Ouchakalai vs Secretary to Government, Govt. of Tamil Nadu, Prohibition and Excise Department, Madras and others

T. Jayarama Chouta, J.—The petitioner Ouchakalai, who is the brother-in-law of detenu Logamani s/o Kasipuli Thevar has filed this petition

for a writ of habeas corpus or any other appropriate order or direction in the nature of a writ calling for the records of the first respondent, i.e.,

Secretary to Government, Government of Tamil Nadu, Prohibition and Excise Department, Madras made in and relating to Letter No. 7930/P &

E XV/95 dated 23-3-1995 and quash the same and set at liberty the detenu Logamani, presently undergoing detention in Central Prison, Madurai

under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988) (hereinafter referred to

as ""Act"").

The habeas corpus petition was admitted and notices were ordered to respondents on 9-5-1995. The respondents were served with the notices

and are being represented.

Necessary facts which could be gathered from the grounds of detention for the purpose of disposal of this habeas corpus petition are narrated

here : On 27-11-1994 at 21.00 hrs. one S. P. Ramamoorthy, Inspector of Police, Narcotic Intelligence Bureau, C.I.D. (hereinafter called as

N.I.B. C.I.D.) Dindigul received reliable information and proceeded to Jayanthi Colony, Kottapatty with police party and the informant, secured

some witnesses, reached door No. 2/95A, Ward No. 1 belonging to one Paraman and found the house was locked from inside and when the

door was opened from inside, the party found storage of some gunny bags which on enquiry revealed to be containing ganja. The detenu and four

others were searched and their statements were recorded and after completing all the legal formalities, they were arrested after seizing the said

ganja in the presence of mahazar witnesses. A case in Dindigul N.I.B. C.I.D. Cr. No. 77 of 1994 u/s 20(b)(i) of the Act was registered against

five persons including the detenu. After completing all the necessary requirements the Secretary, first respondent has passed the detention order on

23-3-1995 by exercising his powers conferred by Section 3(1) of the Act detaining the detenu in custody in the Central Prison, Madras which is

the subject matter of this habeas corpus petition.

In support of the petition, the petitioner has sworn to an affidavit. In the said affidavit, the petitioner has stated that his brother-in-law Logamani

has been detained in pursuant to an order of detention issued by the first respondent in Letter No. 7930/P & E XV/95 dated 23-3-1995 under the

Act. According to the petitioner, the detenu is an ordinary coolie and he earns his livelihood by taking cattle and livestocks like sterile cows and

bulls to Kerala. He had never been involved in any prejudicial activity at any time earlier. He has denied the allegation on the grounds that the

detenu along with three others went to Andhra Pradesh, purchased ganja and brought them in gunny bags. He denied the fact that the detenu had

been to Andhra Pradesh at all. The petitioner further stated that in connection with the case, a complaint had been filed by the Inspector of Police,

N.I.B., C.I.D., long earlier to the passing of the order of detention and in pursuance to the said complaint, charge sheet was filed and the matter

was posted for orders when the present order of detention has been passed. The said fact has not been disclosed in the detention order and hence,

the failure to apprise the detaining authority of these aspects has clearly vitiated the satisfaction.

The main grounds raised in the habeas corpus petition are non-mentioning of relevant and important materials in the grounds of detention and if

these were revealed in the said grounds the detaining authority would not have made the order of detention and the failure to consider these

aspects has vitiated the satisfaction. The next ground of attack was there was absolutely no necessity or justification in passing the order of

preventive detention in as much as the detenu did not file any bail application at all at any time, they did not even indicate the time when the

complaint was filed and, therefore, the allegations in the grounds that there are imminent possibility of the detenu coming out on bail is totally wrong

and such averments have been made mechanically without any basis but ritualistically made. Further the averment in the grounds of detention that in

such type of cases bail is granted after some time is totally wrong in view of Section 37 of the Act.

The last contention raised in the petition was that the detenu has submitted nine copies of the representation before the Superintendent, Central

Prison, Madurai for onward transmission to the authorities concerned and his representation was not duly considered and disposed of in

accordance with law and there was a delay which has violated Article 22(5) of the constitution of India. Under those circumstances, the petitioner

has requested this Court to quash the said order of detention and release the detenu forthwith.

Counter-affidavits have been filed by both the first respondent as well as the third respondent Union of India. The first respondent in his counter

affidavit sworn to by one P. V. Rajaraman, Secretary to Government, Prohibition and Excise Department, Fort St. George, Madras has denied all

the allegation contained in the affidavit of the petitioner and pointed out that there are sufficient materials to show that the detenu and the other co-

accused had been to Andhra Pradesh to procure the contraband and brought it over to the State of Tamil Nadu. He was also sworn that the order

of detention was passed by him after proper application of mind to all the relevant materials placed for his consideration. He has denied the

contention raised by the petitioner in his affidavit at paragraph 9 and submitted that the order of detention was passed as there was imminent

possibility of the detenu coming out of bail by filing bail application in the Court which grants such relief after some time.

The affidavit further reads that a representation dated 29-4-1995 from the detenu was received on 4-5-1995 through the Superintendent,

Central Prison, Madras vide letter dated 29-4-1995. A copy of the representation was sent to the Advisory Board, Madras and to Central

Government, New Delhi on 4-5-1995. Parawise remarks on the representation were called for from the Narcotic Intelligence Bureau, Madras on

4-5-1995 and the letter calling for remarks was despatched on 5-5-1995, parawise remarks were received from the bureau on 9-5-1995 and the

file was put to the officer on 10-5-1995. The Under Secretary has seen the case on 12-5-1995, since 11-5-1995, 13-5-1995 and 14-5-1995

were Government holidays, the Additional Secretary has seen the case on 15-5-1995 and the file was submitted to the Secretary on the same day

and the Secretary has rejected the representation of the detenu on 16-5-1995. He has further stated that connected file was submitted to the

Secretary with draft rejection letter on 16-5-1995 and the Secretary to Government approved the draft rejection letter on the same day and the

rejection order was issued on 16-5-1995 itself and the rejection order was served on the detenu on 20-5-1995 after obtaining acknowledgement

from him. The representation was also placed before the State Government and the same was rejected on 23-5-1995 which was served on the

detenu on 29-5-1995. Hence, according to the first respondent, the representation of the detenu was actively, continuously and independently

under the consideration. Under the circumstances, he has prayed this court to dismiss the habeas corpus petition as devoid of merits.

The third respondent, A. K. Srivastava, Joint Secretary to the Government of India, Ministery of Finance, Department of Revenue has sworn to

the said affidavit wherein he had denied all the averments made in the affidavit in support of the habeas corpus petition. He has sworn that the State

Government has issued the detention order and had forwarded the same along with necessary documents in terms of Section 3(2) of the Act which

is in order. As far as the representation dated 29-4-1995 made by the detenu against his detention, it was submitted that a copy of the same along

with the comments thereon was received in his office in the afternoon of 15th May, 1995 vide Superintendent of Police, NIB, CID, Madras letter

C. No. 96/TN NIB/95 dated 9-5-1995. Classification from the detaining authority i.e., the Government of Tamil Nadu on some of the points

made in the representation were called for vide letter dated 16-5-1995 and the same was received in his office on 12-6-1995 and the said

representation and the comments from the State Government were considered by the Central Government and was rejected on 16-6-1995 and

the said rejection was informed to the detenu on the same day.

The main grounds raised in this habeas corpus petition are (i) Delay in disposal of the representation by all the three authorities, detaining

authority, the State Government and the Central Government (ii) Non-application of mind while passing the detention order by the first respondent;

(iii) The Authorities have not independently disposed of the representation of the detenu; (iv) There was no compelling necessity to pass the

detention order; (v) Delay in passing the order of detention; and (vi) The detention order passed against the detenu leads to double detention as he

has already been convicted in the criminal trial.

Heard Sri B. Kumar, learned counsel for the petitioner, Sri. Sriramulu, learned Public Prosecutor for respondents 1 and 2 and Sri K.

Asokhan, Central Government Standing, counsel for the third respondent and perused the records.

As far as the first contention is concerned, Sri B. Kumar, learned counsel for the petitioner submitted that there was inordinate delay in

disposing of the representation of the detenu. He pointed out that simultaneous representations to the detaining authority, Central Government and

State Government were made on 29-4-1995 and the State Government received the said representation on 4-5-1995 and it had despatched

copies of the representation to Advisory Board, the Central Government on the same day. Parawise remarks were called on 5-5-1995, Parawise

comments were received on 9-5-1995, the Under Secretary dealt with the matter on 12-5-1995, Additional Secretary considered the case on 15-

5-1995, and the Secretary to Government rejected the representation on 16-5-1995. He also pointed out that on 23-5-1995 the representation

sent to the State Government was placed before the competent authority for the first time and the State Government rejected the representation on

the same day. He also submitted that the counter-affidavit filed by the first respondent is silent who on behalf of the State Government the decision

on rejection of the representation has taken. The above facts, learned counsel submitted would disclose violation of Article 25(5) of the

constitution of India in considering the representation. The representation addressed to the State Government has been placed before an authority

competent to deal with the representation on behalf of the State Government only on 23-5-1995 i.e., after a delay of 25 days which is

impermissible.

Further, the State Government could not have waited for the decision of the detaining authority. The detaining authority has rejected the

representation on 16-5-1995. There is no explanation why the State Government had kept quiet till 23-5-1995 nearly after 25 days from the date

of representation which is impermissible under law. It gives an impression to us that the State Government has been influenced by the decision

taken by the detaining authority in rejecting the representation and the law of independent consideration by the State Government is also a vitiating

factor. To substantiate this proposition of law, learned Advocate for the petitioner placed reliance on a decision in Kamleshkumar Ishwardas Patel

Vs. Union of India (UOI) and Others, and invited out attention to paragraphs 38 and 46 which read thus :

Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the

question posed is thus answered : where the detention order has been made u/s 3 of the COFEPOSA Act and the PIT NDPS by an officer

specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a

representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in

denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to

his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer

specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially

empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily imply that the

person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is

served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the

person ""detained to make a representation.

xxxx xxxx xxxx

xxxx xxxx xxxx

The decision in Sat Pal and Raj Kishore Prasad on which the High Court has placed reliance does not, therefore, detract from the law laid

down in Santosh Anand. Having found that the representation of the person detained was not considered by the officer making the order of

detention the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide the representation

is not fatal to the order of detention. We are, therefore, unable to unhold the answer given by the Full Bench to question No. 3 and, in our view,

the said question should be answered in the affirmative. On that basis it has to be held that since there was a denial of the constitutional safeguard

provided to the detenu under Article 22(5) of the Constitution on account of the failure on the part of the Officer who had made the order of

detention to independently consider the representation submitted by the detenu against his dentention and, to take a decision on the said

representation the further detention of the detenu Ishwardas.

Beechardas Patel is rendered illegal. The appeals, therefore, deserve to be allowed.

He also pleaded reliance on another decision of this Court in Sajitha Banu/Bazam Banu v. Joint Secretary to Government Ministry of Finance,

(1995) 1 Mad LW (Cri) 356 to which one of us is a party (T. Jayarama Choutta, J) In the said decision, this Court has observed as follows :-

Mr. B. Kumar, learned counsel appearing on behalf of the petitioners in both those Habeas Corpus Petition contended, that both these detenus

had forwarded representations to the Detaining Authority as well as the Union Government on 2-8-1994. He would urge, that nine copies of the

representations addressed to both the authorities were handed over to the Jail, Superintendent, for onward despatch to all the authorities who were

in law, authorised to consider and dispose of their representations. Though the detaining authority had disposed of the representations on 31-8-

1994, Union Government had kept ""these representations in cold storage for about one month, before initiating action and thereafter the process in

rejection, which followed, was not in consonance with the legal requirements, for the manner of disposal clearly highlighted lack of independent

consideration of the representations by the Union Government, which had chosen to confirm the order, long before rejection of the pending

representations, though it had time enough to confirm the impugned order."" Again in paragraph 9 at page 361, this is what the Court has observed :

The counter-affidavit of Mr. Verma further shows that since the representation was addressed to the Secretary, Revenue, as well the case was

then put up, to the said Secretary, on 1-9-1991. This counter-affidavit does not offer any explanation as to why representation received on 10-8-

1994 was not placed before the Secretary, Revenue, representing the Union Government, for its disposal prior to 1-9-1994. After careful

verification of the detention file, M. K. Asokan submitted, that nothing is available in the notes, to indicate as to why no action was taken by the

Secretary, Revenue, on this independent representation, till it was placed before him on 1-9-1994, though on 11-8-1994, there was an entry for

calling for parawar - remarks. It is not known as to who had called for such parawar remarks, though it apparently appears, to have not been done

by the Secretary, Revenue. It is because of this infirmity, which cannot easily be reconciled, that Mr. Asokan chose to get over the crisis by

addressing before us, that the same set of officials had to deal with both the representation throughout, and it was probably the said procedure,

which had led to the separate representations addressed to the Union Government, having been left unattended till the Joint Secretary exercised his

prerogative of disposing of the representation addressed to him in his capacity as the Detaining Authority.

Mr. B. Kumar, learned Advocate invited our attention to a decision in Sat Pal Vs. State of Punjab and others, and invited our attention to

paragraphs 5, 8, 9 and 11 which reads as follows :

The two questions canvassed in the petition are : (1) Whether there was any duty cast on the State Government to forward to the Central

Government the representation for revocation of the order of detention u/s 11 of the Act. It is urged that the detenu has no right to simultaneously

make a representation against the order of detention to the detaining authority under Art. 22(5) of the Constitution and an application for

revocation of the order of detention u/s 11 of the Act; (2) Whether the power of revocation of an order of detention by the Central Government

u/s 11 of the Act, is exerciseable only after the representation has been rejected by the State Government Advisory Board and the order of

detention is confirmed by the State Government under Sec. 8(f). Otherwise it is said there would be conflict of jurisdiction. We are unable to

accept any of these contentions.

xxx xxx xxx

xxx xxx xxx

The constitutional imperatives of Art. 22(5) enjoin that where the detenu makes simulteneously a representation to the detaining authority as well

as an application for revocation u/s 11 of the Act, they must both be dealt with by the appropriate governments at the same time, and there is no

question of any conflict of jurisdiction. To illustrate, if the Central Government were to revoke an order of detention u/s 11(1)(b) of the Act, there

would be no representation for the State Government to consider, or to refer to the Advisory Board u/s 8(b); nor will there arise any question of

the Advisory Board submitting a report to it, or on receipt of such a report, confirming the order of detention u/s 8(f). The other type of case

would be where notwithstanding that the order of detention has been confirmed u/s 8(f), the ""appropriate Government may, at any time, revoke the

same u/s 11 of the Act, The power of revocation conferred on the appropriate Government u/s 11 of the Act is independent of the power of

confirming or setting aside an order of detention under S. 8(f).

xxx xxx xxx

xxxx xxxxxx xxx

Although it was earlier thought that Section 14 of the Maintenance of Internal Security Act, 1971, which was in pari materia with Section 11 of

the Act did not confer any right or privilege on the detenu. There is a general consensus of opinion that the power of revocation conferred on the

Central Government u/s 11 of the Act is a supervisory power, and is intended to be an additional check or safeguard against the improper exercise

of its power of detention by the detaining authority or the State Government"".

xxx xxx xxx

The making of an application for revocation to the Central Government u/s 11 of the Act is, therefore, part of the constitutional right a citizen

has against his detention under a law relating to preventive detention. While Art. 22(5) contemplates the making of a representation against the

order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted u/s 8(a) of

the Act. Parliament has, in its wisdom, enacted Section 11 and conferred an additional safeguard against arbitrary executive action. It is, therefore,

idle to contend that the State Government had no duty to forward the representation made by the detenu to the Central Government for revocation

of his order of detention under S. 11 of the Act.

Placing reliance on the following observation of the Andhra Pradesh High Court in M. Obula Reddy v. Govt of Andhra Pradesh, 1987 Cri.

L.J. 34 .

It is unnecessary to multiply the decisions, suffice it to observe that the representation made by the detenu should be considered and disposed of

by the Government expeditiously and without any undue delay. While without a doubt, we should give due regard to the procedures involved in

such consideration on the part of the Government, yet the representation must receive urgent and prompt consideration at every stage of

consideration as emphasised by the Supreme Court in first of the decision referred to above. Frances Coralie Mullin Vs. W.C. Khambra and

Others, .

Sri B. Kumar submitted that there is no explanation by the State Government to consider the representation of the detenu till 23-5-1995 and on

this ground, the detenu is entitled to be released.

On this point, learned Public Prosecutor placed reliance on the decision in Noor Salman Makani Vs. Union of India and others, :

There is no doubt that in many cases this Court has reiterated that the right and obligation to make and to consider the representation at the

earliest opportunity is a constitutional imperative which cannot be curtailed or abridged but in considering where there was undue and unexplained

delay, the facts in each case have to be examined.

In Kamlabai (Smt) Vs. Commissioner of Police, Nagpur and Others, reads as follows :

The delay by itself is not a ground which proves to be fatal, if there is an explanation. However, the short delay cannot be given undue importance

having regard to the administrative actions. We do not think that the delay in this case is so inordinate as to warrant interference.

Learned Public Prosecutor submitted that there is no delay in the disposal of the representation. The representations have been disposed of by the

authority expeditiously and with the sense of urgency without an unvoidable delay. He took us through the counter-affidavit filed by the secretary

and pointed out that if at all there is short delay, it is only the postal delay and for that, the respondents are not responsible :-

Mr. K. Asokan, learned Central Government Standing counsel in addition to the argument of the learned public prosecutor has pointed out

that there is absolutely no delay on the part of the Central Government and it has with all promptness considered the representation and rejected it

by intimating to the detenu. He also pointed out from the Counter-affidavit filed by the Joint Secretary that there is no delay at all. He placed

reliance on the following decisions to show that if there is small delay in considering the representation, it is not possible to hold that on that ground,

the detention order can be set aside. (1) In M. Mohammad Sultan v. Joint Secretary to Government of India, Finance Department :

The grievance of the petitioner in the writ petition was that the representation dated January 18, 1990 of the Petitioner had not been considered.

In reply to the same in the counter affidavit it is stated that the representation of the petitioner did not bear a date and that the same was considered

on February 20, 1990 and vide Memo dated February 21, 1990 the petitioner was informed that the representation has been rejected. With

regard to time taken in consideration of the said representation, it is stated in the counter-affidavit that the representation was forwarded by the

Superintendent, Tamil Nadu Prison Department vide letter dated January 23, 1990 and it was received in the Ministry on January 30, 1990. From

the counter affidavit, it appears that the comments of the sponsoring authority were obtained on the representation and the said comments were

furnished to the Ministry on February 12, 1990. This would show that time up to January 30, 1990 was taken in communicating the representation

from the jail at Madras to the Central Government at Delhi and the period from January 30, 1990 to February 12, 1990 was spent in obtaining the

comments of the sponsoring authority on the representation. Keeping in view the fact that communication between the jail authorities and the

sponsoring authority who are at Madras and the Central Government at Delhi is through post and delay in postal delivery is not uncommon. The

period upto January 30, 1990 covering the time taken in communicating the representation to the Central Government and the period from January

30, 1990 to February 12, 1990 covering the time taken in obtaining the comments of the sponsoring authority has to be excluded and the time that

was taken by the Central Government for consider the representation was from February 13, 1990 to February 20, 1990. During this period there

were holidays (Saturday and Sunday) on February 17, and 18, 1990. Thus the time actually taken by the Central Government in considering the

representation was six days. The said period of six days cannot, in our opinion, be regarded as unduly long. It is, therefore, not possible to hold

that there was inordinate delay in the consideration of the representation of the petitioner by the Central Government and the detention of the

petitioner cannot be held to be invalid on that basis.

(2) In Kamarunnissa and Others Vs. Union of India and another, the Supreme Court observed as follows :-

(Para 7)

It is therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with the

representations of the detenu. Our attention was drawn to the case law in this behalf but we do not consider it necessary to refer to the same as the

question of delay has to be answered in the facts and circumstances of each case. Whether or not the delay, if any, is properly explained would

depend on the facts of each case and in the present case we are satisfied that there was no delay at all as is apparent from the facts narrated

above. We, therefore, do not find any merit in this submission.

(3) In M.L. Jose Vs. Union of India (UOI) and Others, , the Supreme Court in Paragraph 9 observed thus :

In the present case, according to the respondent, the representation was received in the COFEPOSA Unit only on March 4, 1991 and the same

was considered and disposed of on March 21, 1991 after the receipt of the comments from the sponsoring authority who was admittedly at

Cochin in the Kerala State which is far away from Delhi and, some postal delay might have occurred in transmitting the representation from Delhi

to Cochin and thereafter the comments from Cochin to Delhi. On the face of the facts of the present case, in our considered opinion, it cannot be

said that there was unreasonable delay in consideration and disposal of the representation by respondent 1 (Union of India). Therefore, the above

two decisions relied upon by the learned counsel are of no assistance to the facts of the present case. Hence, the first contention is rejected.

After hearing the rival submissions and perusing the affidavit and counter affidavits, we see that there is no force in the contention of Mr. B.

Kumar, learned counsel that there was delay in considering the representation by the detaining authority as well as the Central Government. The

representations have been considered by the authorities promptly and the small delay has to be attributed to the postal authorities as could be

gathered from the counter affidavits.

As far as non consideration of the representation of the detenu by the State Government and it waited till the disposal of the representation by

the detaining authority, the observations made by the learned Public Prosecutor is that since the same officer had to deal with the file at different

stages and such a procedure was adopted even in the instant cases and after the detaining authority had disposed of the representation the State

Government then stepped into to act further on the representation to perform its duty to consider and dispose it of on its inherent merits and there

was nothing wrong in the said disposal. He further submitted that even the said disposal was on 23-5-1995 and it cannot be said that the

Government was carried away by the decision of the detaining authority. According to him, the Government has independently considered the

representation and has come to its own conclusion without keeping in mind the rejection passed by the detaining authority. On these grounds, he

submitted that the detention order cannot be set aside.

After giving our anxious consideration to the rival submissions and keeping in view the principles in the decisions of Sajitha Banu''s case (1995)

1 Mad LW (Cri) 356 (Supra), we are of the opinion that the Government has not independently considered the representation. Only after the

detaining authority has rejected the representation the Government got alert and dismissed the representation on 23-5-1995. Under these

circumstances, we are of the opinion that the detention order has to be set aside. We feel that the State Government has been influenced by the

decision taken by the detaining authority in rejecting the representation of the detenu and there was lack of independent consideration by the State

Government where simultaneous representations are made to two authorities, it must be considered by each of them at the same time. Wherever a

representation is received, it must be continuously considered unless some help from an outside agency is required. The consideration of the

representation by the State Government has to be independent of the consideration of the representation by the detaining authority.

Turning to the next contention of Mr. B. Kumar, learned counsel that there was non-application of mind while passing the detention order,

learned Advocate invited out attention to para 3 of the grounds of detention which reads as follows :-

I am aware that you are in remand in Central Prison, Madurai and that there is an imminent possibility that you will come out on bail by filing bail

application in the Court. In such cases, bail is granted after some time. If you come out on bail, you will indulge in similar activities of illicit traffic, in

narcotic drugs in future. The recourse to normal punitive law would not have the desired effect of effectively preventing you from indulging in similar

activities in future. Hence, there is compelling necessity to detain you under PIT NDPS Act, 1988 (Central Act 46 of 1988) to prevent you from

engaging yourself in illicit traffic in Narcotics Drugs (Ganja) in future.

Learned Advocate submitted that the detaining authority has not considered the fact that the detenu in this case has not filed a bail petition till

the order of detention. This factor has not been borne in mind by the detaining authority. Charge sheet in the case was already filed and the matter

was posted for trial on 24-3-1995, which was not taken note of by the detaining authority before passing the order. Non mentioning in the ground

of detention about the stage of trial clearly shows the non application of mind by the detaining authority.

In support of this proposition, learned Advocate invited our attention to a decision in Abdul Razak Abdul Wahab Sheikh Vs. S.N. Sinha,

Commissioner of Police, Ahmedabad and Another, of the order, the Supreme Court has observed as follows :-

On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that

the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed

which necessitate the making of an order of detention. In this case, the detenu was in Jail custody in connection with a criminal case and the order

of detention was served on him in jail, it is also evident that the application for bail filed by the detenu wa rejected by the Designated Court on 13th

May, 1988. It is also not disputed that therefore no application for bail was made for release of the detenu before the order of detention was

served on him on 23rd May, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet ""there are full

possibilities that you may be released on bail in this offence also."" This statement clearly shows that the detaining authority was completely unaware

of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of

his coming out on bail is non existent. This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjective

satisfaction was not arrived by the detaining authority on consideration of relevant materials. There is also nothing to show from the grounds of

detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March

13, 1988, on the basis of which the detaining authority could come to his subjective satisfaction that the detenu, if released on bail will indulge in

acts prejudicial to the maintenance of public order and so such an order of detention is imperative.

On the basis of the said decision, learned Advocate submitted that there was absolutely no necessity or justification in passing the order of

preventive detention inasmuch as the detenu did not file any bail application at all. At any time, they did not even indicate the time when the

complaint was filed and, therefore, the allegations in the grounds that there is imminent possibility of the detenu coming out is totally wrong and such

averment is made mechanically without any basis but ritualistically made. He further submitted that in a matter of this nature, it will be very difficult

to get bail in view of Section 37 of the Act.

On the other hand, learned Public Prosecutor submitted and invited our attention to paragraph 8 of the counter affidavit wherein it is stated that

the order of detention was passed as there was imminent possibility of his coming out on bail by filing bail application in the Court which grant such

relief after some time. He also placed reliance on the following decisions.

(1) In Smt. Azra Fatima Vs. Union of India (UOI) and Others, :-

We have given our thoughtful consideration to the arguments advanced by learned counsel for the parties on the above point. The latest decision

of this Court on the above point is Sanjay Kumar Aggarwal Vs. Union of India (UOI) and Others, decided on 4th April, 1990 in which all the

earlier cases decided by this Court have been considered including the cases of N. Meera Rani Vs. Government of Tamil Nadu and Another, and

Dharmendra Suganchand Chelawat and another Vs. Union of India and others, on which reliance has been placed by the learned counsel for the

petitioner. It was observed in Sanjeev Kumar Aggarwal''s case that no decision of this Court has gone to the extent of holding that no order of

detention can validly be passed against a person in custody under any circumstances. Therefore, the facts and circumstances of each case have to

be taken into consideration in the context of considering the order of detention in the case of a detenu who is already in jail. The counsel for the

detenu in the above case strongly relied on Shashi Aggarwal Vs. State of U.P. and Others, and Ramesh Yadav Vs. District Magistrate, Etah and

Others, and contended that the bail application could be opposed if moved or if enlarged the same can be questioned in a higher Court and on that

ground the detention order should be held to be invalid. The Court negatived the above contention by observing that in N. Meera Rani''s case

1989 Cri LJ 2190 a Bench of three Judges noted the above observations in Shashi Aggarwal Vs. State of U.P. and Others, and Ramesh Yadav

Vs. District Magistrate, Etah and Others, and it was said that they were made on the facts of those particular cases. The Court further held in the

above case that on the material relied upon by the detaining authority it could not be said that there was no awareness in the ming of the detaining

authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities"".

(2) In Sanjay Kumar Aggarwal Vs. Union of India (UOI) and Others, the Supreme Court observed thus :

The learned counsel submitted that there is a total non-application of mind by the detaining authority in as much as he has failed to note that the

detenu was in jail and that there is no possibility of his being released and the failure on the part of the detaining authority to consider the same

renders the detention invalid. It is true that the petitioner was in judicial custody in connection with criminal proceedings. An application was filed in

the ""Court of A.C.M.M. Delhi for extending the remand and the remand was granted upto 6-7-89. However, two detenus who figured as co-

accused in that criminal proceedings were also in the judicial custody and on their behalf an application for bail was filed. As mentioned in the

grounds of detention the detaining authority has noted these circumstances. In paragraph No. 16 it is mentioned that :

I am aware that all of you are under judicial custody and possibility of your release on bail in near future cannot be ruled out. Also nothing

prevents Mahesh Kumar Chauhan, Vijay Kumar Dharne and you from moving bail application and getting released on bail.

Then in paragraph No. 24 it is mentioned thus :

From the foregoing facts and circumstances in this connection as disclosed and statements recorded/herein above, it is evident that you have

engaged yourself in absetting the smuggling of goods unless prevented, you will continue to do so in similar manner or otherwise in future when

released on bail.

The further submission of the learned counsel is that the petitioner along with two others was in judicial custody and they were further remanded

upto 20-7-1989 and no bail application was filed or pending as on the date of passing orders of detention. Therefore, it must necessarily be

inferred that there is no awareness on the detaining authority of this aspect. Reliance is placed on some of the decisions of Supreme Court of India

in this context"".

In the same decision, at paragraph 6, this is what the Supreme Court has observed :-

In Vijay Kumar Vs. State of Jammu and Kashmir and Others, , 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"".

In the case referred above, the detaining authority was aware of the detenu being in judicial custody and the co-detenus moving for bail. Under

those circumstances, having regard to those facts, the Supreme Court held that it cannot be said that the detaining authority was not aware and

there was non-application of mind. In the present case, it gives an impression that the detaining authority has not applied its mind before passing the

said order. The detaining authority has not referred to the facts that the charge sheet has already been filed and till then, there was no bail

application filed by the detenu. In fact, the detenu has not at all filed any bail application till the disposal of the criminal cases. Further, in view of

Section 37 of the Act, it will not be proper to say that such type of cases, bail is granted after some time. Hence, we hold that the ground alleged

by the learned Advocate has got force and on his ground also the order of detention has to set aside.

As far as the contention of the learned counsel for the petitioner that the detention order passed by the detaining authority as against the detenu

leads to double detention we are not impressed by this submission in view of the decision cited by Mr. Sriramulu, learned pubic Prosecutor in

Suraj Pal Sahu Vs. State of Maharashtra and Others, . In the said decision, the Supreme Court in paragraphs 34, 38 & 39 observed thus :

It was held that merely because the detaining authority had chosen to base the order of detention on the discharge of the petitioner by Court

for want of evidence it could not be held that the order was bad in law. This branch of jurisprudence, as ""Interpreted by this Court, has made it

futile for a detenu to urge that because the grounds of detention, had been the subject matter of criminal cases which had ended in discharge,

therefore, the order of detention was malafide. The basic imperative of proof beyond reasonable doubt did not apply to the component of

subjective satisfaction for imprisonment for reasons of internal security. There might be extreme cases where the Court had held a criminal case to

be false and the detaining authority for want of evidence claimed to be satisfied about prospective prejudicial activities based on what a Court had

found to be baseless. In the present case the order of discharge was made purely for want of evidence on the scope that witnesses were too afraid

to depose against a desperate character, cannot come under the exceptions carved out by the Court to this category. It was further emphasised

that there must be a live link between the grounds of criminal activities alleged by the detaining authority and the purpose of detention. This credible

chain is snapped if there was too long and unexplained Interval between the offending acts and order of detention. If the detaining authority took

the charge of conviction and, when the Court verdict went against it, fell back on its detention power to punish one whom the Court would not

convict, it was an abuse and virtual nullification of the Judicial process. But if honestly, finding a dangerous person getting away with it by

overawing witnesses or concealing the commission cleverly, an authority thought on the material before it that there was need to interdict public

disorder at his instance he might validly direct detention. In the present case, the acts were serious, being bomb hurling and brickbat throwing in

public places creating panic. Involvement of the petitioner was discovered only during the investigation. It was further held that the argument that

detention without defined duration is ipso jure invalid could not be sustained. No responsible government should or would be irresponsive to the

claim of citizen''s freedom. The nature of the act from the circumstances of its commission, the impact on the people around and such factors

constitute the pathology of public disorders. These acts could not be isolated from their public setting nor was it possible to analyse ""its molecules

as in a laboratory but to take its total effect on the flow of orderly life. It might be a question of degree and quality of activity of the sensitivity of the

question involving people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of the preventive

detention.

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If there was an imminent possibility of the man being set at liberty and his detention coming to an end, then it appears, as a principle, of his

detention is otherwise necessary and justified then there is nothing to prevent the appropriate authorities from being satisfied about the necessity of

passing an appropriate order detaining the person concerned.

In Gopi Ram Vs. State of Rajasthan and Others, Mudholkar, J. reiterated the principle that law does not permit double detention and referring

to Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, it was reiterated that when a person was in jail custody and the criminal

proceedings were pending against him, the appropriate authority might in a given case take the view that criminal proceedings might end very soon

and might terminate in his acquittal. In such a case, it would be open to the appropriate authority to make an order of detention, if the requisite

conditions of the Rule or the Section were satisfied, and serve it on the person concerned even after he was acquitted in the said criminal

proceedings.

In Gopi Ram Vs. State of Rajasthan and Others, , the Supreme Court in paragraph 8 observed as follows :-

Mr. Agarwala, however, contended that the material date is the date of service of the detention order which, in this case, was January 23, 1965

and that on that date the petitioner who had been released on January 21, 1965 in view of the cancellation of the earlier order of detention had

been arrested under a warrant of the sub-Divisional Magistrate and remanded to jail custody. Since he was already in jail custody, the argument

proceeds, how could the District Magistrate be reasonably satisfied that his detention in jail was necessary for preventing him from acting in a

manner prejudicial to public safety etc., Reliance was strongly placed by learned counsel on certain observations in Makhan Singh Tarsikka Vs.

The State of Punjab, , in support of his contention that if a person is clearly in jail the service of an order of detention on him is bad. As we read

that decision as well as the one in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, , the validity of an order of detention does not

necessarily depend upon whether the other was served on him when he was or was not in jail custody. All the surrounding circumstances have got

to be borne in mind for deciding whether or not the order is valid. The essential thing is that the legislature has left it to the detaining authority to be

satisfied about the necessity of detention and that in the absence of malafides on the part of that authority the Court cannot go into the question of

the propriety of the subjective satisfaction of the detaining authority. Where the initial order of detention is not challenged on the ground of mala

fides its supersession by an other order of detention passed on the same ground as the one earlier made cannot be said to be tainted by mala fides

merely because when it was made the person was ""already in full custody"".

Learned counsel finally pointed out from his notes of points that the detenu with four others was arrested on 28-11-1994 and all the necessary

formalities were over and the chemical analyst report was also received by the authority on 10-1-1995 till the detention order was passed on 23-

3-1995 and on this ground of delay in passing the order of detention, the order has to be set aside. Since this point was not taken up in the petition

and there was no action for the respondent to meet these allegations, we are refraining from giving any finding on this point.

As held by the Supreme Court, preventive detention is hard law and must be applied with circumspection rationally and reasonably and on

materials. Hard and ugly facts make applications of harsh laws imperative. The detenu''s rights and privileges as a free man should not be

unnecessarily curbed.

For the reasons stated above, we allow this habeas corpus petition and set aside the detention order No. 7930/P 7 E XV/95 dated 23-3-

1995 passed by the Secretary to Government, Prohibition & Excise Department, the first respondent and the detenu Logamani S/o Kasilpuli

Thevar who is now detained is directed to be set at liberty forthwith unless his detention is otherwise required.

Petition allowed.