TMI Blog1990 (2) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... offences punishable with imprisonment under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. 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 detention of the appellants cannot be sustained and must be set aside and the appellants should be released forthwith. - 11 & 12 of 1990 - - - Dated:- 9-2-1990 - B.C. Ray, Kuldip Singh and S.C. Agarwal, JJ. ADVOCATES : Shri Harjinder Singh, for the Appellants. Attorney General, for the Respondents. [Order per : S.C. Agarwal, Member (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants, stated that a bail application was submitted on behalf of Dharmendra and the same was rejected on October 5, 1988. 4. 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 custody. 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. 5. Writ petition under Article 226 of the Constitution of India were filed by Kumari Archana Chelawat, the daughter of Suganchand and sister of Dharmendra, wherein the legality of the detention of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the question as to whether an order for detention can be passed against a 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 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 irrelevant. On the other hand, if a person who is under-going imprisonment, for a very short period, say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be made. 12. In Alijan Mian v. District Magistrate, Dhanbad and Others [1983 (4) S.C.C. 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 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 observed : The position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of public order from the petitioners. 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." 13. In Ramesh Yadav v. 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 prejudicial to the maintenance of the public order. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 recourse 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." 17. In Vijay Kumar v. Union of India [1988 (35) E.L.T. 15 (S.C.) = 1988 (2) SCC 57], it has been held that two facts must appear from the grounds of detention, namely:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position. In this case this Court has pointed out that there was no indication the detention order read with its annexure that the detaining 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 decoity including sharing of the booty inspite 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. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. 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 October 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 detention 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 Narcotic Drugs and Psychotropic Substances Act, 1985. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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