SANTOSH SITARAM NAHARKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this petition, under Article 226 of the Constitution of INdia, the order of detention, passed on 18-04-1996 under Sub-section (2) of Section 3 of the National Security Act read with Government Order Home Department No. NSA. 2396/spl. 3 (B) dated the 29th March 1996, by Respondent No.2 - Commissioner of Police, Nagpur with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order, is challenged by the petitioner-detenue. The order of detention has been served upon the petitioner on 29-04-1996. The order of detention is based upon 2 incidents of robbery dated 19-03-1996 and 29-03-1996 as mentioned in the grounds of detention-Annexure-2 to this petition.

(2.) SINCE, we are disposing of this petition only on one ground which is based on admitted position of facts and question of law, it is unnecessary for us to refer to the prejudicial activities alleged against the petitioner in the grounds of detention.

(3.) WE have heard Shri Jaiswal for the petitioner and Shri R. R. Paranjape, A. P. P. for the Respondents no. 1 and 2.The question, whether the order of detention can be passed against a person who is already in the custody is no more re-integra. In the latest decision, in the case of, Surya Prakash Sharma Vs. State of U. P. and others, reported in 1995 Cri. L. J. , Page 2657, this is what the supreme Court has observed in para 5, after referring to the earlier decisions, in the case of, Dharmendra Suganchand Chelawat Vs. Union of India, reported in AIR 1990, SC, Page 1196, and Rameshwar Shaw Vs. District Magistrate, Burdwan, reported in AIR 1964, SC, page 334. : " The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were 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 implied 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. "