? REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.840 of 2012
Huidrom Konungjao Singh …..Appellant
Versus
State of Manipur & Ors. ….. Respondents
JUDGMENT
Dr. B.S. CHAUHAN, J.
l. This Criminal Appeal has been preferred against the
impugned judgment and order dated 13.l.2012 passed by the Gauhati High
Court, Imphal Bench at Imphal in Writ Petition (Crl.) No.98 of 2011
dismissing the Habeas Corpus petition challenging the order of
detention of appellant’s son dated 30.6.2011 passed by the District
Magistrate, Imphal West District under Section 3(2) of the National
Security Act, 1980 (hereinafter called `the Act’).
2. The son of the appellant, namely, Huidrom Shantikumar Singh was
arrested on 19.6.2011 by the Imphal Police under Section 302 of Indian
Penal Code, 1860 (hereinafter called `IPC’) read with Section 25(1-C)
of the Arms Act, 1959 (hereinafter called `Arms Act’). The District
Magistrate, Imphal West passed the detention order dated 30.6.2011
under the Act on various grounds with an apprehension that as in
similar cases, the accused involved therein had been enlarged on bail
the detenu in this case would also be released on bail and he would
indulge in activities prejudicial to public order.
3. The appellant’s son was served with the grounds of detention
dated 2.7.2011. The detenu made representations on 16.7.2011to the
Central Government as well as to the Government of Manipur which stood
rejected. The detention order was confirmed vide order dated
16.8.2011and confirmation order was furnished to the detenu on
18.8.2011. The appellant filed Writ Petition (Crl.) No.98 of 2011
challenging the detention order in Gauhati High Court (Imphal Bench)
which stood dismissed vide impugned judgment and order dated 13.1.2012.
Hence, this appeal.
4. The question of personal liberty of a person is sacrosanct and
State Authority cannot be permitted to take it away without following
the procedure prescribed by law, otherwise it would be violative of the
fundamental rights guaranteed under Articles 21 and ?22 of the
Constitution. In Ayya alias Ayub v. State ofU.P. & Anr., AIR 1989 SC
364, this Court held that the law of preventive detention is based and
could be described as a “jurisdiction of suspicion" and the compulsion
of values of freedom of democratic society and of social order
sometimes might compel a curtailment of individual's liberty.
5. In Yumman Ongbi Lembi Leima v. State of Manipur & Ors., (2012)
2 SCC 176, this Court held that personal liberty of an individual is
the most precious and prized right guaranteed under the Constitution in
Part III thereof. The State has been granted the power to curb such
rights under criminal laws as also under the laws of preventive
detention, which, therefore, are required to be exercised with due
caution as well as upon a proper appreciation of the facts as to
whether such acts are in any way prejudicial to the interest and the
security of the State and its citizens, or seek to disturb public law
and order, warranting the issuance of such an order.
6. Whether a person who is in jail can be detained under detention
law has been a subject matter of consideration before this Court time
and again. In Dharmendra Suganchand Chelawat & Anr. v. Union of India &
Ors., AIR 1990 SC 1196, this Court while considering the same issue has
reconsidered its earlier judgments on the point in Rameshwar Shaw v.
District Magistrate, Burdwan, AIR 1964 SC 334; Masood Alam v. Union of
India, AIR 1973 SC 897; Dulal Roy v. District Magistrate, Burdwan, AIR
1975 SC 1508; Alijan Mian v. District Magistrate, Dhanbad, AIR 1983 SC
1130; Ramesh Yadav v. District Magistrate, Etah, AIR1986 SC 315; Suraj
Pal Sahu v. State of Maharashtra, AIR 1986 SC 2177; Binod Singh v.
District Magistrate, Dhanbad, AIR 1986 SC 2090; Smt. Shashi Aggarwal v.
State of U.P., AIR 1988 SC 596, and came to the following conclusion:
"The decisions referred to above lead to the conclusion that an
order for 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 (i) the detaining authority was
aware of the fact that the detenu is already in detention; and
(ii) 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 for 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."
7. In Amritlal & Ors. v. Union government through Secretary,
Ministry of Finance & Ors., AIR 2000 SC 3675, similar issue arose as
the detaining authority recorded his satisfaction for detention under
the Act, in view of the fact that the person, who was already in jail,
was going to move a bail ?application. In the grounds of detention it
had been mentioned that there was "likelihood of the detenu moving an
application for bail" and hence detention was necessary. This Court
held that there must be cogent materials before the authority passing
the detention order that there was likelihood of his release on bail.
(See also: N. Meera Rani v. Govt. of Tamil Nadu, AIR 1989 SC 2027;
Kamarunnissa v. Union of India & Anr., AIR 1991 SC 1640; and Union of
India v. Paul Manickam and Anr., AIR 2003 SC 4622).
8. This Court while deciding the case in A. Geetha v. State of
Tamil Nadu & Anr., AIR 2006 SC 3053, relied upon its earlier judgments
in Rajesh GuIati v. Govt- of NCT of Delhi, AIR 2002 SC 3094; Ibrahim
Nazeer v. State of T.N. & Ors., (2006) 6 SCC 64; and Senthamilselvi v.
State of T.N. & Anr., (2006) 5 SCC 676, and held that the detaining
authority should be aware that the detenu is already in custody and is
likely to be released on bail. The conclusion that the detenu may be
released on bail cannot be ipse dixit of the detaining authority. His
subjective satisfaction based on materials, normally, should not to be
interfered with.
?
9. In view of the above, it can be held that there is no
prohibition in law to pass the detention order in respect of a person
who is ?already in custody in respect of criminal case. However, if the
detention order is challenged the detaining authority has to satisfy
the Court the following facts:
(1) The authority was fully aware of the fact that the detenu was
actually in custody.
(2) There was reliable material before the said authority on the
basis of which he could have reasons to believe that there was real
possibility of his release on bail and further on being released he
would probably indulge in activities which are prejudicial to
public order.
(3) In view of the above, the authority felt it necessary to
prevent him from indulging in such activities and therefore,
detention order was necessary.
In case either of these facts does not exist the detention order
would stand vitiated.
10. The present case requires to be examined in the light of
aforesaid settled legal proposition. Learned counsel for the appellant
Shri L. Roshmani has submitted that the detenu had never moved the bail
application after his arrest and he had not been involved in any
criminal case earlier. Reliance had been placed upon two bail orders.
They are related to different FIRs and not to the same case. The bail
had been granted to the accused in those cases and none of them had
been co-accused with the detenu in this case. Therefore, it was not
permissible for the detaining authority to rely upon those bail orders
and there was no material before the detaining authority on the basis
of which the subjective satisfaction could be arrived that the detenu
in the instant case was likely to be released on bail and after being
released on bail he would indulge in the activities detrimental to the
society at large and would cause the problem of public order.
11. On the other hand, Shri R.P. Bhatt, learned senior counsel
appearing for Union of India and Shri K. Nobin Singh, learned counsel
appearing for the State have submitted that it is not necessary that
the co-accused in the same offence is enlarged on bail. What is
required to be considered by the detaining authority is whether in a
similar case, i.e. in similar offence, bail has been granted on the
basis of which the detenu, in case applies for bail, would be
enlarged on bail.
12. In Rekha v. State of Tamil Nadu through Secretary to Govt. &
Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :
“A perusal of the above statement in Para 4 of the grounds of
detention shows that no details have been given about the
alleged similar cases in which bail was allegedly granted by
the court concerned. Neither the date of the alleged bail
orders has been mentioned therein, nor the bail application
number, nor whether the bail orders were passed in respect of
the co-accused on the same case, nor whether the bail orders
were passed in respect of other co-accused in cases on the same
footing as the case of the accused……
In our opinion, if details are given by the respondent
authority about the alleged bail orders in similar cases
mentioning the date of the orders, the bail application number,
whether the bail order was passed in respect of the co-accused
in the same case, and whether the case of the co-accused was on
the same footing as the case of the petitioner, then, of
course, it could be argued that there is likelihood of the
accused being released on bail, because it is the normal
practice of most courts that if a co-accused has been granted
bail and his case is on the same footing as that of the
petitioner, then the petitioner is ordinarily granted bail……. A
mere ipse dixit statement in the grounds of detention cannot
sustain the detention order and has to be ignored……
In our opinion, there is a real possibility of release
of a person on bail who is already in custody provided he has
moved a bail application which is pending. It follows logically
that if no bail application is pending, then there is no
likelihood of the person in custody being released on bail, and
hence the detention order will be illegal. However, there can
be an exception to this rule, that is, where a co-accused whose
case stands on the same footing had been granted bail. In such
cases, the detaining authority can reasonably conclude that
there is likelihood of the detenu being released on bail even
though no bail application of his is pending, since most courts
normally grant bail on this ground.”
(Emphasis added)
Thus, it is evident from the aforesaid judgment that it is
not the similar case, i.e. involving similar offence. It should be
that the co-accused in the same offence is enlarged on bail and on the
basis of which the detenu could be enlarged on bail.
13. So far as the appellant’s son is concerned, he had been
arrested for the offence related to FIR No.53 (6) 2011 under Section
302 IPC read with Section 25(1-A) Arms Act dated 14.6.2011. The FIR
had been lodged against unknown persons, however, appellant’s son was
arrested on 19.6.2011 in respect of the said offence. Subsequently,
the detention order dated 30.6.2011 was passed by the District
Magistrate under N.S. Act on various grounds, inter-alia, that the
appellant’s son was involved in extorting of money and giving shelter
to underground members of unlawful association, namely, Kangleipak
Communist Party vide notification published in the Gazette of India on
13.11.2009 as his activities were pre-judicial to the security of the
State and maintenance of public order. In support of the detention
order, a large number of documents had been relied upon and supplied to
the appellant’s son including the copy of FIR No.254 (12) 2010 under
Section 17/20 of the Unlawful Activities (Prevention) Act, 1967
(hereinafter called UA (P) Act) and copy of FIR No. 210 (5) 2011 under
Section 20 of the UA (P) Act and released orders in those cases dated
13.12.2010 and 1.6.2011 respectively had been passed.
14. In the instant case, admittedly, the said bail orders do not
relate to the co-accused in the same case. The accused released in
those cases on bail had no concern with the present case. Merely,
because somebody else in similar cases had been granted bail, there
could be no presumption that in the instant case had the detenu applied
for bail could have been released on bail. Thus, as the detenu in the
instant case has not moved the bail application and no other co-
accused, if any, had been enlarged on bail, resorting to the provisions
of Act was not permissible. Therefore, the impugned order of detention
is based on mere ipse dixit statement in the grounds of detention and
cannot be sustained in the eyes of law.
15. The appeal succeeds and is allowed. The impugned judgment and
order is hereby set aside and detention order dated 30.6.2011 is
quashed.
………………………..J.
(Dr. B.S. CHAUHAN)
………………………..J.
(DIPAK MISRA)
New Delhi,
May 17, 2012
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