Case: Smt. Poonam Lata Vs. M.L. Wadhawan &amp; Anr

Bengal 1975 3 SCC 490 : (AIR 1974 SC 2149 at p. 2151) where a three-Judge Bench of this Court observed :- It is true that he had been held in custody in connection with the offences under the Arms Act which are non-bailable offences, but even so, it was open to the trying Magistrate to release the petitioner on bail. The District Magistrate, on information received by him, thought that the petitioner was likely to be released on bail in which case having regard to his past activities, it was open to the District Magistrate to come to the reasonable conclusion that having regard to the desperate nature of the activities of the petitioner, his enlargement on bail would be no deterrent to his desperate activity. Hence the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. That very question again came before a two Judge Bench in Dr. Ramakrishna Rawat v. District Magistrate Jabalpur, 1975 4 SCC 164 : (AIR 1975 SC 90 ) where it was observed (at p. 93 of AIR) :- In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under section 151, Cr.P.C. that custody was obviously of a short duration. That mere service of the detention order on the petitioner in jail would not therefore invalidate the order. On the basis of the antecedent activities of the petitioner in the proximate past the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code. In Vijay Kumar v. State of Jammu and Kashmir, 1982 2 SCC 43 : (AIR 1982 SC 1023 ) a two-Judge Bench of this Court pointed out (at p. 1027 of AIR) :- 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. Maybe, 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 detention order needs to be made. That vexed question came before a two-Judge Bench of this Court in the case of Merugu Satyanarayana v. State of Andhra Pradesh, 1982 3 SCC 301 : (AIR 1982 SC 1543 ) wherein it was observed :- Now, if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? The Court then referred to the Constitution Bench decision in Rameshwar Shaws case (supra) and left it as a matter to be decided in every individual case on its own facts. The Court also indicated that it was not a matter of jurisdiction but had to be decided on the facts of each case 8. We may now refer to a recent judgment of a three-Judge Bench in the case of Suraj Pal Sahu v. State of Maharashtra, 1986 4 SCC 378 : (AIR 1986 SC 2177 ). Mukharji, J. who delivered the judgment in Binod Singhs case (AIR 1986 SC 2090 ) (supra) on which Mr. Garg has relied has also delivered the judgment in this case. Therein it was said (at pp. 2185-86 of AIR) :- In Ramesh Yadav v. District Magistrate, Etah, 1985 4 SCC 232 : (AIR 1986 SC 315 ) it was held that merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respectfully agree with this conclusion. But this principle will have to be judged and applied in the facts and circumstances of each case. Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply 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 jeopardise 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 ....... 9. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. 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. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed. 10.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. From the facts and circumstances emerging in this case it is clear that the detenu had been called by the Customs Authorities for investigation. A statement had been made by him under section 108 of the Customs Act and thereafter he was taken into custody and produced before the Additional Chief Metropolitan Magistrate who remanded him to custody and directed him to be produced on the following day in the court. By the time the order of detention came to be made the petitioner was in jail for at the most one day. Charge-sheet had not been submitted against him in the criminal case and he had been remanded to the judicial custody on the 27th of February, 1986 with the direction to be produced before the Metropolitan Magistrate on the 28th February, 19869. It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. 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. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected, the writ petition is dismissed