JUDGMENT [ENTITY], J.
1. The order of detention dt. 16-1-97 made by the Collector and District Magistrate, Anantapur, the 2nd respondent herein, in exercise of his powers conferred upon him in [ACT], [ACT] (for short, 'the Act') and confirmed by the Government by order dt. 4-3-1997, is challenged in this writ petition.
2. Sri [ENTITY], learned counsel appearing for the petitioner, contended that the detenu's fundamental right guaranteed under [SECTION] and [SECTION] of the [ACT], has been deprived, inasmuch as the detention order suffers from the vice of non-application of mind to vital documents and also for the failure to supply the said documents to the detenu. It was pointed out, specifically, that the detaining authority has not considered that the detenu has been enlarged on bail and in [CASE NUMBER], after he was released on bail, he has been absconding evading the police and that NBW issued was pending against him, the detenu was supplied only with the FIRs, but not with the bail applications, bail orders, NBW and the material pertaining to the issue of NBW and the said defect in procedure renders the order illegal. The learned Government Pleader appearing for the respondents, refuted the contentions submitting forcefully that the order of granting bail to the detenu was not a relevant factor to be considered by the detaining authority while making an order of detention. Hence the detaining authority had neither considered the same nor supplied the copies to the detenu. The detenu is entitled for supply of the material which was considered by the detaining authority.
3. To appreciate the above contentions it is necessary to notice the grounds of detention. Six incidents are mentioned as grounds of detention. Incidents 1, 2 and 4 speaks of earlier arrest and release on bail in various crimes. In the first incident dt. 2-6-92, two crimes have been registered against the detenu, which are pending trial in [CASE NUMBER] on the file of the Addl. Judl. First Class Magistrate, Anantapur and [CASE NUMBER] on the file of Addl. J.F.C.M., Anantapur, and in the later case registered u/[SECTION], [ACT], it was alleged that the detenu was released on bail, but since he absconded thereafter. NBW was issued and was pending. The first contention relates to non-application of mind. The detaining authority has not considered the material on record, particularly the bail application, the orders granting bail and the other material in this regard, which was in possession of the concerned authorities, and the order issuing NBW. The second contention relates to the failure to supply the bail applications or the bail orders or the material to show that NBW was issued to the detenu. At this stage it may be useful to extract ground No. 1 :
"(1) You first figured as an accused along with others in two cases [CASE NUMBER] u/[SECTION], [ACT] and [CASE NUMBER] u/[SECTION], [SECTION], [SECTION], [SECTION]/[SECTION], [ACT] of [ACT] Town Anantapur P.S. and on the same day i.e., on 2-6-92 you have been arrested and sent for remand, but came out on bail very soon. The two cases are pending trial against you as [CASE NUMBER] on the file of AJFCM, Anantapur and [CASE NUMBER] on the file of AJFCM, Anantapur. In the later case after release on bail you have absconded and has been evading the police and NBW issued is pending."
From a reading of the above ground it can be seen that the basis for detention was that the detenu was arrested in two cases, but was released on bail and since he was absconding, NBW was issued against him and was pending. Whether those facts have been considered in their entirety, if so whether the detenu was entitled for the supply of the entire record and other material, basing on which the detaining authority has come to the conclusion for invoking the power of preventive detention ?
4. In the counter-affidavit filed by the 2nd respondent, the detaining authority, it was stated in para 5 that the sponsoring authority has stated that the detenu was arrested in the said crimes and was sent for remand and that he came out on bail and in later case the detenu, after obtaining bail, was absconding and evading the police and hence NBW was issued and is pending against him. Hence he was aware of all these facts. However, the detaining authority has admitted that he did not rely upon the material viz., bail application, bail order, orders issuing NBW. Hence the said material was not supplied to the detenu.
5. The law is well settled that all the relevant material containing in the grounds, form the basis or order of detention and therefore the said material should have been considered by 2nd respondent, the detaining authority, and the detenu should be supplied with the same, failure forms vice of non-application of mind by the detaining authority. Undoubtedly, the bail application, the order granting the bail and also orders issuing NBW should be taken into consideration by the detaining authority. It is important to notice that order granting bail to the detenu might indicate that there was, prima facie, no case against the detenu, in which he was involved. Hence it is a favourable material to the detenu, which has to be considered by the detaining authority before the comes to he subjective satisfaction. Admittedly the detaining authority has not considered the order granting bail to the detenu. It is only stated that he was aware of the said fact. Awareness of a fact is totally different from considering the said fact. Only in the process of consideration the application of mind will be involved. Awareness of a fact does not amount to consideration. Awareness is only knowledge of a fact, which is neutral circumstances, whereas the consideration is an active application of the mind on the known facts. In formation of an opinion whether a person is liable to be placed under preventive detention or not, active application of the mind of the detaining authority is what is needed.
6. Learned counsel for the petitioner cited the decision in [PRECEDENT], . In this case the Apex Court discussed various cases on several points raised and the conclusions were set down and the relevant principle was considered at conclusion 3 to 6, which are extracted hereunder :
"(3) It the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being imparied does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under [SECTION] when it is clear that the authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of [SECTION] of the [ACT]. Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."
From a reading of the above principles what emerges is that it is not necessary, in case where bail was refused, to apply the mind of the detaining authority to the said fact, since the detenu was in actual custody. In such a case, non-supply of the bail application and order refusing bail, could not cause prejudice to the detenu. However, in case where the detenu was released on bail, then the detaining authority has to necessarily apply his mind to such a fact and that would be a vital ground for making an order of detention. Hence bail application and the order granting bail, should be placed before the detaining authority and the copies of the same should also be supplied to the detenu. Bearing the above principles in mind, if we consider the instance case, it has to be held that the order of detention suffers from the vice of non-application of mind by the detaining authority and also breach of the constitutional guarantee of supply of the necessary material to the detenu, causing prejudice to him to make proper representation.
7. The decision in [PRECEDENT], cited by the learned counsel for the petitioner, is also to the effect that if the facts which would have influenced the mind of the detaining authority in one way or the other, were neither placed before nor considered by the detaining authority, it amounts to non-application of mind, rendering the order of detention invalid.
8. However, learned Government Pleader submits that the order granting bail is neutral fact and hence it need not be placed before nor considered by the detaining authority. In support of the said contention he relied upon the decision in [PRECEDENT]. In that case the detenu was released on conditional bail and ground No. 4 of the detention order has not adverted to this aspect. It only stated that after the commission of offence the detenu has escaped from the city and evaded the police and finally surrendered before the Court and the case was under investigation. A Bench, comprising one of us, held that the detenu being on bail was a neutral circumstances, which would not affect the validity of the order of detention and that on the other hand had the detenu not been released on bail and remanded as under trial prisoner, that might be a vital circumstance to be borne in mind. The decision in [ENTITY]'s case ([PRECEDENT]) (supra) has not been noticed by the learned Judges in the above case. In the case ([PRECEDENT]) (supra) the Apex Court has clearly held that in case where the detenu was released on bail and was a liberty at the time of passing the order of detention, then it would be a vital ground for the order of detention. In such a case the bail application and the order of granting bail should necessarily be placed before the authority and copies also be supplied to the detenu. In view of this decision of the Apex Court, the view of the Bench of this Court cannot be accepted.
9. In the next case cited by the learned Government Pleader, [PRECEDENT], , not doubt the detenu was not furnished with the copies of FIRs in the criminal cases in which he was convicted and in the 3 other criminal cases pending against him. But the contention based non-supply of relevant documents, was negatived by the Apex Court on the ground that the said document was already furnished to the detenu. Hence the learned Government Pleader now contends that since the detenu was already aware of the bail application and bail orders, non-supply of documents was not vital to the order of detention. But in the instant case the lacuna being not only the non-supply of documents, but also non-consideration of the same by the detaining authority, which amounted to non-application of mind by the detaining authority. Further the decision in [ENTITY]'s case ([PRECEDENT]) (supra) being directly on the point, we are bound by the same.
10. In [PRECEDENT], , cited by the learned Government Pleader, an order of detention was passed taking into consideration the confessional statement made by the detenu. The said confession was subsequently detracted. The fact of detracted confession was not taken into consideration in passing the detention order. It was therefore contended that the detention was illegal. But the said contention was negatived. No doubt this is a decision of a Bench of Apex Court comprising of 3 Judges, whereas the decision in [ENTITY]'s case ([PRECEDENT]) (supra) is only of 2 Judges and hence the earlier decision would prevail. But a consideration of facts would reveal that the only question that was canvassed in the said case was whether there was any other material placed before the detaining authority to ascertain whether 60 gold biscuits of foreign origin was imported and was in possession of detenu. There was sufficient other material in proof of the said allegation. In this view the Court held that even if the detracted confession was not taken into consideration, the order would not be vitiated. The facts in the instant case are entirely different. The law declared by the Apex Court in [ENTITY]'s case ([PRECEDENT]) (supra) squarely covered the point raised in the instant case.
11. It is lastly submitted by the learned Government Pleader that [ENTITY]'s case ([PRECEDENT]) (supra) is a case where the bail application filed by the detenu was refused and the detenu was in custody at the time of passing the order of detention and the question that arose in the said case was whether the failure by the detaining authority to consider the bail application and the order refusing bail and if considered non-supply of copies of the same, would affect the detention order. The Court after discussing various decisions on this point, rejected the contention upholding the order of detention. The question of consideration by the detaining authority of the bail application and the order of granting bail or furnishing the said documents to the detenu, did not arise at all in the said case and any observation made by the Court cannot be the ratio decidendi in the case.
12. No doubt in the said case the detenu was under custody, his bail application having been rejected, and thus the question of enlarging the detenu on bail was not directly in issue before the Court. But it should be seen that the Apex Court having discussed various cases on the point, found six conclusion having been emerged, and they were set down as the conclusions of the Court. Conclusion-6, which has been extracted supra, is to the effect that in case where the detenu was enlarged on bail, his bail application and the order granting bail should be considered by the detaining authority and the copies of the same should be supplied to the detenu. It is a clear and categorical finding, which cannot be ignored by this Court. A mere observation of the Apex Court has got the force of law. Then the conclusion arrived at by the Apex Court should be of greater authority. In the circumstances, we have to hold that the conclusions are the ratio of the case. In the light of the decision in [ENTITY]'s case ([PRECEDENT]) (supra), the order of detention in the instant case, has to be set aside.
13. It is, therefore, not necessary to consider the order grounds raised in the writ petition. It is not disputed that the detention order has to be quashed even if one ground out of the several grounds which form the basis of satisfaction of the detaining authority, is found defective.
14. The writ petition is, therefore allowed. The order of detention is set aside. Consequently the detenu is set free forthwith.
15. Petition allowed.