B. S. KAPADIA, J. ( 1 ) THE petitioner who is a detenu has filed the present petition challenging the detention order passed against him. Copy of the said detention order is produced at Annexure A to the petition. On perusal of the said order it is clear that the said order- is passed by the Additional Chief Secretary to Government of Gujarat Home Department Gandhinagar on 18 under sub-section (1) of sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 on his being satisfied that with a view to preventing the present petitioner from abetting the smuggling of goods and engaging in transporting smuggled goods it is necessary to detenu him. ( 2 ) THE fact remains that the aforesaid order was served on the petitioner on 10-5-1992 i. e. practically after more than three years when he was in custody. ( 3 ) AT the time when he was served with the order he was also served with the grounds the copy of which is annexed at Annexure B to the petition. ( 4 ) ON perusal of the grounds it appears that on 11 the Police Officers intercepted a mini Mitsubishi truck bearing No. GOC 7280 with four occupants at village Balambha in Jamnagar District. The Police apprehended four persons from a boat with two walkie-talkie sets at the jetty near Chougal Salt Works. These eight persons two walkie-talkie sets and the Mitsubishi truck were brought to Jamnagar for examination. They all declared their names. On rummaging of the truck a specially made cavity was found in the middle of the truck. This cavity was about 3 fl. x 2 ft. broad and had a depth of 1 1/2 ft. On examining this cavity 164 packets containing 25 pieces of gold in each packet wore found wrapped and stitched in 21 1 cloth packages. On all these 4100 gold biscuits marks indicating their foreign origin finess 999. 0 touch and weight 10 tolas etc. were found. These 4100 gold biscuits totally weighed at 478. 216 kgs. and they were collectively valued at Rs. 14 35 0 0 ( 5 ) DURING the course of inquiry the fishing boat AL JENA was seized for action under the Customs Act 1952 on 15-1-1989 at Salaya in the presence of the petitioners father the boat owner Umar Moosa Bhaya. These 4100 gold biscuits totally weighed at 478. 216 kgs. and they were collectively valued at Rs. 14 35 0 0 ( 5 ) DURING the course of inquiry the fishing boat AL JENA was seized for action under the Customs Act 1952 on 15-1-1989 at Salaya in the presence of the petitioners father the boat owner Umar Moosa Bhaya. The aforesaid boat was also seized as per the statements made by Praful Keshaji Thakkar Hahi Siddik Ghavda Abdul Jusab Sumbhana Talib Umar Bhaya and Adam Hasan Rajani. The statement of the father of the petitioner was also recorded on 16-1-1989 and 17-1-1989 that the petitioner had informed him that the contraband gold of Haji Haji Ismail was to be landed at Sachna; that the petitioner had taken his fishing boat AL JENA with his permission in the night of 28 December; that the boat AL JENA had returned to Salaya on 1-1-1989 after completing the work; that the petitioner had not informed him about the quantity of the gold landed but had informed that the gold was landed at the place of Pir in Sachaha creek on 31-12-88 or 1-1-1989. Thereafter taking into consideration the other relevant factors the aforesaid order was passed against the present petitioner. ( 6 ) IN this petition several points have been raised. However at the time of hearing Mr. Kiran Jani the learned Advocate for the petitioner has raised a contention that the grounds which were served on the petitioner were not fully explained and that he is an illiterate person. However after going through the actual statement from the file which was placed before the Court Mr. Jani has not pressed this contention. Hence this contention is answered in the negative as not pressed. ( 7 ) SO far as the second contention is concerned the submission is that though when the order was passed i. e. on 18-2-1989 it was justified but when it was served on the petitioner when he was in custody on 10-5-1992 the service of the order is bad and therefore the order and the continued detention is bad as the detaining authority has not considered the aspect of necessity of detaining the present petitioner while serving the order when he was in custody. This point is raised by the petitioner on page 11 or the petition in the ground No. (iv ). This point is raised by the petitioner on page 11 or the petition in the ground No. (iv ). He therefore submits that the order and the continued detention is bad and illegal. In this case the opponents have filed affidavit-in- reply and on page 47 in para 8 they have dealt with this contention by stating as under:"with reference to ground No. 5 (iv) of the petition I say that the averment made in this para has no substance hence denied". ( 8 ) DURING the course of the argument M. R. Raval the learned Additional Public Prosecutor appearing for the respondents Nos. 1 2 and 3 has submitted that the petitioner was absconding and the notification under section 7 of the COFEPOSA was issued on 25-4-1989 asking him to surrender within 30 days and the report thereof was also sent to the Judicial Magistrate First Class Jam Kambhalia. Publication of the said notification was made in the gazette on 27-4-1989. It was also published in all local daily newspapers of Saurashtra. ( 9 ) IT may be stated that here is no denial of the fact that the order of detention is dated 18 and it was served on the petitioner on 10 when he was in custody. When that is so the question would be whether it would be necessary for the detaining authority to consider the aspect as to whether it is necessary to detain the petitioner when the said order was served on 10 in custody. ( 10 ) MR. Kiran Jani has strongly relied on the judgment in the case of Binod Singh vs. District Magistrate Dhanbad Bihar and others AIR 1986 SC 2090 It is contented on behalf of the respondents that the decision of that case would not be applicable to the facts of the present case as it was the decision given on the facts and circumstances of that case only. ( 11 ) WHEN the rival contentions are raised on the point of applicability of the said judgment it would be necessary to note down few facts of that case. In that case the order of detention is dated 2-1-1986 passed by the District Magistrate Dhanbad under section 3 (2) of the National Security Act. Various incidents wore mentioned in the grounds of the said order. In that case the order of detention is dated 2-1-1986 passed by the District Magistrate Dhanbad under section 3 (2) of the National Security Act. Various incidents wore mentioned in the grounds of the said order. One incident was of 24 wherein there was an exchange of indiscriminate firing in the main market area of Katras created great panic and alarm in the area. The normal tempo of life was completely disturbed. The vehicular traffic came to a halt and this is case of Katras P. S. Case No. 331/85 dated 24-12-85 u/ss. 149 307 326 of the Indian Penal Code and section 27 of the Arms Act. Besides the aforesaid incident the other cases are also referred to show the criminal of the subject. So far as the case No. 331/85 was concerned it was a murder case and in respect of which investigation was in progress and defence of the petitioner in the said murder case was that he was falsely implicated and was not at all concerned with the murder. Further his contention was the when the order was passed the petitioner had not surrendered but when the order was served the petitioner had already surrendered in respect of the criminal charge against him. At the relevant time the petitioner was under trial in the said criminal case. On the basis of the aforesaid facts it was submitted that the service of the order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under s. 3 (2) of the Act. In the said case the District Magistrate had filed affidavit before the High Court of Patna that the petitioner was absconding from the very day of the issuance of the detention order However in the detention order there was a statement as follows Subject is already in jail. In the said case the District Magistrate had filed affidavit before the High Court of Patna that the petitioner was absconding from the very day of the issuance of the detention order However in the detention order there was a statement as follows Subject is already in jail. He is likely to be enlarged on bail Hence detention order served in jail In the said case it is observed by the Supreme Court in para 5 from the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and especially in the decision in Rameshwar Shaw vs. District Magistrate Budwan AIR 1964 SC 334 . In para 6 thereof the Supreme Court has observed as under"in this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release Nor does it appear that before the service there was consideration of this aspect properly In the facts and circumstances of this case therefore the continued detention of the detenu under the Act is not justified" ( 12 ) AFTER making the aforesaid observation the Supreme Court observed that in the facts and circumstances of this case therefore the continued detention of the detenu under the Act is not justified In para 7 of the said judgment the Supreme Court has considered as to how the power of preventive detention by the detaining authority should be exercised It is observed as under"it is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released the power of preventive detention should not be exercised"after making the aforesaid observation the Supreme Court observed in the same paragraph as under"in the instant case when the actual order of detention was served upon the detenu the detenu was in jail. There is no indication that the factor or the question that the said detenu might be released or that there was such a possibility of his release was taken into consideration by the detaining authority properly and seriously before the service of the order" ( 13 ) IN the said paragraph the Supreme Court also considered the aforesaid statement made in the order namely that subject is already in the jail He is likely to be enlarged on bail. Hence the detention order was served on the detenu while he was in custody The Supreme Court observed that a bald statement is merely an ipse dixit of the officer If there were cogent materials for thinking that the detenu might be released then these should have been made apparent ( 14 ) FURTHER it is observed that eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens Thereafter; the order of detention was set aside However the Supreme Court made specific observation that will not however affect detenus detention under the criminal cases and that if the detenu is released on bail in the paid criminal cases the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with the law There is no statement in the petition that the detenu is on bail and therefore there will be no order for the release of the detenu. ( 15 ) THE facts of the present case are similar to the facts of the aforesaid case. ( 15 ) THE facts of the present case are similar to the facts of the aforesaid case. The ratio laid down in the aforesaid case is clearly applicable to the facts of the present case In our view the ratio of the judgment is that when the detention order is to be served on the detenu while he is in custody the detaining authority should consider or should be conscious of the facts that the detenu is in custody at the time of serving of the order and that there is possibility of his immediate release. If such aspect is not considered at the time of the service of the order the detention order though justified when passed would be bad and illegal. ( 16 ) MR. B. B. Naik the learned Advocate for the respondents No. 4 has also made submissions and he relied on the case or Masood Alam vs. Union of India and others reported in AIR 1973 SC 993. In the said case it is clear from the facts that Masood Alam the detenu was arrested on June 15 1972 pursuant to the order of detention dated June 14 1972 The said order was passed by the District Magistrate under section 3 (1) (a) (i) and (ii) of the Maintenance of Internal Security Act 1971 and the grounds of detention signed by the District Magistrate Aligarh were also served on the petitioner It further appears from the facts of that case that a fresh order of detention was also passed on June 25 1972 The said order was made by the Government of U P. under section 3 (1) of the Maintenance of Internal Security Act 1971 and was served on the petitioner on June 26 1972 at about 3. 30 p. m. In para 6 of the said judgment the contention of the petitioner that the order of detention dated June 25 1972 was served on the detenu when he was in jail and that such service is invalid rendering the petitioners detention void is dealt with. 30 p. m. In para 6 of the said judgment the contention of the petitioner that the order of detention dated June 25 1972 was served on the detenu when he was in jail and that such service is invalid rendering the petitioners detention void is dealt with. The said contention was not accepted While considering the said contention it is observed by the Supreme Court as under :"there is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if free the person concerned is likely to indulge in activities prejudicial to the security of the State or maintenance of public order"the aforesaid observations cannot be said to be in any way contrary to the observations made in Binod Singhs case (supra ). In Masood Alams case (supra) after considering the case of Rameshwar Shaw vs. Dist Magistrate Burdwan AIR 1964 SC 334 the Supreme Court has inter alia observed as under :"no doubt this decision does suggest that the order of detention can be served on the person concerned if and alter he is acquitted in the said criminal proceedings but in our view merely because the person concerned has been served while in custody when it is expected that he would soon be released that service cannot invalidate the order of detention. The real hurdle in making an order of detention against a person already in custody is based on the view that it is futile to keep a person in dual custody under two different orders but this objection cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease". Therefore the aforesaid aspect is also to be considered while serving the detention order on the detenu when the said order is to be served on a person who is in custody. Thus the aforesaid observation cannot be said in any event to run counter to the ratio of the judgment in Binod Singhs case (supra) ( 17 ) ANOTHER case relied on by Mr. Thus the aforesaid observation cannot be said in any event to run counter to the ratio of the judgment in Binod Singhs case (supra) ( 17 ) ANOTHER case relied on by Mr. B. B. Naik is the case of Bhawarlal Ganeshmalji vs. The State of Tamil Nadu and another reported in AIR 1979 SC 541 In the said case the detention order was passed on 19-12-1974. The detenu was found absconding Despite all the efforts the detenu could not be arrested until he surrendered on 1 In the said case the ground of delay was raised and it was submitted that the live link was snapped as there is long and unexplained delay between the date of the order and the arrest of the detenu. In the said case the delay was adequately explained. It was found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest and in those circumstances the Supreme Court held that there is a warrant to consider the link not snapped but strengthened. However the point which the detaining authority should consider at the time of serving the detention order in custody has not been considered by the Supreme Court in the judgment and therefore the said judgment is silent on the point involved in the present case and which has been covered by the subsequent judgment of the Supreme Court in Benod Singhs case (supra ). Hence the aforesaid judgment in Bhawarlals case (supra) cannot be said to be in any way contrary to the ratio laid down in Binod Singhs case (supra ). ( 18 ) MR. M. R. Raval the learned Additional Public Prosecutor appearing for the respondents Nos. 1 to 3 submitted that merely because the petitioner is served with the detention order when he is in custody the order cannot be said to be bad and illegal. He relied on the judgment in the case of Suraj Pal Sahu vs. State of Maharashtra and others AIR 1986 Supreme Court 2177. In the said case the detention order of one Rampal Sahu was dated 16th December 1985 under sec. 3 (2) of the National Security Act 1980 and the said order was served on him on 17-12-1985 with the grounds of detention. In the said case the detention order of one Rampal Sahu was dated 16th December 1985 under sec. 3 (2) of the National Security Act 1980 and the said order was served on him on 17-12-1985 with the grounds of detention. In the said case it was submitted that in order to invoke the provisions of the Act for securing preventive detention under the National Security Act there must be something imminent and after considering the cases referred to in para 37 including that of Rameshwar Shah reported in AIR 1964 SC 334 (supra) it was observed as under:"it was pointed out in Rameshwar Shaws case ( AIR 1964 SC 334 ) (supra) that before an authority can legitimately come to the conclusion that the detention of a person was necessary to prevent him from acting in a prejudicial manner the authority had to be satisfied that if the person was not detained he would act in a prejudicial manner and that inevitable postulated freedom of action to the said person at the relevant time. The Court noted two types of cases. Those two cases were concerned with the service of an order of detention under the Preventive Detention Act or under the Rules on a person who was in jail in one of two circumstance namely where he was in jail as an under trial prisoner and the period for which he was in jail was indeterminate or where he was in jail as a convicted person and the period of his sentence had still to run for some length of time. In those cases the service of the order of detention under the Preventive Detention Act or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent namely that it was necessary to detain the person concerned which could only be postulated of a person who was not already in prison. But in other types of cases this Court had to deal with G. S. Parulekars case. The appellants were not under detention either as undertrial prisoners for an indeterminate time or as convicted persons whose sentences were still to run for some length of time. But in other types of cases this Court had to deal with G. S. Parulekars case. The appellants were not under detention either as undertrial prisoners for an indeterminate time or as convicted persons whose sentences were still to run for some length of time. They were detained under the Preventive Detention Act by an order dated 7th November 1962 which had been reported to Government for approval and which order could only remain in force for 12 days under section 3 (3) of the said Act unless in the meantime it had been approved by the State Government. In those cases the principles of the decision referred to in Rameshwar Shahs case and other cases would not be applied". After considering the other cases cited before it the Supreme Court further observed in paragraph 49 as under :"in view of the aforesaid principles that emerged it is necessary to consider the grounds and determine whether there are casual connections. The fact that a man is not in jail perse would not be determinative of the factor that order of preventive detention could not be passed against him. The fact that a man was found not guilty in a criminal trial would also not be determinative of the factors alleged therein. All these factors must be objectively considered and if there are casual connections and if bona fide belief was formed then there was nothing to prevent from serving an order of preventive detention even against a person who was in jail custody if there is imminent possibility of his being released and set at liberty if the detaining authority was duly satisfied". ( 19 ) REVERTING to the facts of the present case it is not the case of the respondents or the detaining authority that the present petitioner who was served with the detention order in the year 1992 was in preventive detention. When he was in custody he must be under a trial or as a convict. Under these circumstances the principles laid down in Rameshwar Shaws case (supra) are further extended in Binod Singhs case (supra) and the detaining authority in such circumstances must consider all the relevant factors as laid down in the Supreme Court in para 49 of Suraj Pal Sahus case ( supra) and when that has not been considered the detention order would be bad and illegal. Therefore the aforesaid judgment in Suraj Pal Sahus case (supra) also does not help the respondents in the present case. ( 20 ) LASTLY Mr. M. R. Raval submitted that the ratio of Binod Singhs case (supra) is watered down in the case of Kumarunnisa vs. Union of India and another AIR 1991 Supreme Court 1640. It may be staled that the said judgment has also considered Binod Singhs case (supra) in paragraph 12 thereof and the ratio of the said judgment has been also stated in the said case thus :"it was held that if a person is in custody and there is no imminent possibility of his being released therefrom the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the detention order for inferring that the detenu was likely to be released on bail. The inference must be drawn from material on record and must not be the ipse dixit of the officer passing the detention order. Eternal vigilance on the part of the authority charged with the duty of maintaining law and order and public order is the price which the democracy in this country extracts to protect the fundamental freedom of the citizens". Relying on the judgment in Binod Singhs case (supra) along with other judgments the Supreme Court has laid down the principle for passing the detention order even against a person in custody. Therefore the said judgment does not in any way contradict any of the observations made in Binod Singhs case (supra ). It is true that in Binod Shaws case (supra) the Supreme Court followed the ratio of the judgment in Rameshwar Shaws case (supra) as well as in Ramesh Yadavs case reported in AIR 1986 SC 315 . Now in Ramesh Yadavs case (supra) the Supreme Court has observed that if 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 the proper course would be to oppose the bail application and in case bail was granted to challenge that order in the higher forum but not to circumvent it by passing the order of detention merely to supersede the bail order. The Supreme Court in Kamarunnissascase (supra) inter alia held as under"if the authority passes an order after recording his satisfaction in this behalf such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court. What this Court stated in the case of Ramesh Yadav ( AIR 1986 SC 315 ) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody if the facts and circumstances of the case so demand resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We therefore find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody". Thus this judgment does not in any way affect the ratio laid down in Binod Singhs case (supra ). On the contrary that is one of the cases relied upon by the Supreme Court while deciding Kamrunissaa case (supra ). Therefore we are unable to accept the contention raised by gr. M. R. Raval that Binod Singhs case (supra) has been watered down in Kamrunissaa case (supra ). Only judgment in the case of Ramesh Yadav (supra) has been explained and to that extent Ramesh Yadavs judgment has been watered down. . ( 21 ) MR. Raval pointed out that in the present case the ratio in Binod Singhs case (supra) will not be applicable because in Binod Singhs case there was no notification issued under the Act while in this case the notification is issued. It may be stated that in Binod Singh case the detenu was absconding for a period of nine days while the present petitioner was absconding for a period of three years and therefore the authority had enough time to issue declaration. It may be stated that in Binod Singh case the detenu was absconding for a period of nine days while the present petitioner was absconding for a period of three years and therefore the authority had enough time to issue declaration. Merely issuing of the declaration by itself cannot in any way be said to be a point for distinguishing the applicability of the case. Therefore we do not agree with the contention that Binod Singhs case would not be applicable to the present case. ( 22 ) IN that view of the matter we pass the following order : the order of detention is set aside. The writ petition is allowed. However we make it clear that this will not affect the detenus detention under the criminal cases. If however the detenu is released on bail in any of the criminal cases the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with the law. There will therefore be no order for the release of the detenu. Accordingly to the aforesaid extent rule is made absolute. Petition Allowed. .