Full Judgment Text
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PETITIONER:
DHARMENDRA SUGANCHAND CHELAWAT & SUGANCHAND KANHAIYYALAL
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT09/02/1990
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
RAY, B.C. (J)
KULDIP SINGH (J)
CITATION:
1990 AIR 1196 1990 SCR (1) 303
1990 SCC (1) 746 JT 1990 (1) 184
1990 SCALE (1)146
CITATOR INFO :
RF 1990 SC1202 (11,12)
R 1990 SC1763 (5)
RF 1991 SC1640 (11,12)
C 1991 SC2261 (4,12)
ACT:
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988: Section 3(1)--Detention
Order--Detenu in jail when orderpassed--Validity of.
HEADNOTE:
The appellants were arrested for offences punishable
under the provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1988. They were remanded to judicial custody
till October 13, 1988. On October 11, 1988 orders were
passed under Section 3(1) of the Prevention of illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988 for the detention of the appellants on the ground that
with a view to preventing the appellants from engaging in
the transportation and abetting in the export inter-state of
Psychotropic Substances, it was necessary to detain them and
to keep in custody. The orders were served on them on Octo-
ber 13, 1988, while in custody. The High Court dismissed the
Writ Petitions filed on behalf of the appellants, challeng-
ing the legality of their detention.
In the Special Leave Petitions filed in this Court, it
was contended that since the appellants were in custody on
October 11, 1988, the date of passing of the detention
order, there was no apprehension that the appellants would
be engaging in any prejudicial activity, and the detention
order could not be validly passed.
On behalf of the respondents, it was contended that the
detention order was validly passed on October 11, 1988 since
the appellants had been remanded to judicial custody upto
October 13, 1988 only, and the detaining authority could
have apprehended that the remand may not be extended beyond
that date and the appellants may be released from custody,
and would be free thereafter to engage in prejudicial activ-
ities.
Allowing the appeals, this Court passed an order on
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January 11, 1990, setting aside the detention order and
directing the release of the appellants.
304
Giving reasons for its order, this Court,
HELD: An order for detention can be validly passed
against a person in custody and for that 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 compel-
ling reasons justifying such detention despite the fact that
the detenu is already in detention. The expression "compel-
ling reasons" in the context of making an order for deten-
tion of a person already in custody implied 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 activi-
ties 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 engag-
ing in such activities. [313C-E]
Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,
[1964] 4 SCR 921; Masood Alam Etc. v. Union of India and
Others, [1973] 1 SCC 551; Dulal Roy v. District Magistrate,
Burdwan, [1975] 1 SCC 837; Vijay Kumar v. State of Jammu &
Kashmir and Others, [1982] 2 SCC 43; Alijan Mian v. District
Magistrate Dhanbad and Others, [1983] 4 SCC 301; Ramesh
Yadav v. District Magistrate, Etah and Others, [1985] 4 SCC
232; Suraj Pal Sahu v. State of Maharashtra & Others, [1986]
4 SCC 378; Binod Singh v. District Magistrate Dhanbad, Bihar
and Others, [1986] 4 SCC 416; Smt. Shashi Aggarwal v. State
of U. P. & Others, [1988] 1 SCC 436; Vijay Kumar v. Union of
India, [1988] 2 SCC 57 and N. Meera Rani v. Government of
Tamil Nadu & Another, [1989] 4 SCC 418, referred to.
In the instant case, the detaining authority was aware
of the fact that the appellants were in custody on the date
of the passing of the order of detention. Though the fact
that the appellants have been remanded to judicial custody
till October 13, 1988 has been mentioned, the grounds of
detention do not show that the detaining authority appre-
hended that further remand would not be granted by the
Magistrate on October 13, 1988 and the appellants would be
released from custody on October 13, 1988. Nor is there any
material in the grounds, which may lend support to such an
apprehension. On the other hand, the bail applications moved
by the appellants had been rejected by the Sessions Judge a
few days prior to the passing of detention order on October
11, 1988. The grounds disclose that the appellants were
engaged in activities which are offences punishable with
imprisonment under the
305
provisions of the Narcotic Drugs and Psychotropic Substances
Act, 1988. It cannot, therefore, be said that there was a
reasonable prospect of the appellants not being further
remanded to custody on October 13, 1988 and their being
released from custody at the time when the order for preven-
tive detention was passed on October 11, 1988. [313F; 314C-
E]
In such circumstances, the order for detention of the
appellants cannot be sustained. [314F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 11
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& 12 of 1990.
From the Judgment and Order dated 7.9.1989 of the Delhi
High Court in Criminal Writ No. 591 & 591-A of 1988.
Harjinder Singh, R.N. Joshi and Latha Krishnamurthy for
the Appellants.
Soli J. Sorabjee, Attorney General, P. Parameswaran, B.
Parthasarthy, N.N. Johari and Uma Nath Singh for the Re-
spondents.
The Judgment of the Court was delivered by
S.C. AGRAWAL, J. These appeals, by special leave, arise
out of the judgment of the High Court of Delhi whereby the
writ petitions filed under Article 226 of the Constitution
to challenge the legality of the orders dated October 11,
1988 passed under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988 (hereinafter referred to as ’the Act’) for the deten-
tion of the appellants have been dismissed. This Court by
the order dated January 11, 1990 allowed the appeals and
after setting aside the orders of detention dated October
11, 1988 directed that the appellants be set at liberty
forthwith and that reasoned judgment would follow. We are
hereby indicating our reasons for the order passed on Janu-
ary 11, 1990.
Dharmendra Suganchand Chelawat (the Appellant in Crimi-
nal Appeal No. 11/90) here in after referred to as ’Dharmen-
dra’ is the son of Suganchand Kanhaiyyalal Chelawat (the
Appellant in Criminal Appeal No. 12 of 1990) hereinafter
referred to as ’Suganchand’. In the grounds of detention
furnished to the appellants it is stated that on September
21, 1988 the officers of the Directorate of Revenue Intelli-
gence, Bombay Zonal Unit, searched the godown of Siddharth
Trot-
306
ters Pvt. Ltd., Kothari Mansion, at 357, S.V.P. Road, Bombay
and five card board cartons containing in all 2,51,000
mandrax tablets weighing 125.5 Kgs. and valued at
Rs.7,53,000 were seized from there. During the follow-up
investigation the officers of the Central Excise & Customs
searched the premises of Suganchand at Indore (M.P.) which
resulted in the recovery of 51 Kgs. of mandrax tablets from
a Maruti Van parked in the house compound on September
22/23, 1988 which was seized. In addition to 20. 500 Kgs. of
mandrax tablets, 148.300 Kgs. of methaqualone powder and
97.700 Kgs. of white powder was recovered from the residence
itself. Suganchand in his statement which was recorded on
September 23, 1988 stated that he had manufactured mandrax
tablets at his factory at Indore and that he was assisted by
his son, Dharmendra. Suganchand was arrested on September
23, 1988 and produced before the Additional Chief Judicial
Magistrate, Indore on September 24, 1988 who remanded him to
the police custody till September 30, 1988. On September 30,
1988 Suganchand was remanded to judicial custody till Octo-
ber 13, 1988. A bail application was submitted by Suganchand
in the Sessions Court on September 28, 1988 and the same was
rejected by the Sessions Court on October 1, 1988.
Dharmendra was arrested on October 4, 1988 and he was
remanded to the police custody upto October 5, 1988. On
October 5, 1988 he was remanded to judicial custody till
October 13, 1988. During the course of arguments Shri Har-
jinder Singh, the learned counsel for the appellants, stated
that a bail application was submitted on behalf of Dharmen-
dra and the same was rejected on October 5, 1988.
On October 11, 1988 orders were passed by Shri K.L.
Verma, Joint Secretary to the Government of India, Ministry
of Finance, Department of Revenue, under Section 3(1) of the
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Act for the detention of the appellants. In the order of
detention the detaining authority has stated that he was
satisfied from the record of the case with respect to the
appellants that with a view to preventing them from engaging
in the transportation and abetting in the export inter-state
of Psychotropic Substances it is necessary to make the order
directing that the appellants be detained and kept in custo-
dy. The said order of detention was served on appellants on
October 13, 1988 while they were in custody. The appellants
were also served with the grounds of detention dated October
11, 1988 as well as the documents on which reliance was
placed by the detaining authority.
Writ Petitions under Article 226 of the Constitution of
India
307
were filed by Kumari Archana Chelawat, the daughter of
Suganchand and sister of Dharmendra, wherein the legality of
the detention of the appellants was challenged before the
Delhi High Court. The said writ petitions have been dis-
missed by the High Court by order dated September 7, 1989.
Thereafter the appellants moved this Court for special leave
to appeal against the judgment of the Delhi High Court and
special leave to appeal was granted on January 11, 1990.
Hence these appeals.
Shri Harjinder Singh, the learned counsel for the appel-
lants has urged that since the appellants were in custody on
October 11, 1988, the date of passing of the impugned order
of detention, there was no apprehension that the appellants
would be engaging in any prejudicial activity and the order
for detention of the appellants under Section 3(1) of the
Act could not be validly passed. In support of the aforesaid
submission Shri Harjinder Singh has placed reliance on the
decision of this Court in Ramesh Yadav v. District Magis-
trate, Etah and Others, [1985] 4 SCC 232; Suraj Pal Sahu v.
State of Maharashtra & Others, [1986] 4 SCC 378 and N. Meera
Rani v. Government of Tamil Nadu & Another, [1989] 4 SCC
418.
The learned Attorney General, on the other hand, has
supported the decision of the High Court and has submitted
that in the facts and the circumstances of the present cases
the orders for detention of the appellants were validly
passed on October 11, 1988. The submission of the learned
Attorney General is that the appellants had been remanded to
judicial custody upto October 13, 1988 only and the detain-
ing authority could have apprehended that the said remand
may not be extended beyond October 13, 1988 and the appel-
lants may be released from custody on October 13, 1988 and
thereafter they would be free to engage in prejudicial
activities.
In view of the aforesaid submissions the question which
needs consideration is whether in the facts and the circum-
stances of the present cases, the detaining authority was
justified, in law, in passing the orders for the detention
of the appellants under Section 3(1) of the Act on October
11, 1988 when the appellants were in custody. The question
as to whether and in what circumstances an order for preven-
tive detention may be passed against a person who is already
in custody has come up for consideration before this Court.
In Rameshwar Shaw v. District Magistrate, Burdwan & Anr.,
[1964] 4 SCR 921 decided by the Constitution Bench, it has
been laid down that the question as to whether an order for
detention can be passed against a
308
person who is in detention or in jail will always have to be
determined in the circumstances of each case and it has been
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observed:
"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 connec-
tion 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 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 sen-
tence imposed on him. In dealing with this question, again
the considerations of proximity of time will not be irrele-
vant. 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."
In Masood Alam Etc. v. Union of India and Others, [1973]
1 SCC 551 it has been held that merely because the person
concerned has been served with the order of detention while
in custody when it is expected that he would soon be re-
leased that service cannot invalidate the order of deten-
tion. This Court has observed as under:
"The real hurdle in making an order of detention against a
person already in custody is based on the view that it is
futile to keep a person in dual custody under two different
orders but this objective cannot hold good if the earlier
custody is without doubt likely to cease very soon and the
detention order is made merely with the object of rendering
it operative when the previous custody is about to cease. ’
309
In Dulal Roy v. District Magistrate, Burdwan, [1975] 1
SCC 837 it was held that if a person was serving a long time
of imprisonment or was in jail custody as an undertrial and
there was no immediate or early prospect of his being re-
leased on bail or otherwise, the authority would not legiti-
mately be satisfied on the basis of his past history or
antecedents that he was likely to indulge in similar preju-
dicial activities after his release in the distant or indef-
inite future.
In Vijay Kumar v. State of Jammu & Kashmir and Others,
[1982] 2 SCC 43 this Court has observed:
"Preventive detention is resorted to, to the art future
action. If the detenu is already in jail charged with a
serious offence, he is thereby prevented from acting in a
manner prejudicial to the security of the State. May be, in
a given case there yet may be need to order preventive
detention of a person already in jail. But in such a situa-
tion the detaining authority must disclose awareness of the
fact that the person against whom an order of preventive
detention is being, made is to the knowledge of the authori-
ty already in jail and yet for compelling reasons a preven-
tive detention order need to be made."
In Alijan Mian v. District Magistrate, Dhanbad and
Others, [1983] 4 SCC 301 in the grounds of detention it was
stated that the subject is in jail and is likely to be
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released on bail and that if he was allowed to remain at
large, he will indulge in activities prejudicial to the
maintenance of public order. After considering the said
statement in the grounds of detention this Court has ob-
served:
"The position would have been entirely different if the
petitioners were in jail and had to remain in jail for a
pretty long time. 1n such a situation there could be no
apprehension of breach of ’public order’ from the petition-
ers. But the detaining authority was satisfied that if the
petitioners were enlarged on bail, of which there was every
likelihood, it was necessary to prevent them from acting in
a manner prejudicial to public order."
In Ramesh Yadav v. District Magistrate, Etah and Others,
(supra) in the grounds of detention it was mentioned that
the detenu had filed an application for bail and there was
positive apprehension that after having bail he would come
out of jail and would indulge in activity
310
prejudicial to the maintenance of the public order. This
Court has observed:
"On a reading of the grounds, particularly the paragraph
which we have extracted above, it is clear that the order of
detention was passed as the detaining authority was appre-
hensive that in case the detenu was released on bail he
would again carry on his criminal activities in the area.
the apprehension of the detaining authority was true, the
bail application had to be opposed and in case bail granted,
challenge against that order in the higher forum had to be
raised. Merely on the ground that an accused in detention as
an under-trail prisoner was likely to get bail an order of
detention under the National Security Act should not ordi-
narily be passed. We are inclined to agree with counsel for
the petitioner that the order of detention in the circum-
stances is not sustainable and is contrary to the well
settled principles indicated by this Court in a series of
cases relating to the preventive detention."
in Suraj Pal Sahu v. State of Maharashtra & Others,
(supra) after considering the earlier decisions this Court
has observed:
"If there was an imminent possibility of the man being set
at liberty and his detention coming to an end, then it
appears, as a principle, if his detention is otherwise
necessary and justified then there is nothing to prevent the
appropriate authorities from being satisfied about the
necessity of passing an appropriate order detaining the
person concerned."
In Binod Singh v. District Magistrate, Dhanbad, Bihar
and Others, [1986] 4 SCC 416 it has been laid down:
"If a man is in custody and there is no imminent possibility
of his being released, the power of preventive detention
should not be exercised. In the instant case when the actual
order of detention was served upon the detenu, the detenu
was in Jail. There is no indication that this factor or the
question that the said detenu might be released or that
there was such a possibility of his release, was taken into
consideration by the detaining authority properly and seri-
ously before the service of the order. A bald statement
311
is merely an ipse dixit of the officer. If there were cogent
materials for thinking that the detenu might be released
then these should have been made apparent."
In Smt. Shashi Aggarwal v. State of U.P. & Others’,
[1988] 1 SCC 4.30 this Court while referring to the decision
in Ramesh Yadav v. District Magistrate, Etah (Supra) has
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observed:
"What was stressed in the above case is that an apprehension
of the detaining authority that the accused if enlarged on
bail would again carry on his criminal activities is by
itself not sufficient to detain a person under the National
Security Act."
This Court has further observed:
"Every citizen in this country has the right to have re-
course to law. He has the right to move the Court for bail
when he is arrested under the ordinary law of the land. If
the State thinks that he does not deserve bail the State
could oppose the grant of bail. He cannot, however, be
interdicted from moving the court for bail by clamping an
order of detention. The possibility of the court granting
bail may not be sufficient. Nor a bald statement that the
person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons
apparent on the record that the detenu, if enlarged on bail,
would act prejudicially to the interest of public order."
In Vijay Kumar v. Union of India, [1988] 2 SCC 57, it
has been head that two facts must appear from the grounds of
detention, namely:
(i) awareness of the detaining authority of the fact that
the detenu is already in detention, and
(ii) there must be compelling reasons justifying such deten-
tion, despite the fact that the detenu is already under
detention.
Shetty, J., in his concurring judgment, has posed the
question: what should be the compelling reason justifying
the preventive detention, if the person is already in jail
and where should one find it? The learned judge has rejected
the contention that it can be found from
312
material other than the grounds of detention and the con-
nected facts therein and has held that apart from the
grounds of detention and the connected facts therein, there
cannot be any other material which can enter into the satis-
faction of the detaining authority. The learned judge has
also observed that if the activities of the detenu are not
isolated or casual and are continuous or part of the trans-
action or racket, then, there may be need to put the person
under preventive detention, notwithstanding the fact that he
is under custody in connection with a case. The learned
judge has quoted the following observations from the judg-
ment of this Court in Suraj Pal Sahu v. State of Maharash-
tra, (Supra):
"But where the offences in respect of which the detenu is
accused are so interlinked and continuous in character and
are of such nature that these affect continuous maintenance
of essential supplies and thereby jeopardize the security of
the State, then subject to other conditions being fulfilled,
a man being in detention would not detract from the order
being passed for preventive detention."
In N. Meera Rani v. Government of Tamil Nadu and Anoth-
er, (Supra) the legal position has been summed up as under:
"We may summarise and reiterate the settled principle.
Subsisting custody of the detenu by itself does not invali-
date 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
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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 an-
tecedent 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."
In this case this Court has pointed out that there was no
indication in
313
the detention order read with its annexure that the detain-
ing authority considered it likely that the detenu could be
released on bail and that the contents of the order showed
the satisfaction of the detaining authority that there was
ample material to prove the detenu’s complicity in the Bank
dacoity including sharing of the booty in spite of absence
of his name in the FIR as one of the dacoits. The Court held
that the order for detention was invalid since it was made
when the detenu was already in jail custody for the offence
of bank dacoity with no prospect of his release.
The decisions referred to above lead to the conclusion
that an order for detention can be validly passed against a
person in custody and for that 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 justi-
fying 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 materi-
al before the detaining authority on the basis of which it
may be satisfied that (a) the detenu is likely to be re-
leased 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.
If the present cases are examined in the light of the
aforesaid principles, it can be said that the first condi-
tion is satisfied in as much as the grounds of detention
show that the detaining authority was aware of the fact that
the appellants were in custody on the date of passing of the
order of detention. Can it be said that there was a compel-
ling reason for passing the order for the detention of the
appellants, although they were in custody? The learned
Attorney General wants the said question to be answered in
the affirmative. He has invited our attention to the grounds
of detention and has submitted that the appellants were
found engaging in the transportation and abetting in the
export inter-state of Psychtropic Substances and in the
event of their release from custody, the appellants would
continue to engage in those activities. The learned Attorney
General has also pointed out that the appellants had been
remanded to judicial custody upto October 13, 1988 only and
their further remand could be refused by the Magistrate and
the appellants could be released from custody on October 13,
1988. The submission of the learned Attorney General
314
is that, keeping in view the’ activities of the appellants
and the likelihood of their being released from custody on
their remand being not extended by the Magistrate on October
13, 1988, the detaining authority, on October 11, 1988, when
it passed the order of detention, was satisfied that the
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detention of the appellants was necessary even though they
were in custody at that time.
We have given our careful consideration to the aforesaid
submission of the learned Attorney General. We are, however,
unable to agree with the same. In the grounds of detention
the detaining authority has only mentioned the fact that the
appellants has been remanded to judicial custody till Octo-
ber 13, 1988. The grounds of detention do not show that the
detaining authority apprehended that the further remand
would not be granted by the Magistrate on October 13, 1988,
and the appellants would be released from custody on October
13, 1988. Nor is there any material in the grounds of deten-
tion which may lend support to such an apprehension. On the
other hand we find that the bail applications moved by the
appellants had been rejected by the Sessions Judge a few
days prior to the passing of the order of detention on
October 11, 1988. The grounds of detention disclose that the
appellants were engaged in activities which are offences
punishable with imprisonment under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985. It
cannot, therefore, be said that there was a reasonable
prospect of the appellants not being further remanded to
custody on October 13, 1988 and their being released from
custody at the time when the order for preventive detention
of that appellant was passed on October 11, 1988. In the
circumstances, we are of the view that the order for deten-
tion of the appellants cannot be sustained and must be set
aside and the appellants should be released forthwith. These
are the reasons on the basis of which we passed the order
for the release of the appellants on January 11, 1990. It
is, however, clarified that in case the appellants are
released from custody in the aforesaid criminal proceedings,
the question of their preventive detention under the Act on
the above material may be reconsidered by the appropriate
authority in accordance with law and this decision shall not
be construed as an impediment for that purpose.
N.P.V.
315