Criminal Appeal Nos. 11 & 12 of 1990.
From the Judgment and Order dated 7.9.1989 of the Delhi High Court in Criminal Writ No. 591 & 591 A of 1988.
Harjinder Singh, R.N. Joshi and Latha Krishnamurthy for the Appellants.
Soli J. Sorabjee, Attorney General, P. Parameswaran, B. Parthasarthy, N.N. Johari and Uma Nath Singh for the Re spondents.
The Judgment of the Court was delivered by S.C. 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 3(1) 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. 11/90) 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, S.V.P. Road, Bombay and five card board cartons containing in all 2,51,000 mandrax tablets weighing 125.5 Kgs.
and valued at Rs.7,53,000 were seized from there.
During the follow up investigation the officers of the Central Excise & Customs searched the premises of Suganchand at Indore (M.P.) which resulted in the recovery of 51 Kgs.
of mandrax tablets from a Maruti Van parked in the house compound on September 22/23, 1988 which was seized.
In addition to 20.
500 Kgs.
of mandrax tablets, 148.300 Kgs. of methaqualone powder and 97.700 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 K.L. Verma, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, under Section 3(1) 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 3(1) 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 3(1) 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 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 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 U.P. & 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:
The appellants were arrested for offences punishable under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1988.
They were remanded to judicial custody till October 13, 1988.
On October 11, 1988 orders were passed under Section 3(1) of the Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for the detention of the appellants on the ground that with a view to preventing the appellants from engaging in the transportation and abetting in the export inter state of Psychotropic Substances, it was necessary to detain them and to keep in custody.
The orders were served on them on Octo ber 13, 1988, while in custody.
The High Court dismissed the Writ Petitions filed on behalf of the appellants, challeng ing the legality of their detention.
In the Special Leave Petitions filed in this Court, it was contended that since the appellants were in custody on October 11, 1988, the date of passing of the detention order, there was no apprehension that the appellants would be engaging in any prejudicial activity, and the detention order could not be validly passed.
On behalf of the respondents, it was contended that the detention order was validly passed on October 11, 1988 since the appellants had been remanded to judicial custody upto October 13, 1988 only, and the detaining authority could have apprehended that the remand may not be extended beyond that date and the appellants may be released from custody, and would be free thereafter to engage in prejudicial activ ities.
Allowing the appeals, this Court passed an order on January 11, 1990, setting aside the detention order and directing the release of the appellants.
304 Giving reasons for its order, this Court, HELD: 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 compel ling reasons justifying such detention despite the fact that the detenu is already in detention.
The expression "compel ling reasons" in the context of making an order for deten tion of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activi ties 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 engag ing in such activities.
[313C E] Rameshwar Shaw vs District Magistrate, Burdwan & Anr., ; ; Masood Alam Etc.
vs Union of India and Others, ; ; Dulal Roy vs District Magistrate, Burdwan, ; ; Vijay Kumar vs State of Jammu & Kashmir and Others, ; ; Alijan Mian vs District Magistrate Dhanbad and Others, [1983] 4 SCC 301; Ramesh Yadav vs District Magistrate, Etah and Others, ; Suraj Pal Sahu vs State of Maharashtra & Others, ; ; Binod Singh vs District Magistrate Dhanbad, Bihar and Others, ; ; Smt.
Shashi Aggarwal vs State of U. P. & Others, ; ; Vijay Kumar vs Union of India, ; and N. Meera Rani vs Government of Tamil Nadu & Another, ; , referred to.
In the instant case, the detaining authority was aware of the fact that the appellants were in custody on the date of the passing of the order of detention.
Though the fact that the appellants have been remanded to judicial custody till October 13, 1988 has been mentioned, the grounds of detention do not show that the detaining authority appre hended that 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, which may lend support to such an apprehension.
On the other hand, the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of detention order on October 11, 1988.
The grounds disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the 305 provisions of the Narcotic Drugs and Psychotropic Substances Act, 1988.
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 preven tive detention was passed on October 11, 1988.
[313F; 314C E] In such circumstances, the order for detention of the appellants cannot be sustained.
[314F]