Holding

A relative may raise all grounds under SAFEMA irrespective of earlier proceedings by the relative, and a detaining authority must apply its mind to material facts such as a Supreme Court order; failure to do so invalidates the detention order and the consequent SAFEMA notice.

Summary

The case concerned a notice issued under Section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) against Manoharlal Narang, who was a brother of Ramlal Narang, whose detention under COFEPOSA had been challenged. The Supreme Court examined whether a relative could raise fresh grounds under SAFEMA despite earlier proceedings by the brother, and whether the detaining authority had to consider a prior Supreme Court order that imposed reporting conditions on Ramlal when passing a second detention order. The Court held that the relative was free to raise all available grounds and that the detaining authority’s failure to apply its mind to the Supreme Court order rendered the detention order invalid. Because the detention order was invalid, the notice under SAFEMA was also invalid. Consequently, the Bombay High Court’s quashing of the notice was upheld and the appeal by the Union of India was dismissed.

Issues considered

Can a relative invoke SAFEMA and raise fresh grounds notwithstanding earlier proceedings by the relative and the doctrine of res judicata?
Must the detaining authority consider a Supreme Court order imposing conditions on a detainee when issuing a subsequent detention order on the same facts?
Does non‑application of mind to material facts, such as a Supreme Court order, vitiate a preventive detention order and the consequent SAFEMA notice?
Is the authority competent to issue a second detention order under COFEPOSA on the same grounds and facts?

Legislation cited

Subjects

preventive detentionapplication of mindres judicataSAFEMACOFEPOSArelative liabilitySupreme Court orderconstitutional law

Judgment

-:>-

UNION OF INDIA & ORS.
A
v.
MANOHARLAL NARANG

MARCH 2, 1987

B [V. KHALID AND G.L. OZA, JJ.]

Smugglers and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976, section 6( 1) read with section 2, scope-Right of a
relative to raise all grounds available to him though such grounds were
raised and found against in an earlier proceedings against the detenu-
C principle of Resjudicata will not apply. ·---y ~-
Doctrine of the application of the mind, scope Constitution of
India, 1950, Articles 141 and 144, scope of-Conditional order passed by
the Supreme Court for the release of a detenu-Condition imposed by ~·
the Supreme Court in its order dated 1.5.1975 is a material and relevant
D factor, but not taken into account-Counter affidavit filed that it is not
necessary to take note of-Propriety of the order.

Respondent and Ramlal Narang are brothers. An order of dete11-
. lion passed on 19.12.1974 under section 3(1) of the COFEPOSA against
Ramlal Narang was successfully challenged by W .P. 10/75 before the
, E Delhi High Court. An appeal was filed against that order before the
Supreme Cow1 by the Union of India. Refusing a stay application, the
Supreme Court passed an order imposing certain conditions on the
movement of Ramlal Narang. On 25.6.1975 Emergency was declared.
On 1. 7.1975 a fresh order of detention was passed against Ramlal on the
same facts and grounds. The earlier appeal filed by Union of India
F against W.P. 10/75 was dismissed in 1977. Ramlal was detained under
the second order of detention. A writ petition No. 115/75 filed by bis i
relative before the Delhi High Court challenging the second detention ~
was dismissed on 25.11.1975. An appeal was filed by certificate against
that order before the Supreme Court as Crl. Appeal No. 399/75. In the
meanwhile, notices under sections 6 and 7 of the Smugglers and Foreign
G Exchange Manipulators (Forfeiture of Property) Act, 1976 were issued
against Ramlal. These notices were challenged by him by filing W .P.
No. 720/75 in the Delhi High Court. Subsequently Crl. Appeal No.
399/75 was disposed of observing that it would be open to raise all
contentions available to him in W.P. 720/75 notwithstanding what is
contained in W .P. 115/75. The Delhi High. Court having dismissed W .P.
H NO. 720/75,, Crl. Appeal No. 2790/85 was preferred to the Supreme

454
U.0.1. v. MANOHARLAL NARANG 455

Court and is now pending before the Constitution Bench on the question
of competency of the authorities to issue second detention order on the A
same grounds and facts.

While Respondents Manoharlal was in England an order of deten-
tion Ubder COFEPOSA was issued against him on 31.1.1975. He was
brought to India on some express understanding given to the Govern- B
ment of tbe United Kingdom. His order of detention was quashed by tbe
Bombay High Court, while allowing his writ petition No. 2752/75 on
8.7.1980. The Union appeal against the same was dismissed on
4.11.1980 by the Supreme Court.

A further notice under section 6 of the SAFEMA read with section
2 was issued to tbe Respondent on 29.10.83 on the basis of the detention c
order dated 1.7 .1975 issued against Ramlal. A full ilench of the Bombay
High Court quashed the said notice resulting in tbe present Crl. Appeal
No. 662/86 by Union of India. The appellants plea to have the case
tagged on to Crl. Appeal No. 2790/85 pending before tbe Constitution
Bench was opposed by respondent since he could succeed on merits. D

Dismissing tbe appeal, the Court,

HELD: I. In Ibis case, the provisions of Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 1976 were being
pressed into service because he is a relative answering tbe description E
given in Explanation 2 to sub-section (2) of section 2 was available.
Therefore, in such cases, the person against whom action ls taken by
invoking tbe Explanation to Sub-section 2 referred to above, is at
. --,.
liberty to raise all grounds available to him though such grounds were rai-
..._ sed and found against in a proceed~s initiated by the relative. [459C-D]
F
2. An order of the Supreme Court is not an inconsequential
order. If tbe detaining authority has considered the order of Supreme
Conrt, one cannot state with definiteness which way his subjective
satisfaction would have reacted. This order could have persuaded the
detaining antbority to desist from passing the order of detention since
Supreme Court had allowed freedom of movement. Detention is only a G
preventive Act. The Supreme Conrt did not f"md it necessary to restrict
the liberty of Ramlal when the order on tbe stay application W"8 passed.
It may also be that the detaining authority aPer considering the order of
the Supreme Court carefully could still feel, that an order of detention
is necessary witb reference to otber materials which outweigh tbe effect
of Supreme Court's order. In all these cases, non-application of mind H
456 SUPREME COURT REPORTS (1987] 2 S.C.R.

A on a vital and relevant material need not necessarily lead to the conclu-
sion that application of mind on such materials would, always be in .
favonr of the detenu. Application of mind in such cases is insisted upon
to enable the detaining authority to consider one way or the other, as to
what effect a relevant material could have, on the authority that decides
the detention. The absence of consideration of this important document
B amonnts to non-application or mind on the part or the detaining author-
ity rendering the detention order invalid. [462A·D]

Ibrahim Bachu Bafen v. State of Gujarat & Ors., [1985] 2 SCC
24; Ashadevi v. K. Shivraj, [1979] l SCC 222; Mohd. Shakee/ Wahid ----'('""'lllill
Ahmed v. State of Maharashtra & Ors., [1983] 2 SCC 392 and Sita Ram .
C Somaniv. StateofRajasthan & Ors., [1986] 2 SCC 86, referred to. :·

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal ~-
No. 662 of 1986.

From the Judgment and Order dated 24.10.1986 of the Bombay
D High Court in W.P. No. 743of1986.

Dr. V. Gauri Shanker, Ms. Halida Khatun and Ms. A. Subhashini
for the Appellants.
·~
;,,·

Ram J etbmalani and Herjinder Singh for the Respondent.
E
The Judgment of the Court was delivered by

KHALID, J. The Union of India has brought this appeal by
special leave against the Judgment of a full Bench of the Bombay High
F-·
Court quashing the notice under Section 6(1) of the Smugglers and
F Foreign Exchange Manipulators (Fbrfeiture of Property) Act, 1976, ~·
hereinafter referred to as SAFEMA. It is necessary to set out the brief
facts to appreciatt; the questions involved in this appeal.

Manoharlal Narang, the respondent in this appeal and Ramlal
Narang are brothers. An order of detention was passed on 19th
G December 1974, under Section 3(1) of the COFEPOSA Act against
Ramlal Narang. This order was challenged before the Delhi High +..
Court, in Writ Petition No. 10/75 and the High Court quashed the
order of detention by its order dated 30th April, 1975. An appeal was
filed against that order before this Court by the Union of India.
Though an application for stay was moved, this Court declined to grant
H stay but passed an order on the !st May, 1975 imposing certain condi-
U.0.1. v. MANOHARLAL NARANG [KHALID, J.] 457

lions on the movement of Ramlal Narang. On 25th June, 1975, A
Emergency was declared. On 1st July, 1975, a fresh order of detention
was passed against Ramlal on the same facts and 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 B
No. 115 of 1975, in the Delhi High Court, challenging this detention.
That petition was dismissed on 25th November, 1975.

An appeal was filed by Certificate, against that order before this
Court as Appeal No. 399 of 1975. In the meanwhile, notices under
Section 6 & 7 of the SAFEMA were issued against Ramlal. These
notices were challenged by him by filing Writ Peition No. 720 of 1975, C
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 all contentions available to him in Writ Petition No. 720 of
1975 notwithstanding what is contained in the Judgment in Writ Peti-
tion No. 115/75~ The Delhi High Court heard Writ Petition No. 720 of D
1975 and dismissed it. Ag.inst that dismissal order Ramlal filed special
leave petition No. 9361/82 before this Court. In this special leave
petition, notice was issued limited only to the question of the compe-
tency of the authorities to issue the second detention order on the
same facts and grounds. That petition was thereafter admitted and the
criminal appeal arising therefrom is criminal Appeal No. 2790 of 1985, E
which has been referred to a Constitution Bench and is pending dis-
posal at present. ·

That learned Counsel for the appellants made a fervent plea
\.-- before us that since the question of competency of the authorities to
issue the second detention order is pending consideration before a F
Constitution Bench of this Court, this appeal also should be directed
to be posted along with that appeal. The respondent's counsel met this
plea stating that for the purpose of this appeal, this question is covered
by a three Judge Bench decision of this Court in Ibrahim Bachu Bafan
v. State of Gujarat and Ors., [1985] 2 SCC 24 and that it.was not
necessary to direct this appeal to be tagged with Civil Appeal No. G
2790/85. After hearing the counsel for some time, we indicated to the
learned counsel for the respondent, that we were inclined to direct this
appeal to be posted along with the appeal pending before the Constitu-
tion Bench but were still willing to hear the matter if he could sustain
the Judgment under appeal, on grounds other than the one referred to
the Constitution Bench. He was willing to do so and he argued the case H
458 SUPREME COURT REPORTS [1987] 2 S.C.R.

A on the other grounds raised by him. We will now proceed to consider
those other grounds and see whether the Judgment could be sustained
or whether it has to be reversed.

The facts and the relevant dates have been stated above. A few
more facts are necessary. An order of detention· under COFEPOSA
B was issued against the present respondent on 31st January, 1975. At
that time he was in England. He was brought to India on some express
understanding given to the Government of the United Kingdom. His
order of detention was challenged before the Bombay High Court .'
being Writ Petition No. 2752/75, and the High Court quashed that -~
order of detention as per order dated 8th July, 1980. The appeal filed
C against that order before this Court was dismissed on 4th November,
1980.

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:
I
D
"2. Application.-(!) 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:

E "(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 refer- ~
F
red to in clause (a) or clause (b)
(d)
(e)

G Explanation 2. states "For the purpose of clause (c) "relative", in
relation to a person, means- +
(ii) brother or sister of the person;
"
H
U.O.I. v. MANOHARLAL NARANG [KHALID, J.] 459

The learned counsel for the respondent contended that the
respondent could challenge the order of detention against his brother, A
to get the notice issued against him under SAFEMA quashed on all the
grounds available to him, though they were raised by his brother or
not. He was not seeking to get the order of detention against his
brother quashed for his brother's benefit nor was he doing it on his
behalf, but he was invoking the jurisdiction of the Court only for his B
own benefit. While doing so he is not fettered by what happened to his
brother's petition or to the grounds raised by him. Nothing held against
his brother would, according to the learned counsel, operate as res
judicata against the respondent. The provisions of SAFEMA were
being pressed into service because a relative answering the description
given in Explanation 2 to Sub-section (2) of Section 2 of the Act was
available. He cannot be prevented from urging all the grounds avail- c
able to him to get out of the mischief of the notice issued to him under
Section 6 of the SAFEMA. We find that this submission is well foun-
ded. We hold that in such cases, the person against whom action is
taken by invoking the Explanation to Sub-section (2) referred to
above, is at liberty to raise all grounds available to him though such o
grounds were raised and found against in a proceedings initiated by the
relative.

The. ground that found favour with the Bombay High Court in
this case is that the detaining authority did not apply its mind to the
order passed by this Court on 1st May, 1975, in the special leave E
petition against the decision of the Delhi High Court which quashed
the detention of Ramlal. The appellants before us sought a stay of the
order passed by the Delhi High Court. This Court declined the request
but passed the following order:

"We grant Special Leave on usual terms. The petitioner F
appellant should have gone to the High Court first for a
certificate. In view of the arguments heard, we give special
leave in this matter as a very special case, and this is not to
be treated as precedent in future. We are unable to grant
any stay. We impose a condition·on Ram Lal Narang, De-
tenu pending the disposal of the appeal in this Court that G
he will report to the police station in whose jurisdiction he
reside either at Bombay or at Delhi, once every day at JO
A.M. or at 5 P .M. and whenever he will leave for Delhi, he
will inform the police as to when he is leaving and when he
will arrive at Delhi, similarly when he will leave for
Bombay, he will inform the police as to when he is leaving H
460 SUPREME COURT REPORTS [1987] 2 S.C.R.

for Bombay and when he will arrive at Bombay. Certified
A
copy of tbe judgment impugned shall be filed as soon as
possible."

It is not disputed that the detenu Ramlal was reporting to the officer-
in-charge of the Bandra Police station, Bombay regularly, in due com-
B pliance with the above order passed by the Supreme Court.

We have already adverted to the fact tbat proceedings against •
the respondent taken under SAFEMA were abandoned after the order
of this Court on 4th November, 1980. It is nearly 3 years later, on 29th
,~ ....
October; 1983, that the proceedings, from which this appeal arises,
c were initiated under Section 6 of SAFEMA on the basis of the deten-
tion 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
D
the Police Station as mentioned therein. It cannot be disputed that this
order of the Supreme Court is a relevant material for the detaining
authority to consider when the detention order was passed. From the
records it is not seen that the Union of India had specifically put
~·
forward a case at any time that this order was not a relevant material or
that this order was considered by the detaining authority. The first
E
respondent had specifically raised this contention in paragraph 'Q' of
the grounds of the Writ Petition, by an amendment which was allowed
by the order of the Division Bench of the Bombay High Court on 29th
April, 1986. The specific contention raised in ground 'Q' was "that ~
vital and material facts which would have weighed the mind of the
F
detaining authority one way or the other, have been suppressed from
him, thus vitiating the order of detention dated !st July, 1975, and
--+
consequent declaration made under Section 12(a) of the COFE-
POSA". After that, reference was made to the order of this Court
extracted above, accompanied by an assertion that Ramlal was com-
plying meticulously with the orders of the Supreme Court. This
specific assertion is met by the appellants in paragraph 53 of the
G
Counter Affidavit filed by Under secretary. Ministry of Finance
which reads as follows:
+-
"With reference to para 24-Q, additional ground-it is not
admitted that any detaining authority as alleged or other-
H wise.''
U.0.1. v. MANOHARLAL NARANG [KHALID, J.] 461

In paragraph 54, this ground is met more elaborately with the follow-
ing observations: A
1
" ...... . _ At any rate it is submitted that the contents per-
lain to the proceedings in the High Court and the Supreme
Court and the detention law does not contemplate that the
detaining authority is required to take into account the B
different court proceedings whether independent proceed-
~ ings, under the law not initiated, conducted, managed or
looked after by the detaining authority [It is well known
that the different Ministries of the Government carry out
~'"' --.,0..- different types of work in different ways and the detaining
is not required under the law to take notice of work of the
Ministries or Court proceedings. The Court proceedings c
and adjudication proceedings are initiated and conducted
-{ by different authorities which are not required under the
law to submit their reports or communicate their actions to
the detaining authority. The detaining authority, in turn, is
not required under the law to carry out the process of D
collection of any material about any Court proceeding or
proceedings before other authorities for the purpose of
issuance of a detention order. The contents of the para-
graph refers to such proceedings which are not required to
~ be collected by the detaining authori!y from such authorities
or courts,]'' E

-- 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 F
had refused stay of the Judgment of the Delhi High Court and that
Ramlal was allowed freedom of movement subject to certain condi-
lions. 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 braketted portion
was made to meet a case that there existed an order of this Court which G
w.as a relevant and vital meteriaL We can use stronger language to
.-t 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 and the detaining authority are to adopt such
cavalier attitude towards orders of courts and of this Court in particu-
Jar, their orders will meet with the same fate as the one under review. H
462 SUPREME COURT REPORTS [1987] 2 S.C.R.

A If the detaining authority had considered the order of this Court,
one cannot state with definiteness which way his subjective satisfaction
would have reacted. This order could have persuaded the detaining
authority to desist from passing the order of detention since this Court
had allowed freedom of movement. Detention is only a preventive
Act. This Court did not find it necessary to restrict the liberty of
B Ramlal when the order on the stay application was passed. It may also
be that the detaining authority after considering the order of this Court I

carefully could still feel, that an order of detention is necessary with ~
reference to other materials which outweigh the effect of this Court's
order. In all these cases, non-applicatiori of mind on a vital and rele-
vant material need not necessarily lead to the conclusion that applica-
tion of mind on such materials would, always be in favour of the
c detenu. Application of mind in such cases is insisted upon to enable
the detaining authority to consider one way or the other, as to what
effect a relevant material could have, on the authority that decides the
detention. In our view the absence of consideration of this important
document amounts to non-application of mind on the part of the de-
D taining authority rendering the detention order invalid ..

In Ashadevi v. K. Shivraj, [1979] 1SCC222 this Court had occa-
sion ro consider the plea whether an order of detention would be
vitiated if relevant or vital facts, essential to the formation of subjec-
tive satisfaction, werejcept away from the consideration of the detain-
E ing authority. This is how this Court dealt with this. aspect:

"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 deten- ~
tion order will get vitiated if material or vital facts which
F would have a bearing on the issue and would influence the -f
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 JO, 1973 under Section 3(2)(a) of MISA based
G 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 com-
munity and this subjective satisfaction, according to the
grounds of detention furnished to the petitioner, was
H founded on a solitary incident of theft of aluminium wire
U.0.1. v. MANOHARLAL NARANG [KHALID, J.] 463

alleged to have been committed by the petitioner on April
14, 1973. In respect of this incident of theft a criminal case A
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 B
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." ·
c
Then this Court, referred to a decision reported in [1975] 3 SCC 395 and
extracted the following in support of their view:

"We should have thought that the fact that a criminal case
is pending against the person who is sought to be proceeded D
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. It is not altogether unlikely that the District
Magistrate may in a given case take the view that since a • E
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 allo\\ed 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 F
disclose the pendency of a criminal case against him to the
District Magistrate."

The material not placed beore the detaining authority is mentioned in
paragraph 7 of the Judgment which reads as follows:
G
"7. In the instant case admittedly three facts were not
communicated to or placed before the detaining authority
before it passed the impugned order against the detenu,
namely, (i) that during interrogation of the detenu, in spite
of request, neither the presence nor the consultation of the
Advocate was permitted; (ii) that in spite of intimation to H
464 SUPREME COURT REPORTS [1987] 2 S.C.R.

the Advocate in that behalf the detenu was not produced
A
before the Magistrate on December 14, 1977, and (iii) that
the confessional statements were squarely retracted by the
detenu on December 22, 1977 at the first available oppor-
tunity while he was in judicial custody; the first two had a
bearing on the question whether the confessional state-
B ments had been extorted under duress from detenu or not,
while the third obviously was in relation to the confessional
statements which formed the main foundation of the im-
pugned order and as such were vital facts having a bearing
on the main issue before the detaining authority."

Ultimately the order of detention was quashed because the re-
c tracted confessional statement of the detenu was not placed before
the detaining authority who passed the detention order on the de-
tenu 's confessional statements. This Court observed: "it cannot be
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
D 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 detenu 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 wisff
to state that the facts that Ramlal was detained, that he had undergone
E substantive period of detention did not weigh 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.

In Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and
Ors., [1983] 2 SCC 392 a Constitution Bench of this Court had to deal
F with a somewhat similar situation. There, one of the 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 th':re was no sufficient cause for Shamsi's
detention. A case was pleaoed before this Court that the report of the
Advisory Board to the above effect ought to have been placed before
G the detaining authority which passed the order of detention against the
petitioner before this court in that case. It was contended that if this
material had been placed before the detaining authority it may not
have passed an order of detention against the petitioner in that case.
This court accepted this plea and observed as follows:

H "This submission is well-founded and must be accepted. It
U.0.1. v. MANOHARLAL NARANG [KHALID, J.] 465

is clear that Shamsi was detained for engaging in a smug-
gling activity arising out of the same incident and transac- A
tion which forms the subject-matter of ground 1 in the
instant case. The opinion of the Advisory Board that there
was no sufficient cause for Shamsi's detention may not
have been binding on the detaining authority which
ordered the detention of the petitioner but, it cannot be B
gainsaid that the fact that the Advisory Board had re-
corded such an opinion on identical facts involving a com-
mon ground was at least relevant circumstance which ought
to have been placed before the detaining authority in this
case. Since three out of the four grounds on which the
petitioner was detained have been held to be bad by the
High Court, we have to proceed on the basis that the c
petitioner was detained and could validly be detained on
the remaining ground only. That ground is similar to one
of the grounds on which Shamsi was detained, the transac-
tion being one and the same, as also the incident on which
the two orders of detention are based. That is why the D
opinion of the Advisory Board in Shamsi's case becomes
relevant in the petitioner's case. The failure of the State
Government to place before the detaining authority in the
instant case, the opinion which the Advisory Board had
recorded in favour of a detenu who was detained partly on
a ground relating to the same incident deprived the detain- E
ing authority of an opporunity to apply its mind to a piece
of evidence which was relevant, if not binding. In other
words, the detaining authority did not, because it could
not, apply its mind to a circumstance which, reasonably,
could have affected its decision whether or not to pass an
order of d.etention against the petitioner." F

This Court observed further the scope of the consideration of the
relevant materials in the following words:

". . . . . . . . . . But the question for consideration is not
whether the detaining authority would have been justified in G
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 H
466 SUPREME COURT REPORTS [1987] 2 S.C.R.

Shamsi's case was, at any rate, an important consideration
A
which would and ought to have been taken into account by
the detaining authority in the instant case. That opportunity
was denied to it."

The Constitution Bench has in unambiguous terms outlined the
B scope of the doctrine of the application of mind and the purpose being
it, in the above observation.

In a recent case, Sita Ram Somani v. State of Rajasthan and Ors.,
[1986] 2 SCC 86 to which one of us was a party, it was held that
non-application of mind about the bail applications of the detenu in
C 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 the detaining authority, the order of
detention was held to be vitiated. In another case, Criminal Writ Peti-
tion No. 397 of 1986, in a Judgment given by one of us along with
Pathak J. (as he then was), the detention order which was based on
D three separate incidents, was quashed on the ground that the detaining
authority did not apply its mind while passing the detention order, that
the detcnu had moved an application for bail, in the three pending
cases and that he was enlarged on Lail on 13-1-1986, 14-1-1986 and
15-1-1986. Since the order of detention did not mention that the de-
tenu in these cases was an under trial prisoner, that he was arrested
E in connection with the three cases, that applications for bail \"ere pend-
ing and that he was released on three successive days in the three
cases, this Court had to observe that there was a total absence of
application of mind on the part of the detaining authority while passing
the detention order and quashed the order of detention.

F Appellants' wunsel in this case found it difficult to get over this
plea made by the respondent, supported by weighty authorities. He
could not put forward any persuasive submissions to compel us to
disagree with the consistent view taken by this Court in such matters.
He acted with propriety in not adopting the argument put forward in
the Counter Affidavit that it was not the function of the authorities to
G go after all proceedings that take place in Courts of Law, relating to a
detenu. '

In view of the above conclusions we do not think it necessary to
consider the question whether the authorities acted rightly in not con-
sidering the representation made by the respondent. It cannot be dis-
H puted that provisions of SAFEMA cannot be invoked in cases where
U.O.l. v. MANOHARLAL NARANG [KHALID, J.] 467

there is no valid order of detention. We agree with the High Court that A
the order of detention is bad on the ground discussed above. Conse-
quently we hold that the High Court was justified in quashing the
notice issued under Section 6 and the proceeding initiated under Sec-
tion 7 of the SAFEMA. We accordingly dismiss the appeal.

S.R. Appeal dismissed. B

j