TaxTMI 
TaxTMI 
1989 (8) TMI 342
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....ted that the detenu be kept in detention for a period of 12 months from the date of his detention. This preventive detention of the detenu was challenged in the High Court of Judicature at Madras by his wife, the appellant-petitioner, under Article 226 of the Constitution praying for issuance of a writ of habeas corpus. The High Court by its order dated 6.3.1989 has dismissed the writ petition. The appellant-petitioner 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 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 leave, 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. We may now state the arguments advanced to challenge the detenu's detention before mentioning the relevant facts which are material for deciding....
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.... are now stated. A branch of the Bank of Madura is located in a rented accommodation in flat No. 634, K.K. Nagar in Madurai. On 6.8.1988, the Bank Manager and the staff of the Bank were attending to the business of the Bank which then had 443 packets containing valuable ornaments weighing about 20,576.150 grams valued at about rupees sixty-two lakhs and cash amounting to Rs. 38,945.00. These gold ornaments were pledged with the Bank as security for loans advanced by the Bank of certain borrowers. At about 10.55 A.M. on 6.8.1988 the Bank was looted and these ornaments and cash were taken away by armed dacoits on the point of revolver after locking the Bank employees and customers in the strong room. The dacoits escaped in an ambassador car with registration No. TDL-9683 and a motorcycle bearing registration No. TNK-6727. The dacoits are stated to be one Karuna and some other Sri Lanka nationals who were temporarily living in a nearby flat which was in the possession of the detenu. It is stated that the ambassador car used in the dacoity had been stolen on 4.8.1988 from Quilon in the State of Kerala by Karuna and his companions. It is further stated that the dacoity was committed in ....
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....mar also made a confession pursuant to which the recovery was made of gold ornaments weighing about 25.900 grams from Gurumoorthy. Subsequently, these ornaments were identified as those which had been looted in the above-mentioned dacoity on 6.8.1988. It is on these grounds that the impugned detention order dated 7.9.1988 was passed for the detenu's preventive detention under the Act. The detention order as well as its annexure containing the relevant ground of detention are quoted as under: "ANNEXURE 'A' PROCEEDINGS OF THE COLLECTOR AND DISTRICT MAGISTRATE, MADURAI. PRESENT: THIRU M. DEVARAJ, I.A.S. N.S.A. NO. 73/88 Dated: 7.9.1988  ....
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....sp; 7.9.88 Sub: National Security Act, 1980 (Central Act 65 of 1980)--detention of Thiru Nallathambi alias Thambi, Male aged 30 years, S/o (Late) S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai u/s. 3(2) of the National Security Act, 1980--Grounds of detention. A detention order under section 3(2) of the National Security Act (Central Act 65 of 1980) has been made on Thiru Nallathambi alias Thambi, male, aged 30 years, s/o (Late) S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai vide order NSA No. 73/88 dated 7.9.1988. (2) The grounds on which the said detention has been made are as follows: XXX ....
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....rai after the commission of armed dacoity tallied with the finger-prints of accused Thiru Karuna. (13) The chance prints developed from the ambassador car TDL 1919 and TDT 3699 which were used in earlier attempts tallied with the finger-prints of accused Thiru Karuna. XXX XXX XXX (18) I am aware that Thiru Nalla thambi is in remand and would be proceeded with under normal law. Though the name of Thiru Nallathambi does not find a place in the F.I.R. and though he has not physically participated in the commission of the armed dacoity, a reading of the records and the statement clearly disclosed the facts that Thiru Nallathambi, was an active participant in the said conspiracy to loot the K.K. Nagar branch of the Bank of Madura. In furtherance of the conspiracy Thiru Nallathambi had made preparation for the commission of the armed dacoity as discussed in para 4 above. Further Thiru Nallathambi had received a portion of booty of gold jewels weighing about 8325. 150 grams valued Rs. 25 lakhs and cash Rs. 15,000.00 from the stolen jewels and cash robbed from the abovesaid Bank and received a box containing 1 revolver, 2 pistols, 3 grenades, 6 bombs and a knife used in the commis....
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....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(5) 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 5A 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 5A of the Ac....
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....ed that the satisfaction reached by the detaining authority has been vitiated. 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 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. 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 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. The ot....
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....et 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 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 of detenu being released on bail. 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 point is to be decided. The starting point is the decision of a Constitution Bench in R....
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.... 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 .......... 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 s....
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.... 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." (at pages 929-931 of SCR) (emphasis supplied) On the above principle the Constitution Bench also explained the decision of the Assam High Court in Sahadat Ali v. State of Assam & Ors., A.I.R. 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 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. In Kartic Chandra Guha v. The State of West Bengal and others, [1975] 3 SCC 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 ....
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.... 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] 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 quite likely, he would create problems of public order which necessitated his preventive detention. In Ramesh Yadav v. District Magistrate, Etah and others, [1985] 4 SCC 232 the detention order was passed when the detenu was in jail on the mere apprehension of likelihood of grant of bail on the basis of some stale grounds and a ground in respect of which the detenu 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 detention order being based on valid grounds showing detenu's activities proximate in point of ....
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....en detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that .the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary." (at page 58) A recent decision on the point is Smt. Shashi Aggarwal v. State of U.P. and others, [1988] 1 SCC 436 in which also the settled principle is reiterated and it is pointed out that the ultimate decision depends on the facts of a partic ular case, the test to be applied remaining the same, as indicated in Rameshwar Shaw's case (supra). It was also pointed out in this decision that the earlier decisions of the Supreme Court in Ramesh Yadav, (supra) and Binod Singh, (supra) do not run counter to the decision in Alijan Mian's case (supra). In each of these cases the conclusion was reached on the facts of the particular case, the test applied being the same. Similarly, in this decision it was once again po....
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....e (supra). We may summarise and reiterate the settled principle. Subsisting custody of the detenu 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 detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not, needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu 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 be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must b....