Holding

The detention order was set aside because the appellant was not deprived of representation before the Advisory Board, the delay did not void the original order, and the detaining authority failed to satisfy the statutory requirements of Section 37 of the NDPS Act.

Summary

The appellant, Sayed Abul Ala, was arrested for possession of large quantities of heroin and other narcotics and was remanded to judicial custody. While still in custody, he was detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 on the ground that he was likely to be released on bail and would resume illicit activities. The Advisory Board confirmed the detention, but the appellant claimed he was denied the right to be represented before the Board, that the notice was ante‑dated, and that undue delay in considering his representations vitiated the order. The Supreme Court held that the appellant was aware of the Board’s meeting and was not denied representation; any delay did not invalidate the original detention order, only the subsequent detention became illegal. Moreover, the detaining authority had not properly applied its mind to the requirements of Section 37 of the NDPS Act regarding the likelihood of bail, and therefore the detention order was set aside. The appeal was allowed and the impugned judgment was set aside.

Issues considered

The appellant was denied the opportunity to be represented before the Advisory Board under Article 22(5).
Whether delay in considering the appellant's representations vitiates the original detention order.
Whether the detaining authority complied with Section 37 of the NDPS Act in assessing the likelihood of release on bail.
Whether the order of detention is void ab initio or only the further detention is illegal.

Legislation cited

Subjects

preventive detentionNDPS ActSection 37bailadvisory boardrepresentationdelayjudicial custodydetention orderconstitutional rightsArticle 22(5)

Judgment

SAYED ABUL ALA A
~-
v.
UNION OF INDIA AND ORS.

SEPTEMBER 26, 2007
B
[S.B. SINHA AND H.S. BEDI, JJ.]

d Prevention ofIllicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988-Detention under-For possessing contraband
articles though accused under judicial custody and proceedings under c
NDPS Act initiated against him-Detention order confirmed by
Advisory Board-Representations for revoking detention order
rejected-Dismissal ofWrit Petition-On appeal held: Detenu was not
deprived ofopportunity ofbeing represented before Advisory Board-
Delay in considering the representation not fatal-Thus, only further D
detention of detenu became illegal and the original detention order
not vitiated-Detaining Authority took into consideration antecedent
of detenu; that he retracted from his earlier confession; and that he
hadfiled application for bail-Co-accused ofdetenu not released on
bail and thus, detaining authority was to apply his mind on the material E
on record to arrive at his subjective satisfaction-Thus, on facts and
circumstances of the case, detention order not sustainable and set
aside-Narcotic Drugs and Psychotropic Substances Act, 1985.

->l Contraband articles were allegedly recovered from the
possession of the appellant. The appellant was arrested and was F
remanded to Narcotic Control Bureau custody till 8.12.1999,
whereafter he was remanded to judicial custody. Though prosecution
proceedings under the Narcotic Drugs and Psychotropic Substances
Act, 1985 were initiated against the appellant and he continued to
be in judicial custody, by order dated 15.2.2000 appellant was G
~.
detained under the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988. It was held that there was every
likelihood of his being released on bail by the Court, whereupon he
was likely to engage himself in illicit traffic in Narcotic drugs
631 H
632 SUPREME COURT REPORTS [2007] 10 S.C.R.
-r
I

A therefore, there was compelling necessity to detain him under the
1988 Act. Appellant filed application not to transfer him to Delhi
but the same was rejected. Thereafter, on 22.4.2000 meeting of
the Advisory Board was held and the detention order was
confirmed on 12.5.2000. Appellant's first representation for
B revocation of the detention order was rejected. He then filed
another representation to the detaining authority for
reconstitution of Advisory Board as he was deprived of his right
to appear before it on 22.4.2000 but the same was also rejected. ~'
Aggrieved, appellant filed writ petition on the ground that he was
c deprived of opportunity to appear before the Advisory Board; that
the letter issued by the appropriate Government to him was ante-
dated and his advocate received the same after the Advisory
Board held its meeting, the same was illegal and thus it was
obligatory on the part of the appropriate Government to
D reconstitute the Advisory Board; that his second representation
was based on fresh facts and new grounds, there was undue delay
in disposal of his representation and that the detaining authority ·y
had mechanically passed the detention order without taking intu
consideration the relevant fact that he was alleged to have
E committed serious offences under the Act and in view of section
37 it was unlikely that he would have been released on bail. High
Court rejected the grounds. Hence the present appeal.
Allowing the appeal, the Court
;..~
F HELD: 1.1. An application for bail is required to be filed and
considered by the appropriate Court in terms of Section 439 of
Cr.P.C. but in cases involving the provisions ofNDPS Act, the
detaining authority was required to take into consideration the
restrictions imposed on the power of the court to grant bail having
regard to the provisions of section 37 thereof. Thus, the statute,
G
puts limitation on the jurisdiction of the court in the matter of grant ~

of bail. They cannot be ignored by any Court of Law. Therefore,
proper application of mind on the part of the detaining authority
"•
must, be borne out from the order of detention.
[Paras 19, 20 and 21] [641-D; 642-B-C)
H
SAYED ABUL ALA v. UNION OF INDIA 633

1.2. In cases where the detenu is in custody, the detaining A
authority not only should be aware of the said fact but there should
be some material on record to justify that he may be released on
bail having regard to the restriction imposed on the power of the
Court as it may not arrive at the conclusion that there existed
reasonable grounds for believing that he was not guilty of such B
offence and that the detenu could not indulge in similar activity, if
set at liberty. Furthermore, the detaining authority is required to
bear in mind that there exists a distinction between the "likelihood
of his moving an application for bail" and "likelihood to be released
on bail". While arriving at his subjective satisfaction that there is c
likelihood of the detenu being released on bail, recording of the
satisfaction on the part of the detaining authority that merely
because an application for grant of bail had been filed, would not be
enough. It would also not be sufficient compliance of the legal
obligation that the detaining authority had informed himself that the D
detenu has retracted from his earlier confession.
[Paras 21 and 22] [642-C-E]
1.3. No doubt antecedents of the detenu would be a relevant
factor but the same by itself may not be sufficient to press order of
detention in as much as the principles which govern the field so as E
to enable the court to arrive at a decision that the order of detention
can be validly passed despite the detenu being in custody are: (1) if
the authority passing the order is aware of the fact that he is actually
in custody; (2) if he had a reason to believe on the basis of reliable
material placed before him (a) that there is a real possibility of his F
being released on bail, and (b) that on being released, he would in
all probability indulge in prejudicial activities; and (3) it is felt
essential to detain him to prevent him from so doing.
[Para 27] [644-C-E]
G
Amritlal and Ors. v. Union Govt. through Secy., Ministry of
Finance and Ors., [2001] 1SCC341, distinguished.

Union of India v. Paul Manickam and Anr., [2003] 8 SCC 342;
Smt. Azra Fatima v. Union of India and Ors., [1991] 1 SCC 76 and
Dharmendra Suganchand Chelawat and Anr. v. Union of India and H
\'•·-
634 SUPREME COURT REPORTS [2007] 10 S.C.R.

--4
A Ors., AIR(l990) SC 1196, referred to. "
2.1. From the records it appears that the appellant was aware
of the date of meeting of the Advisory Board much in advance. The
submission of the appellant that the communication was ante-dated
B and his advocate did not receive the said communication as a result
whereof the appellant is said to have been deprived of an
opportunity of being represented before the Advisory Board is not
correct. It is not based on factual foundation, it has no merit and must '"'~
be rejected. [Paras 10and11] [637-H; 638-A-E]
c 2.2. If it be assumed that there was some delay in considering
his representation, the same would not vitiate the original order of
detention. In the reply affidavit filed on behalf of the respondents,
it was stated that there was 10 days' delay on the part of the jail
I authorities to forward the said representation; 22 days had been
\I D taken in calling the comments from the sponsoring authority and
'y
about 8 days had been taken in communication of the said order.
\ [Para 12] (638-E-G]
2.3. The submission that by reason thereof only further
detention of the appellant became illegal and thus, the same did not
E vitiate the order of detention itself is correct. The distinction between
an order of detention which is void ab initio by reason of non-
r application of mind on the part of the detaining authority or other
reason is clearly distinct and different from the case where only >-=
further detention becomes illegal. [Para 13] (639-A-B]
F
A.K Royv. Union ofIndia, (1982] 1SCC271, distinguished.
MeenaJayendra Thakurv. UnionoflndiaandOrs., JT (1999] 7
SCC 336 and Union ofIndia and Anr. v. Harish Kumar, JT (2007) 10
SC 254, referred to. ...+--,
G
2.4. In the order of detention the detaining authority had taken
into consideration three factors; viz., (1) the antecedent of the
appellant; (2) he had made voluntary confession on 1.6.2000 but
retracted therefrom on 1.6.2000; and (3) he had filed an application
H for bail. [Para 17] [641-B]
SAYEDABULALA v. UNIONOFINDIA[SINHA,J.] 635

'>-.
2.5. The 2nd retraction of confession dated 1.6.2000, could not A
have been within the knowledge of the detaining authority.
Retraction from confession by the detenu although may be one of
the grounds for arriving at the conclusion with regard to the
subjective satisfaction of the detaining authority, the detaining
authority should have also informed himself about the implication B
of section 37 of the Act. If the detenu was involved in a large number
~ of cases and the prosecution was aware of the same, it would
invariably be brought to the notice of the court dealing with the
application for bail filed by the detenu, by the public prosecutor.
Furthermore, the order of the Court granting bail would be passed c
only when the court dealing therewith forms an opinion that there
are reasonable grounds for believing that he is not guilty of such
offences that there was no likelihood to commit any offence while
on bail. [Para 23] (642-F-H; 643-A]
D
2.6. In the instant case, the co-accused had not been released
~
I
on bail and in that view of the matter the detaining authority was
required to apply his mind on the material on record to arrive at his
subjective satisfaction. Having regard to the facts and circumstances,,
of the case, the order of detention passed against the petitioner
cannot be sustained and is set aside. E
[Paras 28 and 30] [644-G-H; 645-F]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
"""-'(
765of2003.
From the Judgment and final Order and dated 23.4.2002 of the High F
Court of Delhi at New Delhi in Crl. Writ Petition No. 686of2000.
Harjinder Singh, Yogesh K. Saxena, Shikha Tyagi and S.V.
Deshpande for the Appellant.
.,._J.c
Sanjay R. Hegde, Amit Kumar Chawla, Sushma Suri, B.B. Singh G
and Binu Tamta for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Appellant herein was detained under the
H
I

ii
'-
636 SUPREME COURT REPORTS (2007] 10 S.C.R.
'•

A Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances -~I

Act,1988 (hereinafter referred to as the 'Act') by an order dated 15th
February,2000. The period of detention is over. He, however, questioned
the validity of the said order of detention before the High Court of Delhi
inter alia on the premise that unless the order of detention is set aside, a
B proceeding may be initiated against him under Chapter VA of Narcotic
Drugs and Psychotropic Substances Act, 1985.
2. Appellant was indisputably arrested by the officers of Narcotic '·
.'4,

Control Bureau (NCB) on 29.11.1999. He was remanded to NCB
c custody till 8.12.1999, whereafter he was remanded to judicial custody.
Eighteen kilos and eight hundred thirty grams of heroin was alleged to
have been recovered from his possession from a hotel room. Another raid
was conducted in House No.995, situate at Kishanganj, Teliwara, near
Azad Market, Delhi on 29/30th November, 1999. In the search, which
was conducted at the said place on 29/30th November, 1999, 32.305
D
kg. of brown powder kept in nineteen transparent polythene bags kept
inside three Safari suitcases, was said to have been recovered. y

3. Appellant filed an application before the special judge that he may
not be transferred to Delhi. The said plea was not accepted. The order
E of detention was placed before the Advisory Board for confirmation. The
Advisory Board was to hold its meeting on 22nd April,2000. According
to the appellant on the aforementioned date neither he nor his advocate
I Shri S.C. Puri could appear before the Advisory Board as he was being
I taken to Delhi from Bengal, and his advocate received the said >-"'
F communication from the Advisory Board only on 25th April, 2000. It is
also not in dispute that upon recommendations of the Advisory Board,
the order of detention was confirmed on 12.5.2000.
4. Appellant made two representations praying for revocation of the
order of detention. The first representation was made on 14th March,2000
G raising all legal questions. The said representation was rejected. He, ~

however, filed another representation on 26th May, 2000 inter alia on
the premise that his Constitutional right to appear before the Advisory
Board having been denied to him, he was entitled to revocation of the
.order of detention dated 15th February, 2000. The said representation
H
SAYED ABUL ALA v. UNION OF INDIA [SINHA, J.] 637

)'.
was also rejected. Aggrieved, he filed a writ petition before the High A
Court.
5. Before the High Court three contentions were raised by the
appellant. Firstly, his Constitutional right to be represented before the
Advisory Board having been denied to him and having regard to the
second representation made by him, the appropriate Government was B
under a constitutional obligation to reconstitute another Advisoiy Board
,/
>'· so as to enable him to make proper representation before it. It was
contended that the purported letter dated 7.4.2000 issued by the
appropriate Government to him was an ante-dated one and in any event
his advocate having received the same only on 25th April, 2000, i.e., c
after the' Advisory Board held its meeting on 22nd April, 2000, the
same was illegal and thus it was obligatory on the part of the appropriate
Government to reconstitute the Advisory Board.
6. Secondly, his representation dated 26th May, 2000 being D
-~
based on fresh facts and new grounds, the same should have been
disposed of at an early date but delay of 40 days having occurred, the
order of detention should be set aside.
7. Thirdly, although the appellant was in judicial custody at the
relevant point of time, the detaining authority had mechanically passed E
the order of detention without taking into consideration the relevant fact,
namely, he was alleged to have committed serious offences under the
said Act and in view of Section 37 thereof, it was unlikely that he would
have been released on bail.
F
8. All the contentions having been rejected by the High Court by
reason of impugned judgment, the appellant has preferred this appeal.
9. The contention of the respondents, on the other hand, is that a
distinction must be made between the cases where the order of
-~ detention is void ab initio and a case where further detention becomes G
vitiated by reason of non-compliance of one or the other procedural
safeguards to which the detenu would be entitled in terms of Article
22(5) of the Constitution of India.
10. From the records it appears that the contention of the appellant
H
638 SUPREME COURT REPORTS [2007] 10 S.C.R.

A that the communication dated 7th April, 2000 was ante-dated and his
advocate Shri S.C. Puri did not receive the said communication as a result
whereof the appellant is said to have been deprived of an opportunity of
being represented before the Advisory Board is not correct. Our attention
in this regard has been drawn to a letter dated 7.4.2000 addressed by
B the appellant to his counsel to Shri S.C. Puri wherein it was stated that
not only he had received the said communication dated 7.4.2000 on the
said date itself but had advised his counsel to attend the .said meeting of
the Advisory Board which was to be held on 22.4.2000 at 11.00 a.m.
on his behalf as he himself was unable to attend because of his sickness.
c Appellant was, therefore, aware of the date of meeting of the Advisory
Board much in advance.
11. Apart from that, one Mangal Dass who was an Intelligence
Officer, NCB, Delhi in an affidavit categorically stated that he had himself
contacted the advocate of the appellant Shri S.C. Puri over telephone
D on 18.4.2000 and informed him about the contents of the aforementioned
letter dated 7.4.2000. As the said contention of the appellant that he had "r·
cxbeen deprived of the constitutional right to be represented before the
Advisory Board is not based on factual foundation, we are of the opinion
that the said contention has no merit and must be rejected.
E
12. Even for the sake of the argument, if it be assumed that there
was some delay in considering his representation as would appear from
the discussions made hereinafter the same would not vitiate the original
order of detention. Before embarking however, on the said question, we
F may notice that in the reply affidavit filed on behalf of the respondents,
affirmed by one Slui J.L. Soni, Deputy Secretary of the Government of
India it was stated that there was 10 days' delay on the part of the jail
authorities to forward the said representation; 22 days had been taken in
calling the comments from the sponsoring authority and about 8 days had
G been taken in communication of the said order. Even ifthere had been
some delay on the part of the respondents to consider the said
representation of the appellant by the appropriate authority, we are of
the opinion that the same would not be sufficient for the purpose of
disposal of the present case.
H
SAYEDABULALAv. UNIONOFINDIA[SINHA,J.] 639

13. Mr. B.B. Singh, in our opinion, is right in his contention that by A
reason thereof only further detention of the appellant became illegal and
thus, the same did not vitiate the order of detention itself The distinction
between an order of detention which is void ab initio by reason of non-
application of mind on the part of the detaining authority or other reason
is clearly distinct and different from the case where only further detention :B
becomes illegal. This question had been considered by a three-Judge
Bench of this Court in Meena Jayendra Thakur v. Union of India &
Ors., reported in J.T. [1999] 7 SCC 336 wherein it was held:
"8. There cannot be any dispute that the right to make a
representation of a detenu is the most valuable right conferred upon C
him under Article 22 of the Constitution and if there has been any
infraction of such right then certainly the detenu is entitled to be
released. The question, therefore, arises as to whether when a
declaration is made under Section 9(i) of the Act which in turn
extends the periqd of detention without being confirmed whether D
the officer issuing the declaration under Section 9(i) is also required
to inform the detenu that he has a right to make a representation
to him. Under the constitutional scheme engrafted in Article 22,
no law providing for preventing detention can authorise the
detention of a person for a longer period than three months unless E
the Advisory Board repmts before expiration of the said period
of three months that there is, in its opinion, sufficient cause for such
detention. When an authority issues a declaration under Section
9(i) of the Act, the said authority has the necessary powers to
revoke the declaration on a representation being made by the F
detenu against such declaration. Consequently, ifthe detenu is not
intimated of his right to make a representation to the authority
issuing the declaration under Section 9(i) then certainly his valuable
constitutional right gets infringed and the two decisions of the Full
Bench relied upon by Mr. Kotwal fully support this contention. G
Mr. N.N. Goswami, learned senior counsel appearing for the Union
oflndia fairly concedes this position.?

14. The said decision has been followed by this Court recently in
Union of India & Anr. v. Harish Kumar, reported in J.T. (2007) 10
H
--\
640 SUPREME COURT REPORTS [2007] 10 S.C.R.

---<.
A SC 254, holding:
"In our considered opinion the decision of this Court in Meena
Jayendra Thakur is an authority for the proposition that an order
of detention passed by the detaining authority on the basis of
material made available for its consideration and its satisfaction does
B not get initiated because of a subsequent infraction of the detenu's
right to make a representation and its disposal by the authorities.
We are unable to agree with the submissions of Dr. Singhvi, learned ~
senior counsel for the respondent.?

c 15. In the case ofA.K. Royv. Union ofIndia, [1982] 1SCC271,
which was relied upon by the learned counsel, this Court was examining
the constitutional validity of issuance of an Ordinance providing for
detention and the constitutional validity of the National Security Act.
/'
Relying upon its earlier decision mKhduram Das v. State of W.B., [1975]
D 2 SCC 81 this Court held that it is not open to anyone to contend that a
law of preventive detention, which falls within Article 22, does not have y-
to meet the requirement of Articles 14 or 19, and on the same analogy it
must be held that Article 21 also would apply in case of a law of preventive
detention. The proposition laid down in the aforesaid decision of the
E Constitution Bench cannot be doubted, but in our view the said question
does not arise for consideration in the case at hand.
16. We may now consider the principal contention raised by Mr.
Harjinder Singh, learned senior counsel appearing for the appellant. In ~
the impugned order of detention it has been stated as under:
F
"Even though prosecution proceedings under Narcotic Drugs
and Psychotropic Substances Act, 1985 have been initiated
against Shri Sayed Abul Ala and even though he continues to be
in judicial custody, I am satisfied that there is every likelihood of
his being released on bail by the Court, and on such release, he is
G
likely to engage himself in illicit traffic in Narcotic drugs as in evident
from his antecedent activities and material on record. I am therefore
satisfied that there is compelling necessity to detain him under the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 with a view to preventing him from engaging
H
SAYED ABULALA v. UNION OF INDIA [SINHA,J.] 641

in such activities." A

17. It is no doubt true that in the order of detention the detaining
authority had taken into consideration three factors; viz., (1) the antecedent
of the appellant; (2) he had made voluntary confession on 1.6.2000 but
refracted therefrom on 1.6.2000; and (3) he had filed an application for
B
bail.
18. Mr. B.B. Singh, learned counsel submitted that once it is held
/ that the relevant factors were considered, the same conferred jurisdiction
on the detaining authority to take extraordinary procedure in passing the
order of preventive detention against the appellant, and when such facts c
are found to have been existing, this Court should not interfere therewith.
19. An application for bail is required to be filed and considered by
the appropriate Court in terms of Section 439 of the Code of Criminal
Procedure but in cases involving the provisions of the NDPS Act, the
detaining authority was required to take into consideration the restrictions D
imposed on the power of the court to grant bail having regard to the
provisions of Section 37 thereof.
It reads as under:
"3 7. Offences to be cognizable and non-bailable. --(I) E
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973(2of1974)--

...:../ (a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence pwlishable for [offences under F
Section 19 or section 24 or section 27A and also for offences
involving commercial quantity] shall be released on bail or on hls
own bond unless --
(i) the Public Prosecutor has been given an opportunity to oppose G
-...J..'C'
the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
H
642 SUPREME COURT REPORTS [2007] 10 S.C.R.
. +....
A offence while on bail."
20. The statute, thus, puts limitation on the jurisdiction of the court
in the matter of grant of bail. They cannot be ignored by any Court of
Law. Several decisions of this Court and of High Court operate in the
B lield.
21. Proper application of mind on the part of the detaining authority
must, therefore, be borne out from the order of detention. In cases where
the detenu is in custody, the detaining authority not only should be aware ~
of the said fact but there should be some material on record to justify
C that he may be release_d on bail having regard to the restriction imposed
on the power of the Court as it may not arrive at the conclusion that there
existed reasonable grounds for believing that he was not guilty of such
offence and that t.1.e detenu could not indulge in similar activity, if set at
liberty.
D 22. The detaining authority furthermore is required to bear in mind
that there exists a distinction between the "likelihood of his moving an
application for bail" and "likelihood to be released on bail". While arriving
at his subjective sat~sfaction that there is likelihood of the detenu being
released on bail, recording of the satisfaction on the part of the detaining
E authority that merely because an application for grant of bail had been
filed, would not be enough. It would also not be sufficient compliance of
the legal obligation that the detaining auth01ity had informed himself that
the detenu has retracted from his earlier confession.
F 23. So far as the 2nd retraction of confession is concerned, the same
is dated 1.6.2000, and thus the same could not have been within the
knowledge of the detention authority. Retraction from confession by the
detenu although may be one of the grounds for arriving at the conclusion
with regard to the subjective satisfaction of the detaining authority, in our
G opinion, the detaining authority should have also informed himself about
the implication of Section 37 of the Act. If the detenu was involved in a
large number of cases and the prosecution was aware of the same, it
would invariably be brought to the notice of the court dealing with the
application of bail filed by the detenu by the public prosecutor. Further
H more, the order of the Court granting bail would be passed only when
SAYEO ABUL ALA v. UNION OF INDIA [SINHA, J.] 643

the court dealing therewith forms an opinion that there are reasonable A
grounds for believing that he is not guilty of such offences that there was
no likelihood to commit any offence while on bail.
24. In Amritlal & Ors. v. Union Govt. through Secy., Ministry
of Finance & Ors., [2001] 1 SCC 341, wherein this Court, following B
the decision in Binod Singh v. District.Magistrate, Dhanbad, [1986] 4
sec 416, held as under:
6. "The requirement as noticed above in Binod Singh Case that
there is "likelihood of the petitioners being released on bail?"
however is not available in the reasoning as provided by the c
officer concerned. The reasoning available is the "likelihood of
his moving an application for bail" which is different from
"likelihood to be released on bail". This reasoning, in our view,
is not sufficient compliance with the requirements as laid down.
7. The emphasis however, in Binod Singh case that before D
passing the detention order the authority concerned must satisfy
himself of the likelihood of the petitioner being released on bail
and that satisfaction ought to be reached on cogent material.
Available cogent material is the likelihood of having a bail
application moved in the matter but not obtaining a bail order." E
25. The said decision is of no assistance to the learned counsel for
the respondents.
26. Yet again, in Union ofIndia v. Paul Manickam & Anr., [2003]
8 SCC 342, whereupon Mr.B.B.Singh has placed strong reliance, noticing F
a large number of decisions, this Court held that:
"But at the same time, a person's greatest of human freedoms i.e.
personal liberty is deprived, and, therefore, the Jaws of preventive
detention are strictly construed, and a meticulous compliance with
the procedural safeguard, however technical., is mandatory. The G
compulsions of the primordial need to maintain order in society,
without which enjoyment of all rights, including the right of personal
liberty would lose all their meanings, are the true justifications for
the laws of preventive detention. This jurisdiction has been described
H
-~
644 SUPREME COURT REPORTS [2007] 10 S.C.R.

A as a ')urisdiction of suspicion'', and the compulsions to preserve
the values of freedom of a democratic society and social order
sometimes merit the curtailment of the individual liberty. (SeeAY.Ya
v. State of UP.) To lose our country by a scrupulous adherence
to the written law, said Thomas Jefferson, would be to lose the
B law, absurdly sacrificing the end to the means. No law is an end in
itself and the curtailment of liberty for reasons of the State;s security
and national economic discipline as a necessary evil has to be
administered under strict constitutional restrictions. No carte
Blanche is given to any organ of the State to be the sole arbiter in
c such matters."
27. No doubt antecedents of the detenu would be a relevant factor
but the same by itself may not be sufficient to press and order of detention
in as much as the principles which govern the field so as to enable the
D court to arrive at a decision that the order of detention can be validly
passed despite the detenu being in custody are:
( 1) if the auth01ity passing the order is aware of the fact that he is
actually in custody; (2) if he had a reason to believe on the basis
of reliable material placed before him (a) that there is a real
E possibility of his being released on bail, and (b) that on being
released, he would in all probability indulge in prejudicial activities;
and (3) it is felt essential to detain him to prevent him from so doing.
28. Yet again, our attention has also been drawn to the decision of
this Court in Smt. Azra Fatima V. Union ofIndia & Ors., [1991] 1 sec )-'-
F 76 wherein a Bench of this Court while considering the validity of an order
of detention under the said Act had held that the likelihood of the detenu
to be released on bail together with other relevant factors namely his
antecedents as well as his likelihood of involvement and in continuing to
commit similar offences are to be borne in mind. But therein two of the
G co-detenus had already been released on bail and thus, detaining authority .,.l_-
could arrive at his subjective satisfaction. However, in this case, the co-
accused of the appellant had not been released on bail and in that view
of the matter the detaining authority was required to apply his mind on
the material on record to arrive at his subjective satisfaction.
H
SAYEDABULALAv. UNIONOFINDIA[SINHA,J.] 645

)-- 29. In Dharmendra Suganchand Chelawat & Anr. v. Union of A
India & Ors., AIR (1990) SC 1196, this Court held:
"21.We are, however, unable to agree with the same. In the
grounds of detention the detaining authority has only mentioned the
fact that the appellants has been remanded to judicial custody till
October 13, 1988. The grounds of detention do not show that the B
detaining authority apprehended that the further remand would not
be granted by the Magistrate on October 13, 1988, and the
;.!
appellants would be released from custody on October 13, 1988.
Nor is there any material in the grounds of detention which may
lend support to such an apprehension. on the other hand we find . c
that the bail applications moved by the appellants had been rejected
by the Sessions Judge a few days prior to the passing of the order
of detention on October 11, 1988. The grounds of detention
disclose that the appellants were engaged in activities which are
offences punishable with imprisonment under the provisions of the D
-,, Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot,
therefore, be said that there was a reasonable prospect of the
appellants not being further remanded to custody on October 13,
1988 and their being released from custody at the time when the
order for preventive detention of that appellant was passed on E
October 11, 1988.
30. Having regard to the facts and circumstances of the case, we
._,_. are of the opinion that on this ground alone the order of detention passed
against the petitioner cannot be sustained. It is set aside accordingly.
F
. The appeal is allowed and the impugned judgment is set aside.
N.J. Appeal allowed.

- ).,_