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2012 (5) TMI 732 - SC - Indian LawsChallenging the order of detention - Habeas Corpus petition - Arms Act - the appellant’s son is concerned, he had been arrested for the offence related to FIR u/s 302 IPC r/w Section 25(1-A) Arms Act. Subsequently, the detention order 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, 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 u/s 17/20 of the Unlawful Activities (Prevention) Act, 1967 (UA (P) Act). HELD THAT:- In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in other 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. The appeal succeeds and is allowed. The impugned judgment and order is hereby set aside and detention order is quashed. 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."
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