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TMI Blog1989 (8) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 those points. Shri U.R. Lalit, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dura 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 ₹ 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 order to fund the militant organisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 DETENTION ORDER WHEREAS, I, M. DEVARAJ, I.A.S. Collector and District Magistrate, Madurai, am satisfied with respect to the person known as Thiru Nallathambi @ Thambi, male, aged 30 years, S/o (late) Thiru S. Mathu, residing at Block No. 2, H.I.G. Colony, Anna Nagar, Madurai Town that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order. (2) Now, therefore, in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfession a box containing 1 revolver, 2 pistols with ammunition, 3 grenedes, 6 bombs, 1 knife was recovered from the house of accused Thiru Anand located in 27, Lakshimipuram, 6th Street, Madurai who is also an employee under Thiru Nallathambi. Further pursuant to his confession a bag containing gold jewels weighing about 1015.600 grams valued ₹ 3,05,000.00 was recovered from the moulding workshop of accused Thiru Vijayakumar located in 10-A, Bharatiar Main Street, K. Pudur, Madurai. Pursuant to the confession of Thiru Vijayakumar gold jewels weighing about 25.900 grams was recovered from the accused Thiru Gurumoorthy. The above jewels recovered were identified to be stolen from the Bank of Madura on 6.8.88. (11) The chance prints developed from the scene of occurrance in Bank of Madura, K.K. Nagar Branch, Madurai tallied with the fingerprints of accused Thiru Karuna. (12) The chance prints developed from the ambassador car TDL 9683 which was abandoned at new Mahali Party Street, Madurai 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 use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the appel lantpetitioner is based on the above quoted grounds in para Nos. 11, 12 and 13 relating to the chance printes developed from the scene of occurrence in the Bank, the ambassador cars TDL 9683, TDL 1919 and TDT 3699 which tallied with the fingerprints of Karuna, an accused in the Bank dacoity case. It was argued that the report of the finger-prints expert who gave this opinion was not supplied to the detenu even 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 defec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore we deal with the last contention on which we propose to quash the detention order. The second contention is that the detenu's arrest in connection with the Bank dacoity case is shown on 21.8.1988 when he was actually arrested much earlier in connection with the Bank dacoity as appeared in some local newspapers but those newspaper reports are not shown to have been placed before the detaining authority. On this basis, it was argued 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenu being released on bail in the dacoity case and, therefore, considered the detention order necessary. On the contrary, its contents, particularly those of the above quoted paragraph 18 clearly mention that the detenu had been remanded to custody for being proceeded against in due course and even though his name was not mentioned in the F.I.R. as one of the dacoits who participated in the commission of the armed Bank dacoity yet 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a case where a person has been sentenced 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-931 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 desperate criminal activities prejudicial to the maintenance of public order. The facts of that case, therefore, justified making the detention order accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 time to justify the detaining authority's satisfaction as reasonable. It was observed in passing that if the apprehension of the detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pointed out that the detenu being already in jail, the mere possibility of his release on bail was not enough for preventive detention unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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