 or 2 days prior to the incident he saw the petitioner along with other accused hatching conspiracy for murder. It was noticed that this witness was a witness of inquest but did not make any such disclosure earlier. After considering the entire case, the court while granting bail to all the three accused observed as follows: "I have given an anxious consideration to the submissions made by learned counsels of rival parties and learned AGA for the State. I may record that admittedly it is not disputed by prosecution that the applicants are not actual shooter/assailants and the accused who were nominated in the first information report were given a clean chit by the first informant and two other witnesses who are closely related to each other and the deceased Shiv Kumar. Name of the applicant-Arun Yadav and Sonu @ Dharam Datt Sharma came into light in the confessional statement of Naresh Tevatia who confessed that he along with other assailants were hired to slay deceased Shiv Kumar. Name of the applicant-Arun Yadav and Sonu @ Dharam Datt Sharma came into light in the confessional statement of Naresh Tevatia who confessed that he along with other assailants were hired to slay deceased Shiv Kumar. I may further record that the evidence on which the prosecution wants to place reliance is call detail report/screen shots of whatsapp of applicants and other accused to show that the applicants and other accused were in constant touch with each other and they were supplying information to the assailants regarding the movements of the deceased is only presumptive, inasmuch as, there is no surveillance report to substantiate this fact. The alleged 9 mm pistol recovered at the instance of applicant-Arun Yadav could not be connected with the present crime. The eye-witness account was washed off by the first informant and other witnesses. There is also no evidence about the participation of applicants in the present case. Considering the overall facts and circumstances of the case as also the submissions advanced by learned counsel for the parties, without expressing any opinion on merits of the case, I am of the view that the applicants are entitled to be released on bail." 30. From the above extract of the bail order it is clear that the court noticed the submissions made on behalf of the bail applicants doubting the credibility of the prosecution evidence against them and made observation that there is no evidence about the participation of applicants in the case. Under the circumstances, this bail order had the potentiality to influence the mind of the detaining authority whether to pass the detention order against the detenue. Hence, by all means the bail order was a relevant document/material which ought to have been placed as well as considered by the detaining authority before issuance of the detention order. 31. The second issue that arises for our consideration is whether this bail order was before the detaining authority and considered by it at the time of issuing the detention order. 31. The second issue that arises for our consideration is whether this bail order was before the detaining authority and considered by it at the time of issuing the detention order. In this regard it be observed that though there is no specific pleading in the writ petition that the bail order was not placed before the detaining authority but from the reply to paragraph 22 of the writ petition it appears that the detaining authority was not aware that the petitioner was granted bail inasmuch as in paragraph 22 of the writ petition, the petitioner had specifically stated that bail application was allowed on 14.11.2018, 21 days prior to the detention order but in the reply, as contained in paragraph 15 of the counter affidavit, the detaining authority stated that the bail application was pending. Further, if the detaining authority had cared to consider/peruse the common bail order passed in all the three bail applications including that of co-accused Arun Yadav he sure would have found that the petitioner has also been granted bail because the order itself indicates that it related to all the three accused. This clearly signifies that at the time of issuance of the detention order neither the detaining authority was aware that the petitioner has been granted bail in case crime no. 751 of 2017 (supra) nor he had applied his mind to the order granting bail to the petitioner. The second issue is decided accordingly. 32. Consequently, due to non application of mind on the relevant material, the subjective satisfaction of the detaining authority stood vitiated in the light of the law already noticed above. Once that is so, the detention order is rendered vulnerable and is liable to be quashed. The third issue is decided accordingly. 33. At this stage, we may also observe that in the grounds of detention there is reference of other cases also but those cases have not been referred to as grounds for the order of detention but for the purpose of disclosing the background of the detenue. Moreover, case crime no. 378 of 2018, P.S. Bisrakh, District Gautam Buddh Nagar, under sections 2/3 of the U.P. Gangsters (Prevention of Anti-Social Activities) Act, 1986, which has also been cited as one of the other cases against the petitioner, has been lodged by referring to previous involvement in other cases including case crime no. Moreover, case crime no. 378 of 2018, P.S. Bisrakh, District Gautam Buddh Nagar, under sections 2/3 of the U.P. Gangsters (Prevention of Anti-Social Activities) Act, 1986, which has also been cited as one of the other cases against the petitioner, has been lodged by referring to previous involvement in other cases including case crime no. 751 of 2017, therefore, it can safely be held that the detention order was based on a solitary ground pertaining to the activity of the petitioner concerning case crime no. 751 of 2017. Thus, if satisfaction on that ground gets vitiated, due to non-application of mind on relevant material relating to it, the detention order cannot be saved by applying the principle laid down in Section 5-A of the Act, 1980. 34. For all the reasons detailed above, this habeas corpus petition deserves to be allowed and is, accordingly, allowed. The detention order dated 05.12.2018 is hereby quashed. The petitioner shall be set at liberty forthwith unless wanted in any other case.