(1) IN this petition for issuance of a writ of Habeas Corpus, the validity of the order of detention made by the Administrator of the government of National Capital Territory of Delhi Act under Section 3 of the COFEPOSA, is challenged. The order of detention is dated 18/08/1992.

(2) THE petitioner is a foreign national. He arrived in India from Bangkok on 4/04/1992. While he was passing through the Customs Hall he was apprehended and on being searched, substantial quantity of gold was found concealed in the VCR. He made a statement admitting that he was smuggling gold. He was arrested and investigation commenced.

(3) ON 13/05/1992 the Magistrate took cognizance of an offence under Section 135 of the Customs Act. It appears that the actual hearing of the case commenced on 3/07/1992 and charges were framed on 11/08/1992. It is at that stage, the impugned order of detention was made on 18/08/1992. The order states that with a view to prevent the petitioner from engaging himself in smuggling activities, it is necessary to detain him. The grounds of detention served upon him mention the number of visits he made to India during the year 1991 (as many as eight) and during the year 1992 (two) and his local contacts in India. The petitioner is stated to be an unemployed engineer engaged in the nefarious activity of smuggling.

(4) THOUGH several grounds are urged in support of the writ petition by Shri Ram Jethmalani, learned counsel for the petitioner, it is not necessary to refer to all of them except one which, in our opinion, merits acceptance. It is submitted that on the date the order of detention was made the petitioner was in judicial custody. The bail petitions filed by him were dismissed finally on 9/06/1992. He did not move any bail application thereafter. No bail application was pending on 18/08/1992. There was no other circumstance indicating that the petitioner would be released from custody. In these circumstances, there was no material before the authority to believe that there was a real possibility of petitioner being enlarged on bail or being released and that it is necessary to detain him to prevent him from engaging in prejudicial activity. It is pointed out that according to the counter, proposal for the detention of petitioner was sent to the Administrator on 22/05/1992 but the authority passed the order only on 18/08/1992 without apprising himself of the fact-situation prevailing in the middle of August 1992. Reliance is placed upon two decisions of this court in Kamarunnissa v. Union of India and Hawabi Sayed Arif Sayed Hanif v. L. Hmingliana . In the first case the principle relied upon by the learned counsel, is stated in the following words:

"THE decisions of this court to which our attention was drawn by the learned counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set at liberty. We will now consider the case-law in brief. In Vijay Narain Singh this court stated that the law of preventive detention being a drastic and hard law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice. So also in Ramesh Yadav v. District Magistrate, Etah this court stated that ordinarily a detention order should not be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail. In such cases the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum but not circumvent it by passing an order of detention merely to supersede the bail order. In Suraj Pal Saha v. State of Maharashtra the same principle was reiterated. In Binod S