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SUPREME COURT OF INDIA
S. Ranganathan, N.D. Ojha and J.S. Verma, JJ.
N. Meera Rani - Appellant
versus
Government of Tamil Nadu & anr. – Respondents
Criminal Appeal No. 511 of 1989
With
W.P. (Crl.) No. 205 of 1989
Decided on 22-8-1989
IMPORTANT POINT
Detention order, when the detenu is already in jail custody for the offence of bank dacoity with no prospects of his release, is clearly invalid.
Headnote:National Security Act, 1980 – Section 3(2) - Challenge to detention order under Detenu already under jail in a Bank dacoity case - No prospects of his release on bail Detention order in such circumstances whether valid? (No).
Held: 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 prejudical 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 detatined 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. (Para 23)
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 elf detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show 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 inspite of absence of his name in the F.I.R. as one of the dacoits. On these facts, the order of detention passed in the present case on 7-9-1988 and its confirmation by the State Government on 25-10-1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. It does not satisfy the test indicated by the Constitution Bench in Rameshwar Shaw's case. We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention. Para 24)
JUDGMENT
Verma, J. - Special leave granted.
2. The appellant - petitioner, Smt. N. Meera Rani, is the wife of Nallathambi, who has been detained under the National Security Act, 1980 (Act No. 65of 1980) (hereinafter referred to as "the Act)” order dated 7-9-1988 was made by the Collector and District Magistrate, Madurai, under Section 3(2) of the Act directing that the detenu be kept in custody in the Central Prison, Madurai. Thereafter, the State, Government by its order dated 25-10-1988 made under Section 12(1) of the Act has confirmed the order of detention agreeing with the opinion of the Advisory Board constituted under the Act and directed 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 beard together and are being disposed of by this common judgment.
3. 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 counsel for the appellant-petitioner, has advanced three contentions. The first contention is that certain documets which have been referred to in some grounds of detention were not supplied to the detenu with the result that the detenu was not given a proper and reasonable opportunity for making an effective representation and, therefore, the order of detention is vitiated for this reason alone. The second contention is that some documents in the form of newspaper reports showing that the detenu was apprehended and detained even prior to 21-8-1988 when the detenu was shown to have been arrested in connection with an offence punishable under Section 397 of the Indian Penal Code were not placed before the detaining authority when it formed the opinion mentioned in the detention order which has also vitiated the detention order. The last contention is that the fact of detenu's arrest in connection with an offence punishable under Section 397 of the Indian Penal Code, and of remand to custody by the Magistrate as well as the contents of the bail application dated 22-8-1988 which was rejected by the Magistrate were not taken into account by the detaining authority before passing the order of detention dated 7-9-1988 which also renders the detention order invalid. On the other hand, Shri Chaudhary, learned Counsel for the respondents contended that even assuming that some documents referred in the grounds of detention were material and were not supplied to the detenu the effect is not to invalidate the detention order for that reason alone in view of Section 5A of the Act which has been inserted by Act 60 of 1984 with effect from 21-6-1984 since the detention order can be sustained even on the remaining grounds. In respect of the detenu's custody in connection with the offence under Section 397 of the Indian Penal Code and rejection of his bail application, it was urged that this fact was considered by the detaining authority and therefore, it does not result in any infirmity. Shri Lalit, on behalf of the appellant petitioner, further' contended that Section 5A of the Act cannot be cons
