TMI Blog1989 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... hs 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 corpus. The High Court by its order dated 6.3.1989 has dismissed 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 directly 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 U.R. Lalit, learned counsel for the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rented accommodation in flat No. 634, K.K. Nagar in Madurai. On 6.8.1988, 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 20,576.150 grams valued at about rupees sixty-two lakhs and cash amounting to ₹ 38,945.00. These gold ornaments were pledged with the Bank as security for loans advanced by the Bank of certain borrowers. At about 10.55 A.M. on 6.8.1988 the Bank was looted and these ornaments 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 temporarily 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 4.8.1988 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery was made of gold ornaments weighing about 25.900 grams from Gurumoorthy. Subsequently, these ornaments were identified as those which had been looted in the above-mentioned dacoity on 6.8.1988. It is on these grounds that the impugned detention order dated 7.9.1988 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' PROCEEDINGS OF THE COLLECTOR AND DISTRICT MAGISTRATE, MADURAI. PRESENT: THIRU M. DEVARAJ, I.A.S. N.S.A. NO. 73/88 Dated: 7.9.1988 DETENTION ORDER WHEREAS, I, M. DEVARAJ, I.A.S. Collector and District Magistrate, Madurai, am satisfied with respect to the person known as Thiru Nallathambi @ Thambi, male, aged 30 years, S/o (late) Thiru S. Mathu, residing at Block No. 2, H.I.G. Colony, Anna Nagar, Madurai Town that with a view to preventing him from acting in any manner prejudicial to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative Officer, Sathamgalam and (2)Pannerselvam, Village Administrative Officer, Thiruppalai. The car TNU 8500 was seized at 1915 hours on 21.8.88 in front of Samayanallur Police Station. In pursuance of his confession gold jewels weighing about 7275.750 grams valued at ₹ 21,85,000.00 in 172 bags and 19 empty bags with bank tags and chits and a set of key were recovered from his house on 21.8.88 at 20.15 hours. Further in pursuance of his confession a box containing 1 revolver, 2 pistols with ammunition, 3 grenedes, 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 1015.600 grams valued ₹ 3,05,000.00 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 25.900 grams was recovered from the accused Thiru Gurumoorthy. The above jewels recovered were identified to be stolen from the Bank of Madura on 6.8.88. (11) The chance prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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, therefore, I consider that it is necessary to detain him in custody with a view to preventing 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 fingerprints 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied as provided in section 3 with reference to the remaining ground or grounds. It is, therefore, doubtful whether the construction of Section 5A suggested by learned counsel for the appellant-petitioner can be accepted. However, in the 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 respondents 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 connection with the Bank dacoity case is shown on 21.8.1988 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, considered 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 F.I.R. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 s. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s going to be served on a person, it must be patent that the said person would act prejudicially 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 necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under s. 3(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by s. 3(1)(a) 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 v. State of Assam Ors., A.I.R. 1953 Assam 97 in Sahadat 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 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. 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 nonapplication of mind and would result in invalidation 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 v. District Magistrate, Dhanbad, [1983] 3 SCR 939 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 v. District Magistrate, Etah and others, [1985] 4 SCC 232 the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is satisfied about the necessity of preventive detention. The Constitution Bench decision in Rameshwar Shaw's case (supra) and the other earlier decisions were referred while reaching this conclusion. The correct position 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 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. (at page 58) A recent decision on the point is Smt. Shashi Aggarwal v. State of U.P. and others, [1988] 1 SCC 436 in which also the settled principle is reiterated and it is pointed out that the ultimate decision d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rameshwar 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 invalidate 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 sat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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