ition Crl No 1369 of 1982
Under Article 32 of the Constitution Ram Jethamalani and Miss Rani Jethmalani for the Petitioner
OP Rana and Mr MN Shroff for Respondents Nos 1  2
KG Bhagat Addl
General NC Talukadar
Miss A Subhashini and Girish Chandra for Respondent No 3
616 The Judgment of the Court was delivered by CHANDRACHUD CJ
By this Writ Petition under Article 32 of the Constitution the petitioner Mohd Shakeel Wahid Ahmed challenges the validity of an order of detention dated November 7 1981 passed against him by the first respondent the State of Maharashtra under Section 3 of the  herein referred to as the Act 
Earlier the petitioner s wife had filed a habeas corpus petition in the Bombay High Court for the release of the petitioner but that petition Writ Petition No 579 of 1982 was dismissed by the High Court on October 28 1982
The High Court held that three out of the four grounds on which the petitioner was detained were bad for one reason or another but that the remaining ground namely ground No 1 did not suffer from any defect and was enough to sustain the order of detention
While upholding the detention on one of the four grounds only the High Court relied upon the provisions of section 5 A of the Act by which an order of detention made on two or more grounds is to be deemed to have been made separately on each of such grounds and consequently such an order cannot be deemed to be invalid merely because some of the grounds are i vague ii non existent iii not relevant iv not connected or not proximately connected with such person or v invalid for and other reason whatsoever
As stated above three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court
Those grounds are mentioned in paragraphs 52 53 and 61 of the grounds furnished to the petitioner
Grounds 52 and 53 were held to be bad because they were neither relevant nor did they bear any nexus direct or indirect with the detenu
It would appear from the judgment of the High Court that this position was not controverted by the learned Public Prosecutor
In so far as the fourth ground mentioned in paragraph 61 is concerned the High Court held that it was bad because important material which was relevant to that ground was neither placed before nor considered by the detaining authority while passing the order of detention
In view of the judgment of the High Court only one out of the four grounds of detention namely the ground mentioned in paragraph 11 of the grounds furnished to the detenu requires consideration by us
This petition along with a few other petitions was referred to the Constitution Bench for considering the validity of sections 5 A 617 and 11 of the Act
We have already set out the purport of section 5 A Section 11 which authorises the revocation of detention orders provides by sub section 2 that the revocation of a detention order shall not bar the making of another order under section 3 against the same person
In view of the conclusion which we have reached in this petition it is unnecessary to consider the validity of these sections
The surviving ground of detention contains the allegation that working on a secret information received on January 13 1981 the officers of the Marine and Preventive Wing of the Collectorate of Customs Preventive Bombay intercepted a vessel named Manek Prasad  in the sea off World  at Bombay on February 2 1981 at about 2 pm and seized therefrom wrist watches valued at Rs 18 89 935  textiles valued at Rs 18 20 675 miscellaneous goods valued at Rs 18 769 and Indian currency of Rs 1540 and 188 UAE Dhirams
It is alleged that none of the seven persons who were on board the ship possessed any documents authorising them to import the aforesaid goods
The various sub paras of this ground refer to the material which connects the petitioner with the illegal import of the goods seized from the ship
Shri Jethmalani who appears on behalf of the petitioner contends that the first ground of detention is bad for several reasons most of which are directed to the question as to whether the detaining authority had applied its mind to the relevant facts and circumstances bearing on the question of the petitioner s detention
Only one of these reasons is valid and has to be accepted That reason is as follows The petitioner was detained under an order dated November 7 1981
Prior to that one Shamsi was detained under an order dated August 19 1981 passed by the same Government of Maharashtra After considering the reference and the materials placed before it in Shamsi s case the Advisory Board reported to the State Government on October 19 1981 that there was in its opinion no sufficient cause for Shamsi s detention
Shamsi was released as he had to be in pursuance of the Advisory Board s opinion
It is urged by Shri Jethmalani that one of the grounds on which Shamsi was detained being the same as ground No 1 in this case the fact that the Advisory Board had reported that there was 618 no sufficient cause for Shamsi s detention ought to have been placed before the detaining authority which passed the order of detention against the petitioner
According to the learned counsel the failure of the State Government to place a highly relevant and important piece of material before the detaining authority vitiates the order of detention
If the detaining authority in the instant case were apprised that the Advisory Board had reported on examining inter alia an identical ground that there was no sufficient cause for detention of another person involved in the same transaction it may not have passed the order of detention against the petitioner which is based on similar facts
This submission is well founded and must be accepted
It is clear that Shamsi was detained for engaging in a smuggling activity arising out of the same incident and transaction which forms the subject matter of ground No 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 gainsaid that the fact the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least a 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 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 transaction being one and the same as also the incident on which the two orders of detention are based
That is why the 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 detaining authority of an opportunity 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 detention against the petitioner
It is contended by Shri Rana who appears on behalf of the Government of Maharashtra that there is distinction between the 619 petitioner s case and that of Shamsi since the petitioner is the brother of the consignor Ashfaq while Shamsi is not
Counsel contends that by reason of this distinction in the facts of the two cases the State Government was justified in not placing before the detaining authority in this case the fact that the Advisory Board had reported that there was no sufficient cause for detaining Shamsi
We may assume that the petitioner is the brother of the consignor Ashfaq since in these proceedings we cannot determine the truth of the various facts alleged by the detaining authority
But the question for consideration 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
Shri Rana contends that there were other grounds on which Shamsi was detained and the Advisory Board may have come to the conclusion that since those grounds were not enough to justify Shamsi s detention there was no sufficient cause for detaining him
This argument also overlooks that it is not as if the opinion of the Advisory Board in Shamsi s case was binding on the detaining authority in this case
The substance of the matter is that the detaining authority in this case failed to apply its mind to the highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner now rests in addition to something more was not sustained by the Advisory Board in Shamsi s case
We cannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsi s detention on a ground which was common to him and the petitioner namely ground No 1 the detaining authority would have if at all passed the order of detention against the petitioner on the remaining three grounds only
Those three grounds have been held to be bad by the High Court and it is only by resorting to the provisions of section 5A of the Act that the High Court upheld the detention of the petitioner
Shri DN Capoor Secretary to the Government of Maharashtra Home Department Law and Order has filed a 620 counter affidavit in this Court in answer to the Writ Petition
In paragraph 14 of the said affidavit Shri Capoor says that he had ordered to issue detention order on 8101981 after considering the entire material very carefully
Shri Capoor says that he formulated the grounds of detention contemporaneously on 8101981 that thereafter the order of detention and the grounds of detention were got typed and the Customs authorities were directed to supply to the detenu the copies of the statements which were placed before him
According to Shri Capoor it was after the receipt of copies of all the documents that the order of detention was issued on November 7 1981
The explanation offered by Shri Capoor as to why the opinion of the Advisory Board in Shamsi s case was not placed before him is that the report of the Advisory Board in Shamsi s case which is dated October 19 1981 was not in existence when he formulated and ordered to issue the detention order against the petitioner in this case
We see quite some difficulty in accepting this explanation
In the first place the fact that it was on October 8 1981 that Shri Capoor had directed the detention of the petitioner is a matter of no consequence
The order of detention was issued that is to say passed on November 7 1981 and we must have regard to the state of circumstances which were in existence on that date
Shri Capoor seems to suggest that the Advisory Board s opinion dated October 19 1981 came into existence after he had made up his mind to pass an order of detention against the petitioner on October 8 1981 and therefore he could not take or need not have taken that opinion into account
The infirmity of this explanation is that the order of detention was passed against the petitioner on November 7 1981 and the Advisory Board s opinion in Shamsi s case was available to the State Government nearly three weeks before that date
If that opinion were available before the order of detention was passed in this case it was the duty of the State Government to place that opinion before the detaining authority in order to enable it to consider whether an order of detention could be passed against the petitioner despite that opinion especially when one of the grounds on which the two orders of detention are based is identical and relates to the same incident
We would like to add that having seen the original order of detention which was made available for our inspection by the officers of the State Government we were baffled to find that though Shri Capoor s signature bears the date October 8 1981 the column for date in the left hand corner at the bottom of the order of detention has remained or become blank
621 For the reasons mentioned above we set aside the order of detention dated November 7 1981 passed against the petitioner by the Government of Maharashtra and direct that to the extent that his detention is attributable to the said order of detention he shall be released forthwith
PBR Petition allowed


Summary:
The Customs officials intercepted a ship off Bombay and seized from it various articles worth several lakhs of rupees
None of the seven persons on board the ship possessed any documents authorising them to import the goods
On August 19 1981 section one of the seven persons on board the ship was detained under the provisions of  but the Advisory Board reported that there was in its opinion no sufficient cause for his detention
He was therefore released
By an order dated November 7 1981 the petitioner who was also one of the persons on board the same ship was detained under the COFEPOSA in respect of the same transaction
While dismissing the habeas corpus petition filed by the petitioner s wife the High Court was of opinion that three out of the four grounds on which the petitioner was detained were bad for one reason or the other but that the first ground was enough to sustain the order of detention in that important material relevant to that ground was neither placed before nor considered by the detaining authority while passing the order of detention
In the petition under Article 32 of the Constitution it was contended on behalf of the petitioner that had the detaining authority in the instant case been apprised that the Advisory Board on examining an identical ground in the case of S had reported that there was no sufficient cause for detention of S who was involved in the same transaction it might not have passed the order of detention against the petitioner which is based on similar facts and that its failure to place such highly relevant and important material before the detaining authority has vitiated the order of detention
Allowing the petition  HELD The failure of the State Government to place before the detaining authority the opinion which the Advisory Board had recorded in favour of another detenu who was detained partly on a ground relating to 615 the same incident deprived the detaining authority of an opportunity 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 detention against the petitioner
618 B H The opinion of the Board may not have been binding on the detaining authority but it cannot be gain said that the fact that the Board had recorded such an opinion on identical facts involving a common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in the case
The ground on which the High Court upheld the order of detention was similar to one of the grounds on which S was detained the transaction being one and the same as also the incident on which the two orders of detention were based
This is why the opinion of the Board in the earlier case became relevant in the present case
618 D F It may be that there were other grounds on which S was detained and that the Advisory Board might have come to the conclusion that since these grounds were not enough to justify his detention there was no sufficient cause for detaining him
But it is not as if the opinion of the Board was binding on the detaining authority
The substance of the matter is that the detaining authority in this case failed to apply its mind to a highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner rested in addition to something more was not sustained by the Advisory Board in the case of section The reasonable probability that since the Advisory Board had not sustained S s detention on a ground which was common to him and the petitioner the detaining authority would have if at all passed the order of detention against the petitioner on the remaining three grounds only cannot be excluded
Those three grounds had been held to be bad by the High Court
619 E H The explanation of the detaining authority that the Board s opinion dated October 19 1981 came into existence after he had passed the order of detention on October 8 1981 is not correct
When the order of detention was passed on November 7 1981 the Board s opinion in Ss  case was available to the State Government nearly three weeks before that date and it was the duty of the State Government to place that opinion before the detaining authority
620 E F