B.V. Chavan, J.
1. By this writ petition under Article 226 of the Constitution of India, the petitioner, who is the brother of the detenu Sanjiv Naik has challenged the detention order dated 16.10. 91 issued by respondent No. 1 and confirmed by respondent No. 2 vide order dated 18.10.91 and has prayed that the detenu be released from detention.
2. The relevant facts, which give rise to this writ petition are : The detenu was arrested on 27.9.91 in connection with an incident of assault on one Anthony Fernandes a reporter of a local news-paper by name 'Herald'. The offences charged were under sections 143, 147 and 307 I.P.C. On behalf of the detenu on 30.9.91, an application for bail was made to the Sessions Court. The learned Sessions Judge rejected the said application on 1.10.91. A second bail application dated 9.10.91 on behalf of the detenu also came to be rejected on 10.10.91. Thereafter a fresh bail application came to be presented on 14.10.91 in this Court. While the said application for bail was pending, on 16.10.91, respondent No. 1 passed the detention order under sub-section (2) of section 3 of National Security Act, 1980, ordering detention of the detenu in the Sub-jail Reis Magos.
3. The State Government approved the said detention order on 18.10.91. The detenu made representation to the Advisory Board, Central Government, State Government as well as the Detaining Authority on 19.11.1991. In view of the detention order, the bail application filed in the High Court came to be withdrawn on 18.10.91. The representations made on behalf of the detenu came to be rejected on 22.11.91 by the State Government as well as the Detaining Authority. The State Government confirmed the detention order on 30.11.91 As regards his representation to the Central Government, it came to be rejected on 10.12.91. It is thereafter that the petitioner, who is the brother of the detenu filed the present writ petition in this Court on 17.1. 92. Challenging the said detention order on several grounds.
4. We have heard the counsel for the petitioner Shri Desai as well as Shri Bhobe the learned Public Prosecutor as length. In our view, the present writ petition can be disposed of on a narrow ground of non-application of mind and denial of opportunity to make effective representation to the detenu by not furnishing certain documents and thereby violating the provisions of Article 22(5) of the Constitution of India.
5. In the petition, a specific ground has been taken. In para 11 sub-para (xvi) as to how the bail applications presented on behalf of the detenu in the criminal case pending against him came to be rejected and now at the material time, his application for bail was pending in this Court. It is stated in the said ground that while the detenu was in the judicial custody, there was no reason for the Detaining Authority to hold that the detenu was likely to be released on bail so that under that apprehension he hastened to pass the detention order on 16.10.91, when the bail application of detenu was in fact pending in the High Court. In the same paragraph, it is also stated that the impugned order of detention stands vitiated on the ground that all the vital documents regarding the bail applications filed on behalf of the detenu and their rejection although having influenced the mind of the Detaining Authority were suppressed from the Detaining Authority, which vitiates the detention order.
6. In this context, it may be mentioned that the detention order although passed on 16.10.91, in fact the Superintendent of Police, North Panaji, Goa vide his letter dated 11.4.91. addressed to the District Magistrate, North Goa, Panaji had sponsored the detention for the detenu. At that time, the detenu was not arrested and he was at large. While this was the position, the Detaining Authority viz the District Magistrate, North Goa, Panaji in his detention order dated 16.10.91 in para 2 has stated that he has been informed that the detenu is in judicial lock-up at Panaji and that he is likely to be granted bail and this is followed by the operative part by which the Detaining Authority in exercise of its power under sub-section (2) of section 3 of the National Security Act, 1980 proceeded to pass the detention order against the detenu.
7. On behalf of the respondent No. 1 an affidavit in reply came to be filed by Shri J.D. Singh, District Magistrate, North Goa, Panaji, on the basis of the record, since Shri A. Venkatratnam who was the then District Magistrate and the Detaining Authority had been transferred. In this reply in para 19, what has been stated with reference to para 11(xvi) is that he denies that the documents mentioned in para 11(xvi) are vital documents.
There is no explanation as to how in the detention order dated 16.10.91, a mention came to be made about the judicial custody of the detenu in the judicial lock-up and his likelihood of being granted bail. Shri bhobe, the learned P.P has fairly stated before us that the relevant documents concerning the detention of the detenu in the judicial lock up and the rejection of his bail applications by the Sessions Court were not then before the learned District Magistrate and he was at a loss to state as to from what material the learned District Magistrate got this information.
8. Now the law on this point is very clear. In order to enable a detenu to make an effective representation against his detention as contemplated by Article 22(5) of the Constitution of India, it is necessary for the Detaining Authority to furnish all the documents on which the Detaining Authority arrives at the conclusion on the basis of its subjective satisfaction. In the present case in the first place so far as the detenu is concerned, he was not furnished with any material alongwith the detention order and in support of the opinion of the Detaining Authority that the detenu who was detained in the judicial custody was likely to be granted bail. As stated earlier, even before the Detaining Authority, no material was placed on this aspect at the time when the detention order came to be passed. It is, therefore, obvious that this part of the detention order was entirely based on certain extraneous material, which did not form part of the material placed before the Detaining Authority and of which copies were not supplied to the detenu to enable him to make an effective representation.
9. In this context, it is also necessary, in view of the allegations made in para 11(xvi), that the reply ought to have been filled by the concerned Detaining Authority and not by his successor, who had no personal knowledge. It has been held in Shaikh Hanif v. State of West Bengal, : 1974CriLJ606 that the failure to furnish the counter affidavit of the Magistrate who passed the order of detention, is an impropriety. It is held that in most cases, it may not be of much consequence, but where mala fides or extraneous considerations are attributed to the Magistrate or the Detaining Authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention illegal. In the present case, the Detaining Authority appears to have relied upon certain extraneous material and, therefore, it was incumbent upon him to file the return himself and state the circumstances in which para 2 of the detention order came to be passed in the absence of material before him. In our view, therefore this failure to file the necessary affidavit by the concerned Detaining Authority is a serious infirmity in the present case which alone is sufficient to declare the detention illegal. Even otherwise, if the Detaining Authority came to a conclusion on its subjective satisfaction that the detenu is likely to be granted bail, it was incumbent upon the Detaining Authority to furnish the necessary material to the detenu in order to enable him to make an effective representation against the detention order as contemplated in Article 22(5) of the Constitution of India. See Yumnam Mangibabu v. State of Manipur, : 1983CriLJ445 ; Kailash Pande v. State of U.P., : 1983CriLJ452 and Bachubhai v. Commissioner of Police, 1982 CLJ 512. In our view, therefore, the detention order in the present case is vitiated on 3 counts viz.:
i) being based on extraneous considerations;
ii) non-supply of material to the detenu, has resulted in failure to enable the detenu to make effective representation against the detention and
iii) failure of the Detaining Authority to explain by filing a return as to in what circumstances para 2 of the detention order came to be mentioned without there being material before him in that regard.
On these counts, the detention order is vitiated and therefore, is liable to be quashed and set aside.
10. However, before passing the final order, we would like to mention that the counsel for the petitioner raised certain other points, on which the detention order was challenged but since we have come to the conclusion that the detention order is vitiated on the grounds hereinbefore mentioned, we do not think it is necessary to refer to the other grounds.
11. In the result, the writ petition succeeds. The detention order dated 16.10.91 as confirmed on 18.10.91 is quashed and set aside and the detenu is ordered to be released form the detention under the National Security Act, 1980, if not required in any other case.