LexBINOD SINGH versus DISTRICT MAGISTRATE DHA_NBAD BIHAR & OTHERS
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BINOD SINGH
v.
DISTRICT MAGISTRATE DHA_NBAD BIHAR & OTHERS
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SEPTEMBER 26, 1986 .
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[R.S. PATHAK AND SABYASACHI,MUKHARJI, JJ.]
National Security Act, s. 3(2)-Detention Order passed-Detenu
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already in custody in respect of criminal charge before actual service of
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detention order-Detention Order held invalid.
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The respondent passed an order of detention in respect of the
appellant under s. 3(2) of the Natfonal Security Act 1980, on the ground
~ that the appellant's activities were prejudicial to the maintenance of
public order. Several criminal cases were pending against the appellant
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when the aforesaid order was passed. The appellant had already sur-
rendered in respect of a criminal charge against him before the order
was served. He filed a writ petition in the High Court challenging the
detention order, but it was dismissed without any speaking order.
Aggrieved by the order of the High Court, the appellant filed the . E
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present criminal appeal by special leave as also a writ petition challeng-
ing the aforesaid order of detention on the ground that the order of
preventive detention could only be justified against a person in deten-
lion if the detaining authority was satisfied that his release from deten-
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lion was imminent and the order of detention was necessary for putting
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him back in jail. The service of order of detention on the appellant/
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petitioner while he was in jail was futile and useless since such an order
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had no application under s. 3(2) of the Act.
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Allowing the writ petition and the appeal in part,
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HELD: 1. The continued detention of the detenu under the Act is
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not jµstified. The order of detention therefore is set aside. However,
this will not affect detenu's detention under the criminal cases. If how-
ever, the detenu is released on bail in the criminal cases already pending
against him, the matter of service of the detention order under the Act
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may be reconsidered by the appropriate authority in accordance with
law. [912E-F]
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905
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906
SUPREME COURT REPORTS
[1986] 3 S.C.R.
2. In our constitntional framework, the power of directing pre-
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ventive detention given to the appropriate authorities must be exercised
in exceptional cases as contemplated by the various provisions of the
different statutes dealing with preventive detention and should be used
with great deal of circumspection. There must be awareness of the facts
necessitating preventive custody of a person for social defence. 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. [91 IF-GI
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 seriously before the service of the
order. If there were cogent materials for thinking that the detenu might be
released, then these should have been made apparent. In the affidavits on
behalf of the detaining authority though there are indications that trans-
fer of detenu from one prison to another was considered but the need to
serve the detention order while he was in custody was not properly
considered by the detaining authority in the light of relevant factors. If
that is the position then however disreputable the antecedents of a person
might have been, without consideration of all the aforesaid relevant
factors, the detenu could not have heeu put into preventive custody.
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Therefore, though the order of preventive detention when it was passed
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was not invalid, and on relevant considerations the service of the order
was not on proper consideration. The order ~f detention is, therefore set
aside. [911G-H; 912A-D]
Ramesh war Shaw v. District Magistrate, Burdwan & Anr., [ 1964] 4
SCR 921 and Ramesh Yadav v. District .Magistrate Etc. and Others,
[1985] 4SCC 232, relied upon.
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1.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 317of1986
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From the Judgment and Order dated 27.2.1986 of the Patna High
Court in C.W.J.C. No. 33 of 1986.
With
W.P. (Criminal) No. 316of 1986.
R.K. Garg and Miss Rani Jethmalani for the Appellant/Peli-
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· tioner.
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D. Goburdhan for the Respondents.
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