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2012 (5) TMI 732 - SUPREME COURT

2012 (5) TMI 732 - SUPREME COURT - 2012 AIR 2002, 2012 (5) SCR 1173, 2012 (7) SCC 181, 2012 (5) JT 86, 2012 (5) SCALE 628 - CRIMINAL APPEAL NO.840 of 2012 - Dated:- 17-5-2012 - CHAUHAN, B.S (DR) AND MISRA,DIPAK, JJ. 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 orde .....

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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. Th .....

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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 .....

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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 Magistrat .....

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red 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 detent .....

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; 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 he .....

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T 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 .....

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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 f .....

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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 .....

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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…&helli .....

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s 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 ap .....

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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 .....

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