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TMI Blog1987 (3) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... r before this Court by the Union of India. Though an application for stay was moved, this Court declined to grant stay but passed an order on the 1st May, 1975 imposing certain conditions on the movement of Ramlal Narang. On 25th June, 1975, Emergency was declared. On 1st July, 1975, a fresh order of detention was passed against Ramlal on the same facts grounds. In the meantime the appeal filed by the Union of India against the order of the Delhi High Court relating to the earlier order of detention, was dismissed by this Court in 1977, for want of prosecution. Ramlal was detained under the second order. A relative of his, filed Writ Petition No. 115 of 1975, in the Delhi High Court, challenging this detention. That petition was dismissed on 25th November, 1975. 3. An appeal was filed by Certificate, against that order before this Court as Appeal No. 399 of 1977. In the meanwhile, notices under Section 6 & 7 of the SAFEMA were issued against Ramlal. These notices were challenged by him by filing Writ Petition No. 720 of 1975, in the Delhi High Court. Subsequently, this Court took up Appeal No. 399/75 and disposed it of saying that it would be open to the petitioner to raise a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per order dated 8th July, 1980. The appeal filed against that order before this Court was dismissed on 4th November, 1980. 6. The notice under challenge in this appeal was issued to the respondent under Section 6 of the SAFEMA with the aid of Section 2 of the Act. Section 2 reads as follows : " 2. Application. - (1) The provisions of this Act shall apply only to the persons specified in sub-section (2). " sub-section (2), relevant for our purpose, reads as follows : "(2) The persons referred to in sub-section (1) are the following, namely :- (a) ........................................ (b) ....................................... (c) every person who is a relative of a person referred to in clause (a) or clause (b) (d) ....................................... (e) ........................................ Explanation 2. states "For the purposes of clause (c) 'relative', in relation to a person, means :- ........................................ (ii) brother or sister of the person; ........................................ 7. The learned counsel for the respondent contended that the respondent could challenge the order of detention against his brother, to get th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he will inform the police as to when he is leaving for Bombay and when he will arrive at Bombay. Certified copy of the judgment impugned shall be filed as soon as possible." It is not disputed that the detenue Ramlal was reporting to the officer-in-charge of the Bandra Police Station, Bombay regularly, in due compliance with the above order passed by the Supreme Court. 9. We have already adverted to the fact that proceedings against the respondent taken under SAFEMA were abandoned after the order of this Court on the 4th November, 1980. It was nearly 3 years later, on 29th October, 1983, that the proceedings, from which this appeal arises, were initiated under Section 6 of SAFEMA on the basis of the detention order dated 1st July, 1975, issued against Ramlal. It is necessary to bear in mind that on 1st July, 1975, when the order of detention against Ramlal was passed, the authorities had before them the order of this Court, extracted above, dated 1st May, 1975. By this order Ramlal was permitted to be at large on condition that he will report to the Police Station as mentioned therein. It cannot be disputed that this order of the Supreme Court is a relevant material for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authorities for the purpose of issuance of a detention, order. The content of the paragraph refers to such proceedings which are not required to be collected by the detaining authority from such authorities or courts.]" 11. We are not very happy with the manner in which this important contention has been met in the Counter Affidavit. An order of this Court is not an inconsequential matter. It cannot be assumed for a moment that the detaining authority or the sponsoring authority did not know, at the time the detention order was passed, that this Court had refused stay of the Judgment of the Delhi High Court and that Ramlal was allowed freedom of movement subject to certain conditions. It is to be regretted that the portion extracted above from the Counter Affidavit (shown in bracket) betrays an attitude, to put it mildly, that lacks grace. Be it understood that the bracketted portion was made to meet a case that there existed an order of this Court which was a relevant and vital material. We can use stronger language to express our displeasure at the manner in which reference was made indirectly to this Court's order but we desist from doing so. If the sponsoring authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aluminum 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." 14. Then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention and also to see whether the confessional statements recorded were voluntary statements or were statements obtained from the detenue under duress and also whether the retracted confession was in the nature of an after-thought." On the facts of this case, by way of reiteration, we wish to state that the facts that Ramlal was detained, that he had undergone substantive period of detention did not weight with this Court when the above order was passed, which clearly indicated that this Court felt that there was no need to detain him further pending appeal. 17. In Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Ors., - 1983 (2) S.C.C 392, a Constitution Bench of this Court had to deal with a somewhat similar situation. There, one of the grounds of detention on which the appellant before this Court was detained was the same as the one on which one Shamsi was detained. The Advisory Board had reported that there was no sufficient cause for Shamsi's detention. A case was pleaded before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration is not whether the detaining authority would have been justified in passing the order of detention against the petitioner, even after being apprised of the opinion of the Advisory Board in Shamsi's case. The question is whether the order of detention was passed in this case after applying the mind to the relevant facts which bear upon the detention of the petitioner. It seems to us plain that the opinion of the Advisory Board in Shamsi's case was, at any rate, an important consideration which would and ought to have been taken into account by the detaining authority in the instant case. That opportunity was denied to it." 19. The Constitution Bench has in unambiguous terms outlined the scope of the doctrine of the application of mind and the purpose behind it, in the above observation. 20. In a recent case, Sita Ram Somani v. State of Rajasthan and Ors. - 1986 (2) S.C.C 86 to which one of us was a party, it was held that non-application of mind about the bail applications of the detenue in pending criminal case and his applications to the Collector of Customs, informing him that he had retracted his earlier confessional statements not having been placed before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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