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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. CHAU  HAN, 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’).

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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  

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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  

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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   

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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  

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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.   

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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  

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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……  

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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  

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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  

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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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