LexDHARMENDRA SUGANCHAND CHELAWAT & SUGANCHAND KANHAIYYALAL CHELAWAT versus UNION OF INDIA AND OTHERS
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I ~ .) ~. -;. / DHARMENDRA SUGANCHAND CHELAWAT & SUGANCHAND KANHAIYYALAL CHELAWAT v. UNION OF INDIA AND OTHERS FEBRUARY 9, 1990 [B.C RAY, KULDIP SINGH AND S.C. AGRAWAL, JJ.] Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988: Section '!( 1)-Detention Qrder-Detenu in jail when order passed-Validity of. 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 Preven· lion 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 October 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 t11at since the appellants were in custody on October II, 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 deten- A B c D E tion order could not be validly passed. F On behalf of the respondents, it was contended that the detention order was validly passed on October II, 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 appellant• .nay be released from G custody, and would b.e free thereafter to engage in prejudicial activities. Allowing the appeals, this Court passed an order on January 11, 1990, setting aside the detention order and directing the release of the appellants. 303 H A B c D F G H I 304 SUPREME COURT REPORTS [1990] 1 S.C.R. Giving reasons for its order, this Court, HELD: Au 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 "compelling reasons" in the con- text of 1naklr1g an order for detention of a person already in custody implied that there must be cogent material before the detaining autho- rity on the basis of which it may be satisfied that (a) the detenu is likely to be releiised 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. l313C-E] Rattteshwar Shaw v. District Magistrate, Burdwan & Ant., [1964] 4 SCR 921; Masood Ala171 Etc. v. Union of India and Others, [1973] l SCC 551; Dula/ Roy v. District Magistrate, Burdwan, [1975] l 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 Aggarwa/v. State of U.P. & Others, [1988] l SCC 436; Vijay Kumar v. Union of India, [1988] 2 SCC 57 and N. Meera Rani v. Government of Tamil Nadu & Another, [ 1989] 4 sec 418, referred to. In the instant case, the detaining authority was aware of the fact that the appellants were in custody ou 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 apprehended that further remand would not be granted by the Magis- trate on October 13, 1988 and the appellants would be released from custody on October 13, 1988. Nor is there any m
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