Criminal Appeal Nos 11  12 of 1990
From the Judgment and Order dated 791989 of the Delhi High Court in Criminal Writ No 591  591 A of 1988
Harjinder Singh RN Joshi and Latha Krishnamurthy for the Appellants
Soli J Sorabjee Attorney General P Parameswaran B Parthasarthy NN Johari and Uma Nath Singh for the Re spondents
The Judgment of the Court was delivered by SC AGRAWAL J
These appeals by special leave arise out of the judgment of the High Court of Delhi whereby the writ petitions filed under Article 226 of the Constitution to challenge the legality of the orders dated October 11 1988 passed under Section 31 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 hereinafter referred to as the Act  for the deten tion of the appellants have been dismissed
This Court by the order dated January 11 1990 allowed the appeals and after setting aside the orders of detention dated October 11 1988 directed that the appellants be set at liberty forthwith and that reasoned judgment would follow
We are hereby indicating our reasons for the order passed on Janu ary 11 1990
Dharmendra Suganchand Chelawat the Appellant in Crimi nal Appeal No 1190 here in after referred to as Dharmen dra  is the son of Suganchand Kanhaiyyalal Chelawat the Appellant in Criminal Appeal No 12 of 1990 hereinafter referred to as Suganchand 
In the grounds of detention furnished to the appellants it is stated that on September 21 1988 the officers of the Directorate of Revenue Intelli gence Bombay Zonal Unit searched the godown of Siddharth Trot 306 ters Pvt Ltd Kothari Mansion at 357 SVP Road Bombay and five card board cartons containing in all 251000 mandrax tablets weighing 1255 Kgs
and valued at Rs753000 were seized from there
During the follow up investigation the officers of the Central Excise  Customs searched the premises of Suganchand at Indore MP which resulted in the recovery of 51 Kgs
of mandrax tablets from a Maruti Van parked in the house compound on September 2223 1988 which was seized
In addition to 20
500 Kgs
of mandrax tablets 148300 Kgs of methaqualone powder and 97700 Kgs
of white powder was recovered from the residence itself
Suganchand in his statement which was recorded on September 23 1988 stated that he had manufactured mandrax tablets at his factory at Indore and that he was assisted by his son Dharmendra
Suganchand was arrested on September 23 1988 and produced before the Additional Chief Judicial Magistrate Indore on September 24 1988 who remanded him to the police custody till September 30 1988
On September 30 1988 Suganchand was remanded to judicial custody till Octo ber 13 1988
A bail application was submitted by Suganchand in the Sessions Court on September 28 1988 and the same was rejected by the Sessions Court on October 1 1988
Dharmendra was arrested on October 4 1988 and he was remanded to the police custody upto October 5 1988
On October 5 1988 he was remanded to judicial custody till October 13 1988
During the course of arguments Shri Har jinder Singh the learned counsel for the appellants stated that a bail application was submitted on behalf of Dharmen dra and the same was rejected on October 5 1988
On October 11 1988 orders were passed by Shri KL Verma Joint Secretary to the Government of India Ministry of Finance Department of Revenue under Section 31 of the Act for the detention of the appellants
In the order of detention the detaining authority has stated that he was satisfied from the record of the case with respect to the appellants that with a view to preventing them from engaging in the transportation and abetting in the export inter state of Psychotropic Substances it is necessary to make the order directing that the appellants be detained and kept in custo dy
The said order of detention was served on appellants on October 13 1988 while they were in custody
The appellants were also served with the grounds of detention dated October 11 1988 as well as the documents on which reliance was placed by the detaining authority
Writ Petitions under Article 226 of the Constitution of India 307 were filed by Kumari Archana Chelawat the daughter of Suganchand and sister of Dharmendra wherein the legality of the detention of the appellants was challenged before the Delhi High Court
The said writ petitions have been dis missed by the High Court by order dated September 7 1989
Thereafter the appellants moved this Court for special leave to appeal against the judgment of the Delhi High Court and special leave to appeal was granted on January 11 1990
Hence these appeals
Shri Harjinder Singh the learned counsel for the appel lants has urged that since the appellants were in custody on October 11 1988 the date of passing of the impugned order of detention there was no apprehension that the appellants would be engaging in any prejudicial activity and the order for detention of the appellants under Section 31 of the Act could not be validly passed
In support of the aforesaid submission Shri Harjinder Singh has placed reliance on the decision of this Court in Ramesh Yadav vs District Magis trate Etah and Others  Suraj Pal Sahu vs State of Maharashtra  Others  and N Meera Rani vs Government of Tamil Nadu  Another  The learned Attorney General on the other hand has supported the decision of the High Court and has submitted that in the facts and the circumstances of the present cases the orders for detention of the appellants were validly passed on October 11 1988
The submission of the learned Attorney General is that the appellants had been remanded to judicial custody upto October 13 1988 only and the detain ing authority could have apprehended that the said remand may not be extended beyond October 13 1988 and the appel lants may be released from custody on October 13 1988 and thereafter they would be free to engage in prejudicial activities
In view of the aforesaid submissions the question which needs consideration is whether in the facts and the circum stances of the present cases the detaining authority was justified in law in passing the orders for the detention of the appellants under Section 31 of the Act on October 11 1988 when the appellants were in custody
The question as to whether and in what circumstances an order for preven tive detention may be passed against a person who is already in custody has come up for consideration before this Court
In Rameshwar Shaw vs District Magistrate Burdwan  Anr  decided by the Constitution Bench it has been laid down that the question as to whether an order for detention can be passed against a 308 person who is in detention or in jail will always have to be determined in the circumstances of each case and it has been observed 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 connec tion 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 sen tence imposed on him
In dealing with this question again the considerations of proximity of time will not be irrele vant
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 detention a few days before the person is likely to be released
 In Masood Alam Etc vs Union of India and Others  it has been held that merely because the person concerned has been served with the order of detention while in custody when it is expected that he would soon be re leased that service cannot invalidate the order of deten tion
This Court has observed as under The real hurdle in making an order of detention against a person already in custody is based on the view that it is futile to keep a person in dual custody under two different orders but this objective cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease  309 In Dulal Roy vs District Magistrate Burdwan  it was held that if a person was serving a long time of imprisonment or was in jail custody as an undertrial and there was no immediate or early prospect of his being re leased on bail or otherwise the authority would not legiti mately be satisfied on the basis of his past history or antecedents that he was likely to indulge in similar preju dicial activities after his release in the distant or indef inite future
In Vijay Kumar vs State of Jammu  Kashmir and Others  this Court has observed Preventive detention is resorted to to the art 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 need to order preventive detention of a person already in jail
But in such a situa tion 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 authori ty already in jail and yet for compelling reasons a preven tive detention order need to be made In Alijan Mian vs District Magistrate Dhanbad and Others 1983 4 SCC 301 in the grounds of detention it was stated that the subject is in jail and is likely to be released on bail and that if he was allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order
After considering the said statement in the grounds of detention this Court has ob served The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time
1n such a situation there could be no apprehension of breach of public order  from the petition ers
But the detaining authority was satisfied that if the petitioners were enlarged on bail of which there was every likelihood it was necessary to prevent them from acting in a manner prejudicial to public order
 In Ramesh Yadav vs District Magistrate Etah and Others supra in the grounds of detention it was mentioned that the detenu had filed an application for bail and there was positive apprehension that after having bail he would come out of jail and would indulge in activity 310 prejudicial to the maintenance of the public order
This Court has observed On a reading of the grounds particularly the paragraph which we have extracted above it is clear that the order of detention was passed as the detaining authority was appre hensive that in case the detenu was released on bail he would again carry on his criminal activities in the area
the apprehension of the detaining authority was true the bail application had to be opposed and in case bail granted challenge against that order in the higher forum had to be raised
Merely on the ground that an accused in detention as an under trail prisoner was likely to get bail an order of detention under the National Security Act should not ordi narily be passed
We are inclined to agree with counsel for the petitioner that the order of detention in the circum stances is not sustainable and is contrary to the well settled principles indicated by this Court in a series of cases relating to the preventive detention in Suraj Pal Sahu vs State of Maharashtra  Others supra after considering the earlier decisions this Court has observed If there was an imminent possibility of the man being set at liberty and his detention coming to an end then it appears as a principle if his detention is otherwise necessary and justified then there is nothing to prevent the appropriate authorities from being satisfied about the necessity of passing an appropriate order detaining the person concerned In Binod Singh vs District Magistrate Dhanbad Bihar and Others  it has been laid down If a man is in custody and there is no imminent 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 seri ously before the service of the order
A bald statement 311 is merely an ipse dixit of the officer
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent In Smt
Shashi Aggarwal vs State of UP  Others  this Court while referring to the decision in Ramesh Yadav vs District Magistrate Etah Supra has observed What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act This Court has further observed Every citizen in this country has the right to have re course to law
He has the right to move the Court for bail when he is arrested under the ordinary law of the land
If the State thinks that he does not deserve bail the State could oppose the grant of bail
He cannot however be interdicted from moving the court for bail by clamping an order of detention
The possibility of the court granting bail may not be sufficient
Nor a bald statement that the person would repeat his criminal activities would be enough
There must also be credible information or cogent reasons apparent on the record that the detenu if enlarged on bail would act prejudicially to the interest of public order
 In Vijay Kumar vs Union of India   it has been head that two facts must appear from the grounds of detention namely i awareness of the detaining authority of the fact that the detenu is already in detention and ii there must be compelling reasons justifying such deten tion despite the fact that the detenu is already under detention
Shetty J in his concurring judgment has posed the question what should be the compelling reason justifying the preventive detention if the person is already in jail and where should one find it The learned judge has rejected the contention that it can be found from 312 material other than the grounds of detention and the con nected facts therein and has held that apart from the grounds of detention and the connected facts therein there cannot be any other material which can enter into the satis faction of the detaining authority
The learned judge has also observed that if the activities of the detenu are not isolated or casual and are continuous or part of the trans action or racket then there may be need to put the person under preventive detention notwithstanding the fact that he is under custody in connection with a case
The learned judge has quoted the following observations from the judg ment of this Court in Suraj Pal Sahu vs State of Maharash tra Supra But where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State then subject to other conditions being fulfilled a man being in detention would not detract from the order being passed for preventive detention In N Meera Rani vs Government of Tamil Nadu and Anoth er Supra the legal position has been summed up as under 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
 In this case this Court has pointed out that there was no indication in 313 the detention order read with its annexure that the detain ing authority considered it likely that the detenu could be released on bail and that the contents of the order showed the satisfaction of the detaining authority that there was ample material to prove the detenu s complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits
The Court held that the order for detention was invalid since it was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release
The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that i the detaining authority was aware of the fact that the detenu is already in detention and ii there were compelling reasons justi fying such detention despite the fact that the detenu is already in detention
The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent materi al before the detaining authority on the basis of which it may be satisfied that a the detenu is likely to be re leased from custody in the near future and b taking into account the nature of the antecedent activities of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities
If the present cases are examined in the light of the aforesaid principles it can be said that the first condi tion is satisfied in as much as the grounds of detention show that the detaining authority was aware of the fact that the appellants were in custody on the date of passing of the order of detention
Can it be said that there was a compel ling reason for passing the order for the detention of the appellants although they were in custody The learned Attorney General wants the said question to be answered in the affirmative
He has invited our attention to the grounds of detention and has submitted that the appellants were found engaging in the transportation and abetting in the export inter state of Psychtropic Substances and in the event of their release from custody the appellants would continue to engage in those activities
The learned Attorney General has also pointed out that the appellants had been remanded to judicial custody upto October 13 1988 only and their further remand could be refused by the Magistrate and the appellants could be released from custody on October 13 1988
The submission of the learned Attorney General 314 is that keeping in view the  activities of the appellants and the likelihood of their being released from custody on their remand being not extended by the Magistrate on October 13 1988 the detaining authority on October 11 1988 when it passed the order of detention was satisfied that the detention of the appellants was necessary even though they were in custody at that time
We have given our careful consideration to the aforesaid submission of the learned Attorney General
We are however unable to agree with the same
In the grounds of detention the detaining authority has only mentioned the fact that the appellants has been remanded to judicial custody till Octo ber 13 1988
The grounds of detention do not show that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13 1988 and the appellants would be released from custody on October 13 1988
Nor is there any material in the grounds of deten tion which may lend support to such an apprehension
On the other hand we find that the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention on October 11 1988
The grounds of detention disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the provisions of the 
It cannot therefore be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13 1988 and their being released from custody at the time when the order for preventive detention of that appellant was passed on October 11 1988
In the circumstances we are of the view that the order for deten tion of the appellants cannot be sustained and must be set aside and the appellants should be released forthwith
These are the reasons on the basis of which we passed the order for the release of the appellants on January 11 1990
It is however clarified that in case the appellants are released from custody in the aforesaid criminal proceedings the question of their preventive detention under the Act on the above material may be reconsidered by the appropriate authority in accordance with law and this decision shall not be construed as an impediment for that purpose


Summary:
In pursuance of a Housing Scheme the Tamil Nadu Housing Board Madras had allotted residential plots over the land acquired under the Land Acquisition Act to different groups of applicants including the low income group on terms and conditions stipulated in the lease deed Exh
B 3 sometime in the year 1963
After a lapse of more than a decade of the allotment fresh demands were made from the allottees in 1975
Objecting to the same the respondent herein filed a suit for self and on behalf of all the allottees of low income group settled in the Colony named Ashok Nagar pray ing for a permanent injunction restraining the Board from enforcing the demand
The defendant Board questioned the very maintainability of the suit in a representative capacity and also pleaded that it was entitled to finally determine the correct prices for the plots after taking into account the final award of the compensation for acquired land and until then the prices were tentative
The trial court negatived the objection to the maintainability of the suit but dismissed it on merits
The first appellate court confirmed the decree
On second appeal the High Court reversed the finding on merits
The High Court held that it was open to the Board to determine within a reasonable time what portion of the demand included the excess on account of compensation awarded by the courts for acquisition of the land and realize the same after serving fresh demand notices
But since the impugned demand included both the excess amount of compensation as also the additional developmental charges injunction was granted in regard to the entire demand as the two amounts were not separately mentioned
Dismissing the appeal of the Board this Court HELD The provisions of Order 1 of Rule 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation
The condition necessary for application of the provisions is that the 273 persons on whose behalf the suit is being brought must have the same interest
In other words either the interest must be common or they must have a common grievance which they seek to get redressed
276C D The Court while considering whether leave under the Rule should be granted or not should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule
276E Persons who may be represented in a suit under Order I Rule 8 need not have the same cause of action
277F