RIYAZ AHMED KASHMIRI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, detained on 30th August, 1999 under the order of detention dated 24th May, 1999 passed by the respondent No. 2 under the provisions of section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), has challenged his detention by this petition.

(2.) THE aforesaid order of detention, though passed on 24th May, 1999, came to be served on the detenu on 30th August, 1999 when he was already in custody in connection with offence registered under C. R. No. 61/99 under sections 489 (B) and 489 (C) read with section 34 of I. P. C. Petitioner-detenu came to be arrested for the aforesaid offence on 15-8-1999 by D. C. B. , C. I. D. , Mumbai. The petitioner-detenu was served with the order of detention on 30th August, 1999 while he was in police custody. The detention order has been challenged on the sole ground that the detaining authority did not consider the subsequent development which took place between the issue of the order of detention on 24-5-1999 and its actual execution on 30-8-1999 i. e. the arrest of the detenu in connection with the aforesaid crime.

(3.) THE reliance was placed on behalf of the petitioner on the decision of the Supreme Court in the case of (Binod Singh v. District Magistrate, Dhanbad, Bihar and others), reported in A. I. R. 1986 S. C. 2090. In the case before the Supreme Court, the detention order was issued on 2nd January, 1986 when detenu was not in custody. The detenu surrendered himself on 10th January, 1986 in criminal case registered against him on the basis of which the impugned detention order was passed. The detention order issued under section 3 (2) of the National Security Act on 2-1-1986 was served on the detenu on or about 11th January, 1986 while he was in custody. In that context, the Apex Court held that though the order of preventive detention was not invalid when it was passed, the service of the order was not on proper consideration as the detaining authority had not considered the subsequent development that the detenu was already in the custody. The Apex Court in the aforesaid circumstances observed in para 6 of the judgment as follows :