P.K. Misra. J
1. The wife of the detenu has filed this Habeas Corpus Petition. The detenu has been detained as a "Video Pirate" under the Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982). Such order of preventive detention was passed by the second respondent District Collector on 26.4.2006.
2. In support of the petitioner, it has been asserted that without considering the bail application filed on behalf of the detenu, the detaining authority has come to the conclusion that the detenu "... has moved bail application before the Judicial Magistrate No. 1 Court, Thanjavur in Cr.M.P.No.-2565*/2006 and the same is pending" (* The number 2565 is written in the order in ink). It has been further submitted that in the absence of cogent materials, the detaining authority should not have come to the conclusion that the detenu was likely to be released on bail and such inference should be based on material on records and should not be mere ipse dixit of the detaining authority. Besides the above contention, the petitioner has also raised the question of non-application of mind and the fact that in the grounds of detention the number relating to Cr.C.P. for bail application had been filled up in black colour ink, which would indicate that such application was not placed before the detaining authority. It has been further submitted that such bail application has not been included in the booklet which had been supplied to the detenu.
3. In the counter affidavit initially filed, the detaining authority has stated:
5) Regarding the averments contained in ground 4(b) of the affidavit, it is submitted that while comparing the fair copies along with the office copies it has been found that the Cr.M.P.No. deferred and hence forth it was corrected and written in hand. The second respondent after verifying the bail petition filed by the detenu, arrived at a subjective satisfaction that he may be released on bail by the same court or the higher courts as the case may be as the commission of offence committed by the detenu is a bailable one. In the adverse cases, he filed bail application like this, came out on bail and again he had acted in a prejudicial manner. Hence this contention is also a baseless one.
(Emphasis added by us)
It has been further stated:
9) Regarding the averments contained in ground 4(f) of the affidavit, it is submitted that the second respondent signed the fair copies in his own hand writing. The date of approval, number and bail application number were filled up by his subordinate in ink in the presence of the second respondent. Hence the contention of the petitioner is totally baseless.
4. In course of hearing, a further counter affidavit has been filed on behalf of the detaining authority, wherein it has been further indicated:
4. I submit that regarding the non enclosure of bail application in Crl.M.P.No. 2565 of 2006 for ground case in Crime No. 30/2006, I deny the allegation that the above said application was not brought to the knowledge of the Detaining Authority before passing the detention order. The above said Bail Application was brought to the knowledge of the detaining Authority and it was also mentioned in the Grounds of detention in Para 5. Further I state that the grounds raised by the detenue in his bail application was a routine one and there was no new ground raised by the detenue as already submitted in the earlier two cases by the detenue. Further the bail Application was more or less in a printed form nature. Therefore I deny that the bail application was not brought to the knowledge of the Detaining Authority and after fully satisfied the reasons submitted by the sponsoring authority and then the order was passed.
5. From the above materials as well as the submissions made during hearing of the case, it is apparent that the detaining authority claims that copy of the bail application numbered as Crl.M.P.No. 2565 of 2006 relating to Crime No. 30/2006 had been placed before the detaining authority and on the aforesaid basis, the detaining authority had come to the conclusion that there was every possibility of the detenu being released on bail. In other words, by the own admission of the detaining authority, the bail application filed on behalf of the detenu was a document relied upon by him to come to a subjective satisfaction that the detenu was likely to be released on bail in Crime No. 30/2006. In the original counter affidavit it has been further claimed:-
... The second respondent after verifying the bail petition filed by the detenu, arrived at a subjective satisfaction that he may be released on bail by the same court or the higher courts as the case may be as the commission of offence committed by the detenu is a bailable one.
6. If the bail application was actually placed before the detaining authority and on that basis the detaining authority came to the conclusion that the detenu was likely to be released on bail, such document being a relied upon document, should have been furnished to the detenu. Admittedly such document has not been furnished to the detenu as it did not form part of the booklet. This assumes more significance in the background of the admitted fact that two earlier bail applications filed in connection with adverse cases referred to in the grounds of detention, namely, the bail applications relating to Thanjavur West P.S. Cr.No. 535 of 2005 and bail application filed in connection with Thanjavur West P.S. Cr.No. 112 of 2006 had been furnished to the detenu. When the copies of the bail applications in respect of the adverse case, wherein the detenu had already been released on bail, had been furnished, it is not understood as to why the copy of the bail application relating to the ground case, which was admittedly pending at the time of passing the detention order, was not furnished to the detenu. This would indicate either such bail application was not physically available before the detaining authority when the detention order was passed or copy of such bail application, if available and relied upon by the detaining authority, has not been furnished to the detenu. In either case, this would have the effect of vitiating the order of detention as clearly enunciated by the Supreme Court in
7. 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
(Emphasis added)
7. Apart from the above, the stand taken in the original counter affidavit to the effect that the alleged offence committed by the detenu was bailable itself reflects the non-application of mind on the part of the detaining authority to a vital aspect, namely, whether the detenu was likely to be released on bail. It is evident that the offence allegedly committed by the detenu was a non-bailable offence. The essential distinction between a bailable offence and a non-bailable offence is that in the case of former, bail would be granted as a matter of course, if the arrested person is willing to furnish bail; whereas in the latter case, it is the discretion of the court considering the application u/s 437 or 439 Cr.P.C., as the case may be, to grant bail or not, which would obviously depend upon the facts and circumstances of each case. It is no doubt true that even in a non-bailable case, an accused can be released on bail, but whether he would be so released would depend upon various circumstances of the- case and it cannot be assumed that he shall be so released as a matter of course. The very stand taken by the detaining authority in the counter affidavit clearly reflects that he was labouring under the erroneous impression that the alleged offence was bailable which obviously prompted the detaining authority to come to the subjective satisfaction that the detenu was likely to be released on bail. It cannot be assumed by us at this stage that if the detaining authority would have known that one of the offences was non-bailable, he would have come to very same conclusion regarding the imminent possibility of the accused being released on bail. In our considered opinion, this clearly indicates the non-application of mind on the part of the detaining authority.
8. Learned Counsel appearing for the State has placed reliance upon the decision of the Supreme Court reported in (2006) 2 SCC (Cri) 90 (Sunila Jain v. Union Of India and Anr.). In the said case, non-supply of a copy of the bail application was raised as a contention for setting aside the order of detention. The Supreme Court came to the conclusion that non-supply of copy of the bail application in the facts and circumstances of the case did not have the effect of vitiating the order of detention.
9. A perusal of the aforesaid decision makes it amply clear that as a matter of fact at the time when the detention order was passed, the detenu had already been released on bail in the said case and the fact that he was so released was apparent from the order of detention and as a matter of fact a copy of the order releasing the detenu on bail had been furnished. In the above peculiar circumstances, the Supreme Court came to the conclusion that non-furnishing of copy of the bail application was immaterial. It may be noticed that in the said case the Supreme Court has not purported to differ from the decision reported in (1990) 2 SCC 1 (cited supra), but merely distinguished the case on the facts and circumstances of the case before the Supreme Court.
10. As already analysed by us, in the facts and circumstances of the present case, non-furnishing of copy of the bail application to the detenu has the effect of vitiating the order of detention either because such application was not before the detaining authority or even if the application was relied upon, copy thereof was not furnished. Moreover, as emphasised by us, the fact that the detaining authority was labouring under an erroneous impression regarding the nature of the offence has also the effect of vitiating the order of detention.
11. For the aforesaid reasons, the present Habeas Corpus Petition is bound to succeed and accordingly the order of preventive detention is quashed and the detenu is directed to be set at liberty forthwith from the detention, unless his presence is required in connection with any other case. The prayer made in HCMP.No. 14 of 2006 for grant of compensation is rejected as no case has been made out for grant of any compensation.
