MAJMUDAR J. ( 1 ) THE petitioner whose husband is detained purusuant to an order passed under Section 3 (1) of the Gujarat Prevention of Anti-Social Activities Act 1985 (PASA for short) by the Commissioner of Police Ahmedabad city has brought in challenge the said order of detention in this petition on diverse grounds. ( 2 ) THE impugned order is dated 29 It recites that the detaining authority is satisfied with respect to the detenu that the view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city it is necessary to make an order directing him to be detained. Along with the order of detention the detenu was also served with the order indicating that he may be detained in Sabarmati Central Prison. He was also served with grounds of detention supporting the detention order and alongwith the grounds of detention was supplied supporting material on which reliance was placed by the detaining authority for passing the impugned order of detention. The documents supplied along with the grounds of detention are also listed in the index indicating that 10 such documents were supplied and the bunch of documents comprising these documents consisted of 52 pages. The grounds of detention indicated that the detenu is alleged to be involved in various prohibition cases listed in the grounds and these cases were filed under Sections 66 65 and 81 of the Bombay Prohibition Act and they were pending trials. That the detenu was accordingly found to be a bootlegger and his activities as such had disturbed the public order. That conclusion was reached by the detaining authority in the ground of detention on the basis of the statements of witnesses a summary whereof was included in the grounds of detention. ( 3 ) XX xx xx xx ( 4 ) MR. That conclusion was reached by the detaining authority in the ground of detention on the basis of the statements of witnesses a summary whereof was included in the grounds of detention. ( 3 ) XX xx xx xx ( 4 ) MR. H. L. Patel learned Advocate for the petitioner has raised the following contentions in support of the petition: (1)THE detaining authority has not reached a genuine comprehensive satisfaction about the need to detain the detenu under the provisions of PASA Act after considering the vital fact that the detenu was released on bail in the concerned criminal cases in which he was involved and as this vital aspect was not taken into consideration by the detaining authority while passing the impugned order the subjective satisfaction has got vitiated and consequently the order of detention is bad in law. (2) The detaining authority has similarly not considered another vital aspect viz. that instead of detaining the detenu by way of preventive detention it was open to the authorities to get bail orders granted to him by competent criminal court in pending criminal cases cancelled on the ground that despite granting of bail the detenu had continued the alleged nefarious activities and as this lesser remedy was available to the authorities a more drastic order of preventive detention ought not to have been passed. In any case this aspect should have been kept in view by the detaining authority while coming to his subjective satisfaction about absolute need to detain the detenu under the PASA Act and as this vital aspect was not kept in view by the detaining authority his subjective satisfaction underlying passing of the impugned order get vitiated and hence also the detention order is null and void and is liable to be quashed. (3) Similarly the detaining authority while passing the impugned order has not kept in view the fact that there was lesser remedy available against the detenu by way of passing appropriate orders under Section 56 of the Bombay Police Act for actually externing the detenu from the limits of Ahmedabad city where he is alleged to have carried on his nefarious activities as indicated in the order and the grounds of detention and as this aspect of less drastic remedy is not kept in view and has not entered the subjective satisfaction of the detaining authority while passing impugned order the impugned order is liable to be quashed on this ground. (4) That provisions of sub-clause (9) of Clause 13 of the Gujarat Conditions of Detention (PASA) Order 1985 are violative of Articles 14 and 21 of the Constitution and consequently detenu ought to have been granted interview with the lawyer of his choice for drafting the representation against the detention order and as that has not been done continued detention has become invalid as it has violated the constitutional right guaranted by Article 21 (5) of the Constitution of India. (5) At the time when the detenu was taken in detention. his family members were not informed in writing about the said fact and about the further fact that he was going to be detained in Sabarmati Central Prison and that has violated the detenus constitutional right guaranteed under Article 21 of the Constitution and even on this ground the detenu is entitled to be set at liberty. (6) That the detaining authority has not forthwith reported the fact of detention of the detenu alongwith the grounds of detention and other supporting material of the State Government as per Section 3 (3) of the Act and even on that ground the order of approval of detention of the detenu by the State Government has become illegal and consequently he is entitled to be set at liberty. (7) The detenu is illiterate and does not know how to write and read Gujarati. At the time when he was taken in detention he was not read over and explained the contents of the grounds and documents. He could not therefore make effective representation against the detention order. That violated his constitutional right under Art. 22 (5) of the Constitution and hence continued detention has become illegal. ( 5 ) MR. At the time when he was taken in detention he was not read over and explained the contents of the grounds and documents. He could not therefore make effective representation against the detention order. That violated his constitutional right under Art. 22 (5) of the Constitution and hence continued detention has become illegal. ( 5 ) MR. B. M. Panchal for the respondents has opposed these contentions and submitted that the impugned detention order is not liable to be set aside on any of the aforesaid grounds. ( 6 ) WE shall deal with the aforesaid contentions seriatim: contention No. 1s So far as the first contention is concerned at para 17 in the petition which was brought in by way of amendment it is alleged that the detenu is involved in 5 prohibition cases punishable under Sections 66 65 and 81 of the Bombay Prohibition Act. All the said offences are non-bailable ones. The detenu has been released on bail by the competent courts in the said cases. The effect of the detenu having been released on bail has not been placed before the detaining authority. The said fact is most material and relevant which would have weighed one way or the other with the detaining authority at the time of passing the order of detention. The order of detention is thus passed without any application of mind. This contention is replied to by the detaining authority in his further affidavit-in-replay dated 12-1-1988. At para 2 thereof it has been averred that the detenu was involved in five prohibition cases which are mentioned in the grounds of detention in detail. The detenu committed the first offence under the Prohibition Act which was registered as C. R. No. 82 of 1984 and he was arrested on 2-2-1984. Second offence was committed under Sections 66-B and 81 of the Bombay Prohibition Act and the same was registered as 303/84. Thereafter are listed other cases in which he was involved and it is then averred that the detenu was arrested for the said offence on 23-5-1987. It is then stated that when the detenu even remained at large during the pendency of the trial he continued his bootlegging activities as shown in the ground of detention. Thereafter are listed other cases in which he was involved and it is then averred that the detenu was arrested for the said offence on 23-5-1987. It is then stated that when the detenu even remained at large during the pendency of the trial he continued his bootlegging activities as shown in the ground of detention. It is crystal clear that the detenu was arrested on commission of one offence and thereafter also he was arrested in another offence as shown in the ground of detention. That itself is sufficient to visualise that the man was arrested in the commission of and offence and while he was at large committed another offence. Thus the detenu successively repeating the offence continued his nefarious activities and these factors were taken into consideration while passing the order of detention. Mr. Patel for the petitioner placing reliance amongst others on the latest decision of the Supreme Court in case of Vijay Kumar v. Union of India and others reported in Judgments Today 1988 S. C. 448 submitted that the satisfaction of the detaining authority on the relevant factor must be reflected in the grounds of detention themselves and cannot be supplemented by filing affidavit before the court where such a contention is raised. It is true that in the aforesaid decision Dutt J. speaking for the Supreme Court while considering the question whether the detaining authority in that case was alive to the fact that the detenu prior to his detention was arrested in customs case under Section 135 of the Customs Act observed in para 15 of the report after considering various judgment of the Supreme Court as under :" On a conspectus of the above decisions we are of the view that when a detenu is already under detention for an offence whether bailable or non-bailable the detaining authority will take into his consideration the fact of detention of the detenu and as laid down in Shashi Aggarwals case (supra) there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence. There must be a material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words two facts must appear from the grounds of detention viz. There must be a material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words two facts must appear from the grounds of detention viz. (1) awareness of the detaining authority of the fact that the detenu is already in detention and (2) there must be compelling reasons justifying such detention despite the fact that the detenu is already under detention. " ( 7 ) MR. Patel also invited our attention to a Division Bench judgment of this court (Coram: A. P. Ravani J. and one of us B. S. Kapadia J.) in special criminal application No. 902 of 1987 decided on 29-12-1987 wherein Ravani J. speaking for the Division Bench has observed that averment made in the affidavit-in-reply cannot be taken into consideration because it is the settled legal position that when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons as mentioned simultaneously and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. ( 8 ) MR. Patel also invited our attention to three judgments of the same Division Bench rendered in special criminal application No. 807/87 decided on 16-12-1987; special criminal application No. 831 of 1987 decided on 29-12- 1987 and special criminal application No. 683 decided on 29-12-1987 wherein Ravani J. speaking for the Division Bench in all these cases observed that when the detaining authority was of aware while passing the detention order that the detenu was on bail granted by the competent criminal court in non bailable offence the subjective satisfaction underlying the detention order would get vitiated. ( 9 ) MR. Patel also invited our attention to other Supreme Court decisions on the point. In Vijay Narain Singh v. State of Bihar A. I. R 1984 S. C. 1334 majority of the Supreme Court Bench consisting of O. Chinappa Reddy and Venkataramiah JJ. had to consider the legality of the order of preventive detention as passed against the detenu as an anti-social element under the Bihar Control of Crimes Act 1981 At para 32 of the report Vankataramiah J. considered the Act that the District Magistrate in that case had relied upon three incidents to hold that the petitioner was an anti-social element and liable to be detained under the Act as such. The first incident was-of 15-4-1975 and the second incident was of 17 18 In criminal cases pertaining to both these incidents the detenu was held not guilty by the competent court. The third incident was in connection with pending criminal case. In the light of this fact situation the Supreme Court examined the question whether the detenus activities can be said to be covered by the definition of the words santi-social element which required the concerned person to be habitually committing or attempting to commit or abetting the commission of offences punishable under Chapter XVI or XVII of the Indian Penal Code or habitually committing or abetting the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act 1956 amongst others. It was held that when in earlier incidents criminal cases ended in favour of the detenu they cannot certainly constitute acts or ommissions habitually committed by the detenu that the incidents were of different kinds altogether. So far as the last incident was concerned the matter was pending trial before the sessions court. In that view of the matter it was found that the detenu could not have been detained as a habitual offender so as to satisfy the requirements of the definition of the words antisocial element. It is in the light of this factual background that certain observations have been made in the last part of para 32 on which Strong reliance has been placed by Mr. Patel. They are to the following effect :" It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corner of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court. " ( 10 ) MR. Patel then invited our attention to a decision of the Supreme Court in the case of Ramesh Yadav v. Dist. Magistrate Etah AIR 1986 S. C. 315. In that case a Division Bench of the Supreme Court consisting of A. N. Sen and Ranganath Misra JJ. had to consider the legality of the detention order dated 16 passed on the basis of four incidents referred to in the order in which the detenu was involved. The first incident was of 16-4-1980 the second one was of 10/11-5-1980 the third one was of 4-7-1980 and the last was of 8-1-1983. Of these incidents the Supreme Court found that three incidents were of 1980 prior to the making of even the earlier order of detention and they were certainly stale and not available to be used in an order of detention of 1984. So far as the other incident was concerned the Supreme Court noted that trial had taken place and the detenu was acquitted. That ground there. fore was not available to be used. It is therefore obvious that all the grounds on which detention order was passed were found to be not sustainable. It is thereafter that the Supreme Court considered the reference found in the grounds of detention to the effect that at the time of detention the detenu was detained in district jail Mainpuri and he filed an application for bail which was fixed for hearing on 17-9-1984 and there was positive apprehension that after having bail he will come out of the jail and the detaining authority was convinced that the detenu would indulge in activities prejudicial to the maintenance of public order. Now it should be kept in view that the detention order was passed on 16-9-1984 while the detenu had already moved a bail application and its hearing was fixed on the next day i. e. 17-9-1984. Instead of resisting the said application on merits the detention order was resorted to basing it on the grounds which were found to be unsustainable by the Supreme Court. It is in the background of the aforesaid peculiar facts situation that the Supreme Court held that it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true 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. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. It becomes at once clear that on the peculiar facts in Ramesh Yadavs case (supra) it was apparent that the detaining authority had resorted to preventive detention under National Security Act only with a view to scuttling and fore. closing hearing of the pending bail application hearing whereof was fixed on the very next day. Consequently the aforesaid observations in that case are confined to the facts of that case and cannot be pressed in service for advancing the general proposition that in no case where the person is on bail preventive detention can be resorted to as tried to be suggested by Mr. Patel before us. In fact this position is made clear by a later three-member bench decision of the Supreme Court itself in the case of Suraj Pal Sahu v. State of Maharashtra AIR 1986 S. C. 2177. The Supreme Court was concerned with the preventive detention under the very same Act. Patel before us. In fact this position is made clear by a later three-member bench decision of the Supreme Court itself in the case of Suraj Pal Sahu v. State of Maharashtra AIR 1986 S. C. 2177. The Supreme Court was concerned with the preventive detention under the very same Act. Sabyasachi Mukharji J. speaking for the Supreme Court considered various judgments on the point including Ramesh Yadavs case (supra) and made the following observations in para 28 of the report :"in Ramesh Yadav v. District Magistrate Etah (1985) 4 SCC 232 : ( AIR 1986 SC 315 ) it was held that merely on the ground that an accused in detention 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 respectfully agree with this conclusion. But this 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 respect 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 maintenance of essential supplies and thereby jeopardize the security of the State then subject to other conditions being fulfilled a man being in detention would not detract from the order being passed for preventive detention. "in Suraj Pals case (supra) the Supreme Court had to consider similar contention which was canvassed before us by Mr. Patel that when the detenu was on bail power of preventive detention can be said to have been made to defeat the provisions of ordinary law or Criminal Procedure Code. "in Suraj Pals case (supra) the Supreme Court had to consider similar contention which was canvassed before us by Mr. Patel that when the detenu was on bail power of preventive detention can be said to have been made to defeat the provisions of ordinary law or Criminal Procedure Code. That contention was repelled by the Supreme Court after considering various decisions of the Supreme Court and at para 38 of the report the following pertinent observations were made :"if there was an imminent possibility of the man being set at liberty and his detention coming to an end then it appears as a principle if his detention is otherwise necessary and justified then there is nothing to prevent the appropriate authorities from being satisfied about the necessity of passing an appropriate order detaining the person concerned. "in view of the aforesaid facts therefore it is not possible to agree with the contention of Mr. Patel that the decision of the Supreme Court in Ramesh Yadavs case (supra) is an authority for the proposition that in no case preventive detention can be: directed of a person who is likely to be enlarged on bail or who is actually enlarged on bail. In fairness to Mr. Patel it must be stated that he also did not canvass such an extreme proposition but he modulated the same by submitting that at least the fact that the detenu was enlarged on hail by the competent court should enter the subjective satisfaction of the detaining authority and if that is not borne in mind the subjective satisfaction must be treated to be vitiated being not comprehensive and genuine. ( 11 ) HIGHLIGHTING the aforesaid contention of his he invited our attention to a decision of the Supreme Court in the case of Anant v. State of Maharashtra AIR 19 S. C. 137. In that case V. Khalid J. speaking for the Supreme Court in para 5 of the report considered one contention strongly placed before the court by the petitioners advocate to the effect that the detaining authority was not made aware at the time the detention order was made that the detenu had moved applications for bail in the three pending cases and that he was enlarged on bail on 13-1-1986 14 and 15-1-1986. Absolutely there was no mention in the order about the fact that the petitioner was an under-trial prisoner that he was arrested in connection with the three cases that applications for bail were pending and that he was released on the three successive days in the three cases. That indicated total absence of application of mind on the part of the detaining authority while passing the order of detention. It must be observed that in that case the detention order was dated 15-1-1876. Prior to it on three successive days including the date of detention the detenu was released on bail by the competent court in three pending cases. The detention order was passed in complete ignorance of this aspect and that is why the Supreme Court took the view that the satisfaction was based on total absence of application of mind on the relevant aspect. It is true that in para 6 of the judgment the Supreme Court has observed that If the petitioner is found disturbing law and order or misusing the bail granted to him the authorities would be at liberty to move the appropriate court to get the bail orders cancelled. One does not know how the detaining authority would have acted if he was made aware of the above details. But these observations are made in the light of the peculiar facts situation of the case viz. that on the very day of the detention order and two days prior by three successive bail orders the detenu was released on bail in three pending cases. Therefore instead of resorting to preventive detention the authority could have moved appropriate court to get the bail orders cancelled. But these general observations on the facts of that case cannot be pressed in service to contend that when the detenu is enlarged on bail only proper remedy for the detaining authority is to get the bail cancelled but not the preventive detention. No such general proposition flows from the general observations in para 6 of the report. The only ratio of the aforesaid decision is that the detaining authority should have been made aware of the relevant circumstance that the detenu was already enlarged on bail by the competent court and as that aspect was not before the minds eye of the detaining authority the subjective satisfaction get vitiated. The only ratio of the aforesaid decision is that the detaining authority should have been made aware of the relevant circumstance that the detenu was already enlarged on bail by the competent court and as that aspect was not before the minds eye of the detaining authority the subjective satisfaction get vitiated. ( 12 ) IN this connection it will also be useful to refer to a later decision of the Supreme Court in the case of Poonam Rata v. M. L. Wadhawar AIR 1987 S. C. 2098 In that case the question before the Supreme Court was whether the detention order passed against the detenu under the provision of COFEPOSA was vitiated on account of the fact that the detenu was already in custody when the detention order was passed. Repelling this contention the Supreme Court speaking through Ranganath Misra J. after considering various decisions of the Supreme Court on the point made the following pertinent observations in para 9 of the report :" It is thus clear that the fact that the detenu is already 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 subjectively satisfied that his order of detention became necessary. In the facts of the present case there is 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. We do not think there is any force in this contention of Mr. Garg. Since both the contentions canvassed are rejected the writ petition is dismissed. "in view of the aforesaid settled legal position therefore what we have to see is-whether the detaining authority was aware at the time of passing of the detention order that the detenu was already enlarged on bail by the competent court in a pending criminal case and such awareness is to be gathered from the grounds of detention and the supporting material. Mr. Patels submission is that no such awareness is discernible from the aforesaid documents. Mr. Panchal for the respondents submits to the contrary. Mr. Patels submission is that no such awareness is discernible from the aforesaid documents. Mr. Panchal for the respondents submits to the contrary. ( 13 ) IT becomes therefore necessary to straightway turn to the grounds of detention and the relevant supporting material which was supplied to the detenu at the time of his detention. Para 2 of the grounds of detention lists five criminal cases pending before the competent criminal court against the detenu. As stated earlier these cases are under Sections 66-B 65 and 81 of the Bombay Prohibition Act and they refer the incidents ranging from 2-2-1984 to 23-5-1987. The first four cases are shown to be pending in criminal court while against the last case it is mentioned that investigation is going on. Penultimate column of the table of cases as found in para 2 of the grounds shows the time and date of arrest of the detenu in the concerned cases. This table shows that in the first case he was arrested at 11-30 a. m. on 2-2-1984 in the second case he was arrested at 19. 30 p. m. on 8 in the third case he was arrested on 5-9-1984 at 12. 20 p. m. in the fourth case he was arrested on 25 at 11. 00 a. m. and in the last case he was arrested on 23-5-1987 at 4. 3 a. m. Out of these five cases in the first two and last two the detenu is charged with offences under Section 66-B alongwith Sections 66-E and 81 of the Bombay Prohibition Act. It is not in dispute that Section 65-E indicates a non-bailable offence. After listing these five cases in which the detenu is involved it has been mentioned that on scrutiny of the facts mentioned in the complaints about the aforesaid offences and from the identification statements it was clear that the detenu was a bootlegger and was carrying on the business of illicit liquor and was known as such. When we turn to the supporting material furnished alongwith the grounds of detention to the detenu we find that so far as criminal case No. 428/84 is concerned the detenu was already released on bail. When we turn to the supporting material furnished alongwith the grounds of detention to the detenu we find that so far as criminal case No. 428/84 is concerned the detenu was already released on bail. At page 4 of the grounds of detention after listing evidence of four witnesses it has been observed by detaining authority that detenu was known as a bootlegger and was involved in the activity of selling illicit liqour and his activities could not be curbed under ordinary law because even though with a view to preventing him from indulging in such illicit activities cases were filed under the Prohibition Act he had continued to carry on such activities. It is also stated in the last para on page 5 of the grounds of detention that from the aforesaid facts the detaining authority was fully satisfied that it is not possible to immediately stop the aforesaid activities of the detenu by taking steps against him under ordinary law because even though such steps were taken under ordinary law by filing criminal cases against him and even though such cases were pending in criminal court he had continued these illegal activities and consequently there being no other alternative as a last resort the order of preventive detention was being passed. A conjoint reading of the aforesaid avernments in the grounds of detention and the relevant supporting material leaves no room for doubt that the detaining authority while passing the order of detention was alive to the fact that the detenu was involved in non-bailable offences that these cases were pending against him and that he was released on bail at least in criminal case No. 428/84. ( 14 ) MR. Patel submitted that the grounds of detention and the supporting material did not indicate that in other criminal cases the detenu was released on bail. That it is on the contrary stated that he was under detention. In our view in the light of the nature of the supporting material supplied to the detenu alongwith the grounds of detention it cannot be said that the detaining authority was not alive to the fact that the detenu was on bail when he committed the aforesaid obnoxious acts. In our view in the light of the nature of the supporting material supplied to the detenu alongwith the grounds of detention it cannot be said that the detaining authority was not alive to the fact that the detenu was on bail when he committed the aforesaid obnoxious acts. Supporting material clearly indicates that the detaining authority was alive that in criminal case No. 428/84 the detenu was already released on bail and still it is found that subsequently he was involved in other criminal cases and had continued the illegal activities. That showed that while on bail he had continued his nefarious activities. This is not a case in which the detaining authority can be said to be totally oblivious of the fact that the detenu was released on bail by the court in the concerned criminal case. The very fact that competent criminal court released the detenu on bail in criminal case No. 428/84 in connection with the incident of 5-9-1984 meant that in earlier cases pertaining to incidents dated 2-2-1984 and 8-4-1984 he had been released on bail by the competent court otherwise there would have remained no occasion for the competent court to release the detenu on bail in September 1984. Similarly even though the detenu was on bail in connection with the offence pertaining to the incident of 5-9-1984 he had again indulged in illicit activity which resulted in two more criminal cases against the detenu in February and May 1987. It is also obvious that if he was not enlarged on bail in criminal cases pertaining to these later incidents he would not have committed further crimes later on as deposed to by three eye witnesses whose statements are relied on in the grounds of detention. It cannot be suggested that detenu could have committed such later crimes while in judicial custody pending trial of earlier cases. He of necessity must be at large when he committed these later crimes and this also showed that even subsequently while on bail he had continued with his illegal activity. It cannot be suggested that detenu could have committed such later crimes while in judicial custody pending trial of earlier cases. He of necessity must be at large when he committed these later crimes and this also showed that even subsequently while on bail he had continued with his illegal activity. Therefore in the light of the peculiar facts of this case and the nature of averments found in the grounds of detention and in the supporting material it has to be held that the detaining authority was alive to the fact that the detenu was enlarged on bail by the competent court from time to time when he was involved in criminal cases which were pending trial against him and despite that he had continued his nefarious activities as a bootlegger. Consequently it cannot be said that what is stated by the detaining authority in his affidavit-in-reply at page 57 is an after thought and that it is not reflected by the contemporaneons record in the form of grounds of detention and the supporting material which was supplied to the detenu when he was taken in detention pursuant to the impugned order of detention. The first contention canvassed by Mr. Patel therefore is not factually borne out and it must be held repelling the same that the detaining authority had kept in view the vital fact that the detenu was enlarged on bail by the competent court in criminal cases in which he was involved and having kept this in view the detaining authority reached the prognosis on the relevant material that there was imminent need to preventively detain the detenu with a view to keeping him out of harms way and that the proceedings before the criminal court had been of no effect and had not resulted into any corrective effect on the nefarious activities of the detenu We may at this stage refer to the decision of a division bench of this court in special criminal application No. 585 of 1987 decided by A. P. Ravani and one of us B. S. Kapadia JJ. on 17-12-1987. It has been held therein that the detaining authority has to keep in view the fact that detenu was enlarged on bail by competent court while ordering his preventive detention and if this is not kept in view the subjective satisfaction gets vitiated. There can be no quarrel about this proposition. on 17-12-1987. It has been held therein that the detaining authority has to keep in view the fact that detenu was enlarged on bail by competent court while ordering his preventive detention and if this is not kept in view the subjective satisfaction gets vitiated. There can be no quarrel about this proposition. However the further observations of the Division Bench in para 9 of the judgment that merely because the detenu had committed further criminal acts after his involvement in earlier acts it cannot be said that detaining authority must have kept in view the circumstances that he was on bail in earlier cases and that it would be logic in reverse cannot be treated to be the ratio of the case as the only ratio is to the effect that the circumstance that the detenu was on bail had to be kept in view by the detaining authority while passing order of preventive detention against him. The first contention therefore fails and is rejected. ( 15 ) SECOND Contention: So far as this contention is concerned Mr. Patel submitted placing reliance on the observations of the Supreme Court in Anant Sakharams case (supra) that the detaining authority ought to have kept in view the further fact that the cancellation of bail was a less drastic remedy and that it should have resorted to instead of preventively detaining the detenu. We have already seen above that Anant Sakharams case (supra) is not an authority for the proposition that no preventive detention can be ordered in a case of person who is already enlarged on bail and that the only way to keep such person out of harms way is to get his bail cancelled. We therefore need not dilate on the said decision any further. Mr. Patel in this connection placed strong reliance on the decision of a Division Bench of this court in special criminal application No. 585 of 1987 decided on 17-12-1987 (supra ). In that case as seen earlier the main challenge was to the effect that the detention order was bad in as much as the detaining authority had not kept in view the material and vital circumstance that the detenu who was sought to be detained as a dangerous person under PASA was already released on bail by the competent court. In that case as seen earlier the main challenge was to the effect that the detention order was bad in as much as the detaining authority had not kept in view the material and vital circumstance that the detenu who was sought to be detained as a dangerous person under PASA was already released on bail by the competent court. In that case it was found as a fact that the detaining authority had nowhere referred to the circumstance that the petitioner detenu was released on bail in March 1987 when he was involved in offences under Sections 307 and 341 of I. P. Code read with Section 25 (1) (c) of the Indian Arms Act 1959 while the order of detention was passed on July 30 1987 From the record of the case it was found that the detaining authority while passing the order was totally oblivious of the fact that a few months earlier the detenu was already released on bail. It is in the background of this factual situation that the Division Bench observed that the subjective satisfaction of the detaining authority got vitiated on account of non-consideration of this vital circumstances. The Division Bench speaking through Ravani J. also replied the contention on behalf of the respondents that on the facts of that case granting of bail was irrelevant circumstances. So far as this ratio of Division Bench judgement is concerned as noted earlier it was pressed in service by Mr. Patel in support of his first contention which we have already examined and repelled on merits. However Mr. Patel strongly relied upon the observations in para 6 of the said judgment to the effect that Whether a person involved in an offence should have been released on bail or not and whether his bail can be cancelled or not or whether suitable conditions restraining his movements can be imposed or not are the questions which must weigh with the detaining authority when the detaining authority considers it necessary to detain a person as a preventive measure. All the aforesaid factors pertaining to grant of bail are in the realm of ordinary law. These factors are required to be taken into consideration before the extraordinary measures under the laws of preventive detention are resorted to. At any rate it should be shown that these aspects were present in the mind of the detaining authority. All the aforesaid factors pertaining to grant of bail are in the realm of ordinary law. These factors are required to be taken into consideration before the extraordinary measures under the laws of preventive detention are resorted to. At any rate it should be shown that these aspects were present in the mind of the detaining authority. It becomes at once clear that the aforesaid general observations are clearly obiter observations so far as they pertain to the requirements of keeping in view the questions whether bail can be cancelled or not or whether suitable condition restraining the movement can be imposed or not. It was never canvassed before the Division Bench that the detaining authority had not kept in view the further circumstance that bail can be imposed restricting the movement of the detenu by the competent court. As such a question was never canvassed there was no occassion for the Division Bench to examine such question on merits. Consequently the aforesaid general observations are merely obiter in nature though of course they are entitled to greatest weight and respect. But they cannot be said to be having any binding effect so far as we are concerned. ( 16 ) HOWEVER we must examine the present convention of Mr. Patel in the light of the avernments found in the grounds of detention and the supporting material to which we have already made a reference earlier. Mr. Panchal for the respondents placing reliance on these relevant averments in the grounds of detention submitted that they clearly indicated awareness on the part of the detaining authority that cancellation of bail will serve no purpose. In this connection he placed reliance on the observations of the Division Bench of this court in special criminal application No. 585 of 1987 (supra ). While deciding that case the Division Bench speaking through Ravani J has observed as under in para 6 of the report:" All the aforesaid factors pertaining to grant of bail are in the realm of ordinary law. While deciding that case the Division Bench speaking through Ravani J has observed as under in para 6 of the report:" All the aforesaid factors pertaining to grant of bail are in the realm of ordinary law. "as we have already seen earlier in the last part of para 5 of the grounds the detaining authority has observed that it is not possible to immediately prevent the detenu from his activities by taking steps under ordinary law and as per the ordinary law cases are filed against the detenu and cases are pending in criminal courts and still he has continued his activities. These observations in our view clearly indicate that the detaining authority was aware that cancellation of bail also pertained to realm of ordinary law as observed by the Division Bench in special criminal application No. 585 of 1987. Mr. Panchal is therefore right when he contends that even aspect of cancellation of bail was before the minds eye of the detaining authority when he arrived at the subjective satisfaction about immediate need to detain the detenu under the Act. But even assuming that the grounds of detention cannot be said to have clearly indicated the aforesaid awareness on the part of the detaining authority Mr. Panchal alternatively submitted that cancellation of bail cannot be considered to be relevant as it is not a lesser remedy at all It must be kept in view that when person is to be preventively detained and he is on bail granted by the competent court in pending case by merely getting the bail cancelled his detention cannot be said to be in any way whittled down. That instead of preventive detention he would remain in judicial custody. He would be behind the bars all the same. He cannot be said to be subject to a lesser degree of restriction on his movement as an undertrial prisoner as compared to the restriction on his movements as imposed by preventive detention. ( 17 ) THE aforesaid Contention of Mr. Panchal is quite sound and must be accepted. Concept of lesser remedy con notes that instead of detaining a person he can be kept at large subject to certain restrictions but not in confinement. ( 17 ) THE aforesaid Contention of Mr. Panchal is quite sound and must be accepted. Concept of lesser remedy con notes that instead of detaining a person he can be kept at large subject to certain restrictions but not in confinement. As for example instead of preventively detaining a person and taking him in custody he can be asked to go out of particular territory or area of his operation by way of externment. That would certainly be a less drastic remedy. But instead of detaining him as preventively detained person keeping him in judicial custody cannot result in giving him more freedom or greater liberty. He will be in detention all the same. Nothing was pointed out to us to suggest that an under-trial prisoner enjoys greater freedom of movement as compared to a preventively detained detenu. We may therefore assume that the condition of preventive detention will not be more drastic than the condition of under-trial prisoner and both of them can be treated to be having the same facilities as class II prisoners. Mr. Patel for the petitioner fairly stated that both these classes of prisoners are treated as class II prisoners. Thus whether a person is preventively detained or is detained as an under-trial prisoner his detention would deprive him of his liberty and freedom of movement all the same and he would remain a detenu for all practical purposes. Consequently by depriving a person of his freedom pursuant to bail order by getting his bail cancelled and by taking him in judicial custody it cannot by any stretch of imagination be said that a less drastic remedy as compared to preventive detention is being resorted to. It is therefore not possible to agree with the contention of Mr. Patel that the detaining authority must consider the question of getting the bail cancelled and taking prospective detenu in the judicial custody it being a less drastic remedy. It is therefore an alternative equally drastic remedy and not a less drastic remedy. It is entirely for the detaining authority to decide looking to the facts and circumstances of the case and to cast horoscope of the future activities of the detenu and to arrive at its prognosis. We therefore agree with the submission of Mr. It is therefore an alternative equally drastic remedy and not a less drastic remedy. It is entirely for the detaining authority to decide looking to the facts and circumstances of the case and to cast horoscope of the future activities of the detenu and to arrive at its prognosis. We therefore agree with the submission of Mr. Panchal for the respondents that such a consideration is totally foreign to the scope of preventive detention and has to be treated as irrelevant. ( 18 ) IN this connection it is profitable to have a look at the two decisions of the Supreme Court. In the case of Borjahan v. State of W. B. AIR 1972 S. C. 2256 at para 4 the following pertinent observations are made in connection with the preventive detention vis-a-vis punitive detention :"now merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Judicial trial for punishing the accused for the commission of an offence as also preventive security proceedings in a criminal court against a person merely for keeping the peace or for good behaviour under Chapter VIII of the Code of Criminal Procedure. We may appropriately point out is a jurisdiction distinct from that of detention under the Act which has in view the object of preventing the detenu from acting in any manner prejudicial inter alia to the security of the State or maintenance of public order. The fields of these two jurisdictions are not coextensive nor are they alternative. The jurisdiction under the Act may be invoked when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repetition of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of public order or even when the witnesses may be frightened or scared of coming to a court and deposing about past acts on which the Opinion of the authority concerned is based. This jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satisfaction. The jurisdiction for trial or for preventive proceedings under Chapter VIII Code of Criminal Procedure cannot be successfully invoked in such a situation. In other words a case under the Code of Criminal Procedure whether punitive or preventive depends on the proof of subjective facts which have already taken place whereas a case under the Act providing for preventive detention depends on the subjective satisfaction of the authorities concerned of the likelihood of the person to be detained to act in future in a manner similar to the one seen from his past acts. The authorities mentioned in Section 3 (2) which include the District Magistrate are in our view best suited to decide whether it is necessary to proceed under the Act which decision rests on their subjective satisfaction The grounds of detention relate to the past action with the opinion as to the likelihood of the repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why the subjective satisfaction has been arrived at so as to enable him to represent against them. The fact therefore that a prosecution under the Code could also have been launched is not a valid ground for saying that it precludes the authority from acting under the Act. This contention is thus devoid of merit. We have discussed this aspect somewhat elaborately so as to eliminate any misunderstanding of the true import of our decision and to exclude the possibility of any impression that the Act vests in the authority arbitrary power to select one or the other course dealing with the same or exactly similar situation. In the case of Shri Ratan Makim v. Union of India AIR 1986 S. C. 610 the Supreme Court speaking through P. N. Bhagwati C. J. examined this very question and laid down as under while rejecting the contention that the detaining authority must first decide as to whether the detenu can be criminally prosecuted rather than preventively detained and the power of detention cannot be used to subvert supplant or substitute the punitive law of the land :"this argument completely overlooks the fact that the object of making an order of detention is preventive while the object of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made it would not invalidate the order of detention because as pointed out by this court in Mohd. Subrati v. State of West Bengal (1973) 3 SCCC 250: ( AIR 1973 SC 207 ) the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter the order of detention would not be bad merely because the criminal prosecution has failed. If the failure of the criminal prosecution can be no bar to the making of an order of detention a fortiori the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an order of detention. If an order of detention is made only to bypass a criminal prosecution which may be irksome because of the inconvenience of providing guilt in a court of law it would certainly be an abuse of the power of preventive detention and the order of detention would be bad. But if the object of making the order of detention is to prevent the commission in future of activities injurious to the commodity it would be a perfectly legitimate exercise of power to make the order of detention. The court would have to consider all the facts and circumstances of the case in order to determine on which side of the line the order of detention falls. WHERE the detenu was caught in the act of smuggling goods and the circumstances in which the gold was being smuggled as also the facts set out in the written statement of the detenu clearly indicated that the detenu was engaged in the activity of smuggling gold and if that be so it could not be said that the order of detention was passed by authority with a view to subverting supplanting or substituting the criminal law of the land. The order of detention was passed plainly and indubitably with a view to preventing the detenu from continuing the activity of smuggling and it was therefore a perfectly valid order of detention. The order of detention was passed plainly and indubitably with a view to preventing the detenu from continuing the activity of smuggling and it was therefore a perfectly valid order of detention. In view of this settled legal position therefore it has to be held that merely because criminal cases are pending against the detenu and in such cases bail order granted to him can be get cancelled on relevant grounds it cannot be said that the detaining authority cannot legitimately proceed to detain the detenu in the facts and circumstances of a given case if the material on record before the detaining authority is such which calls for immediate preventive action so as to put the detenu not of harms way. If such criminal proceedings are no bar it becomes obvious that getting bail of the detenu cancelled in such pending criminal cases and putting him in judicial custody would not be strictly relevant for deciding the question whether the detenu is required to be preventively detained and for which prognosis is to be made on the basis of the available data. Consequently the contention of Mr. Patel that the detaining authority ought to have considered the question of cancelling of bail before deciding to preventively detain the detenu and that such consideration pertained to resorting to less drastic remedy is totally devoid of any substance and cannot be accepted. ( 19 ) HOWEVER in the alternative it was submitted by Mr. Panchal for the respondents that even if it in assumed that such consideration was relevant and germane to the question of preventive detention of the detenu on the facts of the present case at least such consideration would be totally irrelevant. He submitted that in the present case pending criminal cases against the detenu are all under Sections 54-E 66 and 81 of the Bombay Prohibition Act. They pertained to the alleged nefarious activities of the detenu in which he is said to have stored and sold prohibited liquor himself or having abetted his accomplices in those nefarious activities. That offence under Section 66-B is bailable but the offence under Section 65-E is nonbailable. They pertained to the alleged nefarious activities of the detenu in which he is said to have stored and sold prohibited liquor himself or having abetted his accomplices in those nefarious activities. That offence under Section 66-B is bailable but the offence under Section 65-E is nonbailable. That even though in such a case the detenu might have been enlarged on bail no condition can ever have been imposed by the learned Magistrate against the accused in such criminal cases to the effect that the accused while enlarged on bail in such cases shall not indulge in similar offences pending the trial meaning thereby he shall not store and sell prohibited liquor and that in any case his activities should not reach such pitch in which public order would get disturbed. The aforesaid contention of Mr. Panchal for the respondents is sound and must be accepted. It must be kept in view that when an accused is arrested in contention with a prohibition offence under Section 66-B or 65-E and he is enlarged on bail by the learned Magistrate it cannot be said that such offence falls in the category of offences described by Section 437 (3) of the Code of Criminal Procedure which reads as under:" (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI Chapter XVI or Chapter XVIII of the Indian Penal Code (45 of 1860) or abetment of or conspiracy or attempt to commit any such offence is released on bail under sub-section (1) the court may impose any condition which the court considers necessary; (a)in order to ensure that such per. son shall attend in accordance with the conditions of the bond executed under this Chapter or (b) in order to ensure that such per son shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected or (c) otherwise in the interest of justicemr. Patel also did not dispute this position. Patel also did not dispute this position. Once this so it becomes at once clear that no such condition as is laid down by Section 437 (3) (b) to the effect that accused shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected can be imposed while enlarging him on bail pending trial for offence under Section 65 (e) or Section 66 of the Prohibition Act. When we turn to Section 439 we find similar legislative intention as discernible therefrom. It provides as under :" (1) A High Court or court of session may direct (a) that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in sub-section (3) of Section 37 may impose any condition which it considers necessary for the purposes mentioned in that sub-section. Thus it is obvious that unless the offence is one of the offences categorised in sub-section (3) of Section 437 the learned Magistrate cannot impose as a condition of bail pending investigation and/or trial of such offence that the accused shall not commit similar offence for which he has been arrested and brought before him. In this case we are not concerned with the exercise of inherent powers of the High Court for imposing suitable conditions before enlarging the accused on bail. We therefore need not dilate on this aspect but it must be held that so far the learned Magistrate is concerned his power to impose condition before enlarging the accused on bail will necessarily be circumscribed by Section 437 (3 ). However Mr. We therefore need not dilate on this aspect but it must be held that so far the learned Magistrate is concerned his power to impose condition before enlarging the accused on bail will necessarily be circumscribed by Section 437 (3 ). However Mr. Patel vehemently submitted that Section 437 (1) gives direction to the learned Magistrate to enlarge the accused on bail even in non-bailable offences and that even the fetters put on the powers of the learned Magistrate in such cases while considering the application for enlarging the accused on bail as laid down by sub-section (1) (I) of Section 437 the accused is said to have been guilty of an offence punishable with death or imprisonment for life and subsection (1) (ii) where the offence is a cognizable offence and the accused had been previously convicted of an offence punishable with death imprisonment for life or imprisonment of seven years or more or he had been previously convicted on two or more occasions of a nonbailable and cognizable offence are also whittled down by first two provisos to sub-section (1) of Section 437 which lay down that the court may direct that a person referred to in clause (i) or clause (ii) be released or bail if such person is under the age of sixteen years or is a woman or is sick or infirm and that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason. Mr. Patel also placing reliance on the third proviso submitted that mere fact that the accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the court. Placing reliance on this provisions Mr. Patel submitted that even in non-bailable offences the learned Magistrate has directions to enlarge the accused on bail in circumstances contemplated by the legislature. There cannot be any dispute about the said proposition. We also agree with Mr. Placing reliance on this provisions Mr. Patel submitted that even in non-bailable offences the learned Magistrate has directions to enlarge the accused on bail in circumstances contemplated by the legislature. There cannot be any dispute about the said proposition. We also agree with Mr. Patel that in suitable cases the learned Magistrate while enlarging the accused on bail in non-bailable cases under Section 437 (i) will be entitled to impose reasonable conditions. But in any case a condition that he may not commit same type of offence during investigation or trial or in any case he may not disturb public order would be a condition which would be totally de hors the provision of Section 437 (1) read with Section 437 (3 ). If Mr. Patels contention is accepted then provision of sub-section 437 (3) (b) would be rendered totally otiose and redundant. We fail to understand how in prohibition cases where the accused is charged of an offence of having stored or sold illicit liquor he can be asked as a condition of bail that he shall not store and shall not sell illicit liquor which would itself be a separate offence and how in such a case it can be laid down that he should regulate his activities as not to disturb public order. It must be kept in view that disturbance of public order by alleged bootllegging activities of the detenu would entitle the detaining authority to preventively detain the detenu under PASA. But the learned Magistrate enlarging accused on bail in pending criminal case under Sections 65 E and 66-1 (b) is not the least concerned with the future disturbance of public order by such accused. In any case future disturbance of public order by such accused cannot be said to be in any way relating to commission of similar offence of which the accused is charged or of which he is suspected. Mr. Patel submitted to that the detaining authority should have addressed itself to the question as to whether bail order granted to the detenu in criminal cases pending against the detenu under Sections 66 B and 65-E could have been got cancelled on the ground that despite such bail the detenu had misbehaved pending trial and had indulged in bootlegging activities which had disturbed public order and thus had committed breach of condition of bail imposed on him. As we have seen earlier it is difficult to visualise how the learned Magistrate could have imposed a condition on the detenu that he should not carry on bootlegging activity pending trial and in any case his activity should not reach such pitch as would disturb public order. If such a condition cannot legitimately be imposed while granting bail in such cases it is obvious that there would be no scope for approaching the criminal court with a request to cancel the bail for non compliance with such impermissible condition. Therefore there cannot remain any occasion for the detained authority to consider such a hypothetical question before deciding to preventively detain the detenu on being satisfied that the detenu while on bail had disturbed public order and which situation required immediate preventive detention. ( 20 ) IN this connection it is necessary to keep in view the following petition observations made by V. R. Krishna Iyer J. in the case of G. Narasimhulu v. Public Prosecutor A. P. AIR 19 78 S. C. 429 while considering the scope and ambit of judicial direction underlying granting of bail. "what then is Judicial discretion in this bail context. In the elegant words of Benzamin Cardozo the judge even when he is free is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant roaming at will in purusuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition methodized by analogy disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remain. (The Nature of the Judicial Process. Yala University Press (1921.) Even so it is useful to notice the tart terms of Lord Camden that the discretion of a Judge is the law of tyrants; it is always unknown it is different in different man; it is casual and depends upon Constitution tamper and possession. In the best it is often times caprice in the worst it is every vice folly and passion to which human nature is liable. . . . (1 Bovu. Law Dicrawless III Revision p. 885-quoted in Judicial Discretion-National College of the State Judiciary Rano. In the best it is often times caprice in the worst it is every vice folly and passion to which human nature is liable. . . . (1 Bovu. Law Dicrawless III Revision p. 885-quoted in Judicial Discretion-National College of the State Judiciary Rano. Nevada p. 14 ). it has to be kept in view that any condition imposed while granting bail must have reference to the fairness or propriety of investigation or trial and the condition which has no such reference would be an extraneous condition. That balance should be maintained between the personal liberty of the accused and the investigational right of the police and it must result in minimum interference with personal liberty of the accused and the right of the police to investigate the case even when the question of granting of bail pending investigation has to be considered. It is also well settled that the main purpose for which bail is granted with or without surety is to ensure presence of the accused pending investigation or pending trial as the case may be. Suitable condition can therefore be imposed in this connection under Section 437 (1) even independent of the conditions which may be imposed in cases falling under sub-section (3) of Section 437. If the prosecutions contention is that pending trial the accused even though granted bail should be made to behave in such a way that he may not tamper with witnesses suitable condition for safeguarding this position can be imposed by the learned Magistrate while granting bail under Section 437 Howev er in imposing condition while granting bail to an accused person the courts must be extremely chary and see that they maintain a balance between the personal liberty of the accused and the investigational rights of the police. Viewed from this angle it must be held that in exercise of judicial discretion under Section 437 (1) Criminal Procedure Code learned Magistrate cannot impose any onerous condition on the accused which is de hors the very scheme of bail jurisdiction. . ( 21 ) IN this connection we may also refer to a decision of the Supreme Court in the case of Bhagirathsinh v. State of Gujarat AIR 1984 SC 372 . wherein D. A. Desai J. speaking for the Supreme Court clearly laid down the limited scope and ambit of proceedings for cancelling of bail pending trial of the case. ( 21 ) IN this connection we may also refer to a decision of the Supreme Court in the case of Bhagirathsinh v. State of Gujarat AIR 1984 SC 372 . wherein D. A. Desai J. speaking for the Supreme Court clearly laid down the limited scope and ambit of proceedings for cancelling of bail pending trial of the case. It has been laid down as under: Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie cast there is no question of considering other circumstances. But even where a prima facie case is established the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence In view of this settled legal position therefore it is too much for Mr. Patel to submit that the detaining authority on the facts of the present case should have considered the question of getting the bail order of the detenu cancelled on the ground that pending trial when he was released on bail he had misused the supposed prohibitory condition of bail by disturbing public order for which cancellation of bail would be the alternative remedy instead of detaining the detenu by way of preventive detention for the said disturbance of public order. Even on this ground also therefore it must be held that the consideration pressed in service by Mr. Patel for the scrutiny of the detaining authority prior to passing of the order of detention cannot be held to be at all relevant or germane. For all these reasons the second contention canvassed by Mr. Patel is found to be devoid of any substance and is repelled. Patel for the scrutiny of the detaining authority prior to passing of the order of detention cannot be held to be at all relevant or germane. For all these reasons the second contention canvassed by Mr. Patel is found to be devoid of any substance and is repelled. ( 22 ) ( 23 ) XXX xxx xxx ( 24 ) XXX xxx xxx ( 25 ) XXX xxx xxx ( 26 ) XXX xxx xxx ( 27 ) XXX xxx xxx ( 28 ) XXX xxx xxx .