B. S. KAPADIA, J. : -, J. ( 1 ) THE present petition is filed under Article 226 of the Constitution of India for quashing and setting aside the detention order dated 4-10-1990 passed by the Commissioner of police, Ahmedabad city under Section 350 of asa exercised by the power conferred u/s. 350 of the Act, against the present petitioner. The petitioner was supplied with the grounds of detention on the same day. ( 2 ) ON perusal of the grounds it appears that the petitioner is detained as he was a dangerous person as defined under Section 2 (c) of thepasa act, 1985. In a tabular form it is shown that he was involved in five criminal cases under Chapters XVI and XVII of the Indian Penal Code. Further the statements of 4 persons are recorded, but the detaining authority has exercised privilege under Section 9 (2) of the Act in the public interest by not disclosing the names and addresses of the said persons whose statements are recorded. The petitioner is also supplied with the said statements without the names and addresses of the persons. The detaining authority has also considered the less drastic remedy under Section 56 (b) of the Bombay Police Act. Therefore, the competent authority, on the basis of the material placed before him, was subjectively satisfied about the necessity of detaining the present petitioner. The detaining authority also considered the fact that the petitioner was in custody as he was involved in C. R. No. 604/90 for the offences punishable under Sections 393, 323 as well as under Section 135 (1) of the Bombay Police Act on the ground that at any time can be released on bail and he may continue his criminal anti-social activities. ( 3 ) VARIOUS grounds have been raised in the petition and few more are added by amending the petition. The last two grounds were added at the time of hearing on 24th January 1991 and this being writ petition against the detention order, the petitioner was permitted to raise the said two grounds. ( 4 ) AT the time of hearing Mr. M. C. Kapadia, learned Counsel for the petitioner has mainly raised two grounds before us. The last two grounds were added at the time of hearing on 24th January 1991 and this being writ petition against the detention order, the petitioner was permitted to raise the said two grounds. ( 4 ) AT the time of hearing Mr. M. C. Kapadia, learned Counsel for the petitioner has mainly raised two grounds before us. The first ground is that though the petitioner was in custody, he is detained without considering that if at all he was to be released on bail, the bail application could have been opposed and even if the bail order was granted, that could have been challenged and or the application for cancellation of the bail could have been made. ( 5 ) THE second ground which is raised is that in the five cases which are shown in the tabular form in the grounds for detention, three cases are already pending trial and two are pending investiagation. So far as the three cases are concerned they, are : (1) C. R. No. 111/89 registered at amraiwadi Police Station for the offences punishable under Sections 324, 324, 504, 114 of indian Penal Code as well as under Section 135 ( 1) of the Bombay Police Act and the said offence was alleged to have been committed on 25th february 1989; (2) C. R. No. 196/89 registered at amraiwadi Police Station with regard to the offence punishable under Sections 324,504,114 of I. P. C. as well as Section 135 (1) of the Bombay police Act and the said offence was alleged to have been committed on 14th April 1989; (3) c. R. No. 297/89 of the same police station for the similar offences in C. R. No. 196/89 alleged to have been committed on 13th June 1989. ( 6 ) THE other two cases are pending investigation. Out of the said two cases, one is pending investigation being C. R. No. 604/90 of amraiwadi Police Station for the offences punishable under Sections 393, 323 of IPC as well as Section 135 (1) of the Bombay Police Act which is alleged to have been committed on 27th September 1990. The last one is N. C. complaint No. 1152/90 in respect of the offence under Sections 323 and 504 of IPC alleged to have been committed on 14th September 1990. The last one is N. C. complaint No. 1152/90 in respect of the offence under Sections 323 and 504 of IPC alleged to have been committed on 14th September 1990. ( 7 ) WHAT was submitted earlier at the time of argument was that the statements of the witnesses shown in the chargesheet are considered by the detaining authority, but they have not been supplied and that would affect the right of the petitioner of making effective representation under Article 22 (5) of the Constitution of India. But in the affidavit-in-reply it was pointed out that the statements of those witnesses who are shown as witnesses in the aforesaid cases in the charge-sheet are not considered by the detaining authority and the same were not placed before him. Mr. Kapadia, learned counsel for the petitioner has, therefore, amended the petition on 24th January 1991 raising the last two grounds. The ground is that the subjective satisfaction arrived at by the detaining authority is vitiated on account of the fact that in cases which are pending trial before the court, statements of the witnesses recorded by the Police and referred to in the chargesheet which was filed before the detaining authority also, were not placed before the detaining authority. Similar ground was also raised in respect of the cases pending investigation. ( 8 ) NOW dealing with the first ground with regard to the detention of the petitioner that he was in the custody and that he likely to be released on bail at any time, Mr. M. C. Kapadia submits that the detaining authority should have also considered that when he was in the custody and when bail application is filed by the petitioner certainly that can be opposed and even if it is granted the bail order can be cancelled and that less drastic remedy has not been considered. It may be observed that when the bail is cancelled the petitioner would be again in the custody and either he is in custody on account of cancellation of bail or on account of detention order would make no difference on the point as to whether it is a drastic measure or not and therefore cancellation of bail cannot be treated as less drastic remedy. However, the point that is argued is that the detaining authority has not considered that aspect of opposing the bail application. On this point Mr. However, the point that is argued is that the detaining authority has not considered that aspect of opposing the bail application. On this point Mr. M. C. Kapadia has relied on the judgment in the case of Vijayakumar v. Union of india and Others, reported in AIR 1988 SC 934 . In the said case the order of detention was passed against Vijayakumar on April 1,1987 by Mr. Tarun Roy, Joint Secretary to the Government of india, Ministry of Finance, Departmentof Revenue, New Delhi, the Detaining Authority, under section 3 (1) of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing vijaykumar from dealing in smuggled goods otherwise than (or) by engaging in transporting or concealing or keeping smuggled goods. Before the said order was passed Vijaykumar was arrested on charge under Section 135 of the Customs Act, 1962. In the said case il was urged on behalf of Vijaykumar that the detaining authority was obliged to consider before passing the order of detention that the detenu was already in detention on the charge under Section 135 of the customs Act. Dealing with that point it is observed in para 11 of that judgment that it is not correct to say that the detaining authority was not aware of the fact that Vijaykumar was already in detention on the charge under Section 135 of the customs Act. In paragraph 13 of the ground of detention it was inter alia stated that amongst others Vijaykumar was also arrested by D. R. I, officers on March 13, 1987 and produced before the Additional Chief Metropolitan magistrate, New Delhi and in that event it was observed that it is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention. ( 9 ) AFTER making the aforesaid observation the Supreme Court also considered the observations made in the case of Rameshwar Shaw v. District Magistrate, Burdwan, reported in AIR 1964 SC 334 . The observations were to the effect that whether an order of detention can be against a person who is already in detention or in jail, will always have to be determined in the facts and circumstances of each case. The observations were to the effect that whether an order of detention can be against a person who is already in detention or in jail, will always have to be determined in the facts and circumstances of each case. Further, the supreme Court referred the case in Ramesh Yadav v. District Magistrate, Euih, reported in AIR 1986 SC 315 wherein it was held that merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail, an order of detention under National Security Act should not ordinarily be passed. These observations were heavily relied on by Mr. M. C. Kapadia at the time of his argument. However, in that very case after considering the aforesaid cases they also considered the decision in the case of Suraj Pal Sahu v. State of maharashtra, reported in AIR 1986 SC 2177 . While reiterating the principles of law laid down in Ramesh Yadavs case the Supreme Court observed that where the offences in respect of which the detenu is accused are so inter-linked 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. Thereafter the observations made in the case of Smt. Sashi Aggarwal v. State of UP. reported in AIR 1988 SC 596 were also considered the observations made are as under:"section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its on facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under cus- tody and yet for compelling reasons, his preven- tive detention is necessary. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under cus- tody and yet for compelling reasons, his preven- tive detention is necessary. " ( 10 ) AFTER considering the aforesaid cases the supreme Court, in para 15 of the Judgment, observed 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 Sashi 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 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, namely (1) awareness of the detention 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. " ( 11 ) IN the light of the aforesaid decisions on the point let us now consider the facts of the present case. In this case it is clear from the grounds that there were five cases against the present petitioner. They are under the Penal Code under Chapters XVI and XVII. The sequence in which they have taken place is 25th February 1989, 14th April 1989, 13th June 1989, 14th september 1990 and 27th September 1990. The case of C. R. No. 604/90 which is at serial No. 4 is last in line so far as the time period is con- cerned. Indeed he was in custody so far as the last case No. 604/90 is concerned. In the grounds the detaining authority has clearly mentioned that the petitioner was in the police custody and at any time he could have been released on bail and thereafter he might continue his antisocial criminal activities. Indeed he was in custody so far as the last case No. 604/90 is concerned. In the grounds the detaining authority has clearly mentioned that the petitioner was in the police custody and at any time he could have been released on bail and thereafter he might continue his antisocial criminal activities. The detaining authority has also taken into consideration the statements of four persons in respect of the incidents took place on 15th September 1990,19th September 1990 and 23rd September 1990 but the witnesses were very much afraid of the present petitioner, in the interest of public, the names and addresses of those persons were kept secret. Thus, looking to the criminal activities of the petitioner, it is very clear that the petitioner has become a terror in that locality by disturbing the public order, which is also clear from the statements of the aforesaid witnesses. When so many incidents happened immediately in that very month of September and earlier in the year 1989, the petitioner was involved in three criminal cases one after the other within the interval of practically five months. They are already pending in the trial. Under the circumstances the detaining authority was justified in detaining the petitioner as it is clear from the grounds that there were compelling reasons to detain him. What one has to consider is that whether those grounds would be compelling the detaining authority and it is not necessary that the detaining authority should show the same in the order that there are compelling reasons but it must appear from the grounds that there are compelling circumstances to detain the concerned person though he is under detention. In that view of the matter we do not find any substance on this point. ( 12 ) THE second point which urged by Mr. M. C. Kapadia on behalf of the petitioner is that it is mentioned in the grounds that the detaining authority has taken into consideration the FIRs, i. e. complaints, chargesheet, identification register and the statements of witnesses; still, however, statements of the witnesses were not placed before the detaining authority and that has vitiated the satisfaction arrived at by the detaining authority to detain the present petitioner. However, at the time of argument the Additional public Procecutor on behalf of the respondents stated that what is referred to is the consideration of the statements whose names and addresses were not given, which recorded at the time of passing the detention order; but it is not specifically staled that the statements of witnesses recorded under Section 161 were considered. It may be mentioned that once the chargesheet is filed, that would authomatically disclose the names of the witnesses whose statements are recorded under Section 161 of the Criminal Procedure Code. Naturally from FIR there would be some material but once when the chargesheet is there, that would reinforce the sponsoring authority for proposal for detention and the detaining authority would have sufficient material on his hand provided the statements recorded by the police under Section 161 of Cr. P. C. are supplied to the detainng authority. Without referring to the said statements one cannot say whether they were relevant or not. In fact they would be relevant either by reinforcing the proposal for detention or making out good case for the petitioner for not detaining him. It would affect the mind of the detaining authority one way or the other. Under the circumstances the statements of the witnesses recorded under Section 161 cannot be said to be irrelevant. In this case in the affidavit-in-reply to the specific ground raised on the point of vitiating the subjective satisfaction of the detaining authority on account of not supplying with the said material to the detaining authority by the sponsoring authority, it has been stated in para 3 of the said affidavit-in-reply to the effect that the statements of the witnesses which were recorded by the investigating agency were not considered to be relevant or material for his purpose to be satisfied that the petitioner whose name is very much disclosed in the FIR itself, was involved in the nefarious activities which were found to be prejudical to the maintenance of public order. Without having a look at those statements the detaining authority cannot say that whether they are relevant or otherwise. Therefore, that part of the statement made by the authority cannot be accepted. Without having a look at those statements the detaining authority cannot say that whether they are relevant or otherwise. Therefore, that part of the statement made by the authority cannot be accepted. In the said affidavit-in-reply it is observed as under:"i say that the statements of the witnesses which were recorded during the investigation, are the statements under the provisions of section 162 of the Criminal Procedure Code and they arc the statements which cannot be used for any purpose, save as provided in the Code of criminal Procedure. I say that in view of this specific provisions of Section 162 of the Code, i do not consider the said statements to be material and relevant, and therefore, the same were not considered and were not supplied to the petitioner detenu. "it appears that there is some misconception with regard to the provision 162 of the criminal Procedure Code. Section 162 of the criminal Procedure Code very specifically refers to the bar of using the statement under section 162 recorded under Section 161 only in any inquiry or trial in respect of any offence under investigation. Hence is any such for the necessity of detaining the person. It was therefore incumbent upon him to consider the statements recorded under Section 161 by the police during the investigation of the offences for which the chargesheets were already placed before him. In absence of the said statements recorded under Section 161 the satisfaction arrived at by the detaining authority is impaired and is vitiated and therefore the whole order of detention is vitiated. 14. In that view of the matter the impugned order cannot be sustained and it deserves to be quashed and set aside and the same is hereby quashed and set aside. Rule is made absolute accordingly. The petitioner is ordered to be released forthwith if he is not required in any other case. .