HUIDROM KONUNGJAO SINGHversusSTATE OF MANIPUR & ORS.

                     [2012] 5 S.C.R. 1173


               HUIDROM KONUNGJAO SINGH                             A
                               v.
                STATE OF MANIPUR & ORS.
              (Criminal Appeal No. 840 of 2012)
                         MAY 17, 2012
                                                                   B
       [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.)

      NATIONAL SECURITY ACT, 1980:

        s. 3(2) - Order of detention passed against a person       c
   arrested for an offence punishable uls 302 /PC and s.25(1-
   C) Arms Act - Held: In the instant case, resorting to the
   provisions of N. S. Act was not permissible, since the detenu
   had not moved any bail application and no other co-accused,
   if any, had been enlarged on bail - Factors to be taken into    0
   consideration while passing an order of detention in respect
. .of a person who is already in custody, enumerated in the
  judgment - Constitution of India, 1950 - Arts. 21 and 22.

      The appellant's son (detenu) was arrested on
 19.6.2011 in connection with an offence punishable 1.1/s          E
 302 IPC and s. 25(1-C), Arms Act. The District Magistra,te
 passed a detention order u/s 3(2) of the National Security
 Act, 1980, on various grounds with an apprehension that
 as in similar cases, the accused involved therein had
 been enlarged on bail, the detenu in the instant case             F
 would also be released on bail and he would indulge in
 activities prejudicial to public order. The detention order
 was confirmed on 16.8.2011. The writ petition filed by the
 father of the detenu having been dismissed by the High
 Court, he filed the instant appeal.                               G

      Allowing the appeal, the Court

     HELD: 1.1 The question of personal liberty of a
 person is sacrosanct and State Authority cannot be
                        1173                                       H
    1174    SUPREME COURT REPORTS              (2012] 5 S.C.R.

A permitted to take it away without following the procedure
  prescribed by law, otherwise it would be violative of the
  fundamental rights guaranteed under Arts. 21 and 22 of
  the Constitution. [para 4] [1178-E]
       Ayya alias Ayub v. State of U.P. & Anr., 1988 ( 3) Suppl.
8 SCR 967 =AIR 1989 SC 364; Yumman Ongbi Lembi Leima
  v. State of Manipur & Ors., (2012) 2 SCC 176 - referred to.
        1.2 There is no prohibition in law to pass the
  detention order in respect of a person who is already in
C custody in respect of criminal case. However, if the
  detention order is challenged, the detaining authority has
  to satisfy the court the 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
D 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; and (3) keeping this
  in view, the authority felt it necessary to prevent him from
  indulging in such activities and, therefore, detention -ofder
E was necessary. In case either of these facts does. not
  exist the detention order would stand vitiated. [para 9]
  [1180-G-H; 1181-A-C]
       Dharmendra Suganchand Chelawat & Anr. v. Union of
  India & Ors., 1990 (1) SCR 303 =AIR 1990 SC 1196
F Rameshwar Shaw v. District Magistrate, Burdwan, 1964 SCR
  921 = AIR 1964 SC 334; Masood Alam v. Union of India,
  1973 (3) SCR 268 =AIR 1973 SC 897; Dula/ Roy v. District
  Magistrate, Burdwan, 1975 (3) SCR 186 = AIR1975 SC 1508;
  Alijan Mian v. District Magistrate, Dhanbad, 1983 (3) SCR 939
G = AIR 1983 SC 1130; Ramesh Yadav .v. District Magistrate,
  Etah, AIR1986 SC 315; Sura} Pal Sahu v. State of
  Maharashtra, 1986 (3) SCR 837 =AIR 1986 SC 2177; Binod
  Singh v. District Magistrate, Dhanbad, 1986 (3) SCR 906 =
  AIR 1986 SC 2090; Smt. Shashi Aggarwal v. State of U.P.,
H AIR 1988 SC 596; Amritlal & Ors. v. Union government
      HUIDROM KONUNGJAO SINGH v. STATE OF                1175
                MANIPUR & ORS.

through Secretary, Ministry of Finance & Ors., 2000 (4) Suppl.   A
SCR 450 = AIR 2000 SC 3675; N. Meera Rani v. Govt. of
Tamil Nadu, 1989 (3) SCR 901 = AIR 1989 SC 2027;
Kamarunnissa v. Union of India & Anr., 1990 (1) Suppl. SCR
457 = AIR 1991 SC 1640; and Union of India v. Paul
Manickam and Anr., 2003 (4) Suppl. SCR 618 =AIR 2003             B
SC 4622; A. Geetha v. State of Tamil Nadu & Anr., 2006 (5)
Suppl. SCR 724 =AIR 2006 SC 3053; Rajesh Gulati v. Govt-
of NCT of Delhi, AIR 2002 SC 3094; Ibrahim Nazeer v. State
of T.N. & Ors. 2006 (3) Suppl. SCR 357 = (2006) 6 SCC 64;
and Senthamilselvi v. State of T.N. & Anr. 2006 (3) Suppl.       c
SCR 24 = (2006) 5 SCC 676 - referred to.

    1.3 It is not the similar case, i.e. involving similar
offence, but 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. [para 12) (1183-C]             D

    Rekha v. State of Tamil Nadu through Secretary to Govt.
& Anr., 2011 (4) SCR 740 = (2011) 5 SCC 244 - referred
to.
                                                                 E
     1.4 In the instant case, the detenu had been arrested
for the offence u/s 302 IPC read with s.25(1-A) Arms Act,
related to FIR No.53 (6) 2011 dated 14.6.2011. The FIR had
been lodged against unknown persons, however, the
detenu was arrested on 19.6.2011 in respect of the said
offence. Subsequently, the detention order dated                 F
30.6.2011 was passed by the District Magistrate under
N.S. Act on various grounds, inter-alia, that the detenu
was involved in extorting of money and giving shelter to
underground members of an unlawful association and
his activities were pre-judicial to the security of the State    G
and maintenance of public order. In support of the
detention order, a large number of documents had been
relied upon and supplied to the detenu including the
copy of FIR No.254 (12) 2010 u/s 17/20 of the Unlawful
Activities (Prevention) Act, 1967( UA (P) Act) and copy of       H
    1176   SUPREME COURT REPORTS              [2012] 5 S.C.R.


A FIR No. 21 O (5) 2011 u/s 20 of the UA (P) Act and release
  orders dated 13.12.2010 and 1.6.2011 passed in those
  cases. In the instant case, admittedly, the bail orders
  relied upon do not relate to the co-accused in the same
  case. The accused released in those cases on bail had
s 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, he could have been released
  on bail. As the detenu in the instant case has not moved
c 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 and, as such, is quashed. [para 13-15] [1183-
0
  D-H; 1184-A-D]
                      Case Law Reference:
       1988 (3) Suppl. SCR 967 referred to          para 4
E      2012 (2) sec 176         referred to         para 5
       1990 (1) SCR 303         referred to         para 6
       1964 SCR 921             referred to         para 6

F     '1973 (3) SCR 268         referred to         para 6
       1975 (3) SCR 186         referred to         para 6
       1983 (3) SCR 939         referred to         para 6
       1986 AIR 315             referred to         para 6
G
       1986 (3) SCR 837         referred to         para 6
       1986 (3) SCR 906         referred to         para 6
       1988 AIR 596             referred to         para 6
H      2000 (4) Suppl. SCR 450 referred to          para 7
    HUIDROM KONUNGJAO SINGH v. STATE OF                   1177
              MANIPUR & ORS.

    1989 (3) SCR 901             referred to         para 7       A

    1990 (1) Suppl. SCR 457 referred to              para 7

    2003 (4) Suppl. SCR 618 referred to              para 7

    2006 (3) Suppl. SCR 357 referred to              para 8
                                                                  B
    2006 (5) Suppl. SCR 724 referred to              para 8

    2006 (3) Suppl. SCR 24       referred to         para 8

    AIR 2002 SC 3094             referred to         para 8
                                                                  c
    2011 (4) SCR 740             referred to         para 12

    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 840 of 2012.

     From the Judgment & Order dated 13.01.2012 of the            D
Gauhati High Court, Imphal Bench in Writ Petition (Crl.) No. 98
of 2011.

     RP. Bhatt, L. Roshmani, Somiran Sharma, B. Sunita Rao,
Anindita Popli, Khawairakpam Nobin Singh for the appearing        E
parties.

    The Judgment of the Court was delivered by

     DR. 8.S. CHAUHAN, J. 1. This Criminal Appeal has
been preferred against the impugned judgment and order dated      F
13.1.2012 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        G
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
                                                                  H
    1178     SUPREME COURT REPORTS                [2012] 5 S.C.R.


A '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
B 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
C Government of Manipur which stood rejected. The detention
  order. was confirmed vide order dated 16.8.2011 and
  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
D 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
E away without following the procedure prescribed by law,
  otherwise it would be violative of the fundamental rights
  guaranteed under Articles 21and22 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
F 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
G of an individual is the most precious and prized right guaranteed
  under the Constitution in Part Ill 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
H a proper appreciation of the facts as to whether such acts are
     HUIDROM KONUNGJAO SINGH v. STATE OF                       1179
      MANIPUR & ORS. [DR. B.S. CHAUHAN, J.]

in any way prejudicial to the interest and the security of the State   A
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
                                                                       8
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, Al R 1973 SC 897; Dula/ Roy v. District                C
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;               D
Smt. Shashi Aggarwal v. State of UP., 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          E
    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
                                                                       F
    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      G
    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
                                                                       H
    1180     SUPREME COURT REPORTS                [2012] 5 S.C.R.


A       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
8
  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
C 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.,
D       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
E earlier judgments in Rajesh Gulati 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 sec 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
F released on bail cannot be ipse dixit of the detaining authority.
  His subjective satisfaction based on materials, normally, should
  not to be interfered with.
                                                                 I
      9. In view of the above, it can be held that there is no
G 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:

H
     HUIDROM KONUNGJAO SINGH v. STATE OF                     1181
      MANIPUR & ORS. [DR. B.S. CHAUHAN, J.]

     (1) The authority was fully aware of the fact that the detenu   A
     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
                                                                     8
     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.                                  C

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      D
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          E
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           F
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.
                                                                     G
     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           H
    1182     SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   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
B 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
c       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
D       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
E
        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,
F       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
G       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
H       logically that if no bail application is pending, then there is
     HUIDROM KONUNGJAO SINGH v. STATE OF                     1183
      MANIPUR & ORS. [DR. B.S. CHAUHAN, J.]

    no likelihood of the person in custody being released on          A
    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           B
    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)        C

     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.
                                                                      D
     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
                                                                      E
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                  F
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            G
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.                                         H
    1184       SUPREME COURT REPORTS                 [2012] 5 S.C.R.

A          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
B 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
C 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.       ·
D
    R.P.                                             Appeal allowed.