Judgment :- NARAYANAN NAMBIAR, J. A Sri Lankan national, who fled to India due to ethnic problems and settled in Madras since 1976, is ordered to be detained and kept in custody in the Central Prison. Trivandrum as per order of the Government of Kerala, in exercise of powers conferred by Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act'). The order of detention is challenged by his mother by filing the Original Petition seeking for a writ of Habeas Corpus to release the detenu. 2. On 15-3-1995, the detenu, Sri David Chrishtopher Rajadurai, landed at Trivandrum Airport by Air India flight. He was a passenger from Singapore. He was cleared through the 'green channel' as if he has nothing to declare for payment of import duty. But the Senior Intelligence Officer, Directorate of the Revenue Intelligence, Trivandrum, who had secret information about smuggling of gold to India, intercepted the detenu outside the exist gate of the Customs Import Baggage Hall of the Airport, conducted search of his body and seized 40 gold biscuits of foreign origin totally weighing 4,684 Gms valued at Rs. 21,45,450/-. As a Sri Lankan national holding Sri Lankan Passport, he is not eligible for even legal import of the said gold. 3. The detenu was questioned on 16-3-1995 and he gave a statement under Section 108 of the Customs Act in which he admitted the import of gold without valid documents. He also admitted that he was travelling frequently to Sri Lanka and Singapore and during the last ten months he had made nearly 18 trips. According to him, the gold biscuits were entrusted to him by one Chandran to be handed to his men after arrival at Trivandrum. He was only a carrier and he has nothing to do with the ownership of the gold. 4. The detenu was arrested and produced before the Additional Chief Judicial Magistrate (Economic Offence’s) Court, Ernakulam. He moved on application for bail, which was dismissed by the Additional Chief Judicial Magistrate. It followed an application before the Sessions Court. Ernakulam for bail which also met with the same fate. Thereupon the detenu filed Crl.M.C. 601/95 before this Court with the prayer for grant of bail, but the same was dismissed on 10-4-1995. 5. He moved on application for bail, which was dismissed by the Additional Chief Judicial Magistrate. It followed an application before the Sessions Court. Ernakulam for bail which also met with the same fate. Thereupon the detenu filed Crl.M.C. 601/95 before this Court with the prayer for grant of bail, but the same was dismissed on 10-4-1995. 5. The State Government passed an order of detention of the detenu on 18-4-1995 under Sections 3(1)(i) and 3(1)(iii) of the COFEPOSA Act and directed the detenu to be detained and kept in Central Prison, Trivandrum. Pursuant to the order, the detenu is continuing in detention. Grounds of detention were communicated to be detenu and an opportunity was given to him to make a representation against the order of detention. The detenu made a representation on 18-4-1995 itself which was rejected by the State Government on 30-4-1995. The order of detention was later confirmed by the State Government on 6-7-1995. In the meanwhile, the Advisory Committee, on 30-6-1995, reviewed the case of the detenu and held that there is sufficient reason for his detention. 6. Counsel for the petitioner pressed before us two points. According to him, the order of detention was passed without application of mind. At the time of passing the order, the detenu was an under-trial prisoner and his application for bail has been rejected. There was no reasonable prospects of his being released from prison. Under such circumstances, the order of preventive detention was uncalled for. This aspect of the matter was not considered by the authority who passed the order of preventive detention and hence the order itself is bad. 7. The next point canvassed by counsel is that the preventive detention is punitive in nature and it will amount to a punitive detention, as the detenu is detained not in his usual place of residence, but in a place far away from his residence. Such a course is not warranted on the facts and circumstances of this case and so the order of detention is liable to be quashed. 8. Counsel for the petitioner took us in extenso to the various judicial pronouncement on the subject to buttress his arguments. Before dealing with the facts of the present case, we will refer to those decisions. 9. A Constitution Bench of the Supreme Court considered a case of preventive detention in the decision reported in Rameshwar v. Dist. 8. Counsel for the petitioner took us in extenso to the various judicial pronouncement on the subject to buttress his arguments. Before dealing with the facts of the present case, we will refer to those decisions. 9. A Constitution Bench of the Supreme Court considered a case of preventive detention in the decision reported in Rameshwar v. Dist. Magistrate (AIR 1964 SC 334) and held that before the order of detention can be validly made by the detaining authority, the authority must be satisfied that the detention of the person is necessary in order to prevent him from acting in any prejudicial manner as indicated in the relevant clauses of the Act. It is also stated therein that as an abstract proposition of law, there may not be any doubt that the provisions of the Act do not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail. But the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. The decision is rendered while considering the scope and effect of the Preventive Detention Act, 1950, the provisions of which are almost identical to the provisions of the COFEPOSA Act. 10. It is held in Shri Dharmendra Suganchand Chelawat v. Union of India (1990 (1) JT 184) after surveying all the earlier decisions on the subject that an order of a preventive detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that : (1) the detaining authority was aware of the fact that the detenu is already in detention and (2) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order of detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that : (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. 11. The facts of the above mentioned case reveal that the order of detention was passed at a time when the detenu was a remand prisoner, but the grounds of detention to not show that the detaining authority apprehended that there is every likelihood of the detenu being released from custody. 12. Another decision of the Supreme Court in Kamarunnissa v. Union of India (1991) 1 SCC 128 : (1991 Cri LJ 2058) was also pressed into service for the purpose of canvassing the point that if the detenu is already in jail, the order of preventive detention should not be passed against him. It was held therein : "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. In the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. 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." 13. 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." 13. When there was no material before the detaining authority indicating that the detenu is likely to be released from judicial custody or that such release was imminent and/or that the authority was satisfied about the said aspect, the Supreme Court as per the decision in Rivadoneyta Ricardo Agustin v. Govt. of Delhi (1994 SCC (Cri) 354), held that the order of preventive detention is illegal and quashed the same. It must be noticed that the facts of the above mentioned case reveal that the order of detention was passed when bail application was pending for release of the under-trial prisoner and there were no circumstances indicating that the detenu would be released from custody. It is, in these circumstances the Supreme Court said that there was no material before the authority to believe that there was real possibility of the detenu being enlarged on bail or being released and that it is necessary to detain him to prevent him from engaging in any prejudicial activities. 14. In N. Meera Rani v. Govt. of Tamil Nadu (1989) 4 SCC 418) : (AIR 1989 SC 2027), an order of detention under the National Security Act came up for consideration and the Supreme Court held that there is nothing wrong in passing an order of detention against a person in custody if the detaining authority apprehends that there is likelihood of the detenu being released on bail. It can validly pass an order of preventive detention if it is satisfied that the continued detention of the detenu is necessary for prevention of prejudicial activities. The "subsisting custody of the detenu by itself does not invalidate an order of preventive detention and the decision must depend on the facts of the particular case". 15. Pressing his arguments on the second point, counsel for the petitioner brought to our notice the decision reported in A. K. Roy v. Union of India (AIR 1982 SC 710) in which it is held that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. 15. Pressing his arguments on the second point, counsel for the petitioner brought to our notice the decision reported in A. K. Roy v. Union of India (AIR 1982 SC 710) in which it is held that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence. Normally, a person cannot be detained at far off places which by the very reason of its distance is likely to deprive him of the facilities to which he is entitled. 16. We will deal with the first point now. We have carefully gone through the grounds of detention passed by the State Government. The order is passed by the Commissioner and Secretary to the Government of Kerala. He has considered in detail the background of the detenu, the fact that he is a foreign national, he is not eligible to import gold to India even by paying duty, he was making frequent visit to foreign countries using his foreign Passport and that he attempted to smuggle considerable quantity of gold to India concealing the same in the shoe worn by him. After considering the relevant materials, the authority who passed the order was satisfied that the detention of the detenu is absolutely necessary in order to prevent recurrence of such instances. The fact that the detenu confessed his involvement in the offence was also taken into account by the detaining authority. It is also stated in the order that there is reasonable apprehension that the detenu would continue to smuggle gold to India and would continue to engage in transporting and selling of gold unless he is kept under preventive detention under the provisions of the COFEPOSA Act. All the relevant materials were considered by the detaining authority before passing the order of detention. 17. It is true that the order of detention was passed after the application of the detenu for bail was rejected by this Court on 10-4-1995. That by itself will not make the order of detention illegal. On an analysis of the various decisions referred to above, we have seen that an order of preventive detention can be passed even when the detenu is an under-trial prisoner. That by itself will not make the order of detention illegal. On an analysis of the various decisions referred to above, we have seen that an order of preventive detention can be passed even when the detenu is an under-trial prisoner. We are not forgetting the fact that the order of detention could be passed, as held by the Supreme Court, only when the detaining authority had a reasonable apprehension that the detenu is likely to be released on bail. In the present case, the detenu was filing successive applications for bail, before the Additional Chief Judicial Magistrate's Court, Sessions Court and also before this Court. From this conduct of the detenu, it could be seen that he is making every attempt to see that he is released on bail. The detaining authority considered this aspect, applied its mind to this question and stated in the grounds of detention that even though the detenu is in judicial custody, there is every chance of his being enlarged on bail. From this, it could be seen that there was application of mind by the detaining authority on the question whether there is likelihood of the detenu being released on bail and whether there is necessary or compelling reason for passing an order of preventive detention. 18. In the counter affidavit filed by the authority who passed the order of detention, it is stated that he was aware of the successive applications made by the detenu before the Courts for grant of bail and his attempt to get himself released on bail. The detaining authority was also aware of the fact that within a period of 20 days, the detenu filed three applications before three different forums including the High Court. In the counter affidavit, it is also stated that the detaining authority also considered the fact that despite the dismissal of the application for bail, the detenu can move successive applications for bail. It is also stated in the counter affidavit that the detaining authority was convinced of the fact that there is every possibility of the detenu applying for bail again and got himself released and so he was satisfied that there was imminent possibility of the detenu being released from jail. 19. It is also stated in the counter affidavit that the detaining authority was convinced of the fact that there is every possibility of the detenu applying for bail again and got himself released and so he was satisfied that there was imminent possibility of the detenu being released from jail. 19. From what is stated above, it is clear that the authority who passed the order of detention had all the relevant facts before him and he has applied his mind to the issue whether there is reasonable prospects of the detenu being released on bail and the detention of the detenu is necessary for preventing commission of prejudicial activities. 20. Our attention was also drawn by the Government Pleader to the dictum laid down in the decision reported in Hawabi Sayed Arif Sayed Hanif v. L. Hmingliana (1993 SCC (Cri) 304) : (1993 Cri LJ 172), in which it is held that if the facts and circumstances of the case show that the detenu was relentlessly trying to get bail by filing successive bail applications, it cannot be said that there was no material for the detaining authority to draw an inference that the detenu is likely to be released on bail. The Supreme Court, after concluding so, refused to release the detenu, holding that the conditions that are necessary to satisfy the compelling reasons for passing the order of detention are established. 21. Similar is the decision of the Supreme Court in Noor Salman Makani v. Union of India (AIR 1994 SC 575). In paragraph 5 of the judgment, it is stated that a statement in the order of detention that the detenu was in jail and that the possibility that the detenu is likely to be released on bail cannot be ruled out is enough to substantiate the order of detention. 22. The question whether there were compelling reasons for the detention depends on the fact and circumstances of each case. As pointed out earlier, having regard to the antecedents of the detenu and the other attending circumstances, the detaining authority was entitled to entertain the satisfaction that unless the detenu is detained he will continue to indulge in prejudicial activities. It is the subjective satisfaction of the detaining authority that should prevail in matters like this. As pointed out earlier, having regard to the antecedents of the detenu and the other attending circumstances, the detaining authority was entitled to entertain the satisfaction that unless the detenu is detained he will continue to indulge in prejudicial activities. It is the subjective satisfaction of the detaining authority that should prevail in matters like this. At the time of forming the opinion regarding detention, the authority has considered the fact that the detenu was in custody. The authority also considered whether there is every reasonable chance of the detenu being released on bail. It is stated so in the grounds of detention. Even if the grounds of detention do not contain the details of the bail applications filed by the detenu and the fact that the Courts have rejected those applications, these details are furnished in the counter affidavit filed by the authority. The details which are lacking in the grounds can be supplemented by way of a counter affidavit. As held by the Supreme Court in Merugu Satyanarayana v. State of A.P. (AIR 1982 SC 1543) that "the awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail... and this awareness must find its place either in the detention order or in the counter affidavit justifying the detention order when challenged". In the instant case, the order reflects the application of mind of the authority to this relevant question and also it is elucidated in the counter affidavit. So, we are not inclined to hold that it is a case where there is lack of application of mind by the detaining authority while passing the order of detention. Hence, we hold that the first point canvassed by counsel for the petitioner is unacceptable. 23. Regarding the second point, it was argued before us that the detenu is a permanent resident of Madras and so he should not have been ordered to be detained in the Central Prison, Trivandrum. This submission is based on the decision reported in A. K. Roy v. Union of India (AIR 1982 SC 710). As already stated, on the facts of that case the Supreme Court said that a person who is a permanent resident of Delhi should not be detained at far away places like Calcutta or Madras. This submission is based on the decision reported in A. K. Roy v. Union of India (AIR 1982 SC 710). As already stated, on the facts of that case the Supreme Court said that a person who is a permanent resident of Delhi should not be detained at far away places like Calcutta or Madras. The Supreme Court stated so due to the fact that such a detention will deprive him of the facility to which he is entitled. He may not have an occasion to see his relatives and friends and he may not even have the advantage of facilities like having his own food. The Supreme Court has also cautioned that preventive detention should not be punitive in nature. In the case on hand, the detenu is a Sri Lankan national who is settled in Madras since 1976. He smuggled gold to Trivandrum. He is detained in the Central Prison, Trivandrum. The order of detention is passed by the Government of Kerala. Having regard to the place from where the detenu is taken into custody of smuggling activities, it cannot be said that he is being detained in a 'far away place'. The apart, Madras and Trivandrum are capital cities of the neighbouring States. Both are considered to be southern States where culture of the people and food habits are almost alike. The facts of the case before the Supreme Court were entirely different. It cannot be equated with the case on hand. So, the contention of counsel for the petitioner that the detenu's detention is Trivandrum is punitive in nature also has no legs to stand on. 24. Before closing the case, we must also state that the very purpose of the COFEPOSA Act is to prevent smuggling of gold and related activities which have a deleterious effect on the national economy and thereby a serious adverse effect on the security of the State. The society must be protected from that social menace by immobilizing, if necessary, by detention of the persons engaged in those operations meant to disrupt the machinery established for prevention of smuggling activities. The approach to an order of detention should be pragmatic and from the commonsense point of view. The right of a citizen detained and the right of the State to detain him should be evenly balanced. The approach to an order of detention should be pragmatic and from the commonsense point of view. The right of a citizen detained and the right of the State to detain him should be evenly balanced. It is necessary to protect, therefore, the individual's right so far as practicable; but the security and well being of the society are Supreme. The interest of the nation and protection of the country are paramount to which necessarily higher priority should be given. 25. Thomas Jefferson stated that "to lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means". Justice and power can be brought together and whatever is just may be powerful and whatever may be powerful may be just. In the result, we do not find any merit in the Original Petition. It is accordingly dismissed. Petition dismissed.