Criminal Appeal No 511 of 1989
From the Judgment and Order dated 631989 of the Madras High Court in WP No 14828 of 1988
WITH Writ Petition Criminal No 205 of 1989
Under Article 32 of the Constitution of India
UR Lalit and V Balachandran for the AppellantPetitioner
K Rajendra Chowdhary V Krishnamurthy and section 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 791988 was made by the Collector and District Magistrate Madurai under section 32 of the Act directing that the detenu be kept in custody in the Central Prison Madurai
Thereafter the State Government by its order dated 25101988 made under section 121 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 Constitution praying for issuance of a writ of habeas cor pus
The High Court by its order dated 631989 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 UR 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 2181988 when the detenu was shown to have been arrested in connection with an offence punishable under section 397 IPC 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 IPC and of remand to custody by the Magistrate as well as the contents of the bail application dated 904 2281988 which was rejected by the Magistrate were not taken into account by the detaining authority before passing the order of detention dated 791988 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 2161984 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 IPC 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 225 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 KK Nagar in Madurai
On 681988 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 weighing about 20576150 grams valued at about rupees sixty two lakhs and cash amounting to Rs3894500
These gold ornaments were pledged with the Bank as security for loans advanced by the Bank of certain borrowers
At about 1055 AM on 681988 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 481988 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 Rs25 lakhs and Rs 1500000 in cash which was a part of the booty looted from the Bank on 681988 in addition to a box con taining one revolver 2 pistols 3 grenades 6 bombs and a knife
It is further stated that on 981988 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 1081988 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 2181988 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 1915 hours on 2181988 in front of Samayanallur Police Station and the detenu s confession led to recovery of gold ornaments weighing about 7275750 grams valued at Rs218500000 in 172 bags and 19 empty bags with Bank tags and chits and a set of keys from the detenu s house on 2181988 at 2015 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 1015600 grams valued at Rs30500000 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 25900 grams from Gurumoorthy
Subsequently these ornaments were identified as those which had been looted in the above mentioned dacoity on 681988
It is on these grounds that the impugned detention order dated 791988 was passed for the detenu s preventive detention under the Act
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 IAS NSA NO
7388 Dated 791988 DETENTION ORDER WHEREAS I M DEVARAJ IAS Collector and District Magistrate Madurai am satisfied with respect to the person known as Thiru Nallathambi  Thambi male aged 30 years So late Thiru section Mathu residing at Block No 2 HIG 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 Central Act 65 of 1980 read with orders issued by the Government in GO Ms No 1169 public L  O F Department dated 381988 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 So Late Thiru section Mathu Block No 2 HIG Colony Anna Nagar Madurai 20
Now in Central Prison Madurai as remand prisoner 907 Through
Thiru VS Ganapathy Deputy Superin tendent of Police Tirupparankundram Madurai City for service under acknowledgement ANNEXURE B  NSA No 7388 Dated 7988 Sub Central Act 65 of 1980 detention of Thiru Nallathambi alias Thambi Male aged 30 years So Late section Mathu 2 HIG Colony Anna Nagar Madu rai section 32 of the National Security Act 1980 Grounds of detention
A detention order under section 32 of the Central Act 65 of 1980 has been made on Thiru Nallathambi alias Thambi male aged 30 years so Late section Mathu 2 HIG Colony Anna Nagar Madurai vide order NSA No 7388 dated 791988
2 The grounds on which the said deten 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 21888 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 2Pannerselvam Village Administrative Officer Thiruppalai
The car TNU 8500 was seized at 1915 hours on 21888 in front of Samayanallur Police Sta tion
In pursuance of his confession gold jewels weighing about 7275750 grams valued at Rs218500000 in 172 908 bags and 19 empty bags with bank tags and chits and a set of key were recovered from his house on 21888 at 2015 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 1015600 grams valued Rs30500000 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 25900 grams was recovered from the accused Thiru Gurumoorthy
The above jewels recovered were identified to be stolen from the Bank of Madura on 6888
11 The chance prints developed from the scene of occurrance in Bank of Madu ra KK 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 FIR and though he has not physically par 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 KK 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 Rs25 lakhs and cash Rs 1500000 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 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 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 225 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 225 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 2161984 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 2181988 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 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 791988 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 791988
It is also clear that on 2281988 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 2281989 and he was remanded to custody for the offence of bank dacoity punishable under section 397 IPC is also evident from the record
The detention order came to be made on 791988 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 FIR 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 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 vs 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 section 31a 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 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 section 31a
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 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 section 31a 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 section 31a 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 vs State of Assam  Ors AIR 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 vs The State of West Bengal and others 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 vs District Magistrate Jabalpur and another 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
PC 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 vs State of Jammu  Kashmir and others 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 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 vs District Magistrate Dhanbad  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 vs District Magistrate Etah and others 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 vs District Magistrate Dhanbad Bihar and others  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 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 vs ML Wadhawan and another  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 vs State of UP and others  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 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 FIR as one of the dacoits
On these facts the order of detention passed in the present case on 791988 and its confirmation by the State Government on 25101988 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 791988 passed by the Collector and District Magistrate Madurai and the order of confirmation dated 25101988 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 IPC
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
RNJ Appeal and Petition allowed


Summary:
In the election to the Bihar Legislative Assembly held in 1985 the appellant was declared elected from the 286 Chandan Kyari SC Constituency
The respondent a sitting MLA who secured 430 votes less than the appellant filed an election petition in the Patna High Court Ranchi Bench calling in question the election of the appellant
The respondent s main grievance was that the Returning Officer re allocated his bow and arrow  symbol to another candidate Murura Dasi and instead allotted the symbol of ladder  to him and this sudden change of symbol left him with less than 20 days time for campaign which resulted in confusion amongst his supporters as a result of which his election was materially affected
On this premise the respondent contend ed that the election was liable to be declared void on the ground of i violation of section 30d of the Representa tion of People Act 1951 which according to him prescribed atleast 20 days time for election campaign which he did not have after change of the symbol and ii violation of Rule 105 of the Conduct of Election Rules 1961 under which according to him the election symbol could not be changed without permission of the Election Commission
The respond ent election petitioner examined himself
Evidence of no other witness appears on record
The High Court allowed the petition and declared the appellant s election to be void holding that the result of the election in so Tar as it concerned the returned candi date was materially affected by violation of Rule 105 of the Conduct of Election Rules 1961
Before this Court it was contended on behalf of the appel lant that 922 i the appellant did not receive any notice of the election petition against her and the trial had proceeded ex parte ii there was no breach of section 30d of the Representa tion of the People Act Inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll iii there was no violation of Rule 105 of the Conduct of Election Rules and iv even assuming that there was violation of this rule the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby inasmuch as no sufficient evidence was adduced in proof of his claim and he himself could not have proved his aver ments
Allowing the appeal this Court HELD 1 Under s30 of the Representation of the People Act 1951 as soon as the notification calling upon a con stituency to elect the member or members is issued the Election Commission shall by notification in the Official Gazette appoint amongst others under clause d the date or dates on which a poll shall if necessary be taken which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidature
928F 2 In the instant case the last date for the withdraw al of nomination was 921985 and the date of poll was 531985
There was therefore clear compliance with the requirement of section 30d
The respondent himself stated that on 1421985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 1521985
This Court agrees with the High Court that only the spirit of section 30d was not complied with
In terms this provision was clearly complied with
928G 929A 3 The violation of sub rule 5 of Rule 10 per se will not invalidate the election
The election petitioner has also to prove that the result of the election in so far as it concerns the returned candidate was materially affected
934A B 4 The party who wishes to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been materially affected by the violation of Rule 105 of the Rules
For doing this it has to be demonstrated that the votes would have been di verted in such a way that the returned candidate would have been unsuccessfull
931B 923 Vashist Narain Sharma vs Dev Chandra  Ors   lnayatullah Khan vs Diwanchand Mahajan  Ors  SN Balakrishna vs Fernandes    Shiv Charan Singh vs Chandra Bhan Singh  and Chhedi Ram vs Jhilmit Ram  Ors  referred to
5 A decision in an election petition can be given only on positive and affirmative evidence and not on mere specu lation and suspicion however strong they are
In the instant case there is no such positive and affirmative evidence
Mere assertions by the election petitioner were not enough
932D 6 There could be no proposition or contention that a candidate with a particular symbol would always be success ful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted
932E 7 There is no dispute about the importance of the symbol in a backward constituency
This will however not absolve the election petitioner of his burden of proving that the result of the election has been materially affect ed
933B All Party Hill Leaders  Conference Shillong vs Captain WA Sangama  and Roop Lal Sathi vs Nach hattar Singh Gill   referred to
8 The election petitioner has not stated and proved that more than 430 voters would have voted for him had the symbol of bow and arrow  not been changed and that they voted for Murura Dasi only for her having the symbol of bow and arrow 
How could that be proved would
of course depends on the facts and circumstances of the case
929F 9 In the instant case the election petitioner dismal ly failed to discharge the burden of proving that the result of the election in so far as it concerned the appellant who has been the returned candidate was materially affect ed
The High Court was in error in holding without suffi cient evidence that it was materially affected
934C