Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another - Court Judgment

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
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		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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		'pubs' => '1992CriLJ2505',
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		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
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		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
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		'casesref' => 'Kamarunnissa v. Union of India;',
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		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
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		'decidedon' => '1991-03-27',
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		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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		'pubs' => '1992CriLJ2505',
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		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Writ Petn. No. 17004 of 1990',
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		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
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		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
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		'decidedon' => '1991-03-27',
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		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
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			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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		'pubs' => '1992CriLJ2505',
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		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
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Janarthanam, J.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
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			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
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	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
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4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case.

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			'id' => '785895',
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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
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		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act').

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			'id' => '785895',
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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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			'id' => '785895',
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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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			'id' => '785895',
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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
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		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
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8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs.

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			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
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9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel.

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			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
	'args' => array(
		(int) 0 => '785895',
		(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
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		'pubs' => '1992CriLJ2505',
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		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
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10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :-

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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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)
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$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
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'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
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	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.'

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
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		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
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		'casesref' => 'Kamarunnissa v. Union of India;',
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		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
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		'decidedon' => '1991-03-27',
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		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) :

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'rukumani-devi-balasingam-vs-secretary-ministry',
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
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	'Judgement' => array(
		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
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		'casesref' => 'Kamarunnissa v. Union of India;',
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		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
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	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
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$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.'

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) :

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.'

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are :

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor;

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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(2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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(3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1992CriLJ2505',
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		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
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22. Petition allowed.

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	'title_for_layout' => 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '785895',
			'acts' => '',
			'appealno' => 'Writ Petn. No. 17004 of 1990',
			'appellant' => 'Rukumani Devi Balasingam',
			'authreffered' => '',
			'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
			'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
			'caseanalysis' => null,
			'casesref' => 'Kamarunnissa v. Union of India;',
			'citingcases' => '',
			'counselplain' => ' S. Shanmughavelayutham, Adv.',
			'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
			'court' => 'Chennai',
			'court_type' => 'HC',
			'decidedon' => '1991-03-27',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Janarthanam and ;Mishra, JJ.',
			'judgement' => '<p style="text-align: justify;">Janarthanam, J.</p><p style="text-align: justify;">1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p style="text-align: justify;">2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p style="text-align: justify;">3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p style="text-align: justify;">4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p style="text-align: justify;">5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p style="text-align: justify;">6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p style="text-align: justify;">7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p style="text-align: justify;">8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p style="text-align: justify;">9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p style="text-align: justify;">10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p style="text-align: justify;">'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p style="text-align: justify;"> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p style="text-align: justify;">11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p style="text-align: justify;">'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p style="text-align: justify;">12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p style="text-align: justify;">'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p style="text-align: justify;">13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p style="text-align: justify;">14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p style="text-align: justify;">15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p style="text-align: justify;">16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p style="text-align: justify;">17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p style="text-align: justify;">(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p style="text-align: justify;"> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p style="text-align: justify;"> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p style="text-align: justify;">18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p style="text-align: justify;">19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p style="text-align: justify;">20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p style="text-align: justify;">21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p style="text-align: justify;">22. Petition allowed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'prhistory' => '',
			'pubs' => '1992CriLJ2505',
			'ratiodecidendi' => '',
			'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
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$title_for_layout = 'Rukumani Devi Balasingam Vs the Joint Secretary to Govt of India Ministry of Finance Dept of Revenue and Another - Citation 785895 - Court Judgment | '
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		'id' => '785895',
		'acts' => '',
		'appealno' => 'Writ Petn. No. 17004 of 1990',
		'appellant' => 'Rukumani Devi Balasingam',
		'authreffered' => '',
		'casename' => 'Rukumani Devi Balasingam Vs. the Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'casenote' => 'Criminal - detention - Section 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - petitioner detained under Section 3 (1) by Union of India - Order of detention challenged - there is likelihood of grant of bail to persons accused of such offence - bail moved by detenu before Session Court dismissed - also accused did not allowed to move before any forum for release on bail - in such circumstances impugned Order of detention not comprehendable - held, detention Order quashed.


 -  -  On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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. 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 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 ? In dealing with this point, it is necessary to state the relevant facts which are not in dispute. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary 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 inevitably postulates freedom of action to the said person at the relevant time. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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. (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing.',
		'caseanalysis' => null,
		'casesref' => 'Kamarunnissa v. Union of India;',
		'citingcases' => '',
		'counselplain' => ' S. Shanmughavelayutham, Adv.',
		'counseldef' => ' T. Srinivasamoorthy, Addl. Central Govt. Standing Counsel and ;A. Shanmughasundaram, Addl. Public Prosecutor',
		'court' => 'Chennai',
		'court_type' => 'HC',
		'decidedon' => '1991-03-27',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Janarthanam and ;Mishra, JJ.',
		'judgement' => '<p>Janarthanam, J.</p><p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. </p><p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. </p><p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. </p><p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. </p><p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). </p><p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. </p><p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. </p><p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. </p><p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. </p><p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- </p><p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. </p><p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' </p><p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : </p><p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' </p><p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : </p><p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' </p><p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. </p><p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. </p><p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. </p><p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. </p><p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : </p><p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; </p><p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and </p><p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. </p><p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. </p><p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. </p><p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. </p><p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. </p><p>22. Petition allowed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1992CriLJ2505',
		'ratiodecidendi' => '',
		'respondent' => 'The Joint Secretary to Govt. of India, Ministry of Finance, Dept. of Revenue and Another',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'rukumani-devi-balasingam-vs-secretary-ministry'
$args = array(
	(int) 0 => '785895',
	(int) 1 => 'rukumani-devi-balasingam-vs-secretary-ministry'
)
$url = 'https://sooperkanoon.com/case/amp/785895/rukumani-devi-balasingam-vs-secretary-ministry'
$ctype = ' High Court'
$caseref = 'Kamarunnissa v. Union of India<br>'
$content = array(
	(int) 0 => '<p>Janarthanam, J.',
	(int) 1 => '<p>1. The petitioner detenu Rukmani Devi Balasingam challenges the order of detention F. No. 801/13/90-PITNOPS dated 26-6-1990 passed by the Union of India represented by the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing her from engaging in the possession, transportation and concealment of Narcotic Drugs. ',
	(int) 2 => '<p>2. On 19-5-1990, she, holder of Sri Lankan passport No. A. 187034 and bound for Colombo by Air Lanka Flight No. UL 132 came to the Customs Baggage Examination Hall at Trichy Airport for customs clearance. She was holding Air Lanka Flight Ticket No. 603 : 4400 : 280 : 283 : 5, for travels to Colombo. The Customs officials were already in receipt of credible information that she was to transport Narcotic Drugs illicitly by concealing them in the stem portion of Kuthuvilakhus (oil lamps used for religious purposes). Consequently the baggages produced by her for examination were examined in the presence of two independent witnesses. Such examination revealed concealment of 1590 grams of pale brown colour powder in the stem of 15 Nos. of Kuthuvilakhus packed in a rexin bag. On enquiry, she informed the officer that the said powder was Narcotic Drug. The said powder was consequently seized for further action. Kuthuvilakhus, air ticket and other belongings inclusive of the rexin bag were also seized. The value of the brown powder held under seizure was Rupees 1,59,000/- and the value of the other goods was Rs. 650/-. ',
	(int) 3 => '<p>3. She appeared to have given a statement making starting revelations. She had been residing at Mavadi Lane, Odakkarai, Paruthithurai, Jaffna, Sri Lanka. She is married and living with her husband, a Sri Lankan national. Her family appeared to have been ridden with acute financial crisis. Consequently, in order to avert such financial crisis and save the family from ruin, she resorted to procure goods in India and sell them in Sri Lanka for profit and vice versa, for the past seven years. She came to India on 21-4-1990 and was staying at United Lodge, Trichy. One Thangappan of Sri Lanka was staying at No. 7, SBI Colony, Edamalaipattipudur. Trichy and he used to render all financial assistance to her. He met her in the said lodge about 4 or 5 days before her departure for Sri Lanka and handed over the kuthuvilakhus concealed with Narcotic drugs with a direction to hand over the same to one Sivalingam at Prasanna Lodge, Colombo. She was promised a reward of Rs. 4,000/- which would be paid to her by the said Sivalingam, on receipt of the goods. ',
	(int) 4 => '<p>4. On the backdrop of such prima facie materials, she was arrested and consequently remanded to judicial custody, on registration of a case. ',
	(int) 5 => '<p>5. The samples of the said powder seized were sent to the Chemical Examiner, Customs, House, Madras. The samples answered the tests for the presence of Diacetyle Morphine, which is covered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDP'S Act'). ',
	(int) 6 => '<p>6. From the facts mentioned as above, the detaining authority derived subjective satisfaction that there is compelling necessity for passing the impugned order of detention as otherwise, there was every likelihood of herself released on bail under the normal law and resorting to indulging in illicit traffic of Narcotic drugs. Accordingly, the detaining authority clamped the impugned order and caused the same to be served on the detenue in Prison. ',
	(int) 7 => '<p>7. The other formalities of communication of the order of detention, consideration and disposal of representations, placing all requisite papers before the Advisory Board for consideration and subsequent confirmation of the order of detention had admittedly been duly complied with as required under law. ',
	(int) 8 => '<p>8. Manifold grounds, though raised in the writ petition, learned counsel for the petitioner would however restrict and confine his argument on the sole and lone ground of mounting an attack on the question as to the sustainability of the impugned order of detention, in the absence of cogent and relevant materials for coming to the conclusion of the imminent prospect of the detenue being released on bail and getting herself involved by indulging in illicit traffic in Narcotic drugs. ',
	(int) 9 => '<p>9. The question as to whether a person in jail custody can be served with an order of detention while he is in such custody, a moot and knotty question indeed, came up for consideration in the apex of the judicial administration of this country on many an occasion and seizing the opportunity, the Apex Court in series of pronouncements laid down the law on the subject. We are loathed to load with so much of case laws on this aspect of the matter by referring to all such pronouncements, when especially we had the occasion in innumerable cases of this nature of catelogue all those pronouncements and in this view of the matter, we rather wish to be choosy in making reference to the epoch making judgments of the constitutional Bench in Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 and the latest pronouncement of the Supreme Court in Dharmendra Suganchand Chelawant v. Union of India, : 1990CriLJ1232 besides making reference to the Vicent in Kamarunnissa v. Union of India : 1991CriLJ2058 cited by learned Additional Central Government Standing Counsel. ',
	(int) 10 => '<p>10. In Rameshwar Shaw's case 1964 (1) Cri LJ 257, the Constitutional Bench of Supreme Court expressed (at pp. 261-262 of Cri LJ) :- ',
	(int) 11 => '<p>'As an abstract proposition of law, there may not be any doubt that S. 3(1)(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 with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentence to rigorous imprisonment for ten years. It cannot be seriously 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 irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after 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 by the authority that the detention of the person after his release is necessary. It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. 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 case. ',
	(int) 12 => '<p> 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 In dealing with this point, it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is : was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in Jail 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 or his antecedent history that he has been acting in a prejudicial 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 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 necessary 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 inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be 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 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(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by S. 3(1)(a) and is outside its purview.' ',
	(int) 13 => '<p>11. In Dharmendra Suganchand Chelawant's case : 1990CriLJ1232 , the Supreme Court observed (at p. 1237 of Cri LJ) : ',
	(int) 14 => '<p>'The decision referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for the 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 compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released 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.' ',
	(int) 15 => '<p>12. In the case of Kamarunnissa (1991 Cri LJ 2058), their Lordships of the Supreme Court after referring to various decisions expressed (at pp. 2065-66 of Cri LJ) : ',
	(int) 16 => '<p>'From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that no being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.' ',
	(int) 17 => '<p>13. The proposition of law evolved in Kamarunnissa's case : 1991CriLJ2058 referred to by learned Additional Central Government Standing Counsel and other innumerable decisions rendered so far by the apex of the judicial administration of this country is not in any way different from the proposition of law evolved by the Supreme Court in the Constitution Bench decision in Rameshwar Shaw's case 1964 (1) Cri LJ 257. It can further be seen that no decision of the Supreme Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances whatever. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. ',
	(int) 18 => '<p>14. Coming to the facts of the instant case, we shall endeavour to find out whether the clamping of the order of detention on the detenu whilst in custody would be justified in the circumstances of the case. There is no controversy that subsequent to her remand to judicial custody on 19-5-1990, a bail application presented on 21-5-1990 for her release on bail before the Court of Session, Trichy had been dismissed on 30-5-1990. The impugned order of detention had admittedly been passed on the detenue on 26-6-1990. There is also on pale of controversy that the same had been served on her while she was in prison as a remand prisoner. No doubt true it is that as disclosed by paragraphs 8 and 9 of the order of detention, there was awareness of the detaining authority as to her having been a remand prisoner and notwithstanding this awareness, the detaining authority would say that there is imminent possibility of her coming out on bail and in that eventuality she would indulge in further illicit traffic in Narcotic drug. ',
	(int) 19 => '<p>15. No doubt true it is that plethora prima facie materials furnished by the statement she made before the Customs authorities do indicate her infarcous criminal conduct of indulging in trafficking in Narcotic drugs for the past seven years and making livelihood with ease and grace and without any financial crisis. In such a circumstance, the potentiality for her to engage in prejudicial activities in the near future cannot be ruled out of consideration. But deriving subjective satisfaction on that aspect of the matter alone is not sufficient. It is further necessary for the detaining authority to come to the conclusion that there was imminent possibility of her coming out on bail and without being enlarged on bail, there is a bleak possibility of herself engaging in prejudicial activities. No doubt, the detaining authority had indicated its mind as to the imminent possibility of the detenu being released on bail. It is after all an ipse dixit of the detaining authority without any relevant or cogent materials for arriving at such a conclusion. ',
	(int) 20 => '<p>16. A cursory perusal of the facts of the case will reveal the gravity of the offence she is stated to have committed under the provisions of the NDPS Act. The manner and methodology adopted by her in the illicit transport of Narcotic drugs, in the sense of concealing the said drugs in the stems of kuthuvilakhus indicate in her having been transporting such drugs previously in dexterous fashion without least attracting the attention of the officials. Such an offence under the NDPS Act is viewed seriously and stringent bail provisions had been made under S. 37 of the said Act. The section itself starts with a non obstante clause by stating that 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973, which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail to persons accused of offences under the said Act. ',
	(int) 21 => '<p>17. Certain primordial requisites as ad-numbrated in the section have to be complied with before ever bail is granted to the persons accused of offences under the NDPS Act. They are : ',
	(int) 22 => '<p>(1) Consideration of bail for persons accused of offences under this Act is not possible without giving notice to the Public Prosecutor; ',
	(int) 23 => '<p> (2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act; and ',
	(int) 24 => '<p> (3) An additional finding as also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging in any such offence in the near future. ',
	(int) 25 => '<p>18. Pertinent it is to mention here that on the face of the use of word 'and', a conjunctive conjunction connecting the second and third primordial requisites as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima facie case and the potentiality of the indulgence in committing such an offence in future by the person accused of the offence, the grant of bail was rather inconceivable by the Court, on the face of the mandatory provisions ad-numbrated therein rejecting bail in such circumstances. ',
	(int) 26 => '<p>19. In the backdrop and setting of the case on hand in the light of such a provision, to say that the detenue could have been granted bail under the normal law of the land cannot at all be countenanced. Prudent it is to mention that it is a face of life, born out experience, that grant of bail for such an offence, is more of a mirage than of reality, in the sense of stating that there is likelihood of grant of bail to persons accused of such an offence, as in the instant case, is nothing but a false presentation of reality. Added to this, the sordid feature is that the bail moved by the detenu before the Court of Session, Trichy for her release on bail had admittedly been dismissed and the further agonising factor is that thereafter she did not at all move for her release on bail before any forum whatever. In such a situation, passing of the impugned order of detention is rather not comprehendable. ',
	(int) 27 => '<p>20. For the reasons stated as above, it goes without saying that the impugned order of detention is not sustainable in law. ',
	(int) 28 => '<p>21. We allow the writ petition and direct the detenu to be set at liberty forthwith, unless she is in lawful detention otherwise. ',
	(int) 29 => '<p>22. Petition allowed. <p>',
	(int) 30 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 31
$i = (int) 30
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