Syed Mohd. Nadeem Vs Superintendent, District Jail and Others

S.R. Singh, J.@mdashPetitioner-Syed Mohd. Nadeem, who is incarcerated in District Jail Agra, Having been detained under the National Security Act, 1980 (In short the (''Act'') has invoked the jurisdiction of this Court under Article 226 of the Constitution, canvassing the validity of the detention order dated 16-6-99 passed u/s 3(2) of the Act. The order dated 16-6-99 purports to have been passed by the District Magistrate, Agra u/s 3(2) of the Act with a view to preventing the detenu from acting in any manner prejudicial to the security of Nation/maintenance of supplies and services essential to the community.

2. The order of detention was executed the same day and approval thereto was accorded by the State Government on 24-6-99, which was communicated to the detenu on 26-6-99. The detenu preferred a representation dated 3-7-99 through the Jail Superintendent on 3-7-99 which was received by the District Magistrate on 4-7-99 and the latter sent It for onward transmission to the Central Government and the State Government on 5-7-99. The presentation was received by the State Government on 6-7-99 and the same day, it was forwarded to the Advisory Board and ultimately it came to be rejected on 8-7-99 of which information was given to the detenu on 10-7-99. The presentation to the Central Government which was forwarded by the District Magistrate on 7-7-99, was placed before the under-secretary, on 12-7-99 and before the Joint Secretary on 13-7-99 and it came to be rejected by the State Minister, Home Affairs, Government of India, on 4-7-1999.

3. The facts anteceding the passing of the detention order under challenge as unfolded in the grounds of detention (Annexure 2 to the writ petition) may be dwelt upon and they are that on 30-3-1999, Rajendra Singh, Inspector In-charge, Police Station Sadar Bazar on being passed on information by the Informer, arrested Bal Kishan and Naseer Uddin near Cantt. Railway Station Agra and their search yielded counterfeit currency notes to the tune of Rs. 2500/ - and Rs. 4000/- respectively, each of the denomination of Rs. 100/-. On being interrogated the accused persons made the disclosure that it was petitioner who was behind printing counterfeit currency notes. The police party returned to the Police Station and after making requisite entry at 12.20 p.m.. on 30-3-99 in the general diary, it set out for Aligarh and thereon the pointing out of the accused persons, descended at a Printing press known as ''Lucky Press'' situate in Mohalla-3, Aminisha, Police Station Civil Lines, Aligarh where the petitioner was present; on seeing the petitioner, the accused Naseer Uddin divulged to the Police that it was the man who had supplied counterfeit currency notes to him. Thorough search of the press yielded recovery of 35 wads of fake currency notes each of the denomination of Rs. 100/- stuffed in a Safari brief-case and each wad had the fake currency notes of the value of Rs. 10,000/-. The entire search yielded recovery of fake Indian currency notes to the tune of Rs. 3,50,000/ Besides currency notes, coins of the denomination of Rs. 5/-; equipments used for coining and stamping the metal, some semifinished coins, one hundred US dollars, negatives of 100 rupee notes, negative of five rupee coin, printed blank diploma sheets of A.M.U. and several other printed blank sheets, the details of which are delineated In the grounds of detention were also recovered during the search of the premises.

4. Validity of the impugned detention order dated 16-6-99 and unabated detention pursuant: thereto, has been assailed basically on three grounds; first, that the order of detention suffers from the lack of power inasmuch as the District Magistrate was vested with no jurisdiction to pass an order of detention u/s 3(2) of the Act for preventing the detenu from acting in a manner prejudicial to the security of the Nation; second, that the order of detention has been passed in a perfunctory and mechanical manner sans application of mind; and third, the relevant materials and documents were not placed before the detaining authority as sequel thereto the subjective satisfaction of the detaining authority was impaired and consequently, the order of detention suffers from the vice of infringement of Article 22(5) of the Constitution.

IN RE-LACK OF JURISDICTION

5. It has been canvassed by Sri Daya Shanker Misra, learned counsel appearing for the detenu that the District Magistrate was bereft of jurisdiction to detain a person for maintenance of the security of Nation and since one of the twin objectives sought to be accompanied by the impugned order of detention was the security of Nation - an objective the attainment of which was beyond the periphery of the power vested in the District Magistrate by virtue of notification No. 111/1/1/80-C X-7 dated Lucknow, March 7, 1999 issued u/s 3(3) of the Act, the whole order of detention gets tinged with lack of jurisdiction. To rephrase it, it has been canvassed by Sri Misra that though the District Magistrate could pass an order of detention with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, he lacked jurisdiction to pass an order of detention with a view to preventing the detenu from acting in any manner prejudicial to ''security of the Nation'' which objective could be attained only by passing an order of detention by the Central Government or the State Government as comprehended by Sub-section (1) of Section 3 of the Act. Sri Mahendra Pratap learned Addl. Government Advocate representing the State made no bones in submitting that though it was not within the competence of the District Magistrate to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the security of India and for that purpose the Security of Nation but the order of detention could still be sustained since the other objective sought to be achieved by detaining the petitioner was well within the power of the District Magistrate u/s 3(2) of the Act. The learned Addl. Government Advocate urged with vehemence that the order of detention in so far as it is relatable to the maintenance of supplies and services essential to the community could be sustained on the basis of the grounds of detention as referred to in Annexure 2 and the mere fact that the District Magistrate passed the order of detention also for purpose of preventing the detenu from acting in a manner prejudicial to the security of the Nation, would not render the order of detention void. To give prop to this submission, the learned Addl. Government Advocate placed reliance on Section 5-A of the Act. The learned Addl. Government Advocate further submitted that after the order of detention was accorded approval by the State Government, it would be deemed to have been passed by the State Government and hence the order of detention can be sustained with reference to maintenance of the security of the Nation as well.

6. Section 3 of the Act, which confers power to detain a person without trial, reads as under :

3. Power to make orders detaining certain persons.- (1) The Central Government or the State Government may,-

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the security of India, or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation.- For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to Sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (2), exercise the powers conferred by the said sub-section :

Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government :

Provided that where u/s 8 the grounds of detention are communicated by the officer, making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.

7. It would be evident from the provision aforestated that Sub-section (1) (a) of Section 3 gives power to the Central Government or the State Government to detain a person preventively without trial for purposes specified therein namely, "defence of India" or "relations of India with foreign powers" or "security of India". In the present case, the District Magistrate has not employed the expressions "defence of India" or "security of India" in the order of detention. Rather, he has made use of the words "Rashtra Ki Suraksha" (Security of the Nation) in the order of detention as also in the grounds of detention. Section 3(1) of the Act does not use the expression ''security of Nation'' an expression used by the detaining authority in the order of detention. However, when measured by common understanding, the expression "security of Nation" is understood to be synonym with "security of India". Concededly, the District Magistrate has no power to detain a person under the Act for security of India. An order of detention passed by the District Magistrate u/s 3(2) for security of the Nation would fall beyond his jurisdiction even if the objectionable act of the detenu is held to be prejudicial to the security of India inasmuch as by virtue of the notification issued under Sub-section (3) by the State Government, the District Magistrate, has been ceded the power to detain a person without trial on being satisfied that it is necessary so to do with a view to preventing such person from acting in any manner prejudicial to (a) to the security of the State or (b) the maintenance of public order, or (c) maintenance of supplies and services essential to the community.

8. The validity of the impugned order of detention may, however, be scanned on the anvil of the second objective i.e. maintenance of supplies and services essential to the community sought to be achieved by detaining the petitioner. It has been submitted by the learned Additional Government Advocate that on the basis of the material facts produced before the detaining authority and conclusions drawn by it, the impugned order of detention can be given the veneer of being justifiable under the category "maintenance of supplies and services essential to the community" and by this reckoning, it is sustainable in law in view of Section 5-A of the Act If it is not impaired on any other ground. For the detenu, the contention pressed into service is that Section 5-A of the Act would not come into play where the order of detention is partly without jurisdiction as in the instant case. Answer to the question would fall back upon the scope and ambit of Section 5-A, which reads thus :

5-A. Grounds of detention severable.- Where as person has been detained in pursuance of an order of detention (whether made before or after the commencement of the National Security (Second Amendment) Act, 1984) u/s 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid for any other reason whatsoever,

and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.

9. The word "grounds" used in Section 5-A comprehends at least three things : (1) the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which the order is based Khudiram Das Vs. The State of West Bengal and Others, ; (ii) the conclusions drawn by the detaining authority from such facts and materials; and (iii) the object or objects sought to be achieved by the order of detention i.e. the category under which the power of detention may be exercised. In fact, the conclusions drawn by the detaining authority from the available facts and materials will show in which of the categories of the prejudicial acts mentioned in the statute the suspected activity of the detenu falls The State of Bombay Vs. Atma Ram Sridhar Vaidya, . The object of making an order of detention u/s 3(2) of the Act is to prevent the detenu from acting in any manner prejudicial to the ''security of the State'' or from acting in any manner prejudicial to the maintenance of ''Public order'' or from acting in any manner prejudicial to the ''maintenance of supplies and services essential to the community'' and each of the three categories aforestated is an independent constituent of "grounds" besides being the object of detention. "Security of India" and for that purpose "security of Nation"-the expression used by the detaining authority may be "irrelevant" for exercise of power by the Distt. Magistrate under Sub-section (2) of Section 3 of the Act but the order of detention in so far as it seeks to prevent the detenu from acting in any manner prejudicial to the ''maintenance of supplies and services essential to the community'' would still be valid in view of Sub-clause (b) of Section 5-A of the Act. Though the order of detention purports to have been passed with a view to preventing the detenu from acting in any manner prejudicial to "the security of Nation/maintenance of supplies and services essential to the community". It is sought to be vindicated herein on the premises that it was passed on being "subjectively satisfied that the activities of the petitioner are prejudicial to the security of the State and prejudicial to the supplies and services essential to the community." Legal position in this respect is well settled. Validity of an order is to be tested on the touchstone of the reasons given in the order itself and not with reference to reasons subsequently disclosed by means of affidavit. Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . The reason of "security of the State" as given in the counter affidavit for passing the impugned order, therefore, cannot be accepted by the Court. We are, however, of the view that albeit the District Magistrate had no jurisdiction to detain the petitioner on the reason of the security of Nation, and the reason of the security of the State unfolded in the counter affidavit cannot be looked into except on pains of infringing upon the detenu''s right to make representation enshrined in Article 22(5) of the Constitution, the detention can still be sustained by virtue of Section 5-A(2) of the Act, for the reasons of the maintenance of the supplies and services essential to the community, for it has not been disputed and in fact it cannot be repudiated that in view of Government of India notification dated 8-2-82, "any service in connection with or in relation to Bank'' and ''any service in any Mint or security press'', come within the purview of ''supply and services essential to the community'' for the purposes of Section 3(2) of the Act. In Habeas Corpus Petition No. 38772 of 1999, Ravindra Kumar Agraheri v. Union of India decided on 15-12-99 reported in ( 2000 Cri LJ 436, a Division Bench of this Court in which one the us (Hon. V. K. Chaturvedi) was a member, has held the view that the objectionable activity of the type we are concerned with, will constitute a basis for making an order of detention with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

IN RE NON-APPLICATION OF MIND

10. The second ground of challenge to the validity of impugned order of detention is that it has been made in a perfunctory and mechanical manner having element of automatism sans application of mind. It has been submitted by Sri D. S. Misra, appearing for the petitioner that the detaining authority failed to apply its mind as to whether the prejudicial activities brought the case under the category of ''National security'' or ''security of State'' or ''public order'' or "supplies and services essential to the community'' as would be evinced from the expression "Rashtra Ki Suraksha Ke Anurakshan/ Samudaye Ke Liye Avashyak Pradaye Evam Sevayon Ko Banaye Rakhne Ke Pratikool" occurring in the order of detention. It is not clear from the order of detention as to whether disjunctive ''or'' was intended to be used in between the two categories of ''National security'' and ''maintenance of supplies and services essential to the community'' or, conjunctive ''and''. The averments made in para 3 in the counter affidavit of P. K. Mahanti, District Magistrate Agra encapsulates self-contradictory statement in that though it is denied therein that the order of detention has been passed with a view to preventing the petitioner from acting In a manner prejudicial to the "security to the State" but later on, in the same paragraph, it has been averred by the detaining authority that he was "subjectively satisfied that activities of the petitioner are prejudicial to the security of the State and prejudicial to the supplies and services essential to the community". The use of the words ''Rashtra Ki Suraksha'' in the detention order and the ground of detention, it is submitted, also demonstrates casualness on the part of the detaining authority in making the order of detention. The submissions of the learned counsel are loaded with substance. The grant of power of detention u/s 3 of the Act is couched in a subjective language. Subjective satisfaction of the detaining authority as to the expediency or necessity of making an order of detention will be vitiated on the ground, inter-alia that the authority "has misdirected itself by applying a wrong legal test to the question, or by misunderstanding the nature of the matter in respect of which it has to be satisfied -DE SMITHS JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (4TH EDN.) BY EVANS PAGE 363. Activities prejudicial to the security of India or the security of a State carry distinct connotations and are not capable of any precise definition. As observed by the Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, , it is difficult to enwrap the concepts underlying the expressions aforesaid "within the strait jacket of a definition". While the expression "defence of India" when measured by common under standing, will mean "defence of India from external aggression", "security of India" and "security of a State" are the expressions of much wider connotation and may be threatened even by armed rebellion e.g. P.A.C. revolt in the State of Uttar Pradesh or any other act potentially prejudicial to the security of the State or prejudicial to the .Security of India e.g. the manner of demolition of the Babri Masjid in Ayodhya was potentially prejudicial to the security of India though the event occurred in the State of Uttar Pradesh, Security of India or security of a State may be threatened not only by reasons aforestated but by reason of economic destabilisation as well. In Attorney General for India and Others Vs. Amratlal Prajivandas and Others, , it has been, held : "In the modern world, the security of a State is ensured not so much by physical might but by economic strength - at any rate, by economic strength as much as by armed might ". An order of detention u/s 3 of the Act on security related grounds will be vitiated if the detaining authority eschews addressing itself as to the expediency or necessity of making the order of detention after proper understanding of the nature of the matter in respect of which it has to be satisfied i.e. the category under which the detention is needed.

11. In Kishori Mohan Bera Vs. The State of West Bengal, , an order of detention was passed, on the detaining authority being satisfied that it was necessary so to do with a view to preventing the detenu therein from acting in a manner prejudicial to the maintenance of the ''public order'' or ''security of the State. It was urged before the Supreme Court that the use of the expression "the maintenance of public order or the security of the State" was a pointer to the fact that the detaining authority did not apply its mind with any seriousness either to the acts in the ground of the detention or to the question whether the objectionable act was held within the purview of the expression "the security of the State" or "the maintenance of public order" or both. The Supreme Court held that an act may be potentially prejudicial to the ''public order'' and at the same time, it may be prejudicial to the ''security of the State'' as well as in such a case, the power could be exercised on both the grounds namely, disturbance of public order and danger to the security of the State but if the satisfaction of the detaining authority emanated from disjunctive and not on conjunctive ground, it would mean that the detaining authority was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detention on the ground of danger to the public order or danger to the security of the State. On the language used in the order of detention it was held that the detaining authority was either not certain whether the alleged activities of the petitioner endangered the ''public order'' or ''security of the State'' or he did not seriously apply his mind on the question whether the alleged activities fell under one head or the other and merely reproduced the language of the statute and accordingly, the language in which the impugned order of detention was couched, demonstrated ''an element of casualness'' with which it was made.

12. In Jagannath Misra Vs. State of Orissa, , the order of detention was passed on six grounds but in the counter affidavit, it was sought to be justified on the ground that the activity of the detenu therein was prejudicial to the safety of India and maintenance of public order. The Supreme Court held that though a person can be detained on six out of seven possible grounds, but if that is done it is necessary that the authority detaining a citizen should be satisfied about each one of the grounds that the detention is necessary thereon and if the order of detention mentions a large number of grounds but the authority concerned did not apply its mind to all these grounds before passing the order, there can be no doubt in such a case that the order was passed without applying mind by the authority concerned to the real necessity of detention. Such discrepancy between the ground mentioned in the order and the ground set out in the affidavit of the authority concerned can only evince an amount of casualness in passing the order of detention against the provisions of law. In the present case the use of the word "Rashtra Ki Suraksha'' in the impugned order and in the grounds of detention is inconsistent with the stand taken in the counter affidavit filed by the detaining authority. The District Magistrate appears to be whirling in ambiguity about the scope of his jurisdiction u/s 3 of the Act and about the category under which the detention was necessary. The self-contradictory stand taken in the counter affidavit evinces non-application of mind and debunks detaining authority''s lack of proper perception of the subject matter in respect of which it had to satisfy itself as a condition precedent to exercise of power u/s 3(2) of the Act. That apart the satisfaction part of the "grounds'' of detention goes to show that the detaining authority was satisfied as to the necessity of detaining the petitioner in order to prevent him from acting in any manner prejudicial firstly, to the security of Nation (Rashtra Ki Suraksha); secondly, to the maintenance of supplies and services essential to the community; and thirdly, to the maintenance of satisfactory economic order of the Nation little realising that the first of the aforesaid objects was beyond the amplitude of Section 3(2) and the third one by itself is not one of the three objectives of preventive detention comprehended by Section 3(2) of the Act though an act prejudicial to maintenance of satisfactory economic order may imperil the security of a State. The subjective satisfaction of the detaining authority is in the circumstances, vitiated and impugned order suffers from the vice of ''casualness'' or non-application of mind.

13. The subjective satisfaction of the detaining authority as to the need of the petitioner being detained u/s 3(2) of the Act is marred also by reason of the fact that sponsoring authority came a cropper to place all the relevant and vital materials and documents before the detaining authority. As delineated hereinabove, Section 3 of the Act is although formulated in a subjective language but the Courts have consistently held that subjective satisfaction of the detaining authority will stand vitiated if relevant and vital materials are not produced before the detaining authority at the time of passing of the detention order. In Ayya alias Ayub v. State of U.P. JT (1988) 4 489 : AIR 1989 SC 463, the law on the point has been stated thus (Para 13 of AIR)

There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention.

In Ahamed Nassar Vs. The State of Tamil Nadu and Others, , the same principle has been echoed in the following words (Para 20 of AIR).

A man is to be detained in the prison based on subjective satisfaction of the detaining authority. Even conceivable material which is relevant and vital which may have bearing on the issue should be placed before the detaining authority. Sponsoring authority should not keep it back based on his interpretation that it would not be of any help to a prospective detenu. 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.

14. In the instant case, the telegram dated 30-3-1999 sent by the wife of the detenu to the Sr. Supdt. of Police, Aligarh, copy of the bail application filed by the co-accused-Nasir Uddin and the parawise comments thereto were admittedly not placed before the detaining authority as would be borne out from the averments made in the counter-affidavit filed by the detaining authority. These documents were, in our opinion, relevant and vital in that the telegram contains the very stand of the detenu and the bail application of Nasir Uddin, it is said, contains retraction of his confessional statement implicating the detenu and these documents could reasonably have impact on the decision of the detaining authority as to the necessity and expediency of detaining the petitioner. In the telegram it has been alleged that the detenu was arrested from his house at 9 a.m. on 30-3-1999 whereas according to the police record of P. S. Sadar Bazar Agra in case Crime No. 322 of 1999, the arrest is said to have been made at 5 p.m. at Aligarh. According to the grounds of detention, the detenu along with co-accused Naseer Uddin together with fake currency notes, fake certificates, fake coins and equipment etc. was brought in custody at Agra where report No. 36 was scripted at 16.45 hrs. on 30-3-1999. In the counter-affidavit, the detaining authority articulates that it was due to ''typing error'' that time ''has been written as 16.45 hrs. It should have been 19.45 hrs.'' The telegram was addressed to the Sr. Supdt. of Police, Aligarh and there is no denial that it was not received at the end of the addressee. All that has been said by the detaining authority in para 7 of the counter-affidavit is that "neither the said telegram has been sent to the deponent nor it has been placed by the petitioner before the deponent nor the contents of the said telegram has been verified by moving another application before the deponent." It cannot be repudiated that the telegram was a pivotal/relevant material and if it has been received by the Sr. Supdt. of Police, the latter ought to have placed it before the detaining authority. The onus lay on the respondent to show that the telegram was not at all received in the office of the Sr. Supdt. of Police. In the normal course of business, it would be presumed that the telegram must have been received by the addressee and, therefore, failure on the part of the sponsoring authority to produce the said telegram before the detaining authority would impair the decision of the detaining authority. Similarly bail application moved by the co-accused-Naseer Uddin in case Crime No. 322 of 1999 and the comments received thereon were also relevant in that co-accused-Naseer Uddin is to said to have denied the alleged recovery of fake currency notes from his possession and also the alleged confession made by him that fake currency notes were given to him by the detenu. Copy of the telegram sent by the detenu''s wife to the Sr. Supdt. of Police is said to have been annexed to the bail application filed by the detenu in the High Court but it appears that the sponsoring authority placed only a copy of the bail application and held back the annexures thereto including the telegram. Non-placement of these documents before the detaining authority is in our opinion fatal to the decision as to the need of detaining the petitioner for maintenance of supplies and services essential to the community and this is a serious error in the decision-making process which vitiates the ultimate decision.

15. Sri Mahendra Pratap learned Addl. Govt. Advocate cited Full Bench decision of this Court in Chandresh Paswan v. State of U.P. (1999) Cri LJ 721 : 1999 ALJ 1167 to buttress his contention that non-placement of the telegram, the bail application of the co-accused-Naseer Uddin and comments thereon, would not render the order of detention vitiated. The Full Bench held as under (Para 63 of All LJ) :

There is no quarrel with the legal position that all the relevant facts and circumstances should be taken into account by the detaining authority which may have bearing in forming the subjective satisfaction but in the pecutiar facts and circumstances of the present case, we are of the view that as the respondents were not possessed of the documents, there was no question for consideration by the detaining authority. On record, there was sufficient material for forming the subjective satisfaction for passing an order of preventive detention against the petitioner and non-consideration of the writ petition would not vitiate the order. It is to be sent in the facts of each case whether non-consideration of the alleged facts would vitiate the order or not.

It would thus be eloquent that it was in the ''peculiar facts and circumstances'' of that case that the Court found that ''non-consideration of the writ petition would not vitiate the order.'' In the present case, as we have seen, the telegram sent by the detenu''s wife was relevant and vital in so far as time and place of arrest are concerned and the bail application filed by the co-accused-Naseer Uddin, was relevant in that it contained his denial of the confessional prosecution statement allegedly made at the time of his arrest that fake currency notes were recovered from him and that he had received the same from the detenu. It cannot therefore, be said that these documents were not relevant to formation of subjective satisfaction required u/s 3(2) of the Act. The other case relied upon by Sri Mahendra Pratap is N. Meera Rani Vs. Government of Tamil Nadu and Another, . That case too, in our opinion has no application to the facts of the present case in that it was held by the Supreme Court in that case that newspaper reports therein that detenu was already in custody was not relevant in that it could at best be relevant only to show the fact that he was already in detention prior to the making of the detention order and if not placed before the detaining authority would not vitiate its satisfaction. The newspaper report therein cannot stand on the same pedestal as a telegram and the bail applications.

16. The petition therefore succeeds and is allowed. The impugned orders of detention as also the continued detention of the detenu are quashed. The respondents are directed to set the petitioner at liberty forthwith if he is not wanted in any other case.