SUDHIR MARUTI WAGHMARE Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) BY means of this petition preferred under article 226 of the Constitution of India, the Petitioner/detenu has impugned the detention order dated 5th December, 1995 passed by Respondent No.1 by virtue of the powers vested in him by subsection 2 of Section 3 of the National Secutiry Act, 1980 read with Government order No. Home Department (Spl) No. N. S. A. 2395/1/spl-3 (B) dated 20th November 1995 detaining him under the National Security Act.

(2.) IT is not disputed by the learned counsel for the parties that the petitioner was in custody when the detention order was passed against him. This is borne out from the averments made in para 5 (vi) of the petition and also from the recitals contained in Para 14 of the return filed by Respondent No.1. Since on a plea identical to that raised in the present petition namely that in case of a person in custody if the grounds of detention do not reflect that the said person (detenu) was likely to be released from custody in near future the detention order would be vitiated, Criminal Writ Petition No.227 of 1996. Santosh Prahlad Jadhav Vs. R. D. Tyagi and Ors. was allowed by a Division Bench of this Court, to which one of us (Vishnu Sahai, J.) was a party vide judgement dated 4th October, 1996, we are not detailing the pre-judicial activities of the petitioner. A perusal of the judgement rendered by this court in Criminal Writ Petition No.227 of 1996 shows that it was based on the ratio contained in para 5 of the decision of the Apex Court reported in 1995 Cr. L. J. 2657 (Suryaprakash Sharma Vs. State of U. P. and Ors.) which is to the following effect:- " 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. "

(3.) FOR the reasons stated in the preceeding para we are not inclined to accept the contention of Mrs. Tahilramani.