http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: SMT. POONAM LATA

       Vs.

RESPONDENT: M.L. WADHAWAN & ANR.

DATE OF JUDGMENT07/08/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SEN, A.P. (J)

CITATION:  1987 AIR 2098            1987 SCR  (3) 840  1987 SCC  (4)  48        JT 1987 (3)   305  1987 SCALE  (2)281  CITATOR INFO :  RF         1986 SC 596  (8)  RF         1988 SC1835  (8)  F          1989 SC2027  (19)  R          1989 SC2265  (19)

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling  Activities Act, 1974: s.  3(D--Preventive  deten- tion--Order made when detenu in jail--Order whether  vitiat- ed.

HEADNOTE:     In criminal writ petition No. 292 of 1986, preferred  by detenu’s wife on various grounds, the Vacation Judge ordered his release on parole till further orders. However, when the petition  came up for hearing before the Division  Bench  on 3rd March, 1987 the counsel confined his submissions to  one aspect only that arose out of the proceedings in Court i.e., that the period of parole should not be added to the  period of  detention. That plea was rejected and the petition  dis- missed on 22nd April, 1987.     In  the present writ petition filed thereafter on  April 27, 1987 it was averred that the counsel did not give up the other points in the earlier writ petition, and had the Court indicated  that the petitioner’s submission would  not  find favour  with it he would have proceeded to argue  the  case. Further,  two more points were raised: (1) that  the  detenu had been prejudiced in making an effective representation to the  Board against his detention in the absence of the  sum- mons  issued under s. 108 of the Customs Act to  him,  which document  had not been supplied in spite of demand, and  (2) that since the detenu was already in custody at the time the order  of detention was served the said order was liable  to be quashed. Dismissing the writ petition,     HELD:  1.  It  is common experience  that  when  several contentions  are advanced in the pleadings, counsel  chooses to  press one or some out of the several contentions at  the time of the hearing. In the instant case, only one point was argued  at the previous hearing. It was open to the  counsel to make full submissions on all aspects arising in the  writ

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

petition.  That having not been done it was improper on  his part to raise such allegations. [844A, D] 841     2.1  The detenu had been called by the Customs  Authori- ties for investigation on February 27, 1986. A statement had been made by him under s. 108 of the Customs Act and  there- after  he  was taken into custody and  produced  before  the Additional  Chief Metropolitan Magistrate, who remanded  him to custody and directed him to be produced on the  following day  in the court. By the time the order of detention  under s. 3(1) of the COFEPOSA Act for one year came to be made  on February  28, 1986 he was in jail at the most for  one  day. Chargesheet had not been submitted against him in the crimi- nal case. [847FG]     2.2  Since there was no summons and the detenu had  been orally  directed  to attend the office  by  the  authorities concerned, it could not be held that summons under s. 108 of the  Customs Act was in existence. Once the summons was  out in  existence it could not be said that there was  prejudice to the detenu on account of the authority’s withholding  the summons. [846D]     3.1  The fact that the detenu was already  in  detention did not take away the jurisdiction of the detaining authori- ty  in  making  an order of preventive  detention.  What  is necessary  in  a case of that type is to satisfy  the  court when detention is challenged on that ground that the detain- ing  authority  was aware of the fact that  the  detenu  was already  in  custody and yet he was  subjectively  satisfied that his order of detention became necessary. [851D]     3.2  In the instant case, there was sufficient  material to  show that the detaining authority was aware of the  fact that  the petitioner was in custody when the order was  made yet  he  was  satisfied that his  preventive  detention  was necessary. The order of detention was, therefore, not  viti- ated. [851E]     Binod  Singh v. District Magistrate, Dhanbad,  [1986]  4 SCC  416;  Rameshwar Shaw v.  District  Magistrate  Burdwan, [1964]  4  SCR  921; Kartic Chandra Guha v.  State  of  West Bengal, [1975] 3 SCC 490; Dr. Ramakrishna Rawat v.  District Magistrate, Jabalpur, [1975] 4 SCC 164 Vijay Kumar v.  State of Jammu and Kashmir, [1982] 2 SCC 43; Merugu  Satyanarayana v.  State of Andhra Pradesh, [1982] 3 SCC 301 and Suraj  Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378, referred to.

JUDGMENT:     CRIMINAL  ORIGINAL  JURISDICTION: Writ  Petition  (Crl.) No. 408 of 1987. (Under Article 32 of the Constitution of India). 842      R.K. Garg and Ms. Rani Jethmalani (Not present) for the Petitioner.      Anil Dev Singh, Hemant Sharma and Ms. A. Subhashini for the Respondent. The Judgment of the Court Was delivered by     RANGANATH MISRA, J. Petitioner’s husband, Shital  Kumar, was detained by an order passed by the Additional  Secretary to the Government of India, Ministry of Finance,  Department of  Revenue,  dated February 28, 1986, made in  exercise  of powers  vested  under section 3(1) of  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ’the COFEPOSA’). The  peti- tioner made an application to this Court under Article 32 in Writ  Petition (Crl) No. 292 of 1986 challenging that  order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

of  detention. In the earlier writ application, on  15th  of May, 1986, the learned Vacation Judge of this Court made  an order for the release of the detenu on parole on the follow- ing terms:-                         "The  detenu is released  on  parole               until further orders on the condition that  he               will report to the Directorate of Revenue, New               Delhi,  every day and the Directorate will  be               at  liberty to direct him to explain his  con-               duct  during this time  .......  In the  mean-               time  the  respondents will be at  liberty  to               make an application for the revocation of  the               parole if any misconduct or any other activity               comes  to  their  notice  which  requires  the               revocation of the parole." On 3rd March, 1987, the writ petition was listed for hearing before  the  Bench  consisting of both of us.  In  the  writ petition, several contentions had been raised but Mr.  Jeth- malani,  learned  counsel for the  petitioner  confined  his submissions  to only one aspect, namely, that the period  of parole,  that  is, from 15th May, 1986,  till  February  22, 1987, should not be added to the period of detention  speci- fied in the impugned order under section 3(1) of the COFEPO- SA  and  the period of one year from the date  of  detention having expired on February 20, 1987, the impugned order  has lapsed  and the detenu became entitled to be freed from  the impugned  order  of detention. That point  was  examined  at length  and by the judgment of this Court delivered on  22nd April,  1987  in Poonam Lata v. M.L. Wadhawan, AIR  1987  SC 1383 the writ petition was dismissed by saying:- 843                         "In the premises, it must according-               ly be held that the period of parole has to be               excluded in recokning the period of  detention               under  sub-section  (1) of section  3  of  the               Act."               In  paragraph 14 of the judgment, it was  fur-               ther observed:-                        "For these reasons, the only  conten-               tion advanced by Shri Jethmalani in course  of               the hearing namely, that the period of  parole               from  May 15, 1986 to February 28, 1987  could               not  be added to the maximum period of  deten-               tion  of the detenu Shital Kumar for one  year               as  specified in the impugned order of  deten-               tion passed under sub-section (1) of section 3               of  the Conservation of Foreign  Exchange  and               Prevention of Smuggling Activities Act,  1974,               must  fail. The writ petition  is  accordingly               dismissed.  There  shall  be no  order  as  to               costs.  We  direct that the  petitioner  shall               surrender  to  custody  to  undergo  remaining               period  of  detention. We give the  detenu  10               days’  time  to  comply  with  this  direction               failing  which a non-bailable warrant for  his               arrest shall issue."                   This writ petition was thereafter filed on               27th  of  April, 1987. In paragraph 2  of  the               petition,  with reference to the earlier  writ               petition, it was averted:-                        "Arguments   were  advanced  by   the               counsel  for  the petitioner only to  the  one               point and it was clearly stated by the  senior               counsel, Shri Ram Jethmalani, who appeared  in               the  hearing  that  he had  a  strong,  almost

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

             unanswerable  case on merits but he  was  very               keen to have the question of exclusion of  the               parole period decided since it arises squarely               in  this case. It would have been a breach  of               professional  duty on the part of the  counsel               not to raise those points against the validity               of the detention order on which the court  had               prima facie issued notice. Shri Ram  Jethmala-               ni, senior counsel, did not give up the  other               points in the said writ petition. However, the               Hon’ble  Court  has dismissed  the  said  writ               petition  on  22.4. 1987. Though  the  Hon’ble               Court has rightly observed that the only point               which  was argued was on the question  of  the               period of parole it Was submitted that had the               Hon’ble Court indicated that the  petitioner’s               submission  on this score did not find  favour               of  the  Hon’ble  Court,  counsel  would  have               proceeded to argue the case."               844 We  are surprised that in the writ petition which  has  been settled by Mr. Jethmalani, such allegations have been  made. It is common experience that when those several  contentions are advanced in the pleadings, counsel chooses to press  one or  some out of the several contentions at the time  of  the heating.  The  judgment indicated that only  one  point  was argued.  The  averments in paragraph 2 of the  present  writ petition accepts that position. It, therefore, follows  that Mr.   Jethmalani   made   submissions   confined   to    one contention--a  contention which had not been raised  in  the earlier  writ petition but arose out of the  proceedings  in court therein--relating to the effect of release on  parole. The  fact  that Mr. Jethmalani raised  only  one  submission having been accepted, it is a matter of no consequence as to whether  giving up the other pleas raised in the writ  peti- tion amounted to breach of professional duty on the part  of Mr.  Jethmalani. The fact remains that only  one  contention had been raised. There is absolutely no basis for the  alle- gation in paragraph 2 of the writ petition that if the Court had indicated to Mr. Jethmalani in course of arguments  that the  submission  on this limited point did not  find  favour with  the Court he would have proceeded to argue  the  other points.  That certainly was an unusual expectation.  It  was open  to Mr. Jethmalani to make full submission on  all  as- pects  arising  in the writ petition. That having  not  been done, it was improper on the part of Mr. Jethmalani to raise such  allegations  in paragraph 2, as  have  been  extracted above. We are surprised that Mr. Jethmalani who was aware of the  proceedings in the Court and did not dispute  the  fact that he had confined his arguments to one point settled  the writ petition as senior counsel with the allegations  quoted above  in paragraph 2 of the writ petition. This writ  peti- tion  was fixed for final hearing on 31st of July, 1987,  as suggested  by Mr. Jethmalani, but at the hearing he did  not appear and Mr. Garg, senior counsel, appeared for the  peti- tioner. When we pointed out to Mr. Garg about the incorrect- ness of the averments and that the allegations contained  in paragraph 2 are without foundation against the Bench hearing the matter, he pleaded ignorance and stated that it was  for Mr.  Jethmalani  to answer. We do not want to  say  anything more  but  we  think it appropriate to point  out  that  Mr. Jethmalani  on  the  earlier occasion had  argued  the  writ petition  in his own way and had raised only one  contention which was dealt with by the judgment in the writ petition.     Mr. Garg, learned counsel for the petitioner has  raised

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

two  points before us for consideration: (1) the detenu  had been prejudiced in making an effective representation to the Board  against his detention in the absence of  the  summons issued under section 108 of the Customs Act to him. In spite of demand, that document had not been 845 supplied,  and(2) the petitioner was already in  custody  at the  time  the order of detention was served and  since  the detenu  was  already in custody, the order of  detention  is liable to be quashed. In Ground No. 4 of the writ  petition, it has been alleged:-                         "That  the  most  material  document               under  the circumstances turns out to  be  the               summons  which was served on the detenu  being               the  summons referred to in the  letter  dated               21.3.  1986, Annexure E above  mentioned.  The               detenu by his advocate’s letter of 12th April,               1986, has called upon the respondent No. 1  to               supply him with a copy of the summons  because               he  intends  to  use the  said  summons  while               presenting  his  case to the  advisory  board.               True  copy  is annexed hereto  and  marked  as               Annexure F. The request contained in the  said               letter has not been complied with."               In  paragraph 4(iv) of the counter  affidavit,               it has been stated:-                         "In reply to para 4, it is submitted               that  the summons as required by the  detenu’s               advocate  in the letter dated 12.4. 1986  were               not supplied as there were no written  summons               served on the petitioner. I say that after the               completion  of the search of  the  residential               premises  of the petitioner on 27.2. 1986  the               petitioner  was taken by DRI officers. As  the               petitioner. happened to be in the presence  of               the empowered officers of DRI, he was  accord-               ingly told that his presence was required  for               giving evidence and the petitioner accompanied               the DRI officers on his free will. No  written               summons  were, therefore, served on the  peti-               t               i               o               n               e               r  ...........................................               "               Section 108(1) of the Customs Act provides:-                        "Any  gazetted  officer  of   customs               shall  have power to summon any  person  whose               attendance  he considers necessary  either  to               give evidence or to produce a document or  any               other thing in any inquiry which such  officer               is making in connection with the smuggling  of               any goods." No  specific  provision  has been made for  summons  in  the Customs ACt and, therefore, the provisions of section 61  of the  Code  of Criminal Procedure will  be  applicable.  That section provides:- 846                        "Every  summons-issued  by  a   Court               under this Code shall be in writing, in dupli-               cate, signed by the presiding officer of  such               Court  or  by such other officer as  the  High               Court may, from time to time, by rule  direct,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

             and shall bear the seal of the Court."                   On  12th of April, 1986, counsel  for  the               petitioner  wrote  a letter to  the  detaining               authority wherein it was stated:-                        "   ..........   I  have  to  further               request  you to supply me with a copy  of  the               summons said to have been served on client  on               or  about 27th of February, 1986. The DRI  has               not yet supplied to my client the documents as               stated   in  your  above-mentioned   rejection               letter." In  view of the positive case of the respondents that  there was  no summons and the detenu had been orally  directed  to attend  the  office by the authorities concerned,  we  think that  it  would  not be proper to hold  that  summons  under section  108 of the Customs Act was in existence.  Once  the summons  is not in existence, there is no foundation in  the submission that there is prejudice to the detenu on  account of  the authority’s withholding the summons. The first  con- tention fails.     Admittedly the petitioner was taken into custody  around 2.00  p.m. on 27.2.1986, in course of investigation  of  the case. He was produced before the Judicial Magistrate and  an order was made requiring him to be produced next day in  the court.  Paragraphs  7  and 8 of the grounds  served  on  the petitioner run thus:-                        "7--I have carefully gone through the               facts and circumstances of the case,  relevant               documents  and also the statements of  various               persons in the subject case. I have also  seen               and  gone  through  the  various  applications               moved in the court of the ACMM, New Delhi  and               orders passed thereon."                        "8--In  view of the  facts  mentioned               hereinabove, I have no hesitation in  arriving               at  the conclusion that you have been  dealing               in  smuggled goods otherwise than engaging  in               transporting or concealing or keeping smuggled               goods.  Even though the investigations in  the               subject  case is in progress, prosecution  and               adjudication  proceedings  under  the  Customs               Act, 1962, are likely to be initiated                847               against you, I am satisfied that you should be               detained  under  the Conservation  of  Foreign               Exchange  and Prevention of Smuggling  Activi-               ties Act, 1974, with a view to preventing  you               from dealing in smuggled goods otherwise  than               by  engaging in transporting or concealing  or               keeping smuggled goods."               In  paragraph 7 of the  counter-affidavit,  it               has been stated:-               "   .........   The  petitioner,  as   already               stated,  was summoned after the search of  his               residental  premises  on 27.2.  1987  and  his               statement recorded by the competent officer of               DRI. The petitioner was arrested at 2.00  p.m.               on  27.2. 1986 and was produced at  the  resi-               dence  of  ACMM, New Delhi on  27.2.  1986  at               about 8.00 p.m  .........    ......  ".               In  paragraph 9 of the said affidavit,  it  is               further alleged that:-                         "Shri  Shital Kumar was arrested  at               1400  hrs. of 27.2. 1986 and  produced  before               the ACMM around 2000 hrs. at his residence the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

             same day. Shri Shital Kumar was then  remanded               to judicial custody till 28.2.1986 by the said               magistrate." The order of detention is dated 28.2. 1986. It was addressed to the detenu at his residential address at Delhi and not to the jail authorities for service on the detenu.     From  the facts and circumstances emerging in this  case it  is clear that the detenu had been called by the  Customs Authorities for investigation. A statement had been made  by him  under section 108 of the Customs Act and thereafter  he was  taken into custody and produced before  the  Additional Chief  Metropolitan Magistrate who ramanded him  to  custody and directed him to be produced on the following day in  the court.  By the time the order of detention came to  be  made the petitioner was in jail for at the most one day.  Charge- sheet  had  not been submitted against him in  the  criminal case and he had been remanded to the judicial custody on the 27th  of  February, 1986 with the direction to  be  produced before the Metropolitan Magistrate on the 28th of  February, 1986.     Now  it  has to be seen if on these facts the  order  of detention would become vitiated. Strong reliance was  placed by Mr. Garg on a 848 two-Judge judgment of this Court in Binod Singh v.  District Magistrate,  Dhanbad, [1986] 4 SCC 416. Paragraph 3  of  the judgment indicates the facts as follows:-                        "The   petitioner/appellant  was   in               detention  when the  petitioner/appellant  was               served  with  the orders of  detention.  There               were  criminal cases against  the  petitioner.               There  was a murder case in respect  of  Crime               No. 33 1 of 1985. In the said case, investiga-               tion  was in progress and the defence  of  the               petitioner in the murder case was that he  was               falsely  implicated  and was not at  all  con-               cerned  with  the murder. When the  order  was               passed, the petitioner had not surrendered but               when the order was served, the petitioner  had               already surrendered in respect of the criminal               charge against him. At the relevant time,  the               petitioner was under trial in the said  crimi-               nal case." On  such  facts,  it was the contention  of  the  petitioner therein that the order of preventive detention could only be justified  against  a person in detention if  the  detaining authority was satisfied that his release from detention  was imminent  and the order of detention was necessary for  put- ting him back in jail. This Court therein pointed out:-                         "The principles applicable in  these               types of preventive detention cases have  been               discussed  in the decisions of Suraj Pal  Sahu               v. State of Maharashtra, [1986] 4 SCC 378  and               Raj  Kumar Singh v. State of Bihar,  [1986]  4               SCC  407.  Judged  on the basis  of  the  said               principles,  there is no ground for  interfer-               ence  with the order of detention  as  passed.               It,  however, appears that after the order  of               detention  was  passed and before  the  actual               service  of the order of detention, the  peti-               tioner was taken into custody. From the  affi-               davit of the District Magistrate, it does  not               appear  that either the prospect of  immediate               release  of the detenu or other factors  which               can  justify  the  detention of  a  person  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

             detention  were  properly  considered  in  the               light of the principles noted in the aforesaid               decisions  and especially in the decisions  in               Rameshwar Shaw v. District Magistrate, Burdwan               and Ramesh Yadav v. District Magistrate, Etah.                                                                  , , .....................               A Constitution Bench of this Court in  Ramesh-               war  Shaw  v.  District  Magistrate,  Burdwan,               [1964] 4 SCR 921 held as follows:-                849                        "As  an abstract proposition of  law,               there  may  not  be  any  doubt  that  section               3(1)(a)  does not preclude the authority  from               passing an order of detention against a person               whilst he is in detention or in jail; but  the               relevant  facts in connection with the  making               of  the order may differ and that may  make  a               difference in the application of the principle               that a detention order can be passed against a               person in jail."               The self-same question was examined in  Kartic               Chandra Guha v. State of West Bengal, [1975] 3               SCC  490  where a three-Judge  Bench  of  this               Court observed:-                        "It is true that he had been held  in               custody in connection with the offences  under               the  Arms Act which are nonbailable  offences,               but even so, it was open to the trying  magis-               trate  to release the petitioner on bail.  The               District  Magistrate, on information  received               by him, thought that the petitioner was likely               to  be released on bail in which  case  having               regard to his past activities, it was open  to               the District Magistrate to come to the reason-               able  conclusion  that having  regard  to  the               desperate  nature  of the  activities  of  the               petitioner,  his enlargement on bail would  be               no deterrent to his desperate activity.  Hence               the  District Magistrate was entitled to  pass               the  order of detention if that was  necessary               to  prevent  the petitioner from acting  in  a               manner  prejudicial  to  the  maintenance   of               public order."               That  very question again came before  a  two-               Judge  bench in Dr. Ramakrishna Rawat v.  Dis-               trict Magistrate, Jabalpur, [ 1975] 4 SCC  164               where it was observed:-                        "In  the  case in  hand,  as  already               noticed, the petitioner was in jail custody in               proceedings  under section 151 Cr.  P.C.  That               custody was obviously of a short duration. The               mere  service  of the detention order  on  the               petitioner in jail would not therefore invali-               date the order. On the basis of the antecedent               activities of the petitioner in the  proximate               past the detaining authority could  reasonably               reach  its subjective satisfaction  about  his               tendency  or  inclination to act in  a  manner               prejudicial to the maintenance of public order               after  his release on the termination  of  the               security proceedings under the Code."               850               In  Vijay Kumar v. State of Jammu  &  Kashmir,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

             [1982]  2  SCC 43 a two-Judge  Bench  of  this               Court pointed out:-                         "If  the detenu is already  in  jail               charged with a serious offence, he is  thereby               prevented from acting in a manner  prejudicial               to  the  security of the State. May be,  in  a               given case there yet may be the need to  order               preventive  detention of a person  already  in               jail.  But in such a situation  the  detaining               authority must disclose awareness of the  fact               that  the  person  against whom  an  order  of               preventive  detention is being made is to  the               knowledge of the authority already in jail and               yet for compelling reasons a preventive deten-               tion order needs to be made." That  vexed question came before a two-Judge bench  of  this Court in the case of Merugu Satyanarayana v. State of Andhra Pradesh, [1982] 3 SCC 301 wherein it was observed:-                         "Now, if the man is already detained               can a detaining authority be said to have been               subjectively   satisfied  that  a   preventive               detention order be made?" The  Court then referred to the Constitution Bench  decision in Rameshwar Shaw’s case (supra) and left it as a matter  to be  decided in every individual case on its own  facts.  The Court also indicated that it was not a matter of jurisdition but had to be decided on the facts of each case.     We  may now refer to a recent judgment of a  three-Judge Bench in the case of Suraj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378. Mukharji, J. who delivered the judgment in Binod Singh’s case (supra) on which Mr. Garg has relied  has also  delivered  the judgment in this case. Therein  it  was said:-                        "In  Ramesh Yadav v. District  Magis-               trate, Etah, [1985] 4 SCC 232 it was held that               merely on the ground that an accused in deten-               tion  as an undertrial prisoner was likely  to               get  bail,  an order of  detention  under  the               National Security Act should not ordinarily be               passed.  If the apprehension of the  detaining               authority  was true, court observed, the  bail               application had to be opposed and in case bail               was  granted, challenge against that order  in               the higher forum had to be raised. We respect-               fully agree with this conclusion. But this                851               principle  will have to be judged and  applied               in  the facts and circumstances of each  case.               Where  a  person accused of  certain  offences               whereunder he is undergoing trial or has  been               acquitted,  the appeal is pending and  in  re-               spect of which he may be granted bail may  not               in  all circumstances entitle an authority  to               direct preventive detention and the  principle               enunciated  by  the  aforesaid  decision  must               apply  but  where the offences in  respect  of               which the detenu is accused are so interlinked               and  continuous in character and are  of  such               nature  that these affect  continuous  mainte-               nance  of essential supplies and thereby  jeo-               pardise  the security of the State, then  sub-               ject  to other conditions being  fulfilled,  a               man being in detention would not detract  from               the  order being passed for preventive  deten-               tion  .................  "

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

   It  is thus clear that the fact that the detenu  is  al- ready  in detention does not take away the  jurisdiction  of the  detaining  authority in making an order  of  preventive detention.  What is necessary in a case of that type  is  to satisfy  the  court  when detention is  challenged  on  that ground  that the detaining authority was aware of  the  fact that  the detenu was already in custody and yet he was  sub- jectively  satisfied  that  his order  of  detention  became necessary. In the facts of the present case, there is suffi- cient  material  to show that the  detaining  authority  was aware  of the fact that the petitioner was in  custody  when the order was made, yet he was satisfied that his preventive detention was necessary. We do not think there is any  force in  this contention of Mr. Garg. Since both  the  contention canvassed are rejected, the writ petition is dismissed. P.S.S.                                              Petition dismissed. 852