# N. MEERA RANI v. GOVERNMENT OF TAMIL NADU & ANR - **Citation:** [1989] 3 S.C.R. 901 - **Court:** Supreme Court of India - **Decided:** 1989-08-22 - **Case number:** Criminal Appeal E No. 511of1989 - **Bench:** S. Ranganathan, N_.D. Ojha, J.S. Verma - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-meera-rani-v-government-of-tamil-nadu-anr-10418 - **Pages:** 20 ## Headnote B National Security Act, 1980--Section 3(2) and 12( 1) subsisting custody of detenue does not invalidate order of detention-Detention order can be made in anticipation to operate on release of detenue . .,,- By an order dated 7.9.88 the Collector & District Magistrate ~' Madurai under s. 3(2) of the National Security Act, 1980 made an order c for keeping in custody Nallathamhi, the husband of the appellant/ , petitioner. The State Govt. on 25.10.88 by its order under s. 12(1) of the Act confirmed the order of detention agreeing with the opinion of the Advisory Board and ordered the detention of the detenue for 12 months from the date of his detention. The wife of the detenue challenged this D preventive detention by filing a writ of Habeas Corpus in the High Court of Madras. The High Court by its order dated 6.3.89 dismissed the writ petition. The appellant-petitioner challenged the dismissal of ' the writ by the High Court by way of special leave and also by filing a i writ petition under Article 32 of the Constitution of India. This Court while quashing the detention order, E HELD: Subsisting custody of the detenue 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 detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordiF narily it is not needed when the detenue is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenue 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 he G \ detained in order to prevent him from indulging -in such prejudicial F >- activities, the detention order can be validly made even in anticipation to operate on his release. [919E-G] - In the instant case, the the detention order read with its annexure indicates the detaining authority's awareness of the fact of de~enue's H 901 ~- A 902 SUPREME COURT REPORTS [1989] 3 S.C.R. jail custody at the time of the making of the detention order. tfowever there is no indication therin that the detenue could be released. on bail. On the contrary the detention order shows satisfaction of the detaining authority that there was ample material to support the criminal charge against the detenue. The order of detention passed on 7 .9.1988 and its confirmation by the State Government. on 25.10.1988 is therefore B clearly invalid since the same was ·made when the detenue was already in jail custody for the offence of bank dacoity with no prospect of his release. [919H-920C] c Rameshwar Shaw v. District Magistrate, Burdwan & Anr., [1964] 4 SCR 921-relied upon. Karrie Chandra Guha v. The State of West Bengal & Ors., [1975] 3 SCC 490; Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur & Anr., [1975] 4 SCC 164; Vijay Kumar v. State of Jammu & Kashmir & Ors., [1982] 2 SCC 43; Alijan Mian & Anr. v. District Magistrate, Dhanbad, [1983] 3 SCR 939; Ramesh Yadav v. District Magistrate, D Etah & Ors., [1985] 4 SCC 232; Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., [1986] 4 SCC 416; Poonam Lara v. M.L. Wadhawan & Anr., [1987] 4 SCC 48 and Smt. Shashi Aggarwal v. State of U.P. & Ors., [1988] 1SCC436. ## Text _Characters 0–39,889 of 48,399. This is a partial read: ask again with offset=39889 for what follows._ ~" ~" f '1 ,,.__ . . -""' .. , -:·!: --,.- l N. MEERA RANI A v. GOVERNMENT OF TAMIL NADU & ANR. 'I. AUGUST 22, 1989 ~ [S. RANGANATHAN, N_.D. OJHA AND J.S. VERMA, JJ.] B National Security Act, 1980--Section 3(2) and 12( 1) subsisting custody of detenue does not invalidate order of detention-Detention order can be made in anticipation to operate on release of detenue . .,,- By an order dated 7.9.88 the Collector & District Magistrate ~' Madurai under s. 3(2) of the National Security Act, 1980 made an order c for keeping in custody Nallathamhi, the husband of the appellant/ , petitioner. The State Govt. on 25.10.88 by its order under s. 12(1) of the Act confirmed the order of detention agreeing with the opinion of the Advisory Board and ordered the detention of the detenue for 12 months from the date of his detention. The wife of the detenue challenged this D preventive detention by filing a writ of Habeas Corpus in the High Court of Madras. The High Court by its order dated 6.3.89 dismissed the writ petition. The appellant-petitioner challenged the dismissal of ' the writ by the High Court by way of special leave and also by filing a i writ petition under Article 32 of the Constitution of India. This Court while quashing the detention order, E HELD: Subsisting custody of the detenue 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 detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordiF narily it is not needed when the detenue is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenue 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 he G \ detained in order to prevent him from indulging -in such prejudicial F >- activities, the detention order can be validly made even in anticipation to operate on his release. [919E-G] - In the instant case, the the detention order read with its annexure indicates the detaining authority's awareness of the fact of de~enue's H 901 ~- A 902 SUPREME COURT REPORTS [1989] 3 S.C.R. jail custody at the time of the making of the detention order. tfowever there is no indication therin that the detenue could be released. on bail. On the contrary the detention order shows satisfaction of the detaining authority that there was ample material to support the criminal charge against the detenue. The order of detention passed on 7 .9.1988 and its confirmation by the State Government. on 25.10.1988 is therefore B clearly invalid since the same was ·made when the detenue was already in jail custody for the offence of bank dacoity with no prospect of his release. [919H-920C] c Rameshwar Shaw v. District Magistrate, Burdwan & Anr., [1964] 4 SCR 921-relied upon. Karrie Chandra Guha v. The State of West Bengal & Ors., [1975] 3 SCC 490; Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur & Anr., [1975] 4 SCC 164; Vijay Kumar v. State of Jammu & Kashmir & Ors., [1982] 2 SCC 43; Alijan Mian & Anr. v. District Magistrate, Dhanbad, [1983] 3 SCR 939; Ramesh Yadav v. District Magistrate, D Etah & Ors., [1985] 4 SCC 232; Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., [1986] 4 SCC 416; Poonam Lara v. M.L. Wadhawan & Anr., [1987] 4 SCC 48 and Smt. Shashi Aggarwal v. State of U.P. & Ors., [1988] 1SCC436. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal E No. 511of1989. F G From the Judgment and Order dated 6.3.1989 of the Madras High Court in W.P. No. 14828 of 1988. WITH Writ Petition (Criminal) No. 205 of 1989. (Under Article 32 of the Constitution of India). U.R. Lalit and V. Balachandran for the Appellant/Petitioner. K. Rajendra Chowdhary, V. Krishnamurthy and S. Thananjayan for the Respondents. The Judgment of the Court was delivered by H VERMA, J. Special leave granted. ~"- ;l ~-{:,. ' N.M. RANI v. GOVT. OF. TAMIL NADU [VERMA, J.) 903 ,l The appellant-petitioner, Smt. N. Meera Rani, is the wife of Nallathambi, who has been detained under the National Security Act, A 1980 (Act No. "65 of1980) (hereinafter referred to as "the Act"). An order dated 7.9.1988 was made by the Collector and.District Magis- !rate, Madurai, under section.3(2) of the Act directing· that the detenu 1 be kept in custody in the Central Prison, Madurai. Thereafter, the State Goverriinent by its order dated 25.10.1988 made under section B 12(1) of the Act has confirmed the order of detention agreeing with the opinion of the Advisory Board constituted under the Act and directed that the detenu be kept in detention for a period of 12 mon\hs from the r date of his detention. This preventive detention of the detenu was challenged in the High Court of Judicature at Madras by his wife, the l appellant-petitioner, under Article 226 of the Constitution praying for c issuance of a writ of habeas corpus. The High Court by its order dated 6.3.1989 has dismissed the writ petition. The appellant-petitiono,r 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 D 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 ieave, 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. E 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 appellant-petitioner, has advanced three contentions. The first contention is that certain documents which have been referred to in some grounds of detention were not supplied to the detenu with the F result that the detenu was not given a proper and reasonable opportunity for making an effective representation and, therefore, the order of detention is vitiated for this reason alone. The second contention is that some documents in the form of newspaper reports showing that the detenu was apprehended and detained even prior to 21.8.1988 when the detenu was shown to have been arrested in connection with G ~ an offence punishable under section 3971.P.C. were not placed before the detaining authority when it formed the opinion mentioned in the detention order which has also vitiated the detention order. The last contention is that the fact of detenu's arrest in connection with an offence punishable under section 397 LP .C. and · and 13 relating to the chance printes developed from the scene of occurrence in the Bank, the ambassador cars TDL 9683, TDL 1919 and TOT 3699 which tallied with the finger-prints of Kamna, 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 H A B c D 910 SUPREME COURT REPORTS [1989] 3 S.C.R. 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 sent by the detenu to the newspaper media in the name of Tamil Nadu Makkal Viduthalai Eyakkam owning responsibility for the Bank dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them. It was argued that the non-supply of these documents on which the grounds of detention Nos. 9, 11, 12 and 13 are based has deprived the detenu of his legitimate right of effective representation against the same which is guaranteed under Article 22(S) of the Constitution of India and this defect results in invalidating the entire detention order. The reply of learned counsel for the respondents is that section SA of the Act is a complete answer to this argument inasmuch as this defect at best requires only the exclusion of these grounds of detention and no more. It was urged by learned counsel for respondents that the remaining grounds of detention were sufficient to sustain the detention order by virtue of section SA of the Act. Learned counsel for the appellant-petitioner also contended that such a result is not envisaged by section SA of the Act which did not apply to such a situation and the guarantee under Article 22(5) of the Constitution rendered the defect fatal to the detention order. Section SA of the Act clearly provides that the detention order E under section 3 of the Act has been made on two or more grounds, shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason whatsoever. It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as pro- .~ F vided in section 3 with reference to the remaining grounds or ground. 1 In other words, a ground of detention which is rendered invalid for any reason whatsoever, shall be treated as non-existent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order. Section SA was inserted in the Act with effect from 21.6.1984 to overcome the effect of G the decisions which had held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would not be possible to hold that the detaining authority · ~ making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds. It is, therefore, doubtful whether the construction of Section SA suggested by learned H counsel for the appellant-petitioner can be accepted. However, in the N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.l 911 f present case, it is not necessary for us to express any concluded A 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. I The second argument of learned counsel for the respondents may ~ also be considered before we deal with the last contenti0n on which we B propose to ·quash the detention order. The second contention is that the detenu's arrest in connection with the Bank decoity 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 nev. spapers but those r'. 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. c The question of the date on which the detenu was taken into custody in connection with the Bank dacoity is material for the last contention which we shall consider hereafter but the same has no relevance in this connection. Contents of the newspaper reports except D for the fact of earlier arrest which was known to the detaining authority were not relevant for the satisfaction needed to justify making of the detention order. The detaining authority's satisfaction was to be --< formed on the basis of material relevant to show the detenu's activities ' requiring his preventive detention with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order. E The newspaper reports indicating that the detenu was already in custody could at best be relevant only to show the fact that he was already in detention prior to the making of the detention order. We have already mentioned that this fact of the detenu's custody before t· the making of the order of detention on 7.9.1988 was known to the detaining authority and its effect is a separate point considered later. F The other contents of the newspaper reports had no other relevance for this purpose. This contention of learned counsel for the appellantpetitioner is, therefore, rejected. The last contention of learned counsel is based on the fact that the detenu was already in custody in connection with the Bank dacoity G ~- when the order of detention was made on 7.9.1988. It is also clear that on 22.8.1988 the detenu had moved a bail application which had been rejected and he had been remanded to custody. It is significant that the detention order itself describes the detenu as a person in custody in the Central Prison at Madurai and the order was served on him through the Superintendent of the Prison. The question now is of the effect of H , 912 SUPREME COURT REPORTS [1989] 3 S.C.R. A the detenu's earlier custody on the validity of the detention order. The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the detenu was already in custody in connection with the Bank dacoity at the time of making the detention order. B The fact that the detenu's application for grant of bail in the dacoity case had been rejected on 22.8. 1989 and he was remanded to custody for the offence of bank dacoity punishable under section 397 I.P.C. is also evident from the record. The detention order came to be made on 7. 9. 1988 on the above grounds in these circumstances. In the detention order the detaining authority recorded its satisfaction that the detenu's preventive detention was necessary to prevent him from indulging in C 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 disc.Jose this factual position. However, it may be pointed out that the detention order read along with its annexure nowhere indicates that D the detaining authority apprehended the likeihood 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. E 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 including weapons, bombs and hand-grenades were recovered from his possession pursuant to the detenu's confession F made after his arrest. These averments in the detention order indicate the satisfaction of the detaining authority that in its view there was ample material to prove the detenu's active participation in the crime and sharing the booty for which offence he had already been taken into custody. This view of the detaining authority negatives the impression of likelihood ofdetenu being released on bail. G H The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reasonable basis for making the detention order and serving it on the detenu during his custody'? We may now refer to the decisions on the basis of which this I ~ I } t i ,- I ~ N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.l 913 point is to be decided. The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan & Anr., [964] 4 SCR 921. All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of Judges. It is obvious that none of these subseq.uent decisions could have intended taking a view contrary to that of the Constitution Bench in Ramesh war Shaw's case (supra). The detention order in Rameshwar Shaw's case (supra) was made and also served on the detenu while he was in.jail custody. The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of a criminal complaint against him. The Constitution Bench considered the effect of the detenu's subsisting detention at the time of making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release. It was indicated that the detenu's subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention 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 thats. 3(l)(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 o, 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 •_·:i; ,, A B c D E F G ,_ H 914 A B c D E F G H SUPREME COURT REPORTS [1989] 3 S.C.R. irrelevant. On the other hand, if a person who is undergoing imprisonment. for a very short period, say for a month or tw<' o:>r so. and it is known that he would soon be released fron: j"il. ;, may be possible for the authority to cPnsiucr lhe antecedent history of the said person and decide whether the detention of the said person would be necessary ajier 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. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary .......... Therefore, we are satisfied that the question as to whether an order of 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. The question which 'still remains to be considered is: can a person in jail custody, like the petitioner, be served with an order of detention whilst he is in such custody? )"° xxx xxx xxx xxx We have already seen the logical process which must be followed by the authority in taking action under s. 3(1)(a). The first stage in the process is to examine the material ' adduced against a person to show either from his conduct _ ti or his antecedent history that he has been acting in a preI judicial 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 neces- ~ sary 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 ,- N.M. RANI v. GOVT. OF TAMIL NADU [VERMA. J.I 915 at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At 1he point of time when an order of detention is going to he 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(l}(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 bys. 3(1)(a) and is outside its purview." (at pages 929-931 of SCR) (emphasis supplied} A B c On the above principle the Constitution Bench also explained D the decision of the Assam High Court in Sahadat Ali v. State of Assam & Ors., A.LR. 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 E order and its service was held valid. The test indicated by the Constitution Bench was duly satisfied. It is this principle and the test indicated therein which has to be applied in all such cases. Read in this manner the conclusion reached in each of the subsequent decisions satisfies this test. F In Kartic Chandra Guha v. The State of West Bengal and others, [ 1975] 3 sec 490 the order of preventive detention passed while the detenu was in custody was upheld since there was a likelihood of his release on bail and resuming his desperate criminal activities prejudicial to the maintenance of public order. The facts of that case, thereG fore, justified making the detention order according to the test laid down by the Constitution Bench in Rameshwar Shaw's case (supra). Dr. Ramakrishna Rawat v. District Magistrate, Jaba/pur and another, [ 1975] 4 sec 164 was a case in which the order of detention was passed while the detenu was in jail custody in a proceeding under section 151 read with section 117 Cr.P.C. The detention order was upheld since H A B c D E F G H 916 SUPREME COURT REPORTS [1989) 3 S.C.R. the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past, the detaining authority could reasonably reach its subjective satisfaction that the detenu had the tendency 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 & Kashmir and others, I 1989) 2 sec 43 the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail. The further question of the detaining authority's subjective satisfaction that it was necessary even then to make an order for preventing him from acting in a manner prejudicial to the security of the State did not, therefore, arise. While dealing with this aspect the correct position was reiterated as under: "Preventive detention is resorted to, to thwart 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 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. 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 non-application 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 I 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 quilt; likely, he would create problems of public order which necessitated his preventive detention. In Ramesh Yadav \.- 1 I . .\ N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.] 917 iv. District Magistrate, Etah and others, [1985] 4 SCC 232 the detention A order was passed when the detenu was in jail on the mere apprehen~ ;ion of likelihood of grant.of bail on the basis of some stale grounds and a ground in respect of which the deienu had already been acquitted. It is obvious that even with the likelihood of grant of bail, the grounds of detention being stale or non-existent on the ground of the detenu's acquittal, they did not satisfy the required test of the detenB "j · tion order. being based on valid grounds showing detenu's activities proximate in point of time to justify the detaining authority's satisfaction as reasonable. It was observed in passing that if the apprehension of the detaining authority about the likelihood of grant of bail was correct then it was open to challenge the bail order in a higher forum. This observation has accordingly to be read in the context of the facts c in which it was made. In Binod Singh v. District Magistrate, Dhanbad, Bihar and others, (1986) 4 SCC 416 the detention order was held to be ~ invalid because the jail custody of the detenu at the time of service of the order as also the prospect of his release were not considered while making the d~tention order. It was held that the detenion order was invalid on the ground of non-application of mind to these relevant D factors even if the detention was otherwise justified.