Preventive detention in custody upheld where release on bail was likely and withheld bail papers were not relied upon.

Preventive detention may be sustained against a person already in custody where the detaining authority is aware of the custody and has cogent material showing a real likelihood of release on bail and consequent prejudicial activity; the necessity of detention remains a matter of subjective satisfaction on the facts. A solitary incident may, in an appropriate case, support such satisfaction. Non-placement or non-supply of a bail application and rejection order does not vitiate detention where those documents were not relied upon by the authority, and Article 22(5) is breached only when relied-upon material is withheld so as to prejudice representation. The detention orders were upheld on these principles.

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Issues: (i) whether a detention order can be sustained when the detenu was already in custody and the authority recorded awareness of such custody, and (ii) whether failure to place or supply the bail application and the order refusing bail vitiated the detention for non-application of mind or violation of Article 22(5) of the Constitution of India.

Issue (i): whether a detention order can be sustained when the detenu was already in custody and the authority recorded awareness of such custody.

Analysis: A detention order may validly be passed against a person already in custody if the grounds show awareness of the custody and further disclose cogent material showing a real possibility of release on bail and a need to prevent prejudicial activity after such release. The necessity depends on the facts of each case and is a matter of subjective satisfaction. The mere fact that the detenu was in jail, that bail had been rejected, or that the passport had been seized did not by itself negate the detention where the grounds recorded the possibility of release on bail and the circumstances of concealment of gold suggested smuggling potentialities. A solitary incident was also held sufficient, in an appropriate case, to indicate such potentialities.

Conclusion: The detention order was validly sustained notwithstanding the detenu's custody, and the challenge on want of compelling necessity failed.

Issue (ii): whether failure to place or supply the bail application and the order refusing bail vitiated the detention for non-application of mind or violation of Article 22(5) of the Constitution of India.

Analysis: The bail papers were not shown to have been relied upon by the detaining authority, and a mere reference to the possibility of release on bail did not amount to reliance on those documents. Where the detaining authority neither relied upon nor drew support from the bail application or the rejection order, their non-placement before the authority did not amount to suppression of relevant material, and their non-supply did not prejudice the detenu in making an effective representation. The right under Article 22(5) is infringed only when documents relied upon in the grounds are withheld, or when a passing reference is in substance a relied upon material.

Conclusion: The non-placement and non-supply of the bail documents did not vitiate the detention or violate Article 22(5).

Final Conclusion: The detention orders were upheld because the authority had awareness of custody, had relevant material showing likelihood of release and prejudicial conduct, and the bail documents neither formed the basis of the satisfaction nor caused prejudice by non-supply.

Ratio Decidendi: A preventive detention order against a person already in custody is valid if the detaining authority is aware of the custody and is satisfied on cogent material that there is a real likelihood of release on bail and consequent prejudicial activity; documents not relied upon by the authority need not be supplied under Article 22(5).

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