Holding

A preventive detention order made while the detenu is already in jail, without a realistic likelihood of release and without proper material to justify future prejudice, is invalid.

Summary

The wife of Nallathambi challenged his preventive detention under the National Security Act, 1980, arguing that the detention order was made while he was already in jail for a bank dacoity and that the authority failed to consider any likelihood of his release. The Supreme Court examined whether subsisting custody invalidates a preventive detention order, the effect of undisclosed grounds of detention under Section SA, and the requirement of a reasonable basis to anticipate release. Relying on the constitutional bench decision in Rameshwar Shaw's case and subsequent jurisprudence, the Court held that a detention order is invalid if the authority is aware of the detenu's custody and does not show a realistic expectation of release coupled with material to justify future prejudice. Consequently, the detention order dated 7‑9‑1988 and its confirmation were quashed, though the criminal proceedings for the bank dacoity continue. The appeal and writ petition were allowed.

Issues considered

The validity of a preventive detention order under the National Security Act when the detenu is already in custody.
Whether the detaining authority's awareness of subsisting custody and lack of consideration of likelihood of release renders the order invalid.
The effect of non‑disclosure of certain documents on the validity of the detention order under Section SA of the Act.
Whether Article 22(5) of the Constitution invalidates the detention order due to denial of a fair opportunity to make a representation.

Legislation cited

National Security Act, 1980s. 12(1), s. 3(2), s. SA

Subjects

preventive detentionNational Security Actsubsisting custodyArticle 22(5)Section SAbailpreventive detention order validity

Judgment

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-:·!: --,.-

l N. MEERA RANI
A
v.
GOVERNMENT OF TAMIL NADU & ANR.
'I.
AUGUST 22, 1989

[S. RANGANATHAN, N_.D. OJHA AND J.S. VERMA, JJ.]
~ B

National Security Act, 1980--Section 3(2) and 12(1) subsisting
custody of detenue does not invalidate order of detention-Detention
order can be made in anticipation to operate on release of detenue .
.,,-
By an order dated 7.9.88 the Collector & District Magistrate
Madurai under s. 3(2) of the National Security Act, 1980 made an order c
~' for keeping in custody Nallathamhi, the husband of the appellant/ ,
petitioner. The State Govt. on 25.10.88 by its order under s. 12(1) of the
Act confirmed the order of detention agreeing with the opinion of the
Advisory Board and ordered the detention of the detenue for 12 months
from the date of his detention. The wife of the detenue challenged this D
preventive detention by filing a writ of Habeas Corpus in the High
Court of Madras. The High Court by its order dated 6.3.89 dismissed
the writ petition. The appellant-petitioner challenged the dismissal of
' the writ by the High Court by way of special leave and also by filing a
i writ petition under Article 32 of the Constitution of India. This Court
while quashing the detention order, E

HELD: Subsisting custody of the detenue 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 detenue from acting in any manner prejudicial to the
,~
security of the State or to the maintenance of public order etc. ordi- F
narily it is not needed when the detenue is already in custody; the
detaining authority must show its awareness to the fact of subsisting
custody of the detenue 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 he G
\
detained in order to prevent him from indulging -in such prejudicial F

activities, the detention order can be validly made even in anticipation
>- to operate on his release. [919E-G] -

In the instant case, the the detention order read with its annexure
indicates the detaining authority's awareness of the fact of de~enue's H
901

~-
902 SUPREME COURT REPORTS [1989] 3 S.C.R.

jail custody at the time of the making of the detention order. tfowever
A
there is no indication therin that the detenue could be released. on bail.
On the contrary the detention order shows satisfaction of the detaining
authority that there was ample material to support the criminal charge
against the detenue. The order of detention passed on 7.9.1988 and its
confirmation by the State Government. on 25.10.1988 is therefore
B clearly invalid since the same was ·made when the detenue was already
in jail custody for the offence of bank dacoity with no prospect of his
release. [919H-920C]

Rameshwar Shaw v. District Magistrate, Burdwan & Anr., [1964]
4 SCR 921-relied upon.

c Karrie Chandra Guha v. The State of West Bengal & Ors., [1975]
3 SCC 490; Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur &
Anr., [1975] 4 SCC 164; Vijay Kumar v. State of Jammu & Kashmir &
Ors., [1982] 2 SCC 43; Alijan Mian & Anr. v. District Magistrate,
Dhanbad, [1983] 3 SCR 939; Ramesh Yadav v. District Magistrate,
D Etah & Ors., [1985] 4 SCC 232; Binod Singh v. District Magistrate,
Dhanbad, Bihar & Ors., [1986] 4 SCC 416; Poonam Lara v. M.L.
Wadhawan & Anr., [1987] 4 SCC 48 and Smt. Shashi Aggarwal v. State
of U.P. & Ors., [1988] 1SCC436.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
E No. 511of1989.

From the Judgment and Order dated 6.3.1989 of the Madras
High Court in W.P. No. 14828 of 1988.

WITH
F
Writ Petition (Criminal) No. 205 of 1989.

(Under Article 32 of the Constitution of India).

U.R. Lalit and V. Balachandran for the Appellant/Petitioner.
G
K. Rajendra Chowdhary, V. Krishnamurthy and S. Thananjayan
for the Respondents.

The Judgment of the Court was delivered by

H VERMA, J. Special leave granted.
~"- ;l
~-{:,. '

N.M. RANI v. GOVT. OF. TAMIL NADU [VERMA, J.) 903
,l
The appellant-petitioner, Smt. N. Meera Rani, is the wife of
A
Nallathambi, who has been detained under the National Security Act,
1980 (Act No. "65 of1980) (hereinafter referred to as "the Act"). An
order dated 7.9.1988 was made by the Collector and.District Magis-
!rate, Madurai, under section.3(2) of the Act directing· that the detenu
be kept in custody in the Central Prison, Madurai. Thereafter, the
1 State Goverriinent by its order dated 25.10.1988 made under section B
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 mon\hs from the
date of his detention. This preventive detention of the detenu was
r challenged in the High Court of Judicature at Madras by his wife, the

l 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-petitiono,r has
c
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 D
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 ieave, is to raise some additional grounds to
-( challenge the detenu's detention. Both these matters have been heard
together and are being disposed of by this common judgment.
E
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 documents which have been referred to in
some grounds of detention were not supplied to the detenu with the F
result that the detenu was not given a proper and reasonable oppor-
tunity 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 G
an offence punishable under section 3971.P.C. 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 LP .C. and <if remand to custody
by the Magistrate as well as the contents of the bail application dated H
904 SUPREME COURT REPORTS [1989] 3 S.C.R.

22.8.1988 which was rejected by the Magistrate were not taken into
A
account by the detaining authority before passing the order of deten-
tion 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 m~terial and were not supplied to the
B detenu the effect is not to invalidate the detention order for that
reason alone in view of section SA 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
1.P.C. and rejection of his bail application, it was urged that this fact
was considered by the detaining authority and, therefore, it does not
c result in any infirmity. Shri Lalit, on behalf of the appellant-petitioner,
further contended that section SA of the Act cannot be construed in
the manner suggested by the learned counsel for the respondents since
the guarantee to the detenu under Article 22{S) of the Constitution
results in invalidating the entire detention order as claimed by him.
D
The material facts mentioned in the detention order and its
annexure are now stated. A branch of the Bank of Madura is located in
a rented accommodation in flat No. 634, K.K. Nagar in Madurai. On
6.8.1988, the Bank Manager and the staff of the Bank were attending
to the business of the Bank which then had 443 packets containing
E valuable ornaments weighing about 20,576.150 grams valued at about
rupees sixty-two lakhs and cash amounting to Rs.38,945.00. These
gold ornaments were pledged with the Bank as security for loans
advanced by the Bank of certain borrowers. At about 10.55 A.M. on
6.8.1988 the Bank was looted and these ornaments and cash were
taken away by armed dacoits on the point of revolver after locking the - ·~
F Bank employees and customers in the strong room. The dacoits
escaped in an ambassador car with registration No. IDL-9683 and a
motorcycle bearing registration No. TNK-6727. The dacoits are stated
to be one Karuna and some other Sri Lanka nationals who were
temporarily living in a nearby flat which was in the possession of the
detenu. It is stated that the ambassador car used in the dacoity had
G been stolen on 4.8. 1988 from Quilon in the State of Kerala by Karuna
and his companions. It is further stated that the dacoity was committed
in order to fund the militant organisation knwon as Tamil Nadu
Makkal Viduthalai Eyakkam with which the detenu has been asso-
ciated and that the detenu along with these Sri Lanka nationals
belonging to the Sri Lanka militant organisation had entered into a
H criminal conspiracy to commit these cognizable offences. The object of
;

N.M. RANI v. GOVT. OF TAMIL NADL (VERMA, J.I 905

these militant organisations is to achieve a separate Tamil Ealam in Sri A
Lanka and to secure secession of Tamil Nadu from the Union oflndia
by violent means. It is further stated that the detenu received from
Kamna through A janth and Pinto a share of the booty comprising of
gold ornaments weighing about 8325.150 grams valued at about Rs.25
lakhs and Rs.15,000.00 in cash which was a part of the booty looted
( from the Bank on 6.8.1988 in addition to a box containing one B
revolver, 2 pistols, 3 grenades, 6 bombs and a knife. It is further stated
that on 9.8.1988 the detenu took Kamna and Ajanth in his car bearing
registration No. TNU-8500 to Madras along with Babu and Rajendran
and subsequently on 10.8.1988 the detenu sent them to Nellore in
Andhra Pradesh in his car to help them escape. It is also stated that a
note was sent by the detenu to the news media in the name of Tamil c
N adu Makkal Viduthalai Eyakkam owning responsibility for the
dacoity and threatening the law enforcement agency and the Govern-
ment servants with dire consequences if they attempted to apprehend
them. It is then said that on 21.8.1988 the detenu was arrested at
Samayanallur while he was driving his car bearing registration No.
TNU-8500 towards Madurai when he made a voluntary confession in D
the presence of witnesses. The car bearing registration No. TNU-8500
was seized at 19. 15 hours on 21.8.1988 in front of Samayanallur Police
Station and the detenu's confession led to recovery of gold ornaments
weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags
and 19 empty bags with Bank tags and chits and a set of keys from the
detenu's house on 21.8.1988 at 20.15 hours. In pursuance to detenu's E
confession recovery was also made of a box containing one revolver, 2
pistols with ammunition, 3 grenades, 6 bombs and one knife from the
house of Anandan, an employee of the detenu in Madurai. Further
recovery of a bag containing gold ornaments weighing about 1015.600
grams valued at Rs.3,05,000.00 was made from the shop of Vijaya-
kumar in Madurai and Vijayakumar also made a confession pursuant F
to which the recovery was made of gold ornaments weighing about
25.900 grams from Gurumoorthy. Subsequently, these ornaments
were identified as those which had been looted in the above-men-
tioned dacoity on 6.8. 1988. it is on these grounds that the impugned
detention order dated 7.9.1988 was passed for the detenu's preventive
detention under the Act. G

The detention order as well as its annexure containing the rele-
vant ground of detention are quoted as under:

"ANNEXURE 'A'
H
906 SUPREME COURT REPORTS [1989] 3 S.C.R.

PROCEEDINGS OF THE COLLECTOR AND DIS-
A
TRICT MAGISTRATE, MADURAI.

PRESENT: THIRUM.DEVARAJ,I.A.S.
N.S.A. NO. 73/88 Dated: 7.9.1988

B DETENTION ORDER

WHEREAS, I, M. DEVARAJ, I.A.S. Collector and
District Magistrate, Madurai, am satisfied with respect to
the person known as Thiru Nallathambi © Thambi, male,
aged 30 years, S/o (late) Thiru S. Mathu, residing at Block
No. 2, H.I.G. Colony, Anna Nagar, Madurai Town that
c with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order, it is neces·
sary to make the following order.

(2) Now, therefore, in exercise of the powers confer·
D red by sub-section (2) of section 3 of the National Security
Act, 1980 (Central Act 65 of 1980) read with orders issued
by the Government in G.O. Ms. No. 1169, public (L &
0-F) Department, dated 3.8. 1988 under sub-section (3) of
the said Act, I hereby direct that the said Thiru N alla-
thambi © Thambi be detained and kept in custody in the
E Central Prison, Madurai.

Given under my hand and seal of office, this the 7th
day of September, 1988.

sd/·
F Collector and District
Magistrate, Madurai

To

Thiru Nallathambi © Thambi,
G S/o (Late) Thiru S. Mathu,
Block No. 2, H.l.G. Colony,
Anna Nagar,
Madurai-20.

(Now in Central Prison. Madurai as remand prisoner)
H
""·~· '""'.;;:~-,,.~·'.
if!.t

N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.l 907

Through. Thiru V.S. Ganapathy, Deputy Superintendent A
of Police, Tirupparankundram, Madurai City,
for service under acknowledgement."

"ANNEXURE 'B'

N.S.A. No. 73/88 Dated 7.9.88 B

Sub: National Security Act, 1980 (Central Act 65 of
1980)-detention of Thiru Nallathambi alias Tham hi,
Male aged 30 years, S/o (Late) S. Mathu, 2, H.l.G.
Colony, Anna Nagar, Madurai u/s. 3(2) of the Na-
tional Security Act, 1980-Grounds of detention.
c

A detention order under section 3(2) of the National
Security Act (Central Act 65 of 1980) has been made on
Thiru Nallathambi alias Thambi, male, aged 30 years, s/o
(Late) S. Mathu, 2, H.l.G. Colony, Anna Nagar, Madurai D
vide order NSA No. 73/88 dated 7.9.1988.

(2) The grounds on which the said detention has
( been made are as follows:

xxx xxx xxx xxx E

(9) In furtherance of the conspiracy Thiru Nallathambi
sent a note to the news media in the name of Tamil Ndu
Makkal Vidhuthalai Eyakkam owning responsibility for
I -
the dacoity and threatening the law enforcement agency
and Government servants with dire consequences if they F
dare to apprehend them.

( 10) On 21.8.88 at 1400 hours, Thiru Nallathambi,
was arrested at Samayanallur while he was driving his car
TNU 8500 towards Madurai. He gave a voluntary confes-
sion which was recorded in the presence of witness ( 1) G
Kulanthani Anandan, Village Administrative Officer,
Sathamngalam and (2)Pannerselvam, Village Administra-
tive Officer, Thin;ippalai. The car TNU 8500 was seized at
1915 hours on 21.8.88 in front of Samayanallur Police
Station. In pursuance of his confession gold jewels weigh-
ing about 7275.750 grams valued.at Rs.21,85,000.00 in 172 H
908 SUPREME COURT REPORTS [1989] 3 S.C.R.

A bags and 19 empty bags with bank tags and chits and a set
of key were recovered from his house on 21.8.88 at 20.15
hours. Further in pursuance of his confession a box con-
taining 1 revolver, 2 pistols with ammunition, 3 grenedes, 6
bombs, 1 knife was recovered from the house of accused
Thim Anand located in 27, Lakshimipuram, 6th Street,
B Madurai who is also an employee under Thim Nalla-
thambi. Further pursuant to his confession a bag containing

,
gold jewels weighing about 1015.600 grams valued
Rs.3 ,05 ,000 .00 was recovered from the moulding workshop
of accused Thim Vijayakumar located in 10-A, Bharatiar
Main Street, K. Pudur, Madurai. Pursuant to the confes-
sion of Thim Vijayakumar gold jewels weighing about
c 25. 900 grams was recovered from the accused Thim J
Gummoorthy. The above jewels recovered were identified
to be stolen from the Bank of Madura on 6.8.88.

(11) The chance prints developed from the scene of
D occurrance in Bank of Madura, K.K. Nagar Branch,
Madurai tallied with the fingerprints of accused Thim
Kamna.

(12) The chance prints developed from the ambas- r
sador car TI.iL 9683 which was abandoned at new Mahali
E Party Street, Madurai after the commission of armed
dacoity tallied with the finger-prints of accused Thim
Kamna.

(13) The chance prints developed from the ambas-
sador car TDL 1919 and TOT 3699 which were used in
F earlier attempts tallied with the finger-prints of accused
Thim Kamna.

xxx xxx xxx

( 18) I am aware that Thim Nallathambi is in remand
G and would be proceeded with under normal law. Though
the name of Thiru Nallathambi does not find a place in the
F.I.R. and though he has not physically participated in the
commission of the armed dacoity, a reading of the records
and the statement clearly disclosed the facts that Thim Nal-
lathambi, was an active participant in the said conspiracy to
H loot the K.K. Nagar branch of the Bank of Madura. In
N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.) 909

' furtheJance of the conspiracy Thim Nallathambi had made
A
preparation for the commission of the armed dacoity as
discussed in para 4 above. Further Thim Nallathambi had
received a portion of booty of gold jewels weighing about
8325.150 grams valued Rs.25 lakhs and cash Rs.15,000.00
from the stolen jewels and cash robbed from the abovesaid
Bank and received a box containing 1 revolver, 2 pistols, 3 B
grenades, 6 bombs and a knife used in the commission of
offence. Subsequently, the said jewels, firearms and bombs
mentioned above were recovered in pursuance of the con-
fession of Thim Nallathambi. Further Thim Nallathambi
sent a notice to the News Media in the name of "Tamil
Nadu Makkal Vidhuthalai Eyakkam" owning responsibi-
lity of the armed dacoity and threatening the law enforce- c
ment agency and Government servants with dire conse-
quences ifthey dare to apprehend them. Therefore, as a
detaining authority ·I am satisfied that there is compelling
necessity warranting the detention of Thim Nallathambi
under the National Security Act and if Thim Nallathambi is D
allowed to remain at large it will not be possible to prevent
him from indulging in activities prejudicial to the main-
tenance of public order.
(
(19) I am also satisfied on the materials mentioned
above that if Thim Nallathambi is allowed to remain at E
large, he will indulge in further activities prejudicial to the
maintenance of public order and further the recourse to
normal law would not have their desired effect of effec-
tively preventing him from indulging in activities pre-
judicial to the maintenance of public order and, therefore,
I consider that it is necessary to detain him in custody with F
a view to preventing him from acting in any manner preju-
dicial to the maintenance of public order.

xxx xxx xxx xxx."

The first argument of the learned counsel for the· appellant- G
petitioner is based on the above quoted grounds in para Nos. 11, 12
>· and 13 relating to the chance printes developed from the scene of
occurrence in the Bank, the ambassador cars TDL 9683, TDL 1919
and TOT 3699 which tallied with the finger-prints of Kamna, an
accused in the Bank dacoity case. It was argued that the report of the
finger-prints expert who gave this opinion was not supplied to the H
910 SUPREME COURT REPORTS [1989] 3 S.C.R.

detenu even though it was a material document to enable the detenu to
A
make an effective representation in respect of these grounds of deten-
tion. Another similar document relates to ground No. 9 which men-
tions a note sent by the detenu to the newspaper media in the name of
Tamil Nadu Makkal Viduthalai Eyakkam owning responsibility for the
Bank dacoity and threatening the law enforcement agency and
B Government servants with dire consequences if they dare to
apprehend them. It was argued that the non-supply of these docu-
ments on which the grounds of detention Nos. 9, 11, 12 and 13 are
based has deprived the detenu of his legitimate right of effective rep-
resentation against the same which is guaranteed under Article 22(S)
of the Constitution of India and this defect results in invalidating the
entire detention order. The reply of learned counsel for the respon-
c dents is that section SA of the Act is a complete answer to this argu-
ment inasmuch as this defect at best requires only the exclusion of
these grounds of detention and no more. It was urged by learned
counsel for respondents that the remaining grounds of detention were
sufficient to sustain the detention order by virtue of section SA of the
D Act. Learned counsel for the appellant-petitioner also contended that
such a result is not envisaged by section SA of the Act which did not
apply to such a situation and the guarantee under Article 22(5) of the
Constitution rendered the defect fatal to the detention order.

Section SA of the Act clearly provides that the detention order
E under section 3 of the Act has been made on two or more grounds,
shall be deemed to have been made separately on each of such grounds
and accordingly such order shall not be deemed to be invalid merely
because one or some of the grounds is or are invalid for any reason
whatsoever. It further says that the detaining authority shall be
deemed to have made a detention order after being satisfied as pro- .~
F vided in section 3 with reference to the remaining grounds or ground. 1
In other words, a ground of detention which is rendered invalid for any
reason whatsoever, shall be treated as non-existent and the surviving
grounds which remain after excluding the invalid grounds shall be
deemed to be the foundation of the detention order. Section SA was
inserted in the Act with effect from 21.6.1984 to overcome the effect of
G the decisions which had held that where one or more of the grounds of
detention is found to be invalid, the entire detention order must fall
since it would not be possible to hold that the detaining authority ·~
making such order would have been satisfied as provided in section 3
with reference to the remaining ground or grounds. It is, therefore,
doubtful whether the construction of Section SA suggested by learned
H counsel for the appellant-petitioner can be accepted. However, in the
N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.l 911

f present case, it is not necessary for us to express any concluded
opinion on this point since we have reached the conclusion that the A
detention order must be quashed on one of the other contentions to
which we shall advert later.

I
The second argument of learned counsel for the respondents may
~ also be considered before we deal with the last contenti0n on which we
propose to ·quash the detention order. The second contention is that
B

the detenu's arrest in connection with the Bank decoity case is shown
on 21.8.1988 when he was actually arrested much earlier in connection
with the Bank dacoity as appeared in some local nev. spapers but those
r'. newspaper reports are not shown to have been placed before .the
detaining authority. On this basis, it was argued that the satisfaction
~- reached by the detaining authority has been vitiated. c
The question of the date on which the detenu was taken into
custody in connection with the Bank dacoity is material for the last
contention which we shall consider hereafter but the same has no
relevance in this connection. Contents of the newspaper reports except D
for the fact of earlier arrest which was known to the detaining autho-
rity were not relevant for the satisfaction needed to justify making of
the detention order. The detaining authority's satisfaction was to be
formed on the basis of material relevant to show the detenu's activities
--< requiring his preventive detention with a view to prevent him from
'
acting in a manner prejudicial to the maintenance of the public order. E
The newspaper reports indicating that the detenu was already in
custody could at best be relevant only to show the fact that he was
already in detention prior to the making of the detention order. We
have already mentioned that this fact of the detenu's custody before
the making of the order of detention on 7.9.1988 was known to the
t· detaining authority and its effect is a separate point considered later.
The other contents of the newspaper reports had no other relevance
F
for this purpose. This contention of learned counsel for the appellant-
petitioner is, therefore, rejected.

The last contention of learned counsel is based on the fact that
the detenu was already in custody in connection with the Bank dacoity G
when the order of detention was made on 7.9.1988. It is also clear that
~- on 22.8.1988 the detenu had moved a bail application which had been
rejected and he had been remanded to custody. It is significant that the
detention order itself describes the detenu as a person in custody in the
Central Prison at Madurai and the order was served on him through
the Superintendent of the Prison. The question now is of the effect of H
,
912 SUPREME COURT REPORTS [1989] 3 S.C.R.

A the detenu's earlier custody on the validity of the detention order.

The contents of the detention order and its accompanying
annexure clearly show that the detaining authority was aware and
conscious of the fact that the detenu was already in custody in connec-
tion with the Bank dacoity at the time of making the detention order.
B The fact that the detenu's application for grant of bail in the dacoity
case had been rejected on 22.8. 1989 and he was remanded to custody
for the offence of bank dacoity punishable under section 397 I.P.C. is
also evident from the record. The detention order came to be made on
7. 9. 1988 on the above grounds in these circumstances. In the detention
order the detaining authority recorded its satisfaction that the detenu's
preventive detention was necessary to prevent him from indulging in
C activities prejudicial to maintenance of public order in which he would
indulge if he was allowed to remain at large. The above quoted
paragraphs 18 and 19 of the Annexure to the detention order clearly
disc.Jose this factual position. However, it may be pointed out that the
detention order read along with its annexure nowhere indicates that
D the detaining authority apprehended the likeihood of the detenu being
released on bail in the dacoity case and, therefore, considered the
detention order necessary. On the contrary, its contents, particularly
those of the above quoted paragraph 18 clearly mention that the
detenu had been remanded to custody for being proceeded against in
due course and even though his name was not mentioned in the F.I.R.
E as one of the dacoits who participated in the commission of the armed
Bank dacoity yet the documents clearly revealed that the detenu was
an active participant in the conspiracy to loot the bank in furtherance
of which the dacoity was committed; and that considerable booty of
that crime including weapons, bombs and hand-grenades were
recovered from his possession pursuant to the detenu's confession
F made after his arrest. These averments in the detention order indicate
the satisfaction of the detaining authority that in its view there was
ample material to prove the detenu's active participation in the crime
and sharing the booty for which offence he had already been taken into
custody. This view of the detaining authority negatives the impression
of likelihood ofdetenu being released on bail.
G
The real question, therefore, is: whether after the above satisfac- I
tion reached by the detaining authority and when the detenu was ~
already in custody being arrested in connection with the Bank dacoity,
could there be any reasonable basis for making the detention order
and serving it on the detenu during his custody'?
H
We may now refer to the decisions on the basis of which this
•_·:i;

,,
N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.l 913
I
} point is to be decided. The starting point is the decision of a Constitu-
tion Bench in Rameshwar Shaw v. District Magistrate, Burdwan & A
Anr., [964] 4 SCR 921. All subsequent decisions which are cited have
to be read in the light of this Constitution Bench decision since they
are decisions by Benches comprised of lesser number of Judges. It is
obvious that none of these subseq.uent decisions could have intended
taking a view contrary to that of the Constitution Bench in Ramesh war B
Shaw's case (supra).

The detention order in Rameshwar Shaw's case (supra) was
made and also served on the detenu while he was in.jail custody. The

t
detenu was then in jail where he had been kept as a result of the
remand order passed by the competent court which had taken cogni-
zance of a criminal complaint against him. The Constitution Bench c
considered the effect of the detenu's subsisting detention at the time of
making of the order of preventive detention and held that the effect
thereof had to be decided on the facts of the case; and that this was a
material factor to be considered by the detaining authority while
reaching the satisfaction that an order of preventive detention was D
necessary to prevent the detenu from acting in a manner prejudicial to
the maintenance of public order after his release. It was indicated that
the detenu's subsisting custody did not by itself invalidate the deten-
i tion order but facts and circumstances justifying the order of preven-
tive detention notwithstanding his custody were necessary to sustain
such an order.
E
The position of law was summarised by their Lordships as under:

,- "As an abstract proposition of law, there may not be any
doubt thats. 3(l)(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 connection
F
with the making of the order may differ and that may make
a difference in the application o, the principle that a deten-
tion 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 ,_
G
I 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
sentence imposed on him. In dealing with this question,
again the considerations of proximity of time will not be
H
914 SUPREME COURT REPORTS [1989] 3 S.C.R.

irrelevant. On the other hand, if a person who is under-
A
going imprisonment. for a very short period, say for a
month or tw<' o:>r so. and it is known that he would soon be
released fron: j"il. ;, may be possible for the authority to
cPnsiucr lhe antecedent history of the said person and
decide whether the detention of the said person would be
B necessary ajier 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. The antecedent history and the past
conduct on which the order of detention would be based
would, in such a case, be proximate in point of time and
would have a rational connection with the conclusion drawn
c by the authority that the detention of the person after his
release is necessary .......... Therefore, we are satisfied
that the question as to whether an order of detention can be
passed against a person who is in detention or in jail, will
always have to be determined in the circumstances of each
D case.

The question which 'still remains to be considered is:
can a person in jail custody, like the petitioner, be served
with an order of detention whilst he is in such custody? )"°
'
E xxx xxx xxx xxx

We have already seen the logical process which must be
followed by the authority in taking action under s. 3(1)(a).
The first stage in the process is to examine the material
adduced against a person to show either from his conduct _ ti
F or his antecedent history that he has been acting in a pre- I
judicial manner. If the said material appears satisfactory to
the authority, then the authority has to consider whether it
is likely that the said person would act in a prejudicial
manner in future if he is not prevented from doing so by an
order of detention. If this question is answered against the
G petitioner, then the detention order can be properly made.
It is obvious that before an authority can legitimately come
to the conclusion that the detention of the person is neces- ~
sary to prevent him from acting in a prejudicial manner,
the authority has to be satisfied that if the person is not
detained, he would act in a prejudicial manner and that
H inevitably postulates freedom of action to the said person
N.M. RANI v. GOVT. OF TAMIL NADU [VERMA. J.I 915

at the relevant time. If a person is already in jail custody,
A
how can it rationally be postulated that if he is not detained,
he would act in a prejudicial manner? At 1he point of time
when an order of detention is going to he served on a person,
it must be patent that the said person would act prejudicially
if he is not detained and that is a consideration which would
be absent when the authority is dealing with a person already B
in detention. The satisfaction that it is necessary to detain a
person for the purpose of preventing him from acting in a
prejudicial manner is thus the basis of the order under s.
3(l}(a), and this basis is clearly absent in the case of the
petitioner. Therefore, we see no escape from the conclu-
sion that the detention of the petitioner in the circums-
tances of this case, is not justified bys. 3(1)(a) and is out- c
side its purview." (at pages 929-931 of SCR)

(emphasis supplied}

On the above principle the Constitution Bench also explained D
the decision of the Assam High Court in Sahadat Ali v. State of Assam
& Ors., A.LR. 1953 Assam 97 in Sahadat Ali's case (supra) the
Government had decided to abandon the pending prosecution in
public interest and action for detenu's release was taken. In anticipa-
tion of his release, the order of detention was passed and it was served
after he was actually released. In these circumstances the detention E
order and its service was held valid. The test indicated by the Constitu-
tion Bench was duly satisfied.

,- It is this principle and the test indicated therein which has to be
applied in all such cases. Read in this manner the conclusion reached
in each of the subsequent decisions satisfies this test. F

In Kartic Chandra Guha v. The State of West Bengal and others,
[ 1975] 3 sec 490 the order of preventive detention passed while the
detenu was in custody was upheld since there was a likelihood of his
release on bail and resuming his desperate criminal activities prejudi-
cial to the maintenance of public order. The facts of that case, there- G
fore, justified making the detention order according to the test laid
down by the Constitution Bench in Rameshwar Shaw's case (supra).
Dr. Ramakrishna Rawat v. District Magistrate, Jaba/pur and another,
[ 1975] 4 sec 164 was a case in which the order of detention was passed
while the detenu was in jail custody in a proceeding under section 151
read with section 117 Cr.P.C. The detention order was upheld since H
916 SUPREME COURT REPORTS [1989) 3 S.C.R.

the custody was obviously of a short duration and on the basis of the
A
antecedent activities of the detenu in the proximate past, the detaining
authority could reasonably reach its subjective satisfaction that the
detenu had the tendency to act in a manner prejudicial to the main-
tenance of public order after his release on the termination of the
security proceedings under the Code. In Vijay Kumar v. State of
B Jammu & Kashmir and others, I 1989) 2 sec 43 the detention order
was quashed because it did not give the slightest indication that the
detaining authority was aware that the detenu was already in jail. The
further question of the detaining authority's subjective satisfaction
that it was necessary even then to make an order for preventing him
from acting in a manner prejudicial to the security of the State did not,
therefore, arise. While dealing with this aspect the correct position was
c reiterated as under:

"Preventive detention is resorted to, to thwart future
action. If the detenu is already in jail charged with a serious
offence, he is thereby prevented from acting in a manner
D prejudicial to the security of the State. May be, in a given
case there yet may be the need to order preventive deten-
tion of a person already in jail. But in such a situation the
detaining authority must disclose awareness of the fact that
the person against whom an order of preventive detention \.-1
is being made is to the knowledge of the authority already
E in jail and yet for compelling reasons a preventive deten-
tion order needs to be made. There is nothing to indicate
the awareness of the detaining authority that detenu was
already in jail and yet the impugned order is required to be
made. This, in our opinion, clearly exhibits non-application
of mind and would result in invalidation of the order."
F (at page 48)

It is obvious that in this decision also the test indicated by the Constitu-
tion Bench in Rameshwar Shaw's case (supra) was applied and the
detention order was quashed on that basis.

G In Alijan Mian and another v. District Magistrate, Dhanbad,
[ 1983 I 3 SCR 939 the detention order was upheld even though the I
. .\
detenu was in jail custody on the date of passing of the detention order
because the detention order showed that the detaining authority was
alive to the fact and yet it was satisfied that if the detenu was enlarged
on bail, which was quilt; likely, he would create problems of public
H order which necessitated his preventive detention. In Ramesh Yadav
N.M. RANI v. GOVT. OF TAMIL NADU [VERMA, J.] 917

i- v.order
District Magistrate, Etah and others, [1985] 4 SCC 232 the detention
was passed when the detenu was in jail on the mere
A
apprehen~
;ion of likelihood of grant.of bail on the basis of some stale grounds
and a ground in respect of which the deienu had already been acquit-
ted. It is obvious that even with the likelihood of grant of bail, the
grounds of detention being stale or non-existent on the ground of the
detenu's acquittal, they did not satisfy the required test of the deten- B
· tion order. being based on valid grounds showing detenu's activities
"j proximate in point of time to justify the detaining authority's satisfac-
tion as reasonable. It was observed in passing that if the apprehension
of the detaining authority about the likelihood of grant of bail was
correct then it was open to challenge the bail order in a higher forum.
This observation has accordingly to be read in the context of the facts
in which it was made. In Binod Singh v. District Magistrate, Dhanbad, c
Bihar and others, (1986) 4 SCC 416 the detention order was held to be

~
invalid because the jail custody of the detenu at the time of service of
the order as also the prospect of his release were not considered while
making the d~tention order. It was held that the detenion order was
invalid on the ground of non-application of mind to these relevant D
factors even if the detention was otherwise justified. The decision in
Rameshwar Shaw's case (supra) was relied on and it was reiterated as
under:
, I

;~ "If a man is in custody and there is no imminent possibility
of his being released, the power of preventive detention E
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 F

+ seriously before the service of the order. A bald statement
is merely an ipse dixit or the officer. If there were cogent
materials for thinking that the detenu might be released
then these should have been made apparent."
( (at pages 420-421)
G
I_n Poonam Lata v. M.L. Wadhawan and another, (1987] 4 SCC 48 it
I'~
I.
was reiterated that detenu being already in jail at the time of passing
, detention order does not by itself vitiate the detention if the detaining
authority is aware of this fact but even then it is satisfied about the ·•
I necessity of preventive detention. The Constitution Bench decision in
Rameshwar Shaw's case (supra) and the other earlier decisions were H
I
918 SUPREME COURT REPORTS [1989] 3 S.C.R.

-t-
. ' '

·A referred while ieaching this conclusion. The correct position was
reiterated and summarised as under:

.. ,. "It is thus clear that the fact that the detenu is alreaJy in
:~ .
detention does not take away the jurisdiction of the detain-
ing authority in making an order of preventive detention.
B What is necessary in a case of that type is to satisfy the
court when detention is challenged on that ground that the
detaining authority was aware of the fact that the detenu
was already in custody and yet he was subjectively satisfied
·that his order of detention became necessary. In the facts
of the present case, there is sufficient material to show that
·the detaining authority was aware of the fact that the
c petitioner was in custody when the order was made, yet he
was satisfied that his preventive detention was necessary."
· (at page 58)

. . ~recent decision on the point is Smt. Shashi Aggarwal v. State of
D U.P. and others, [1988] 1SCC436 in which also the settled principle is
reiterated and it is pointed out that the ultimate decision depends on
the facts of a particular case, the test to be applied remaining the same,
as indicated in Rameshwar Shaw's case (supra). It was also pointed out
in this decision that the earlier decisions of the Supreme Court in I
Ramesh Yadav, (supra) and Binod Singh, (supra) do not run counter
E · to the decision in Alijan Mian's case (supra). In each of these cases the
t-
conclusion 'was reached on the facts of the particular case, the test
. applied being the same.· Similarly, in this decision it was once again
pointed out that the detenu being already in jail, the mere possibility
· of his release on bail was not enough for preventive detention unless
there was material to justify the apprehension that the detenu would
_ · F·. indulge in activities prejudicial to the maintenance of public order in
case of his release on bail. The detention order in that case had been
made' merely on the ground that the detenu was trying to come out on
bail and there was enough possibility of his being hailed out. n was,
. thertiore, held that the mere possibility of his release on bail and a
bald statement that the detenu would ~epeat his criminal activities was
a· alone not sufficient to sustain the order of preventive detention in the
absence of any .material on the record to show that if released on bail
he was likely to commit activities prejudicial to the maintenance of
public order. The detention order in that case was quashed on the'
ground that the requisite material to entertain such an apprehension
reasonably was not present. The conclusion reached therein, on the
H facts and circumstances of the case, is as under:
N.M. RANI v. GOVT. OF TAMIL NADU !VERMA, J.l 919

"In the instant case,·there was no material made apparent
on record that the detenu, if released on bail, is likely to A
commit activities pre judicial to the maintenance of public
order. The detention order appears to have been made
merely on the ground that the detenu is trying to come out
on bail and there is enough possibility of being bailed out.
( We do not think that the order of detention could be B
justified only on that basis."
(at page 440)

A review of the above decisions reaffirms the position which was
settled by the decision of a Constitution Bench in Ramesh war Shaw's
case (supra). The conclusion about validity of the detention order in
each case was reached on the facts of the particular case and the c
observations made in each of them have to be read in the context in
which they were made. None of the observations made in any subse-
quent case can be construed at variance with the principle indicated in
Rameshwar Shaw's case (supra) for the obvious reason that all subse-
quent decisions were by benches comprised on lesser number of D
Judges. We have dealt with this matter at some length because an
attempt has been made for some time to construe some of the recent
decisions as modifying the principle enunciated by the Constitution
Bench in Ramesh war Shaw's case (supra).

We may summarise and reiterate the settled principle. Subsisting E
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 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 F
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 detained in
order to prevent him from indulging in such prejudicial activities, the
G
detention order can be validly made even in anticipation to operate on
his release. This appears to us, to be the correct legal pO"sition.

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 H
920 SUPREME COURT REPORTS [1989] 3 S.C.R.

A its annexure indicates the detaining authority's awareness of the fact of
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 mate- ~-
B rial to prove the detenu's complicity in the Bank dacoity including '
sharing of the booty inspite of absence of his name in the F .LR. 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
c with no prospect of his release. It does not satisfy the test indicated by
the Constitution Bench in Rameshwar Shaw's case (supra). We hold
the detention order to be invalid for this reason alone and express no
opinion on merits about the grounds of detention.

Consequently, the aforesaid order of detention dated 7 .9.1988
D passed by the Collector and District Magistrate, Madurai, and the
order of confirmation dated 25. 10.1988 by the Government of Tamil
Nad11 are quashed. The appeal and the writ petition are allowed. This,
however, will not affect the detenu's custody in connection with the
criminal case under section 397 I.P.C. We may also clarify that in case
the detenu is released in the aforesaid criminal case, the question of his
E preventive detention under the Act on the above material may be
reconsidered by the appropriate authority in accordance with law and
this judgment shall not be construed as an impediment for that
purpose. No costs.

R.N.J. Appeal and Petition allowed. · '