G. T. NANAVATI, J. ( 1 ) SMT. Nisha Sahai Achuthan Joint Secretary to the Government of India specially empowered under Sec. 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Subs- tances Act 1988 passed an order dated 19/05/1989 for the detention of the petitioner on being satisfied that in order to prevent the petitioner from abetting in the sale of Narcotic Drugs it was necessary to make that order. That order is challenged in this petition by the petitioner on various grounds. However it is not necessary to refer to all of them as this petition deserves to be allowed on the ground that the petitioner was in custody while the detention order came to be passed against him and there was no material before the detaining authority to show that there was a possibility of the petitioner being released on bail in near future. ( 2 ) IN substance the allegation against the petitioner is that he is a member of a gang dealing in Brown Sugar. The grounds of deten- tion disclose that Brown Sugar weighing 2 kgs. was brought from one Gom Singh of Rajasthan by Jerambhai Lajjaram Jat and was delivered to Ranmal S. Lodha who sold the same to Rikhabchand at the rate of Rs. 25 0 per kg. Rikhabchand brought the said Brown Sugar to Ahmedabad and handed over the same to one Mohabat Singh. Mohabat Singh contacted the petitioner for the purpose of finding out a buyer. The petitioner was to be paid Rs. 500. 00 for finding out a buyer. At his instance the said Brown Sugar was delivered to one Shiril for sale. While the Brown Sugar was carried in a rickshaw it was Intercepted by the customs officers and that is how the racket had come to light. ( 3 ) WHAT is urged by the learned Counsel for the petitioner is that the petitioner was arrested on 27-2-1989 by the Customs Department and was produced before the Chief Metropolitan Magistrate Ahmedabad city on 2-3-1989. The petitioners application for bail was rejected by the learned Magistrate on 2-3-1989 and since that date he is in Jail. ( 3 ) WHAT is urged by the learned Counsel for the petitioner is that the petitioner was arrested on 27-2-1989 by the Customs Department and was produced before the Chief Metropolitan Magistrate Ahmedabad city on 2-3-1989. The petitioners application for bail was rejected by the learned Magistrate on 2-3-1989 and since that date he is in Jail. It is urged that the petitioner was thus in Jail since more than three months before the order of detenu on came to be passed against him and there was no possibility of the petitioner being released on bail. It was further submitted that for these reasons the satisfaction of the detaining authority that if the petitioner would have released on bail he would have carried on the said prejudicial activity must be regarded as unreasonable as there was no material whatsoever before the detain- ing authority to come to that conclusion. ( 4 ) IN reply to this contention what is stated by the detaining authority is that she was aware of the fact that the petitioners appli- cation for bail was rejected and that he was in Jail at the time when she passed the order of detention. She has stated that the petitioner was arrested on 28-2-1989 and not on 27-2-1989 and that the fact that he was in Jail whom she passed the detention order was present to her mind. She has further stated in paragraph 12 of her affidavit in reply that despite the fact that the petitioner was in custody she fount it necessary to detain him since the possibility of his being released on bail and involving himself in the prejudicial activity of abetting sale of Narcotic Drugs could not be ruled out. It is further stated that she had thus applied her mind to the fact of the petitioner being In judicial custody but she found it necessary to detain the petitioner in view of the prejudicial activity in which he was found to be involved. It is further stated that she had thus applied her mind to the fact of the petitioner being In judicial custody but she found it necessary to detain the petitioner in view of the prejudicial activity in which he was found to be involved. ( 5 ) IT is no doubt true as held by the Supreme Court is Rameshwar Shaw v. District Magistrate Burdwan AIR 1964 SC 334 and in the case of N. Meera Ram v. Government of T N AIR 1989 SC 2027 that subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case What is required in such cases is the awareness on the part of the detaining authority to the fact of subsisting custody of the detenu and to take that factor into account while making the order and if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detailed in order to prevent him from indulging in such prejudicial activities then the detention order can be validly made even in anticipation to operate on his release Therefore merely on the ground that the petitioner was in custody while the detention order came to be passed against him it cannot be held that the detention order its invalid for that reason In each case it will have to be found out whether the detaining authority was really aware about the custody of the detenu and what was the material before him on the basis of which he came to the conclusion regarding the likelihood of the detenus release on bail and his carrying on the prejudicial activity. The bald statement in the affidavit of the detaining authority that she was aware of the said aspect cannot be regarded as sufficient. So also mere possibility of release by itself cannot be regarded is sufficient to justify passing of a detention order against a person who is in custody In paragraph 20 of the judgment in N. Meeras case (supra) the Supreme Court has observed as follows:. . . So also mere possibility of release by itself cannot be regarded is sufficient to justify passing of a detention order against a person who is in custody In paragraph 20 of the judgment in N. Meeras case (supra) the Supreme Court has observed as follows:. . . Similarly in this decision it was once again pointed out that the detenu being already in jail the more possibility of his release on bail was not enough for prevention detention unless there was material to justify the apprehension that the detenu would indulge in activities prejudicial to the maintenance of public order in case of his release on bail. Thereafter in paragraph 22 the Supreme Court has observed as under 22 We may summarise and reiterate the settled principle Subsisting custody of the detenu by Itself does not invalidate an order of his Prevention detention and the decision must depend on the facts of the particular case preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed whom the detenu is already in custody; the detaining authority must shows its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order but even so if the detaining authority is reasonably satisfied on cogent material that there is likeli- hood of his release and in view of his antecedent activities which are proximate In point of time he must be detained in order to prevent him from Indulging to such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appear to up to be the correct legal positions. In this case neither the detention order nor the grounds disclose any material showing that if the detenu had been released on bail he would have continued his activity of abetting sale of narcotic drugs. The detention order appears to have been made merely on the ground that there is a possibility of his being released on bail. The only material which is referred to by the detaining authority in her reply affidavit is that bail applications of some of the persons involved were pending before the Courts when she made the order. The detention order appears to have been made merely on the ground that there is a possibility of his being released on bail. The only material which is referred to by the detaining authority in her reply affidavit is that bail applications of some of the persons involved were pending before the Courts when she made the order. It is difficult to appreciate how on the basis of such material the detaining authority could have reasonably come to the conclusion that there was also possibility of the petitioner being released on bail The satisfaction which is required is of a reasonable man and that too if possibility being released on bail is based on some material justifying that satisfaction. We do not find any such material either on the record or in the reply affidavit of the detaing authority. ( 6 ) FOR these reasons it will have to be held that satisfaction of the detaining authority regarding the necessity of passing the detention order is not reasonable and failure on her part to apply her mind to this aspect in a proper manner vitiates that satisfaction. Therefore the order of detention will have to be set aside. ( 7 ) IN the result this petition is allowed The impugned order of detention is set aside We would have ordered his release forthwith but for the reason that he is in Jail pursuant to his arrest in the criminal filed against him We therefore direct the Jail authorities to release him from detention as and when his Jail custody pursuant to the order passed by the learned Magistrate in that criminal case comes to an end Rule is made absolute accordingly with no orders as to costs. .