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Judgment
Janarthanam, J.—The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated
26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue,
New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing
her from engaging in the possession, transportation and concealment of Narcotic Drugs.
On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the
Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 :
5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by
concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for
examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown
colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was
Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin
bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-.
She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri
Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis.
Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka
for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of
Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the
said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction
to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by
the said Sivalingam, on receipt of the goods.
On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case.
The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the
presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''NDP''S Act'').
From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the
impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in
illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue
in Prison.
The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers
before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as
required under law.
Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the
sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and
relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by
indulging in illicit traffic in Narcotic drugs.
The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty
question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the
opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on
this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of
catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments
of the constitutional Bench in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, and the latest pronouncement of the Supreme
Court in Dharmendra Suganchand Chelawat and another Vs. Union of India and others, besides making reference to the Vicent in Kamarunnissa
and Others Vs. Union of India and another, cited by learned Additional Central Government Standing Counsel.
In Rameshwar Shaw''s case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :-
As an abstract proposition of law, there may not be any doubt that S. 3(1)(a) does not preclude the authority from passing an order of detention
against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a
difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person
has been sentence to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is
pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the
end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant.
On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he
would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the
detention of the said person would be necessary after 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. It may not be easy to discover such
rational connection between the antecedent history of the person who has been sentenced to ten years'' rigorous imprisonment and the view that his
detention should be ordered after he is released after running the whole of his sentence. 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the
25th January, 1963. He has been in custody ever since. On the 15th February, 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 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 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 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 S. 3(1)(a), and this basis is clearly absent in the
case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not
justified by S. 3(1)(a) and is outside its purview.
In Dharmendra Suganchand Chelawat and another Vs. Union of India and others, , the Supreme Court observed (at p. 1237 of Cri LJ) :
The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the
purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in
detention, and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression
''compelling reasons'' in the context of making an order for detention of a person already in custody implies that there must be cogent material
before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future,
and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in
prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp.
2065-66 of Cri LJ) :
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 no 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.
The proposition of law evolved in Kamarunnissa and Others Vs. Union of India and another, referred to by learned Additional Central
Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in
any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw''s case 1964
(1) Cri LJ 257. It can further be seen that no decision of the Supreme 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 whatever. Therefore, the facts and circumstances of each case have to be taken
into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.
Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in
custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-
1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990.
The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same
had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of
detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining
authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in
Narcotic drug.
No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her
infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and
without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of
consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining
authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak
possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the
detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a
conclusion.
A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the
NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the
stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of
the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act.
The section itself starts with a non obstante clause by stating that ''Notwithstanding anything contained in the Code of Criminal Procedure, 1973,
which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused
of offences under the said Act.
Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of
offences under the NDPS Act. They are :
(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor;
(2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act;
and
(3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging
in any such offence in the near future.
Pertinent it is to mention here that on the face of the use of word ''and'', a conjunctive conjunction connecting the second and third primordial
requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case
and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather
inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances.
In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the
normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such
an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence,
as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the
Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all
move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not
comprehendable.
For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law.
We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise.
Petition allowed.