Ms. Snnanda Bhandare, J. ( 1 ) THIS petition under Articles 226 and 227 ofthe Constitution of India read with Section 482 Cr. PC has been filed seeking awrit of habeas corpus and praying that the order of detention passed on19. 12. 1991 by the Joint Secretary to the Government of India undersection 3 (1)of the Conservation of Foreign Exchange and Prevention of Smuggling Activitiesact 1and74 (hereinafter referred to as the Act) be quashed. ( 2 ) THE brief facts relavant for the decision are as follows : the Customs Officers of Indira Gandhi International Airportnew Delhi on arrival of the flight Al-30i from Bangkok rummagedthe aircraft and live torn pieces of cash purchase voucher for purchaseof 48 pieces of gold of 10 tolas each at Hongkong were recoveredfrom the garbage of the toilet of the said aircraft. The petitionerwas apprehended. On checking the person and baggage of the petitioner the Customs Authorities did not recover any contraband goods. On further search 24 gold biscuits of 10 tolas of each were recoveredfrom the hollow steel pipe of seat no 42k occupied by the petitioner. The petitioner was interrogated and his statement was recordedimmediately. The petitioner was arrested on 10. 12. 1990 and produced before the Additional Chief Metropolitan Magistrate within 24hours as required under the law and was remanded to judicial custodytill 21. 12. 1990 on the application moved by the Enforcement Department. The judicial remand was extended upto 3. 1. 1991 and. furtherextended to 17. 1. 1991 and once again extended to 30. 1. 1991. Thepetitioner however continued to be in judicial custody till the orderof detention was passed on 19. 2. 1991. ( 3 ) THE petitioner has inter alia chanllenged this order of detention onthe ground that relevant material which should have been supplied to him andwhich influenced the mind of the detaining authority while passing the detention order was not supplied. It was submitted that the respondent did notsupply to the petitioner the order of the Court dated 22. 1. 1991 whereby his twobail applications dt. 17. 12. 1990 and 22. 1. 1990 were rejected though the samewere considered by the detaining authority while passing the order of detention. It was submitted that the respondent did notsupply to the petitioner the order of the Court dated 22. 1. 1991 whereby his twobail applications dt. 17. 12. 1990 and 22. 1. 1990 were rejected though the samewere considered by the detaining authority while passing the order of detention. ( 4 ) IT was submitted by the learned Counsel for the petitioner thatthe petitioner was judicial custody on the date the detention order was passedand the detaining authority did not satify itself on question whether the continued detention of the petitioner was necessary and particularly whetherdetention of the petitioner under the Act was necessary since petitioner s applications were rejected and he continued to be in custody. ( 5 ) COUNTER-AFFIDAVITE has been filed by the respondent in reply to thewrit petition. It is submitled in the counter-affidavit that the detention orderwas passed after arriving at subjective satisfaction on the basis of the materialon record which was also furnished to the detenu. ( 6 ) WE find that alongwith the order of detention a list of documentswas also furnished to the petitioner. At S. No. 14 to 19 various applicationsfor extension of judicial remand and bail applications and Court s order thereonhave been mentioned. Thus, there is no merit in the contention that the orderpassed by the Court on the bail application was not furnished because at S. No. 19 the application for bail in the Court of the Additional District and Sessionsjudge filed by the petitioner on 22,1. 1991 and Court s order passed thereon isspecifically mentioned. ( 7 ) HOWEVER, we find great force in the contention of the learnedcounsel for the petitioner on the other question that detention order was passedwithout application of mind because on the date the order was passed thepetitioner was in custody and there was no material before the detaining authority to arrive at a conclusion that the petitioner was likely to be released inthe near future. In the order of detention, it has been stated as under : "you were arrested on 10. 12. 90 under Section 104 of thecustoms Act, 1962 and were produced before the ACMM. New Delhiwho remanded you to judicial custody till 21. 12 1990, which has beenfurther extended. From the foregoing facts and circumstances of the case andthe statement etc. In the order of detention, it has been stated as under : "you were arrested on 10. 12. 90 under Section 104 of thecustoms Act, 1962 and were produced before the ACMM. New Delhiwho remanded you to judicial custody till 21. 12 1990, which has beenfurther extended. From the foregoing facts and circumstances of the case andthe statement etc. recorded in this connection, as mentioned herein-above, I have DO hesitation in arriving at the conclusion that you haveknowingly engaged yourself in smuggling goods into India. I amaware that you are in judicial custody. However, the possibility offiling bail application afresh and getting yourself enlarged on bailcannot be ruled out. Once you are enlarged on bail, keeping in viewyour role as well s your antecedents as mentioned in the grounds ofdetention. I apprehended that unless prevented, you are likely tocontinue your prejudicial activities. Although adjudication proceedings under the Customs Act, 1962 are likely to be initiated against youand prosecution proceedings have already been initiated against youin the matter I am satisfied that it is necessary to detain you underthe Conservation of Foreign Exchange and Prevention of Smugglingactivities Act, 1974 with a view to preventing you from smugglinggoods. ( 8 ) NOW there is nothing on record to indicate that the petitioner waslikely to be enlarged on bail particularly because the judicial remand of thepetitioner was extended time and again on the application filed by the respondent itself and all his bail applications were rejected. The Supreme Court hasrepeatedly held that only if the detaining authority is reasonably satisfied oncogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, detention order can bemade while the accused is in custody in anticipation to operate on his release. The Supreme Court in Dharmendra Suganchand Chelawat and Another v. Unionof India and Others, AIR 1990 SC 1196 has observed as follows :the decisions referred to above led to the conclusion that anorder for detention can be validly passed against a person in custodyand for that purpose it is necessary that the grounds of detentionmust show that (i) the detaining authority was aware of the fact thatthe detenu is already in detention; and (ii) there were compellingreasons justifying such detention despite the fact that the detenu isalready in detenlion. The expression "cumpelling reason" in thecontext of making an order for detention of a person already incustody in plies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) thedetenu is likely to be released frcm custody in the near future; and (b) taking into account the nature of the antecedent activities of thedetenu, it is lively that after his release from custody be would indulgein prejudicial activities arid it is necessary to detain him in order toprevent him from engaging in such activities. 9. Admittedly in the present case all the bail applications filed by thepetitioner were dismissed and he was continuously in judicial custody becausethe respondent itself had asked for extension of the remand. No doubt thepetitioner could file a fresh bail application at any time. The Supreme Courtin M. Ahamedkutiy v. Union of India and Another, JT 1990 (1) SC 143 has heldthat: "if the apprehension of the detaining authority was true, the bail application bad to be opposed and in case bail was granted, challenge against the order in the higher forum bad to be raised. Merely on the ground that an accused in detention as an undertrialprisoner was likely to get bail an order of detention under thenational Security Act should not ordinarily be passed. " ( 10 ) THUS, unless there is some material to show that the accused waslikely to be released on bail in the near future a detention order cannot bepassed. In the present case, the bail applications filed by the petitioner wererejected and no other application was pending. Thus, the possibility of thepetitioner being released on bail in the near future was quite remote. Since thegrounds of detention in the present case do not disclose any cogent materialwhich would indicate that the petitioner was likely to be released on bail in thenear future, the detention order cannot be sustained. ( 11 ) IN the circumstances, we make the Rule absolute and quash thedetention order dated 19. 2. 1991 and direct that the petitioner be released forthwith if not required in any other case,