S.D.BAJAJ,J - (1.) FOR the prejudicial activities attributed to detenu-petitioner Harinder Singh in grounds of detention Annexure P.6, for the period 9th September, 1987 to 12th September, 1987, detention order Annexure P.5 was made by the Detaining Authority against him on 31st August, 1988 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for preventing him from engaging in the concealment, transportation and inter-State import of narcotic drugs. In Criminal Misc. No. 266 of 1989 the validity of the detention order Annexure P.5 based on the grounds of detention Annexure P.6 has been assailed by the detenu-petitioner on the grounds of its having been passed by the Detaining Authority in a mechanical manner without application of mind to the peculiar facts and circumstances of the case against him, much less on its subjective satisfaction, that there was no nexus between prejudicial activity and the order of detention which was passed 11 months thereafter and served on the petitioner 12-1/2 months after it, that the Act was enforced on 4th July, 1988 and action on its basis was taken retrospectively qua prejudicial activities of 9th September, 1987 to 12th September, 1987 and that the representation dated 17th November, 1988 was not decided by the authorities concerned earnestly and with due promptitude as envisaged in Article 22(5) of the Constitution of India.
(2.) FROM 28th February, 1989 till date repeated opportunities were granted to the respondents for putting in their reply but of no avail. The matter is, therefore, being decided without reply. Assertions made by the petitioner on all the three counts aforesaid therefore go uncontroverted on record. I have heard Shri H.S. Mattewal, Senior Advocate, with Shri Sukhbir Singh, Advocate, for the petitioner and Mrs. Jai Shree Anand, Advocate, for the respondents and have carefully gone through the record. All the four grounds of illegality vitiating the order of detention Annexure P.5 dated 31st August, 1988 are being discussed hereinafter at-seriatum :-
(3.) (i) Non-application of mind and want of subjective satisfaction of the Detaining Authority :- A bare reading of detenttion order Annexure P-5 and of the grounds of detention Annexure P-6 wholly makes out that the factum of the petitioner having been admitted to conditional bail on 9th November, 1987 was not adverted to therein by the detaining autohrity. Commenting on this aspect of the matter in Anant Sakharam Raut v. State of Maharashtra and anotther, AIR 1987 Supreme Court 137, their Lordships of the Supreme Court observed :- "The one contention strongly pressed before us by the petitioner's counsel is that the Detaining Authority was not made aware at the time the detention order was made that the detenu had moved application for bail in the three pending cases and that he was enlarged on bail on 13.1.1986, 14.1.1986 and 15.1.1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. In our view this is the short manner in which the two cases can be disposed of. If the petitioner is found disturbing law and order or misusing the bail granted to him, the authorities would be at liberty to move the appropriate Court to get the bail orders cancelled. One does not know how the Detaining Authority would have acted if he was made aware of the above details. We are not satisfied that this is a fit case to resort to preventive detention. We refrained from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground. We hold that there was clear non-application of mind on the part of the Detaining Authority about the fact that the petitioner was granted bail when the order of detention was passed." ;