Holding that special reasons are to be given for passing order of preventive detention against a person already under custody, the Madhya Pradesh High Court quashed a detention order passed under the National Security Act(NSA).
"it is the settlled position of law that the authorities are not precluded from passing an order of detention when the person concerned is in jail, but while passing the order of detention, they are required to apply their mind to the fact that the person concerned is already in jail and there are compelling reasons justifying such detention despite the fact that the detenu was already in detention and the compelling reasons implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that the detenu is likely to be released from custody in the near future or 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", held the bench of Chief Justice H G Ramesh and Justice B K Shrivastava
The judge referred to SC precedents Rameshwar Shaw v. District Magistrate, Burdwan(1964), Veeramani vs State of Tamil Nadu , Vijay Kumar Vs. State of Jammu & Kashmir and Ors etc, to reach its conclusions.
The Court was considering a habeas petition filed by Kamini Yadav, whose husband was detained under the NSA. The Court noted that the accused was already under judicial custody since 40 days back the detention order was passed.However, the District Magistrate did not apply his mind regarding this aspect, and the detention order did not spell out any compelling reason to detain him despite him being in custody. Noting these deficiencies in the order
Stray incident of crime not threat to public order
The Court also observed that stray and sporadic incidents of crime will not amount to threat to public order. Regarding the nature of cases alleged against the detenue, the court observed :
"such sporadic and stale instances referred to and relied upon the detaining authority are of trivial in nature cannot be construed to have the potential of causing threat to maintenance of public order. These are the instances, at best of breach of law and order and they did not establish any live and proximity link to the threat of public order nor does it pass the test of detention order passed for the right purpose".