# Bhupendra v. Union of India & Ors

- **Citation:** (2019) 3 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** Habeas Corpus Writ Petition No. 799 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhupendra-v-union-of-india-ors-44878
- **Pages:** 17

## Headnote

A. Criminal Law -National Security Act,
1980 - Section 3(3) r/w section 3(2) -
quashing of the detention order -illegal
mining on the Yamuna river - ordinarily,
a bail granting order, particularly, when
it is a speaking order, concerning nonbailable offence, is a relevant material
which ought to be palced before the
detaining authority before issuance of
the order of detention and in absence
whereof the satisfaction gets vitiated
due to non-application of mind on
relevant
material-detaining
authority
failed to take notice of the contents of
the bail application and the bail order
passed in favour of the petitioner. (Para 2
to32)

Habeas corpus petition allowed (E-6)

List of cases cited:-

## Text

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314 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the preventive detention of the
petitioner under National Security Act
was justified considering the fact that the
petitioner was already in detention. A
close perusal of the reasons for detention
does not reveal that there was any
material before the District Magistrate
except the bail application (Annexure-61
to the grounds of detention) to record a
satisfaction that the petitioner was likely
to be released on bail. The reasons for
detention do not disclose any application
of mind keeping in view the fact that the
petitioner did not have any criminal
antecedents except for this solitary case,
in which the petitioner was an accused.
As to how the District Magistrate could
record a satisfaction that the petitioner if
enlarged on bail is likely to repeat the
offence of the nature of which the
petitioner is accused, adversely affecting
the public order, is any body's guess.

32. The propensity of a person
repeating the offence can be gathered
either by criminal antecedents or on some
other material showing the propensity of
the accused to commit or repeat an
offence. We are afraid no such material
existed on record before the District
Magistrate leading to an inference or
justifying the satisfaction that detenue if
released on bail shall indulge in similar
act.

33. In the present case although the
District Magistrate has recorded that the
petitioner is likely to be released on bail
but there is no material as to how the said
finding was recorded when only the bail
application was before him. There was no
material
placed
before
the
District
Magistrate either by the Superintendent of
Police or the Inspector except their
opinion which cannot be said to be
''material' enough to form a subjective
satisfaction, particularly, when offences
in respect of sexual assault punishable
under POCSO Act are considered very
serious and bail is not ordinarily granted
in such cases. Although, the District
Magistrate has recorded that if the
petitioner is enlarged on bail, there is
likelihood of the petitioner indulging in
similar
offences
thereby
adversely
affecting the public order, but there is no
material on record to justify the said
satisfaction as the petitioner did not have
any criminal antecedents and there was no
other report on record to indicate the
propensity of the petitioner for repeating
the offence of the nature for which he was
accused and facing trial.

34. On the consideration of the law
as extracted above as well as the material
placed before us, we have no hesitation in
holding that the detention order passed by
the District Magistrate does not satisfy the
test as laid down by the Apex Court and
the rigours of law which are required to
be established before taking a decision of
preventive detention. The detention order
is thus liable to be quashed.

35. The habeas corpus petition is
allowed and the detention order dated
20th May, 2019 is quashed. The petitioner
shall be released forthwith unless wanted
in any other case.
----------

(2019)11ILR A314

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE PANKAJ BHATIA, J.
3 All. Bhupendra Vs. Union of India & Ors.
315
Habeas Corpus Writ Petition No. 799 of 2019

Bhupendra ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anurag Yadav, Sri Avinash Kumar
Pandey, Sri Mahendra Pratap, Sri Chaman
Lal Chaudhary

Counsel for the Respondents:
A.S.G.I., G.A., Sri Jitendra Prasad Mishra

A. Criminal Law -National Security Act,
1980 - Section 3(3) r/w section 3(2) -
quashing of the detention order -illegal
mining on the Yamuna river - ordinarily,
a bail granting order, particularly, when
it is a speaking order, concerning nonbailable offence, is a relevant material
which ought to be palced before the
detaining authority before issuance of
the order of detention and in absence
whereof the satisfaction gets vitiated
due to non-application of mind on
relevant
material-detaining
authority
failed to take notice of the contents of
the bail application and the bail order
passed in favour of the petitioner. (Para 2
to32)

Habeas corpus petition allowed (E-6)

List of cases cited:-

1. State of T.N. Vs. Kethiyan Perumal,(2004) 8 SCC 780

2. Rameshwar Shaw Vs. District Magistrate,
Burdwan and Ors, AIR 1964 SC 334

3.
Binod
Singh
Vs.
District
Magistrate,
Dhanbad,(1986) 4 SCC 416: 1986 SCC (Cri) 490

4. N. Meena Rani Vs. Govt.of T.N., (1989) 4
SCC 418: 1989 SCC (Cri) 732

5. Kamarunnissa Vs. Union of India, (1991) 1
SCC 128: 1991 SCC (Cri) 88

6. Rekha Vs. State of T.N. { (2011) 5 SCC 244
: (2011) 2 SCC (Cri) 596}
7. Champion R. Sangama Vs. State of
Meghalay and Anr.,(2015) 16 SCC 253

8. Union of India and Anr. Vs. Dimple Happy
Dhakad(Cri.Ap. No. 1064 of 2019)

9. Kumail Vs. State of U.P. & Ors, judgment in
Habeas Corpus Petition No. 437 of 2019

10. Ahamed Nassar Vs. State of T.N., (1999) 8
SCC 473

11. A. Sowakath Ali Vs. Union of India, (2000)
7 SCC 148

12. M. Ahamedkutty Vs. Union of India,(1990) 2 SCC 1

13. P.U. Abdul Rahiman Vs. Union of
India,1991 Supp (2) 274

14. Rushikesh Tanaji Bhoite Vs. State of
Mah.,(2012) 2 SCC 72

(Delivered by Hon'ble Manoj Misra,J.
& Hon'ble Pankaj Bhatia, J.)

1. We have heard Sri Mahendra
Pratap, assisted by Sri Anurag Yadav, Sri
Avinash Kumar Pandey and Sri Chaman
Lal Chaudhary, for the petitioner; Sri
Jitendra Prasad Mishra for Union of
India; Sri Deepak Mishra, learned AGA
for the respondents no. 2, 3 and 4; and
have perused the record.

2. The instant petition seeks quashing
of the detention order dated 06.06.2019
passed by the District Magistrate, Gautam
Budh Nagar in exercise of his power
conferred upon him by sub-section (3) of
section 3 of the National Security Act, 1980
(in short the 'Act 1980') read with subsection (2) of section 3 thereof. The petition
also challenges the order of confirmation as
well extending the period of detention from
three months to six months starting from the
date of detention with a prayer that the
petitioner be set at liberty.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Before we proceed to notice the
grounds of detention, we may observe
that from a perusal of paragraphs 3 and 14
of the return filed by the Jailor, District
Jail, Gautam Budh Nagar it appears that
while the petitioner was confined in
District
Jail,
Gautam
Budh
Nagar,
pursuant to judicial orders of remand
passed in connection with six cases,
namely: (i) Case Crime No. 52 of 2019
under section 25/ 27 Arms Act, P.S.
Knowledge Park, Ghaziabad; (ii) Case
Crime No.977 of 2015 under section 307,
353 IPC, P.S. Kasna, District Gautam
Budh Nagar; (iii) Case Crime No.247 of
2018, under sections 430, 379, 411, 447
IPC and section 3 of Public Property
Prevention
of
Damages
Act,
P.S.
Knowledge Park, District Gautam Budh
Nagar; (iv) Case Crime No.264 of 2018,
under sections 2/3 Gangsters Act, P.S.
Knowledge Park, District Gautam Budh
Nagar; (v) Case Crime No.20 of 2019,
under sections 147, 148, 149, 364, 302,
323, 504, 506 IPC, P.S. Knowledge Park,
district Gautam Budh Nagar; and (vi)
Case Crime No.50 of 2019, under
sections 147, 148, 149, 186 188, 332, 353
I.P.C., P.S. Kowledge Park, District
Gautam Budh Nagar, he was served with
the impugned order of detention. The
return reveals that till the date of swearing
the return, which is 20th September 2019,
the petitioner apart from being detained
under the provisions of the Act, 1980 is in
judicial custody in six cases mentioned
above. The grounds of detention served
upon the petitioner though, in paragraph 6
enumerates the criminal history of the
petitioner of 16 cases but, in paragraph 10
thereof, awareness of the petitioner being
in jail is with respect to only three of
those six cases, namely, case crime
no.264 of 2018 (supra); case crime no.20
of 2019 (supra); and case crime no.247 of
2019. That apart, satisfaction that the
petitioner is likely to be released on bail
has been drawn by observing that the
petitioner has been granted bail in case
crime no.247 of 2018 (supra) and has
applied for bail in case crime nos.20 of
2019 and 264 of 2016 wherein dates have
been fixed for their consideration. Even
the report of the S.S.P. Gautambudh
Nagar, dated 04.06.2019, at page 43 of
the paper book, discloses that the
petitioner is currently incarcerated in only
three cases, which is in direct conflict
with the statement made by the Jailor in
his return as noticed above. Thus, it is
clear that the detaining authority at the
time of passing the detention order and
formulating the grounds of detention was
not aware that the petitioner is in under
detention in three other cases also.
Moreover, no satisfaction has been
recorded by him with regard to likelihood
of the petitioner being released on bail in
those three cases.

4. Coming to the grounds of
detention, a perusal thereof would reveal
that satisfaction to detain the petitioner
under section 3(2) of the Act, 1980 has
been drawn on the basis of petitioner's
activity of illegal sand mining from
Yamuna river bed with reference to case
crime no.247 of 2018 by referring to past
criminal history of the petitioner which
discloses, that apart from other offences,
there were cases registered against the
petitioner in the past also in respect of
illegal mining. However, the main ground
is with reference to the activity of the
petitioner that gave rise to case crime
no.247 of 2018 (supra), dated 11.07.2018.

5. The allegation in the grounds of
detention is that on 11.7.2018, the
employees of the Irrigation Department
3 All. Bhupendra Vs. Union of India & Ors.
317
had found that at a distance of 15.800
kilometer from the embankment, which
has been made to protect Noida region
from the flood water of river Yamuna, an
artificial embankment, by dumping mud,
has been made by sand mafia on the river
bed to carve out a road to carry out illegal
sand mining operations from the river
bed, which had the disturbed the flow of
the river thereby diverting the river flow
and allowing stagnation of water. It is
alleged that this illegal check on the even
course of the river water has potential to
disturb the ecology of the river system, its
flora and fauna, and may even spread
diseases and thereby disturb the public
order. It is alleged that the petitioner with
his father has been involved in such
activity and because of their strong hold
and past antecedents no body dares to
report against them or be a witness
against them, therefore, as the petitioner
is currently in jail in three cases, out of
which he has obtained bail in case crime
no.247 of 2018 and has applied for bail in
the remaining two cases mentioned
above, and there is likelihood that he
would be released on bail and repeat such
activity, with a view to prevent him from
repeating such act, which has potentiality
to disturb public order, his detention
under the Act was considered necessary.

6. The learned counsel for the
petitioner has submitted that the grounds
of detention nowhere alleges that the
illegal mining on the river bed was being
done by challenging the police authorities
or the officials of the Mining Department.
It has been argued that although it has
been narrated that the alleged illegal
mining had the potential to cause floods,
spread of diseases but there is nothing in
the grounds of detention which may
reflect that any such event actually
occurred. It has also been argued that the
grounds of detention enumerates the past
criminal history of the petitioner but the
relevant details of those cases such as the
current status of those cases, the FIR of
those cases, bail orders, etc have not been
supplied. Hence, there is suppression of
relevant material. It has also been urged
that the petitioner was in jail in
connection with six cases but, while
recording
satisfaction
that
there
is
likelihood of the petitioner being released
from jail, awareness of incarceration in
respect of three cases only has been
shown
and
no
awareness
of
his
incarceration in three other cases has been
shown. This has vitiated the satisfaction
due to non application of mind on
relevant material. It has also been urged
that copy of the bail application and the
bail order passed in respect of case crime
no.247 of 2018 has not been placed
before the detaining authority, which was
a relevant material, and, therefore, the
satisfaction
has
vitiated
for
non
consideration of relevant material. In a
nutshell, the points placed by the learned
counsel for the petitioner to assail the
order of detention can be summarized as
follows:

(a) The illegal mining activity
of the petitioner referred to in the grounds
of detention does not have the potential to
disturb public order as is the case taken
inasmuch as it is a mere breach of law
and order for which detention under the
Act, 1980 is not justified. More so, when
only apprehension of disturbance of the
ecological system is expressed and not
that it was actually disturbed.

(b) The grounds of detention
reflects that the petitioner has a criminal
history of 16 cases but neither the
relevant documents / materials with
318 INDIAN LAW REPORTS ALLAHABAD SERIES
reference to the narrated criminal history
have been provided nor the current status
of those cases have been disclosed,
particularly, when several of the cases
mentioned were over five years old and
were therefore stale.

(c) The detaining authority has
shown
awareness
with
regard
to
incarceration of the petitioner in Case
Crime Nos. 264 of 2018; 20 of 2019; and
247 of 2018 (in respect of which bail
order had already been passed), whereas
from the counter filed by the Jailor it
transpires that at the time of passing and
issuance of the order of detention, since
much
before,
the
petitioner
was
incarcerated in District Jail, Gautam Budh
Nagar in connection with three other
cases also. Lack of awareness in respect
of incarceration of the petitioner in three
other
cases
and
non-recording
of
satisfaction with regard to the petitioner's
likely release on bail in those three other
cases also, has vitiated the detention order
as there, therefore, existed no real
possibility that the petitioner was likely to
be released from jail in near future and
indulge in activity prejudicial to the
maintenance of public order.

(d) That the bail application and
the bail order in respect of case crime
no.247 of 2018, which was relevant
material as it contained the defence of the
petitioner, has not been supplied to the
detaining authority hence the subjective
satisfaction is vitiated for non-application
of mind on relevant material.

(e) That on similar grounds an
order of detention was passed against the
father of the petitioner, namely, Sanjay
Chaudhary, on 28.8.2018, which was
challenged by him through Habeas
Corpus Petition No. 4024 of 2018, which
was allowed on 11.4.2019, after exchange
of affidavits, but the District Magistrate
has not been apprised by the sponsoring
authority that the detention of co-accused,
Sanjay Chaudhary, has been set aside,
therefore, the satisfaction of the District
Magistrate
stands
vitiated
for
nonapplication of mind on relevant material.

7. Per contra, Sri Deepak Mishra,
learned AGA, who has appeared on
behalf of the respondents no. 2, 3 and 4,
and the learned counsel for the Union of
India, submitted that the grounds of
detention are referable to breach of public
order inasmuch as the activity of the
petitioner had the potentiality to disrupt
the ecology of the river system resulting
in flood, stagnation of water, disruption of
supply of potable water and spread of
diseases, therefore the activity of the
petitioner affects the community at large.
Hence, the District Magistrate was legally
justified in taking a decision to pass an
order
of
detention
to
prevent
the
petitioner from indulging in activity
prejudicial to the maintenance of public
order.

8. It has been contended on behalf
of the state respondents that the past
criminal
antecedents
have
been
enumerated to demonstrate that the
petitioner has propensity for such illegal
mining activities and is likely to repeat
the same on being released whereas for
the purposes of taking decision to impose
order of detention the current activity of
the petitioner in connection with case
crime no.247 of 2018 has been taken into
account which by no means can be
considered stale.

9. Sri Mishra further contended that
the order of detention passed against the
father of the petitioner was not set aside
on merits but on the ground that there had
3 All. Bhupendra Vs. Union of India & Ors.
319
been delay in consideration of the
representation submitted by the detenu
therefore continued detention of that
petitioner was rendered illegal. Hence, the
same was not a relevant material.

10. In respect of petitioner's counsel
submission that the detention order is
vitiated because no awareness has been
shown that the petitioner was already in
jail in three other cases, the learned AGA
submitted that the district magistrate has
shown awareness that the petitioner is in
jail and that there is likelihood of his
being released on bail therefore the
detention order would not vitiate even if
he has not recorded satisfaction in respect
of three other cases.

11. In respect of non-supply of copy
of bail order and bail application of the
petitioner in case crime no.247 of 2018 it
has been submitted that as to how the said
bail application and bail order was
relevant has not been demonstrated and
therefore nothing much turns on that.

12. We have given thoughtful
consideration to the rival submissions and
perused the record carefully.

13. From a perusal of the record, we
find that the Case Crime No. 247 of 2018,
which has been made basis for passing
the order of detention, was registered at
the instance of Dheeraj Kumar, Sinch Pal,
an employee of the Irrigation Department.
The FIR of that case was lodged on
12.7.2018 against unknown person. The
allegation in the FIR is to the effect that
for the purposes of providing protection
to the area (Noida) from the water of river
Yamuna, a dam has been put at Yamuna
Doab near Hindon river. At a distance of
about 15.800 kilometer from that dam,
near Village Tilbara, illegal sand mining
was being carried out. The FIR alleges
that a pavement was made on the river
bed to carry out mining operations which
had affected proper flow of the river. In
the FIR, it is alleged that unknown
persons use the pavement for mining in
the night hours though no mining
machine was seen during day hours.

14. In the grounds of detention it has
been stated that during investigation it
was found that these mining operations
were carried out by the petitioner in
association with his father and others in
an organized manner with the help of
machines
and
excavators
and
the
operations were so large scale that the
river flow was affected thereby causing
serious threat to the ecology and the river
system. Though it may not have been
shown that this activity was accompanied
by act of violence but there is subjective
satisfaction shown with regard to serious
ecological
impact
which
had
the
potentiality to affect the community at
large. In State of T.N. v. Kethiyan
Perumal, (2004) 8 SCC 780, the apex
court had approved the detention order
where it was passed on the ground that
large scale illegal felling of sandalwood
trees was impacting the ecological system
which had the potentiality to disturb the
public order. In the instant case, it is not
illegal sand mining alone but also
diversion of the river stream for that end.
Such activity, in our view, would have the
potentiality to disturb the public order as
it would affect the life of the community
at large by exposing them to the threat of
floods,
breeding
of
mosquitoes
in
stagnant pool of water, contamination of
water resources resulting in spread of
diseases, etc. We may observe that power
to detain a person under section 3(2) of
320 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act, 1980 can be exercised to prevent
a person from acting in any manner
prejudicial to the security of the State or
from acting in any manner prejudicial to
the maintenance of public order or from
acting in any manner prejudicial to the
maintenance of supplies and services
essential to the community. As the object
of the Act, 1980 and its provisions is to
prevent
an
act
prejudicial
to
the
maintenance of public order or security of
State or supplies and services essential to
the community, and not to punish for its
breach, once satisfaction is recorded that
a person's activity has the potentiality to
prejudice the maintenance of public order,
power under section 3 (2) of the Act,
1980
can
lawfully
be
exercised
notwithstanding whether any substantial
damage to the river system and its
ecology had actually taken place or not.
Under the circumstances, the contention
of the learned counsel for the petitioner
that petitioner's activity was not at all
referable to the grounds on which a
detention order could be passed under the
Act, 1980 is rejected.

15. However, we find merit in the
points (c) and (d) raised by the petitioner's
counsel, as culled out above. But before we
proceed to disclose the reasons as to why
those grounds have appealed to us, it would
be useful for us to examine the law as to
when a preventive detention order can be
passed against a person who is already in
jail in connection with some case. The law
as to when a preventive detention order can
be passed in respect of a person who is
already in jail started developing from the
observations made by a Constitution Bench
of the Apex Court in the case of
Rameshwar Shaw v. D.M. Burdwan, AIR
1964 SC 334. In Rameshwar Shaw's case
(supra), the apex court held as follows:

"13. The question which still
remains to be considered is: can a parson
in jail custody, like the petitioner, be
served with an order of detention whilst
he is in such custody? In dealing with this
point, it is necessary to State the relevant
facts which are not in dispute. The
petitioner was arrested on January 25,
1963. He has been in custody ever since.
On February 15, 1963 when the order of
detention was served on him, he was in
jail custody. On these facts, what we have
to decide is: was it open to the detaining
authority to come to the conclusion that it
was necessary to detain the petitioner
with a view to prevent him from acting in
a prejudicial manner when the petitioner
was locked up in jail? We have already
seen the logical process which must be
followed by the authority in taking action
under Section 3(l)(a). The first stage in
the process is to examine the material
adduced against a person to show either
from his conduct or his antecedent history
that he has been acting in a prejudicial
manner. If the said material appears
satisfactory to the authority, then the
authority has to consider whether it is
likely that the said person would act in a
prejudicial manner in future if he is not
prevented from doing so by an order of
detention. If this question is answered
against the petitioner, then the detention
order can be properly made. It is obvious
that before an authority can legitimately
come to the conclusion that the detention
of the person is necessary to prevent him
from acting in a prejudicial manner, the
authority has to be satisfied that if the
person is not detained, he would act in a
prejudicial manner and that inevitably
postulates freedom of action to the said
person at the relevant time. If a person is
already in jail custody, how can it
rationally be postulated that if he is not
3 All. Bhupendra Vs. Union of India & Ors.
321
detained, he would act in a prejudicial
manner? At the point of time when an
order of detention is 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 Section 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 Section 3(1)(a)
and is outside its purview. The District
Magistrate, Burdwan who ordered the
detention of the detenu acted outside his
powers conferred on him by Section
3(1)(a) when he held that it was
necessary to detain the petitioner in order
to prevent him from acting in a
prejudicial manner. That being so we
must hold that Mr Garg is right when he
contends that the detention of the
petitioner is not justified by Section
3(1)(a)."
(Emphasis Supplied)

16. Following the decision rendered
in Rameshwar Shaw's case (supra), in
Binod Singh v. District Magistrate,
Dhanbad, (1986) 4 SCC 416 : 1986 SCC
(Cri) 490, in absence of recording of
satisfaction by the detaining authority,
either in the grounds of detention or the
order of detention, with regard to the
detenu being already in jail and that there
was imminent possibility of his being
released on bail, a two-judges Bench of
the Apex Court scrutinized the affidavit
filed by the District Magistrate to find out
whether there existed any satisfaction in
that regard. Upon finding that there
existed none, the apex court quashed the
order of detention. The relevant portion of
the judgment is extracted below:

"5......From the affidavit of the
District Magistrate it does not appear
that either the prospect of immediate
release of the detenu or other factors
which can justify the detention of a
person in detention were properly
considered in the light of the principles
noted in the aforesaid decision and
especially in the decisions in Rameshwar
Shaw v. District Magistrate, Burdwan
and
Ramesh
Yadav
v.
District
Magistrate, Etah, though there was a
statement to the effect that the petitioner
was in jail and was likely to be enlarged
on bail. But on what consideration that
opinion was expressed is not indicated
especially in view of the fact that the
detenu was detained in a murder charge
in the background of the fact mentioned
before. His application for bail could
have been opposed on cogent materials
before the court of justice.

6. In this case there were
grounds for the passing of the detention
order but after that the detenu has
surrendered
for
whatever
reasons,
therefore the order of detention though
justified when it was passed but at the
time of the service of the order there was
no proper consideration of the fact that
the detenu was in custody or that there
was any real danger of his release. Nor
does it appear that before the service
there was consideration of this aspect
properly. In the facts and circumstances
of this case, therefore, the continued
detention of the detenu under the Act is
not justified.
322 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is well settled in our
constitutional framework that the power
of directing preventive detention given to
the appropriate authorities must be
exercised
in
exceptional
cases
as
contemplated by the various provisions of
the
different
statutes
dealing
with
preventive detention and should be used
with great deal of circumspection. There
must
be
awareness
of
the
facts
necessitating preventive custody of a
person for social defence. 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 seriously before the service
of the order. A bald statement 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.
Eternal vigilance on the part of the
authority charged with both law and
order and public order is the price which
the democracy in this country extracts
from the public officials in order to
protect the fundamental freedoms of our
citizens. In the affidavits on behalf of the
detaining authority though there are
indications that transfer of the detenu
from
one
prison
to
another
was
considered but the need to serve the
detention order while he was in custody
was not properly considered by the
detaining authority in the light of the
relevant factors. At least the records of
the case do not indicate that. If that is
the position, then however disreputable
the antecedents of a person might have
been, without consideration of all the
aforesaid relevant factors, the detenu
could not have been put into preventive
custody. Therefore, though the order of
preventive detention when it was passed
was
not
invalid
and
on
relevant
considerations, the service of the order
was not on proper consideration.

8. .......................

9. The order of detention,
therefore, is set aside....."
(Emphasis Supplied)

17. In N. Meera Rani v.
Govt. of T.N., (1989) 4 SCC 418 : 1989
SCC (Cri) 732, a three-judges Bench of
the Apex Court in paragraphs 22 and 23
of the judgment, as reported, observed
/held as follows:

"22. 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 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,
3 All. Bhupendra Vs. Union of India & Ors.
323
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.
23. Applying the above settled principle
to the facts of the present case we have no
doubt that the detention order, in the
present case, must be quashed for this
reason alone. The detention order read
with its annexure indicates the detaining
authority's awareness of the fact of
detenu's jail custody at the time of the
making of the detention order. However,
there is no indication therein that the
detaining authority considered it likely
that the detenu could be released on bail."
(Emphasis Supplied)

18. In Kamarunnissa v. Union of
India, (1991) 1 SCC 128 : 1991 SCC
(Cri) 88, a two-judges Bench of the Apex
Court, after going through the earlier
decisions including the decision in
Rameshwar Shaw's case (supra), observed
and summarized the legal principles as
follows:

"12. In Vijay Narain Singh this
Court stated that the law of preventive
detention being a drastic and hard law
must be strictly construed and should not
ordinarily be used for clipping the wings
of an accused if criminal prosecution
would suffice. So also in Ramesh Yadav v.
District Magistrate, Etah this Court
stated that ordinarily a detention order
should not be passed merely on the
ground that the detenu who was carrying
on smuggling activities was likely to be
enlarged on bail. In such cases the proper
course would be to oppose the bail
application and if granted, challenge the
order in the higher forum but not
circumvent it by passing an order of
detention merely to supersede the bail
order. In Suraj Pal Sahu v. State of
Maharashtra the same principle was
reiterated. In Binod Singh v. District
Magistrate, Dhanbad it was held that if a
person is in custody and there is no
imminent possibility of his being released
therefrom, the power of detention should
not ordinarily be exercised. There must
be cogent material before the officer
passing the detention order for inferring
that the detenu was likely to be released
on bail. This inference must be drawn
from material on record and must not be
the ipse dixit of the officer passing the
detention order. Eternal vigilance on the
part of the authority charged with the
duty of maintaining law and order and
public order is the price which the
democracy in this country extracts to
protect the fundamental freedoms of the
citizens.
This
Court,
therefore,
emphasized
that
before
passing
a
detention order in respect of the person
who is in jail the concerned authority
must satisfy himself and that satisfaction
must be reached on the basis of cogent
material that there is a real possibility of
the detenu being released on bail and
further if released on bail the material on
record reveals that he will indulge in
prejudicial activity if not detained. That is
why in Abdul Razak Abdul Wahab Sheikh
v. S.N. Sinha, Commr. of Police this
Court held that there must be awareness
in the mind of the detaining authority that
the detenu is in custody at the time of
actual detention and that cogent and
relevant material disclosed the necessity
for making an order of detention. In that
case the detention order was quashed on
the ground of non-application of mind as
it was found that the detaining authority
was unaware that the detenu's application
for being released on bail was rejected by
the Designated Court. In N. Meera Rani
324 INDIAN LAW REPORTS ALLAHABAD SERIES
v. State of Tamil Nadu the case law was
examined in extenso. This Court pointed
out that the mere fact that the detenu was
in custody was not sufficient to invalidate
a detention order and the decision must
depend on the facts of each case. Since
the law of preventive detention was
intended to prevent a detenu from acting
in any manner considered prejudicial
under the law, ordinarily it need not be
resorted to if the detenu is in custody
unless the detaining authority has reason
to believe that the subsisting custody of
the detenu may soon terminate by his
being released on bail and having regard
to his recent antecedents he is likely to
indulge in similar prejudicial activity
unless he is prevented from doing so by
an appropriate order of preventive
detention. In Shashi Aggarwal v. State of
Uttar Pradesh it was emphasized that the
possibility of the court granting bail is not
sufficient nor is a bald statement that the
detenu
would
repeat
his
criminal
activities enough to pass an order of
detention
unless
there
is
credible
information and cogent reason apparent
on the record that the detenu, if enlarged
on bail, would act prejudicially. The same
view was reiterated in Anand Prakash v.
State of Uttar Pradesh and Dharmendra
case. In Sanjay Kumar Aggarwal v.
Union of India the detenu who was in jail
was served with a detention order as it
was apprehended that he would indulge
in prejudicial activities on being released
on bail. The contention that the bail
application could be opposed, if granted,
the same could be questioned in a higher
forum, etc. was negatived on the ground
that it was not the law that no order of
detention could validly be passed against
a
person
in
custody
under
any
circumstances.
13. From the catena of decisions
referred to above it seems clear to us that
even in the case of a person in custody a
detention order can validly be passed (1)
if the authority passing the order is aware
of the fact that he is actually in custody;
(2) if he has reason to believe on the basis
of reliable material placed before him (a)
that there is a real possibility of his being
released on bail, and (b) that on being so
released he would in all probability
indulge in prejudicial activity and (3) if it
is felt essential to detain him to prevent
him from so doing. If the authority passes
an order after recording his satisfaction
in this behalf, such an order cannot be
struck down on the ground that the
proper course for the authority was to
oppose the bail and if bail is granted
notwithstanding
such
opposition,
to
question it before a higher court. What
this Court stated in the case of Ramesh
Yadav was that ordinarily a detention
order should not be passed merely to preempt or circumvent enlargement on bail
in cases which are essentially criminal in
nature and can be dealt with under the
ordinary law. It seems to us well settled
that even in a case where a person is in
custody, if the facts and circumstances of
the case so demand, resort can be had to
the law of preventive detention."

19. In Rekha v. State of T.N.,
(2011) 5 SCC 244 : (2011) 2 SCC (Cri)
596, before a three-judges Bench of the
Apex Court a question arose whether a
preventive
detention
order
can
be
lawfully passed against a person already
in jail even if he had not applied for bail.
While
holding
that,
in
certain
circumstances, it can be passed, in
paragraphs 8 to 11 of the judgment, the
apex court observed / held as follows:
3 All. Bhupendra Vs. Union of India & Ors.
325

"8. It has been held in T.V.
Sravanan v. State, A. Shanthi v. Govt. of
T.N., Rajesh Gulati v. Govt. of NCT of
Delhi, etc. that if no bail application was
pending and the detenu was already, in
fact, in jail in a criminal case, the
detention order under the preventive
detention law is illegal. These decisions
appear to have followed the Constitution
Bench decision in Haradhan Saha v. State
of W.B. wherein it has been observed:
(SCC p. 209, para 34):

"34.
...
where
the
person
concerned is actually in jail custody at
the time when an order of detention is
passed against him and is not likely to be
released for a fair length of time, it may
be possible to contend that there could be
no satisfaction on the part of the
detaining authority as to the likelihood of
such a person indulging in activities
which would jeopardise the security of the
State or public order."

9. On the other hand, Mr Altaf
Ahmed,
learned
Senior
Counsel
appearing for the State of Tamil Nadu,
has relied on the judgments of this Court
in A. Geetha v. State of T.N. and Ibrahim
Nazeer v. State of T.N. wherein it has
been held that even if no bail application
of the petitioner is pending but if in
similar cases bail has been granted, then
this is a good ground for the subjective
satisfaction of the detaining authority to
pass the detention order.

10. In our opinion, if details are
given by the respondent authority about
the alleged bail orders in similar cases
mentioning the date of the orders, the bail
application number, whether the bail
order was passed in respect of the coaccused in the same case, and whether
the case of the co-accused was on the
same footing as the case of the petitioner,
then, of course, it could be argued that
there is likelihood of the accused being
released on bail, because it is the normal
practice of most courts that if a coaccused has been granted bail and his
case is on the same footing as that of the
petitioner, then the petitioner is ordinarily
granted bail. However, the respondent
authority should have given details about
the alleged bail order in similar cases,
which has not been done in the present
case.