SC:Person already in judicial custody can be detained under concerned act

The Hon’ble Supreme Court, on 22nd November 2019, in the matter of Union of India through Joint Secretary (COFEPOSA), Ministry of Finance, New Delhi v. Ankit Ashok Jalan pronounced that even if a person is in judicial custody, he can be detained under the relevant provisions of the concerned Act. However, before detaining persons under judicial custody, there must be a proper application of mind and subjective satisfaction that there is a reason to believe that the detenus could be released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities.  

The Hon’ble Supreme Court observed that:

Even if a person is in judicial custody, he can be detained under the relevant provisions of the concerned Act. However, there must be a proper application of mind and the Detaining Authority must have been subjectively satisfied on considering the relevant material that there is a reason to believe that there is a real possibility of detenus being released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities.  (Para 8.1)

(Para 8.4) Union of India and another v. Dimple Happy Dhakad (2019 SCC OnLine SC 875), Even if a person is in judicial custody, he can be put on a preventive detention provided there must be an application of mind by the Detaining Authority that

(i) the order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the Detaining Authority was aware of the fact that the detenu was already in custody;

(ii) that the Detaining Authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities; and

(iii) the satisfaction of the Detaining Authority that the detenu is already in custody and is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the Detaining Authority.

Copy of judgement: Judgement_22-Nov-2019

-Adv. Tushar Kaushik

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