Preventive detention in custody upheld where bail was likely and the detaining authority formed bona fide satisfaction on prejudicial activity.

Preventive detention under COFEPOSA may be sustained even when the detenue is already in judicial custody, provided the detaining authority is aware of the custody, has cogent material showing a realistic possibility of release on bail, and records bona fide satisfaction that detention is necessary to prevent prejudicial activity. Non-placement of an alleged retraction petition of a co-accused does not vitiate the detention if the document is not shown to have been before the authority when satisfaction was formed. The Supreme Court accordingly restored the detention orders and rejected the challenge to the High Court's quashing.

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Issues: (i) Whether a detention order under COFEPOSA can be sustained against a person already in judicial custody when the detaining authority records awareness of custody and the likelihood of release on bail; (ii) Whether non-placement or non-consideration of the alleged retraction petition of a co-accused vitiated the detention orders.

Issue (i): Whether a detention order under COFEPOSA can be sustained against a person already in judicial custody when the detaining authority records awareness of custody and the likelihood of release on bail.

Analysis: Preventive detention of a person in custody is permissible if the authority is aware of the custody, has cogent material to believe that release on bail is realistically possible, and is satisfied that, upon release, the person is likely to continue prejudicial activities. The recorded grounds expressly noted the existing custody, the immediate possibility of release, and the propensity to indulge in prejudicial activity. The subsequent grant of bail also fortified the apprehension that the detention was not without basis. The custody alone did not invalidate the detention orders.

Conclusion: The detention orders could not be struck down on the ground that the detenus were already in judicial custody; the challenge on this ground failed.

Issue (ii): Whether non-placement or non-consideration of the alleged retraction petition of a co-accused vitiated the detention orders.

Analysis: The material showed that the alleged retraction petition was not forwarded to the sponsoring or detaining authority before the detention orders were made. The record also indicated that the petition reached the prosecuting side later. In these circumstances, the detaining authority could not be faulted for not considering a document that was not shown to have been before it when the subjective satisfaction was formed. The handwritten entry relied upon to show prior knowledge was found unreliable.

Conclusion: Non-consideration of the co-accused's retraction petition did not vitiate the detention orders.

Final Conclusion: The High Court's quashing of the detention orders was set aside, the detention orders were restored, and the connected petitions challenging the detention failed.

Ratio Decidendi: A preventive detention order against a person already in custody is valid if the detaining authority is aware of the custody, has cogent material showing a real possibility of release on bail, and forms a bona fide subjective satisfaction that detention is necessary to prevent further prejudicial activity; a document not shown to have been before the authority at the time of decision cannot vitiate that satisfaction.

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