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PETITIONER:

N. MEERA RANI

Vs.

RESPONDENT:

GOVERNMENT OF TAMIL NADU & ANR.

DATE OF JUDGMENT22/08/1989

BENCH:

VERMA, JAGDISH SARAN (J)

BENCH:

VERMA, JAGDISH SARAN (J)

RANGNATHAN, S.

OJHA, N.D. (J)

CITATION:

1989 AIR 2027 1989 SCR (3) 901

1989 SCC (4) 418 JT 1989 (3) 478

1989 SCALE (2)363

CITATOR INFO :

R 1990 SC 516 (10)

R 1990 SC1196 (5,18)

RF 1990 SC1202 (11,12)

D 1990 SC1763 (5)

RF 1991 SC1640 (12)

RF 1991 SC2261 (12)

ACT:

National Security Act, 1980--Section 3(2) and 12(1)

subsisting custody of detenue does not invalidate order of

detention--Detention order can be made in anticipation to

operate on release of detenue.

HEADNOTE:

By an order dated 7.9.88 the Collector & District Magis-

trate Madurai under s. 3(2) of the National Security Act,

1980 made an order for keeping in custody Nallathambi, the

husband of the appellant/ petitioner. The State Govt. on

25.10.88 by its order under s. 12(1) of the Act confirmed

the order of detention agreeing with the opinion of the

Advisory Board and ordered the detention of the detenue for

12 months from the date of his detention. The wife of the

detenue challenged this preventive detention by filing a

writ of Habeas Corpus in the High Court of Madras. The High

Court by its order dated 6.3.89 dismissed the writ petition.

The appellant-petitioner challenged the dismissal of the

writ by the High Court by way of special leave and also by

filing a writ petition under Article 32 of the Constitution

of India. This Court while quashing the detention order,

HELD: Subsisting custody of the detenue by itself does

not invalidate an order of his preventive detention and the

decision must depend on the facts of the particular case;

preventive detention being necessary to prevent the detenue

from acting in any manner prejudicial to the security of the

State or to the maintenance of public order etc. ordinarily

it is not needed when the detenue is already in custody; the

detaining authority must show its awareness to the fact of

subsisting custody of the detenue and take that factor into

account while making the order; but, even so, if the detain-

ing authority is reasonably satisfied on cogent material

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that there is likelihood of his release and in view of his

antecedent activities which are proximate in point of time

he must be detained in order to prevent him from indulging

in such prejudicial activities, the detention order can be

validly made even in anticipation to operate on his release.

[919E-G]

In the instant case, the the detention order read with

its annexure indicates the detaining authority's awareness

of the fact of detenue's

902

jail custody at the time of the making of the detention

order. However there is no indication therein that the dete-

nue could be released on bail. On the contrary the detention

order shows satisfaction of the detaining authority that

there was ample material to support the criminal charge

against the detenue. The order of detention passed on

7.9.1988 and its confirmation by the State Government on

25.10.1988 is therefore clearly invalid since the same was

made when the detenue was already in jail custody for the

offence of bank dacoity with no prospect of his release.

[919H-920C]

Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,

[1964] 4 SCR 921--relied upon.

Kartic Chandra Guha v. The State of West Bengal & Ors.,

[1975] 3 SCC 490; Dr. Ramakrishna Rawat v. District Magis-

trate, Jabalpur & Anr., [1975] 4 SCC 164; Vijay Kumar v.

State of Jammu & Kashmir & Ors., [1982] 2 SCC 43; Alijan

Mian & Anr. v. District Magistrate, Dhanbad, [1983] 3 SCR

939; Ramesh Yadav v. District Magistrate, Etah & Ors.,

[1985] 4 SCC 232; Binod Singh v. District Magistrate, Dhan-

bad, Bihar & Ors., [1986] 4 SCC 416; Poonam Lata v. M.L.

Wadhawan & Anr., [1987] 4 SCC 48 and Smt. Shashi Aggarwal v.

State of U. P. & Ors., [1988] 1 SCC 436.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 511

of 1989.

From the Judgment and Order dated 6.3.1989 of the Madras

High Court in W.P. No. 14828 of 1988.

WITH

Writ Petition (Criminal) No. 205 of 1989.

(Under Article 32 of the Constitution of India).

U.R. Lalit and V. Balachandran for the Appellant/Petitioner.

K. Rajendra Chowdhary, V. Krishnamurthy and S. Thanan-

jayan for the Respondents.

The Judgment of the Court was delivered by

VERMA, J. Special leave granted.

903

The appellant-petitioner, Smt. N. Meera Rani, is the

wife of Nallathambi, who has been detained under the Nation-

al Security Act, 1980 (Act No. 65 of 1980) (hereinafter

referred to as "the Act"). An order dated 7.9.1988 was made

by the Collector and District Magistrate, Madurai, under

section 3(2) of the Act directing that the detenu be kept in

custody in the Central Prison, Madurai. Thereafter, the

State Government by its order dated 25.10.1988 made under

section 12(1) of the Act has confirmed the order of deten-

tion agreeing with the opinion of the Advisory Board consti-

tuted under the Act and directed that the detenu be kept in

detention for a period of 12 months from the date of his

detention. This preventive detention of the detenu was

challenged in the High Court of Judicature at Madras by his

wife, the appellant-petitioner, under Article 226 of the

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Constitution praying for issuance of a writ of habeas cor-

pus. The High Court by its order dated 6.3.1989 has dis-

missed the writ petition. The appellant-petitioner has then

challenged dismissal of the writ petition by the High Court

by special leave under Article 136 of the Constitution of

India in this Court. The appellant-petitioner has also filed

a writ petition under Article 32 of the Constitution of

India for the same purpose in this Court challenging direct-

ly her husband's preventive detention. The object of filing

this writ petition directly in this Court, in addition to

the appeal by special leave, is to raise some additional

grounds to challenge the detenu's detention. Both these

matters have been heard together and are being disposed of

by this common judgment.

We may now state the arguments advanced to challenge the

detenu's detention before mentioning the relevant facts

which are material for deciding those points. Shri U.R.

Lalit, learned counsel for the appellant-petitioner, has

advanced three contentions. The first contention is that

certain documents which have been referred to in some

grounds of detention were not supplied to the detenu with

the result that the detenu was not given a proper and rea-

sonable opportunity for making an effective representation

and, therefore, the order of detention is vitiated for this

reason alone. The second contention is that some documents

in the form of newspaper reports showing that the detenu was

apprehended and detained even prior to 21.8.1988 when the

detenu was shown to have been arrested in connection with an

offence punishable under section 397 I.P.C. were not placed

before the detaining authority when it formed the opinion

mentioned in the detention order which has also vitiated the

detention order. The last contention is that the fact of

detenu's arrest in connection with an offence punishable

under section 397 I.P.C. and of remand to custody by the

Magistrate as well as the contents of the bail application

dated

904

22.8.1988 which was rejected by the Magistrate were not

taken into account by the detaining authority before passing

the order of detention dated 7.9.1988 which also renders the

detention order invalid. On the other hand, Shri Chaudhary,

learned counsel for the respondents contended that even

assuming that some documents referred in the grounds of

detention were material and were not supplied to the detenu

the effect is not to invalidate the detention order for that

reason alone in view of section 5A of the Act which has been

inserted by Act 60 of 1984 with effect from 21.6.1984 since

the detention order can be sustained even on the remaining

grounds. In respect of the detenu's custody in connection

with the offence under section 397 I.P.C. and rejection of

his bail application, it was urged that this fact was con-

sidered by the detaining authority and, therefore, it does

not result in any infirmity. Shri Lalit, on behalf of the

appellant-petitioner, further contended that section 5A of

the Act cannot be construed in the manner suggested by the

learned counsel for the respondents since the guarantee to

the detenu under Article 22(5) of the Constitution results

in invalidating the entire detention order as claimed by

him.

The material facts mentioned in the detention order and

its annexure are now stated. A branch of the Bank of Madura

is located in a rented accommodation in flat No. 634, K.K.

Nagar in Madurai. On 6.8.1988, the Bank Manager and the

staff of the Bank were attending to the business of the Bank

which then had 443 packets containing valuable ornaments

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weighing about 20,576.150 grams valued at about rupees

sixty-two lakhs and cash amounting to Rs.38,945.00. These

gold ornaments were pledged with the Bank as security for

loans advanced by the Bank of certain borrowers. At about

10.55 A.M. on 6.8.1988 the Bank was looted and these orna-

ments and cash were taken away by armed dacoits on the point

of revolver after locking the Bank employees and customers

in the strong room. The dacoits escaped in an ambassador car

with registration No. TDL-9683 and a motorcycle bearing

registration No. TNK-6727. The dacoits are stated to be one

Karuna and some other Sri Lanka nationals who were tempo-

rarily living in a nearby flat which was in the possession

of the detenu. It is stated that the ambassador car used in

the dacoity had been stolen on 4.8.1988 from Quilon in the

State of Kerala by Karuna and his companions. It is further

stated that the dacoity was committed in order to fund the

militant organisation known as Tamil Nadu Makkal Viduthalai

Eyakkam with which the detenu has been associated and that

the detenu along with these Sri Lanka nationals belonging to

the Sri Lanka militant organisation had entered into a

criminal conspiracy to commit these cognizable offences. The

object of

905

these militant organisations is to achieve a separate Tamil

Ealam in Sri Lanka and to secure secession of Tamil Nadu

from the Union of India by violent means. It is further

stated that the detenu received from Karuna through Ajanth

and Pinto a share of the booty comprising of gold ornaments

weighing about 8325. 150 grams valued at about Rs.25 lakhs

and Rs. 15,000.00 in cash which was a part of the booty

looted from the Bank on 6.8.1988 in addition to a box con-

taining one revolver, 2 pistols, 3 grenades, 6 bombs and a

knife. It is further stated that on 9.8.1988 the detenu took

Karuna and Ajanth in his car bearing registration No. TNU-

8500 to Madras along with Babu and Rajendran and subsequent-

ly on 10.8.1988 the detenu sent them to Nellore in Andhra

Pradesh in his car to help them escape. It is also stated

that a note was sent by the detenu to the news media in the

name of Tamil Nadu Makkal Viduthalai Eyakkam owning respon-

sibility for the dacoity and threatening the law enforcement

agency and the Government servants with dire consequences if

they attempted to apprehend them. It is then said that on

21.8.1988 the detenu was arrested at Samayanallur while he

was driving his car bearing registration No. TNU-8500 to-

wards Madurai when he made a voluntary confession in the

presence of witnesses. The car bearing registration No.

TNU-8500 was seized at 19.15 hours on 21.8.1988 in front of

Samayanallur Police Station and the detenu's confession led

to recovery of gold ornaments weighing about 7275.750 grams

valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with

Bank tags and chits and a set of keys from the detenu's

house on 21.8.1988 at 20.15 hours. In pursuance to detenu's

confession recovery was also made of a box containing one

revolver, 2 pistols with ammunition, 3 grenades, 6 bombs and

one knife from the house of Anandan, an employee of the

detenu in Madurai. Further recovery of a bag containing gold

ornaments weighing about 1015.600 grams valued at

Rs.3,05,000.00 was made from the shop of Vijayakumar in

Madurai and Vijayakumar also made a confession pursuant to

which the recovery was made of gold ornaments weighing about

25.900 grams from Gurumoorthy. Subsequently, these ornaments

were identified as those which had been looted in the

above-mentioned dacoity on 6.8.1988. It is on these grounds

that the impugned detention order dated 7.9.1988 was passed

for the detenu's preventive detention under the Act.

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The detention order as well as its annexure containing

the relevant ground of detention are quoted as under:

"ANNEXURE 'A'

906

PROCEEDINGS OF THE COLLECTOR AND DISTRICT

MAGISTRATE, MADURAI.

PRESENT: THIRU M. DEVARAJ, I.A.S.

N.S.A. NO. 73/88 Dated:

7.9.1988

DETENTION ORDER

WHEREAS, I, M. DEVARAJ, I.A.S.

Collector and District Magistrate, Madurai, am

satisfied with respect to the person known as

Thiru Nallathambi @ Thambi, male, aged 30

years, S/o (late) Thiru S. Mathu, residing at

Block No. 2, H.I.G. Colony, Anna Nagar, Madu-

rai Town that with a view to preventing him

from acting in any manner prejudicial to the

maintenance of public order, it is necessary

to make the following order.

(2) Now, therefore, in exercise of

the powers conferred by sub-section (2) of

section 3 of the National Security Act, 1980

(Central Act 65 of 1980) read with orders

issued by the Government in G.O. Ms. No. 1169,

public (L & O-F) Department, dated 3.8.1988

under sub-section (3) of the said Act, I

hereby direct that the said Thiru Nallathambi

@ Thambi be detained and kept in custody in

the Central Prison, Madurai.

Given under my hand and seal of

office, this the 7th day of September, 1988.

sd/-

Collector

and District

Magistrate,

Madurai

To

Thiru Nallathambi @ Thambi,

S/o (Late) Thiru S. Mathu,

Block No. 2, H.I.G. Colony,

Anna Nagar,

Madurai-20.

(Now in Central Prison, Madurai as remand

prisoner)

907

Through. Thiru V.S. Ganapathy, Deputy Superin-

tendent of Police, Tirupparankundram, Madurai

City, for service under acknowledgement."

"ANNEXURE 'B'

N.S.A. No. 73/88 Dated

7.9.88

Sub: National Security Act, 1980 (Central Act

65 of 1980)--detention of Thiru Nallathambi

alias Thambi, Male aged 30 years, S/o (Late)

S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madu-

rai u/s. 3(2) of the National Security Act,

1980--Grounds of detention.

A detention order under section 3(2) of

the National Security Act (Central Act 65 of

1980) has been made on Thiru Nallathambi alias

Thambi, male, aged 30 years, s/o (Late) S.

Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai

vide order NSA No. 73/88 dated 7.9.1988.

(2) The grounds on which the said deten-

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tion has been made are as follows:

XXX XXX XXX

XXX

(9) In furtherance of the conspiracy Thiru

Nallathambi sent a note to the news media in

the name of Tamil Nadu Makkal Vidhuthalai

Eyakkam owning responsibility for the dacoity

and threatening the law enforcement agency and

Government servants with dire consequences if

they dare to apprehend them.

(10) On 21.8.88 at 1400 hours, Thiru

Nallathambi, was arrested at Samayanallur

while he was driving his car TNU 8500 towards

Madurai. He gave a voluntary confession which

was recorded in the presence of witness (1)

Kulanthani Anandan, Village Administrative

Officer, Sathamgalam and (2)Pannerselvam,

Village Administrative Officer, Thiruppalai.

The car TNU 8500 was seized at 1915 hours on

21.8.88 in front of Samayanallur Police Sta-

tion. In pursuance of his confession gold

jewels weighing about 7275.750 grams valued at

Rs.21,85,000.00 in 172

908

bags and 19 empty bags with bank tags and

chits and a set of key were recovered from his

house on 21.8.88 at 20.15 hours. Further in

pursuance of his confession a box containing 1

revolver, 2 pistols with ammunition, 3 gre-

nedes, 6 bombs, 1 knife was recovered from the

house of accused Thiru Anand located in 27,

Lakshimipuram, 6th Street, Madurai who is also

an employee under Thiru Nallathambi. Further

pursuant to his confession a bag containing

gold jewels weighing about 1015.600 grams

valued Rs.3,05,000.00 was recovered from the

moulding workshop of accused Thiru Vijayakumar

located in 10-A, Bharatiar Main Street, K.

Pudur, Madurai. Pursuant to the confession of

Thiru Vijayakumar gold jewels weighing about

25.900 grams was recovered from the accused

Thiru Gurumoorthy. The above jewels recovered

were identified to be stolen from the Bank of

Madura on 6.8.88.

(11) The chance prints developed

from the scene of occurrance in Bank of Madu-

ra, K.K. Nagar Branch, Madurai tallied with

the fingerprints of accused Thiru Karuna.

(12) The chance prints developed

from the ambassador car TDL 9683 which

was abandoned at new Mahali Party Street,

Madurai after the commission of armed dacoity

tallied with the finger-prints of accused

Thiru Karuna.

(13) The chance prints developed

from the ambassador car TDL 1919 and TDT 3699

which were used in earlier attempts tallied

with the finger-prints of accused Thiru Karu-

na.

XXX XXX XXX

(18) I am aware that Thiru Nalla-

thambi is in remand and would be proceeded

with under normal law. Though the name of

Thiru Nallathambi does not find a place in the

F.I.R. and though he has not physically par-

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ticipated in the commission of the armed

dacoity, a reading of the records and the

statement clearly disclosed the facts that

Thiru Nallathambi, was an active participant

in the said conspiracy to loot the K.K. Nagar

branch of the Bank of Madura. In

909

furtherance of the conspiracy Thiru Nallatham-

bi had made preparation for the commission of

the armed dacoity as discussed in para 4

above. Further Thiru Nallathambi had received

a portion of booty of gold jewels weighing

about 8325. 150 grams valued Rs.25 lakhs and

cash Rs. 15,000.00 from the stolen jewels and

cash robbed from the abovesaid Bank and re-

ceived a box containing 1 revolver, 2 pistols,

3 grenades, 6 bombs and a knife used in the

commission of offence. Subsequently, the said

jewels, firearms and bombs mentioned above

were recovered in pursuance of the confession

of Thiru Nallathambi. Further Thiru Nallatham-

bi sent a notice to the News Media in the name

of "Tamil Nadu Makkal Vidhuthalai Eyakkam"

owning responsibility of the armed dacoity and

threatening the law enforcement agency and

Government servants with dire consequences if

they dare to apprehend them. Therefore, as a

detaining authority I am satisfied that there

is compelling necessity warranting the deten-

tion of Thiru Nallathambi under the National

Security Act and if Thiru Nallathambi is

allowed to remain at large it will not be

possible to prevent him from indulging in

activities prejudicial to the maintenance of

public order.

(19) I am also satisfied on the

materials mentioned above that if Thiru Nalla-

thambi is allowed to remain at large, he will

indulge in further activities prejudicial to

the maintenance of public order and further

the recourse to normal law would not have

their desired effect of effectively preventing

him from indulging in activities prejudicial

to the maintenance of public order and, there-

fore, I consider that it is necessary to

detain him in custody with a view to prevent-

ing him from acting in any manner prejudicial

to the maintenance of public order.

XXX XXX XXX

XXX."

The first argument of the learned counsel for the appel-

lantpetitioner is based on the above quoted grounds in para

Nos. 11, 12 and 13 relating to the chance printes developed

from the scene of occurrence in the Bank, the ambassador

cars TDL 9683, TDL 1919 and TDT 3699 which tallied with the

finger-prints of Karuna, an accused in the Bank dacoity

case. It was argued that the report of the finger-prints

expert who gave this opinion was not supplied to the

910

detenu even though it was a material document to enable the

detenu to make an effective representation in respect of

these grounds of detention. Another similar document relates

to ground No. 9 which mentions a note sent by the detenu to

the newspaper media in the name of Tamil Nadu Makkal Vidu-

thalai Eyakkam owning responsibility for the Bank dacoity

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and threatening the law enforcement agency and Government

servants with dire consequences if they dare to apprehend

them. It was argued that the non-supply of these documents

on which the grounds of detention Nos. 9, 11, 12 and 13 are

based has deprived the detenu of his legitimate right of

effective representation against the same which is guaran-

teed under Article 22(5) of the Constitution of India and

this defect results in invalidating the entire detention

order. The reply of learned counsel for the respondents is

that section 5A of the Act is a complete answer to this

argument inasmuch as this defect at best requires only the

exclusion of these grounds of detention and no more. It was

urged by learned counsel for respondents that the remaining

grounds of detention were sufficient to sustain the deten-

tion order by virtue of section 5A of the Act. Learned

counsel for the appellant-petitioner also contended that

such a result is not envisaged by section 5A of the Act

which did not apply to such a situation and the guarantee

under Article 22(5) of the Constitution rendered the defect

fatal to the detention order.

Section 5A of the Act clearly provides that the deten-

tion order under section 3 of the Act has been made on two

or more grounds, shall be deemed to have been made separate-

ly on each of such grounds and accordingly such order shall

not be deemed to be invalid merely because one or some of

the grounds is or are invalid for any reason whatsoever. It

further says that the detaining authority shall be deemed to

have made a detention order after being satisfied as provid-

ed in section 3 with reference to the remaining grounds or

ground. In other words, a ground of detention which is

rendered invalid for any reason whatsoever, shall be treated

as non-existent and the surviving grounds which remain after

excluding the invalid grounds shall be deemed to be the

foundation of the detention order. Section 5A was inserted

in the Act with effect from 21.6.1984 to overcome the effect

of the decisions which had held that where one or more of

the grounds of detention is found to be invalid, the entire

detention order must fall since it would not be possible to

hold that the detaining authority making such order would

have been satisfied as provided in section 3 with reference

to the remaining ground or grounds. It is, therefore, doubt-

ful whether the construction of Section 5A suggested by

learned counsel for the appellant-petitioner can be accept-

ed. However, in the

911

present case, it is not necessary for us to express any

concluded opinion on this point since we have reached the

conclusion that the detention order must be quashed on one

of the other contentions to which we shall advert later.

The second argument of learned counsel for the respond-

ents may also be considered before we deal with the last

contention on which we propose to quash the detention order.

The second contention is that the detenu's arrest in connec-

tion with the Bank dacoity case is shown on 21.8.1988 when

he was actually arrested much earlier in connection with the

Bank dacoity as appeared in some local newspapers but those

newspaper reports are not shown to have been placed before

the detaining authority. On this basis, it was argued that

the satisfaction reached by the detaining authority has been

vitiated.

The question of the date on which the detenu was taken

into custody in connection with the Bank dacoity is material

for the last contention which we shall consider hereafter

but the same has no relevance in this connection. Contents

of the newspaper reports except for the fact of earlier

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arrest which was known to the detaining authority were not

relevant for the satisfaction needed to justify making of

the detention order. The detaining authority's satisfaction

was to be formed on the basis of material relevant to show

the detenu's activities requiring his preventive detention

with a view to prevent him from acting in a manner prejudi-

cial to the maintenance of the public order. The newspaper

reports indicating that the detenu was already in custody

could at best be relevant only to show the fact that he' was

already in detention prior to the making of the detention

order. We have already mentioned that this fact of the

detenu's custody before the making of the order of detention

on 7.9.1988 was known to the detaining authority and its

effect is a separate point considered later. The other

contents of the newspaper reports had no other relevance for

this purpose. This contention of learned counsel for the

appellantpetitioner is, therefore, rejected.

The last contention of learned counsel is based on the

fact that the detenu was already in custody in connection

with the Bank dacoity when the order of detention was made

on 7.9.1988. It is also clear that on 22.8.1988 the detenu

had moved a bail application which had been rejected and he

had been remanded to custody. It is significant that the

detention order itself describes the detenu as a person in

custody in the Central Prison at Madurai and the order was

served on him through the Superintendent of the Prison. The

question now is of the effect of

912

the detenu's earlier custody on the validity of the deten-

tion order.

The contents of the detention order and its accompanying

annexure clearly show that the detaining authority was aware

and conscious of the fact that the detenu was already in

custody in connection with the Bank dacoity at the time of

making the detention order. The fact that the detenu's

application for grant of bail in the dacoity case had been

rejected on 22.8.1989 and he was remanded to custody for the

offence of bank dacoity punishable under section 397 I.P.C.

is also evident from the record. The detention order came to

be made on 7.9.1988 on the above grounds in these circum-

stances. In the detention order the detaining authority

recorded its satisfaction that the detenu's preventive

detention was necessary to prevent him from indulging in

activities prejudicial to maintenance of public order in

which he would indulge if he was allowed to remain at large.

The above quoted paragraphs 18 and 19 of the Annexure to the

detention order clearly disclose this factual position.

However, it may be pointed out that the detention order read

along with its annexure nowhere indicates that the detaining

authority apprehended the likelihood of the detenu being

released on bail in the dacoity case and, therefore, consid-

ered the detention order necessary. On the contrary, its

contents, particularly those of the above quoted paragraph

18 clearly mention that the detenu had been remanded to

custody for being proceeded against in due course and even

though his name was not mentioned in the F.I.R. as one of

the dacoits who participated in the commission of the armed

Bank dacoity yet the documents clearly revealed that the

detenu was an active participant in the conspiracy to loot

the bank in furtherance of which the dacoity was committed;

and that considerable booty of that crime including weapons,

bombs and hand-grenades were recovered from his possession

pursuant to the detenu's confession made after his arrest.

These averments in the detention order indicate the satis-

faction of the detaining authority that in its view there

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was ample material to prove the detenu's active participa-

tion in the crime and sharing the booty for which offence he

had already been taken into custody. This view of the de-

taining authority negatives the impression of likelihood of

detenu being released on bail.

The real question, therefore, is: whether after the

above satisfaction reached by the detaining authority and

when the detenu was already in custody being arrested in

connection with the Bank dacoity, could there be any reason-

able basis for making the detention order and serving it on

the detenu during his custody?

We may now refer to the decisions on the basis of which this

913

point is to be decided. The starting point is the decision

of a Constitution Bench in Rameshwar Shaw v. District Magis-

trate, Burdwan & Anr., [964] 4 SCR 92 1. All subsequent

decisions which are cited have to be read in the light of

this Constitution Bench decision since they are decisions by

Benches comprised of lesser number of Judges. It is obvious

that none of these subsequent decisions could have intended

taking a view contrary to that of the Constitution Bench in

Rameshwar Shaw's case (supra).

The detention order in Rameshwar Shaw's case (supra) was

made and also served on the detenu while he was in jail

custody. The detenu was then in jail where he had been kept

as a result of the remand order passed by the competent

court which had taken cognizance of a criminal complaint

against him. The Constitution Bench considered the effect of

the detenu's subsisting detention at the time of making of

the order of preventive detention and held that the effect

thereof had to be decided on the facts of the case; and that

this was a material factor to be considered by the detaining

authority while reaching the satisfaction that an order of

preventive detention was necessary to prevent the detenu

from acting in a manner prejudicial to the maintenance of

public order after his release. It was indicated that the

detenu's subsisting custody did not by itself invalidate the

detention order but facts and circumstances justifying the

order of preventive detention notwithstanding his custody

were necessary to sustain such an order.

The position of law was summarised by their Lordships as

under:

"As an abstract proposition of law, there may

not be any doubt that s. 3(1)(a) does not

preclude the authority from passing an order

of detention against a person whilst he is in

detention or in jail; but the relevant facts

in connection with the making of the order may

differ and that may make a difference in the

application of the principle that a detention

order can be passed against a person in jail.

Take for instance, a case where a person has

been sentenced to rigorous imprisonment for

ten years. It cannot be seriously suggested

that soon after the sentence of imprisonment

is pronounced on the person, the detaining

authority can make an order directing the

detention of the said person after he is

released from jail at the end of the period of

the sentence imposed on him. In dealing with

this question, again the considerations of

proximity of time will not be

914

irrelevant. On the other hand, if a person who

is undergoing imprisonment, for a very short

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16

period, say for a month or two or so, and it

is known that he would soon be released from

jail, it may be possible for the authority to

consider the antecedent history of the said

person and decide whether the detention of the

said person would be necessary after he is

released from jail, and if the authority is

bona fide satisfied that such detention is

necessary, he can make a valid order of deten-

tion a few days before the person is likely to

be released. The antecedent history and the

past conduct on which the order of detention

would be based would, in such a case, be

proximate in point of time and would have a

rational connection with the conclusion drawn

by the authority that the detention of the

person after his release is

necessary .......... Therefore, we are

satisfied that the question as to whether an

order of detention can be passed against a

person who is in detention or in jail, will

always have to be determined in the circum-

stances of each case.

The question which still remains to

be considered is: can a person in jail custo-

dy, like the petitioner, be served with an

order of detention whilst he is in such custo-

dy?

XXX XXX XXX

XXX

We have already seen the logical process which

must be followed by the authority in taking

action under s. 3(1)(a). The first stage in

the process is to examine the material adduced

against a person to show either from his

conduct or his antecedent history that he has

been acting in a prejudicial manner. If the

said material appears satisfactory to the

authority, then the authority has to consider

whether it is likely that the said person

would act in a prejudicial manner in future if

he is not prevented from doing so by an order

of detention. If this question is answered

against the petitioner, then the detention

order can be properly made. It is obvious that

before an authority can legitimately come to

the conclusion that the detention of the

person is neces-

sary to prevent him from acting in a prejudi-

cial manner, the authority has to be satisfied

that if the person is not detained, he would

act in a prejudicial manner and that inevita-

bly postulates freedom of action to the said

person

915

at the relevant time. If a person is already

in jail custody, how can it rationally be

postulated that if he is not detained, he

would act in a prejudicial manner? At the

point of time when an order of detention is

going to be served on a person, it must be

patent that the said person would act prejudi-

cially if he is not detained and that is a

consideration which would be absent when the

authority is dealing with a person already in

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detention. The satisfaction that it is neces-

sary to detain a person for the purpose of

preventing him from acting in a prejudicial

manner is thus the basis of the order under s.

3(1)(a), and this basis is clearly absent in

the case of the petitioner. Therefore, we see

no escape from the conclusion that the deten-

tion of the petitioner in the circumstances of

this case, is not justified by s. 3(1)(a) and

is outside its purview." (at pages 929-931 of

SCR)

(emphasis

supplied)

On the above principle the Constitution Bench also

explained the decision of the Assam High Court in Sahadat

Ali v. State of Assam & Ors., A.I.R. 1953 Assam 97 in Saha-

dat Ali's case (supra) the Government had decided to abandon

the pending prosecution in public interest and action for

detenu's release was taken. In anticipation of his release,

the order of detention was passed and it was served after he

was actually released. In these circumstances the detention

order and its service was held valid. The test indicated by

the Constitution Bench was duly satisfied.

It is this principle and the test indicated therein

which has to be applied in all such cases. Read in this

manner the conclusion reached in each of the subsequent

decisions satisfies this test.

In Kartic Chandra Guha v. The State of West Bengal and

others, [1975] 3 SCC 490 the order of preventive detention

passed while the detenu was in custody was upheld since

there was a likelihood of his release on bail and resuming

his desperate criminal activities prejudicial to the mainte-

nance of public order. The facts of that case, therefore,

justified making the detention order according to the test

laid down by the Constitution Bench in Rameshwar Shaw's case

(supra). Dr. Rarnakrishna Rawat v. District Magistrate,

Jabalpur and another, [1975] 4 SCC 164 was a case in which

the order of detention was passed while the detenu was in

jail custody in a proceeding under section 151 read with

section 117 Cr.P.C. The detention order was upheld since

916

the custody was obviously of a short duration and on the

basis of the antecedent activities of the detenu in the

proximate past, the detaining authority could reasonably

reach its subjective satisfaction that the detenu had the

tendency to act in a manner prejudicial to the maintenance

of public order after his release on the termination of the

security proceedings under the Code. In Vijay Kumar v. State

of Jammu & Kashmir and others, [1989] 2 SCC 43 the detention

order was quashed because it did not give the slightest

indication that the detaining authority was aware that the

detenu was already in jail. The further question of the

detaining authority's subjective satisfaction that it was

necessary even then to make an order for preventing him from

acting in a manner prejudicial to the security of the State

did not, therefore, arise. While dealing with this aspect

the correct position was reiterated as under:

"Preventive detention is resorted to, to

thwart future

action. If the detenu is already in jail

charged with a serious offence, he is thereby

prevented from acting in a manner prejudicial

to the security of the State. May be, in a

given case there yet may be the need to order

preventive detention of a person already in

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jail. But in such a situation the detaining

authority must disclose awareness of the fact

that the person against whom an order of

preventive detention is being made is to the

knowledge of the authority already in jail and

yet for compelling reasons a preventive deten-

tion order needs to be made. There is nothing

to indicate the awareness of the detaining

authority that detenu was already in jail and

yet the impugned order is required to be made.

This, in our opinion, clearly exhibits non-

application of mind and would result in inval-

idation of the order."

(at

page 48)

It is obvious that in this decision also the test indicated

by the Constitution Bench in Rameshwar Shaw's case (supra)

was applied and the detention order was quashed on that

basis.

In Alijan Mian and another v. District Magistrate,

Dhanbad, [1983] 3 SCR 939 the detention order was upheld

even though the detenu was in jail custody on the date of

passing of the detention order because the detention order

showed that the detaining authority was alive to the fact

and yet it was satisfied that if the detenu was enlarged on

bail, which was quite likely, he would create problems of

public order which necessitated his preventive detention. In

Ramesh Yadav

917

v. District Magistrate, Etah and others, [1985] 4 SCC 232

the detention order was passed when the detenu was in jail

on the mere apprehension of likelihood of grant of bail on

the basis of some stale grounds and a ground in respect of

which the detenu had already been acquitted. It is obvious

that even with the likelihood of grant of bail, the grounds

of detention being stale or non-existent on the ground of

the detenu's acquittal, they did not satisfy the required

test of the detention order being based on valid grounds

showing detenu's activities proximate in point of time to

justify the detaining authority's satisfaction as reasona-

ble. It was observed in passing that if the apprehension of

the detaining authority about the likelihood of grant of

bail was correct then it was open to challenge the bail

order in a higher forum. This observation has accordingly to

be read in the context of the facts in which it was made. In

Binod Singh v. District Magistrate, Dhanbad, Bihar and

others, [1986] 4 SCC 416 the detention order was held to be

invalid because the jail custody of the detenu at the time

of service of the order as also the prospect of his release

were not considered while making the detention order. It was

held that the detention order was invalid on the ground of

non-application of mind to these relevant factors even if

the detention was otherwise justified. The decision in

Rameshwar Shaw's case (supra) was relied on and it was

reiterated as under:

"If a man is in custody and there is no immi-

nent possibility of his being released, the

power of preventive detention should not be

exercised. In the instant case when the actual

order of detention was served upon the detenu,

the detenu was in jail. There is no indication

that this factor or the question that the said

detenu might be released or. that there was

such a possibility of his release, was taken

into consideration by the detaining authority

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properly and seriously before the service of

the order. A bald statement is merely an ipse

dixit or the officer. If there were cogent

materials for thinking that the detenu might

be released then these should have been made

apparent."

(at

pages 420-421)

In Poonam Lata v. M.L. Wadhawan and another, [1987] 4 SCC 48

it was reiterated that detenu being already in jail at the

time of passing detention order does not by itself vitiate

the detention if the detaining authority is aware of this

fact but even then it is satisfied about the necessity of

preventive detention. The Constitution Bench decision in

Rameshwar Shaw's case (supra) and the other earlier deci-

sions were

918

referred while reaching this conclusion. The correct posi-

tion was reiterated and summarised as under:

"It is thus clear that the fact that the

detenu is already in detention does not take

away the jurisdiction of the detaining author-

ity in making an order of preventive deten-

tion. What is necessary in a case of that type

is to satisfy the court when detention is

challenged on that ground that the detaining

authority was aware of the fact that the

detenu was already in custody and yet he was

subjectively satisfied that his order of

detention became necessary. In the facts of

the present case, there is sufficient material

to show that .the detaining authority was

aware of the fact that the petitioner was in

custody when the order was made, yet he was

satisfied that his preventive detention was

necessary."

(at

page 58)

A recent decision on the point is Smt. Shashi Aggarwal

v. State of U.P. and others, [1988] 1 SCC 436 in which also

the settled principle is reiterated and it is pointed out

that the ultimate decision depends on the facts of a partic-

ular case, the test to be applied remaining the same, as

indicated in Rameshwar Shaw's case (supra). It was also

pointed out in this decision that the earlier decisions of

the Supreme Court in Ramesh Yadav, (supra) and Binod Singh,

(supra) do not run counter to the decision in Alijan Mian's

case (supra). In each of these cases the conclusion was

reached on the facts of the particular case, the test ap-

plied being the same. Similarly, in this decision it was

once again pointed out that the detenu being already in

jail, the mere possibility of his release on bail was not

enough for preventive detention unless there was material to

justify the apprehension that the detenu would indulge in

activities prejudicial to the maintenance of public order in

case of his release on bail. The detention order in that

case had been made merely on the ground that the detenu was

trying to come out on bail and there was enough possibility

of his being bailed out. It was, therefore, held that the

mere possibility of his release on bail and a bald statement

that the detenu would repeat his criminal activities was

alone not sufficient to sustain the order of preventive

detention in the absence of any material on the record to

show that if released on bail he was likely to commit activ-

ities prejudicial to the maintenance of public order. The

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detention order in that case was quashed on the ground that

the requisite material to entertain such an apprehension

reasonably was not present. The conclusion reached therein,

on the facts and circumstances of the case, is as under:

919

"In the instant case, there was no material

made apparent on record that the detenu, if

released on bail, is likely to commit activi-

ties prejudicial to the maintenance of public

order. The detention order appears to have

been made merely on the ground that the detenu

is trying to come out on bail and there is

enough possibility of being bailed out. We do

not think that the order of detention could be

justified only on that basis."

(at

page 440)

A review of the above decisions reaffirms the position

which was settled by the decision of a Constitution Bench in

Rameshwar Shaw's case (supra). The conclusion about validity

of the detention order in each case was reached on the facts

of the particular case and the observations made in each of

them have to be read in the context in which they were made.

None of the observations made in any subsequent case can be

construed at variance with the principle indicated in Ra-

meshwar Shaw's case (supra) for the obvious reason that all

subsequent decisions were by benches comprised on lesser

number of Judges. We have dealt with this matter at some

length because an attempt has been made for some time to

construe some of the recent decisions as modifying the

principle enunciated by the Constitution Bench in Rameshwar

Shaw's case (supra).

We may summarise and reiterate the settled principle.

Subsisting custody of the detenu by itself does not invali-

date an order of his preventive detention and the decision

must depend on the facts of the particular case; preventive

detention being necessary to prevent the detenu from acting

in any manner prejudicial to the security of the State or to

the maintenance of public order etc. ordinarily it is not,

needed when the detenu is already in custody; the detaining

authority must show its awareness to the fact of subsisting

custody of the detenu and take that factor into account

while making the order; but, even so, if the detaining

authority is reasonably satisfied on cogent material that

there is likelihood of his release and in view of his an-

tecedent activities which are proximate in point of time he

must be detained in order to prevent him from indulging in

such prejudicial activities, the detention order can be

validly made even in anticipation to operate on his release.

This appears to us, to be the correct legal position.

Applying the above settled principle to the facts of the

present case we have no doubt that the detention order, in

the present case, must be quashed for this reason alone. The

detention order read with

920

its annexure indicates the detaining authority's awareness

of the fact of detenu's jail custody at the time of the

making of the detention order. However, there is no indica-

tion therein that the detaining authority considered it

likely that the detenu could be released on bail. In fact,

the contents of the order, particularly, the above quoted

para 18 show the satisfaction of the detaining authority

that there was ample material to prove the detenu's complic-

ity in the Bank dacoity including sharing of the booty

inspite of absence of his name in the F.I.R. as one of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16

dacoits. On these facts, the order of detention passed in

the present case on 7.9.1988 and its confirmation by the

State Government on 25.10.1988 is clearly invalid since the

same was made when the detenu was already in jail custody

for the offence of bank dacoity with no prospect of his

release. It does not satisfy the test indicated by the

Constitution Bench in Rameshwar Shaw's case (supra). We hold

the detention order to be invalid for this reason alone and

express no opinion on merits about the grounds of detention.

Consequently, the aforesaid order of detention dated

7.9.1988 passed by the Collector and District Magistrate,

Madurai, and the order of confirmation dated 25.10.1988 by

the Government of Tamil Nadu are quashed. The appeal and the

writ petition are allowed. This, however, will not affect

the detenu's custody in connection with the criminal case

under section 397 I.P.C. We may also clarify that in case

the detenu is released in the aforesaid criminal case, the

question of his preventive detention under the Act on the

above material may be reconsidered by the appropriate au-

thority in accordance with law and this judgment shall not

be construed as an impediment for that purpose. No costs.

R.N.J. Appeal and Petition allowed.

921