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Judgment
Sr
No.","Police
Station",CR No.,"Sections of
Law","Date and
Time of
registratio
n","Date and
time of
arrest",Status
7,"Warje Â
 Malawadi","244 ofÂ
2017","U/s.394, 395,
427, 323, 504,
506, 34 of IPC.","13Â6Â‐
2017 at
22.14 hours","16Â08Â2017
16.45 hours","Court
pending
8,"Warje Â
Malawadi","316 of
2017","U/s.504, 506(2)
427 IPC r/w
Sec.7(1) of
criminal Law
Amendment
Act r/w
Sec.4(25)
of Arms Act
r/w
Sec.37(1) 135
of Maharashtra
Police Act.","15Â8Â‐
2017 at
23.53 hours","16Â8Â‐
2017 at
00.05
hours.","Court
pending
1,"Rameshwar Shaw Vs. D.M.Burdwan AIRÂ‐
1964ÂSCÂ334","Constitution
Bench",,,,
2,"Haradhan Shha Vs. State of West Bengal Â‐
(1975)30SCCÂ198","Ââ€Â
Â",,,,
3,"Yumman a.l. Leima Vs. State of Manipur and
others  (2012)1ÂSCALE","Three Judges
Bench",,,,
4,Rekha Vs. State of Tamil Nadu (2011)5ÂSCC244,Ââ€Â,,,,
5,"N.Meera Rani Vs. Govt. of Tamil Nadu 1989Â‐
Cri.L.J.Â2190",Ââ€Â,,,,
6,"Dharmendra S. Chelawat Vs. Union of India and
others (1990)Â1ÂSCCÂ746",Ââ€Â,,,,
7,"Huidrom Konungjo Singh Vs. State of Manipur
and others (2012)7ÂSCCÂ181","Two Judges
Bench",,,,
8,"Champion R. Sangma Vs. State of
Meghalaya  2015ÂALL MR (Cri.)Â3673",Ââ€Â,,,,
9,Kamarunnisa Vs. Union of India,Ââ€Â,,,,
10,"G.Reddeiah Vs. Govt. of Andhra Pradesh
(2012)2ÂSCCÂ389",Ââ€Â,,,,
11,"Union of India Vs. Paul Manickam (2003)8Â‐
SCCÂ342",Ââ€Â,,,,
such offences which are not with the punishment of compulsorily death or imprisonment for life time. So there is imminent possibility of getting you,,,,,,
bail if you apply for that. I am satisfied that after availing bail facility, again you will revert to similar activities which are prejudicial to the maintenance",,,,,,
of public order. In view of your desperate tendencies and inclinations reflected in the offences committed by you as stated above, as well as the",,,,,,
incidents recorded in the `inÂcamera' statements, it is necessary to detain you under the said Act to prevent you from acting in such prejudicial",,,,,,
manner in future.â€,,,,,,
A bare perusal of this paragraph would indicate that the detaining authority is aware that the detenu is presently in jail and he has not applied for bail.,,,,,,
However, the detaining authority further says that nobody restricted him from applying for bail and if he applies for bail, the Court may grant him bail",,,,,,
because generally the Court grants bail for such offences which are not visited with the punishment of death or imprisonment of life. The detaining,,,,,,
authority has carved out a ground to detain the detenu by stating that generally Court grants bail for such offences which are not visited with the,,,,,,
punishment of compulsorily death or imprisonment for life time. We do not see how when such punishments are awarded or severe punishments are,,,,,,
not awarded, necessarily every criminal as of right is entitled to bail. Be that as it may, the detention order further recites that there is imminent",,,,,,
possibility of getting bail and if he applies for that, and if he avails of the bail, he will revert to the similar activities which are prejudicial to the",,,,,,
maintenance of public order. The tendencies and inclination of the petitioner is reflected, according to the detaining authority, in the offences",,,,,,
committed by him as well as in the incidents recorded in the inÂcamera statements. It is necessary, therefore, to detain the detenu from acting in such",,,,,,
prejudicial manner in future.,,,,,,
16.While meeting the grounds in the writ petition, in the affidavit inÂreply, at page 43, it is stated as under :",,,,,,
“9.With reference to ground 6(b) of the petition, it is denied that the satisfaction recorded by me of imminent possibility is based on no cogent",,,,,,
material and therefore the same is vague and erroneous. It is further denied that the order of detention is in violation of one of the guidelines laid down,,,,,,
by the Hon'ble Supreme Court.,,,,,,
It is submitted that I was aware that the detenu was in custody on the date of issuance of order of detention in respect of offence mentioned in para,,,,,,
4.1 and 4.2 of the grounds of detention. I was further aware of the facts that the detenu has not applied for bail. I have gone through the charge,,,,,,
sheets filed in respect of C.R.No.244 of 2017 and CR No.316 of 2017 and after considering the over all nature of offence and the entire charge sheet,,,,,,
placed before me, I came to be satisfied that there was imminent and real possibility of detenu being released on bail in future. This is the reliable",,,,,,
material on which I came to the conclusion about imminent possibility of detenu being released on bail. Considering detenu's involvement in prejudicial,,,,,,
activities, I was further satisfied that there is imminent likelihood to revert to similar activities in future, hence looking to the propensity and potentiality",,,,,,
of the detenu of indulging in activities which are prejudicial in nature, I felt it necessary to issue order of detention against the detenu to prevent him",,,,,,
from further indulging in prejudicial activities in future. I have further gone through the punishment prescribed under the provisions of law for which,,,,,,
the detenu was arrested. The punishment was not compulsorily death or life imprisonment. Thus from the said reliable material, I came to be satisfied",,,,,,
that there was imminent and real possibility of release of the detenu on bail supported with the said cogent material. Thus there is no substance in the,,,,,,
say of the petitioner in this para.â€,,,,,,
17.Pertinently, paras 6 and 7 of the impugned order reads as under :",,,,,,
“6.On going through your criminal record, it is evident that you are a habitual and dangerous criminal involved in serious and violent crimes. Your",,,,,,
criminal activities are a threat to the lives and properties of the public. In order to curb your criminal activities, preventive action was taken against",,,,,,
you. A proposal u/s 56(1)(b) of the Maharashtra Police Act, 1951 was sent against you by WarjeÂMalawadi Police Station, Pune to the Deputy",,,,,,
Commissioner of Police, ZoneÂI, Pune City. In the said proceeding, the D.C.P.ZoneÂI, Pune City had externed you for a period of two years from",,,,,,
Pune City and Pune District vide order No.12/2012, dated 08/06/2012. After the externment period was over, you again committed serious offences",,,,,,
such as attempt to commit murder, dacoity, grievous hurt, robbery, possession of illegal arm in the jurisdiction of Warje Malawadi and Alankar Police",,,,,,
Station, Pune. These offences are shown at serial numbers 4 to 8 of the chart of offences. Hence, it is evident that the normal laws of the land are",,,,,,
insufficient to curtail your dangerous criminal activities. Your criminal activities are showing an ascending trend and are prejudicial to maintenance of,,,,,,
public order. You were arrested in various offences such as attempt to commit murder, dacoity, grievous hurt, robbery, possession of illegal arms and",,,,,,
you were released on bail from time to time by the Hon'ble Courts. You continued to commit various serious offences after getting released on bail.,,,,,,
7.From the above facts, I am subjectively satisfied that you are a `dangerous person' as defined in Section 2(bÂ1) of the said Act. You have",,,,,,
unleashed a reign of terror and have become a perpetual danger to the society at large in the area of WarjeÂMalawadi Police Station in Pune City.,,,,,,
The people there are experiencing a sense of insecurity and are living under shadow of constant fear, whereby even dayÂtoÂday businesses and",,,,,,
activities of citizens are under threat. You show no respect to the law of the land and to the citizens of the society where you live. You are perpetually,,,,,,
an impulsively violent man who wants to spread terror in the society by your violent criminal activities, in connivance with your criminal associates.â€",,,,,,
A bare perusal of the same would spell out the inconsistency and contradiction in the order and though at one place it is stated that only two recent,,,,,,
crimes are considered in arriving at subective satisfaction, the above reproduced paras would spell out quite the contrary. Thus, the tendency to revert",,,,,,
to criminal activities and repeat them allegedly necessitates the preventive detention and even though the detenu is in custody for one month and more,,,,,,
particularly prior to passing of the impugned order.,,,,,,
18.We are mindful of the fact that learned public prosecutor relies on the judgment in Veermani Vs. State of Tamil Nadu (supra), which was a",,,,,,
peculiar case. There, the detention order was passed, though said Veermani was in custody, on 16th February 1993. He was arrested on 11th",,,,,,
February 1993, remanded to custody on 11th February 2013 and on 16th February 1993 the detention order was passed. There was no opportunity for",,,,,,
him to file a bail application within this short span of time. The ground to challenge the detention order, inter alia, is that he was already in custody",,,,,,
under the orders of Magistrate, who remanded him on 11th February 1993 in connection with Crime Nos.288 of 1993 and 237 of 1993 being accused",,,,,,
of offence punishable u/s 147, 148, 302 and 307 of IPC. The argument was that there was no question of he being released on bail and as a matter of",,,,,,
fact he did not apply for bail. Hence, the detention order was unwarranted and there was no genuine satisfaction regarding detention as required under",,,,,,
the Act and, therefore, the order was illegal. The argument would revolve around the lack of awareness on the part of detaining authority that the",,,,,,
detenu is in custody and that he had reason to believe that he is likely to be released. The Supreme Court found that the detaining authority was indeed,,,,,,
aware that the detenu is remanded to custody, but holds that he was likely to file a bail application and that bail is usually granted by Courts in such",,,,,,
cases and that if he comes out of jail on bail, he would indulge in such activities prejudicial to the maintenance of public order.",,,,,,
19.The Hon'ble Supreme Court referred to one earlier decision in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan reported in AIRÂ‐",,,,,,
1964ÂSCÂ334. This reference was made on the question whether the detaining authority has properly applied its mind in such case where person,,,,,,
sought to be detained is already in custody. In Rameshwar Shaw (supra), the Hon'ble Supreme Court, inter alia, held that if a person is already in",,,,,,
custody, how it can rationally be postulated that if he is not detained, he would act in a prejudicial manner. At the point of time when an order of",,,,,,
detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained, and that is a",,,,,,
consideration which would be absent when the authority is dealing with a person already in detention. However, in that very judgment, the Hon'ble",,,,,,
Supreme Court clarified that where detention of the said Person would be necessary after his release from jail and if the authority is bona fide,,,,,,
satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The Hon'ble",,,,,,
Supreme Court then clarified that the question as to whether an order of detention can be passed against a person who is in custody or in jail, will",,,,,,
always have to be determined in the circumstances of each case.,,,,,,
Purportedly the arguments of Ms.Mhatre, learned APP, ignores this dictum and then what follows in paragraphs 6, 7 and 8 of the judgment in",,,,,,
Veeramani. These paragraphs read as under :,,,,,,
“6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the",,,,,,
authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of reliable material that there is a,,,,,,
possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the",,,,,,
authority passes an order after recording his satisfaction the same cannot be struck down.,,,,,,
7.Learned counsel, however, submitted that by making a sweeping statement that the petitioner is likely to be released on bail, the detaining authority",,,,,,
cannot pass a detention order and when there is no likelihood of his being released on bail from custody, the order of detention is illegal inasmuch as",,,,,,
there is no proper application of mind. In this context the learned counsel also submitted that since the detenu was in actual custody in connection with,,,,,,
the murder case, no reasonable person can arrive at the conclusion that he was likely to be released on bail and that the statement of the detaining",,,,,,
authority in the grounds that the detenu is likely to file a bail application and come out on bail and that he was aware that bail is usually granted by the,,,,,,
courts in such cases, is illogical and unsound. In this context the learned counsel relied on an unreported judgment of this Court in Rivadeneyra",,,,,,
Ricardo Agustin Vs. Government of National Capital Territory of Delhi. In that case in the grounds it was only mentioned that there was a `possibility',,,,,,
of the detenu being released in case he moves a bail application. This Court observed that since the grounds did not indicate that such release was,,,,,,
likely or that it was imminent and that on a mere possibility the detention order could not have been passed. The bench also examined the relevant file,,,,,,
and observed that there was no material indicating that the release of the petitioner was likely.,,,,,,
8.But in the instant case what we have to mainly see is whether there was awareness in the mind of the detaining authority that the detenu is in,,,,,,
custody and that he had reason to believe that he is likely to be released. The grounds do disclose that the detaining authority was aware that the,,,,,,
detenu is in custody and it is further mentioned that he was also aware that bail is usually granted by the courts in such cases and it is further,,,,,,
emphasised that there is `imminent possibility' of the detenu coming out on bail. As a matter of fact the High Court in its judgment while considering,,,,,,
this aspect also observed thus :,,,,,,
`The grounds indicate that the detenu, who was in remand, was likely to file a bail application and come out on bail. This shows the subjective",,,,,,
satisfaction of the detaining authority not only of the awareness of the petitioner being in remand, but his subjective satisfaction of the likelihood of the",,,,,,
petitioner coming out on bail by filing bail application. Of course, the detaining authority need not have stated that he was also aware that bail is usually",,,,,,
granted by courts in such cases and hence there is imminent possibility that he will come out on bail if it has to be held to be a sweeping statement, but",,,,,,
on facts, it cannot be said that the statement is of a sweeping nature for, it is well known that in offences punishable under the sections listed above,",,,,,,
bail orders are usually granted for some time and most certainly except in rarest of rare cases after the final report is laid.',,,,,,
Therefore it cannot be said that the detaining authority has not applied its mind to this aspect. It is also submitted that the detenu, as a matter of fact,",,,,,,
did not file any bail application. But it must be noted that the detenu was arrested on February 11, 1993 and remanded to custody and on February 16,",,,,,,
1993 itself the detention order was passed. Therefore there was no opportunity for him to file a bail application within this short interval.â€,,,,,,
20.Thus, in Veeramani (supra), the Hon'ble Supreme Court was firstly satisfied that the activities of the detenu were prejudicial to the maintenance of",,,,,,
public order. After making reference to the cases registered against Veeramani, an incident of 11th February 1993 is noted when police party",,,,,,
proceeded to apprehend him and his associates. The said Veeramani and his associates shouted at them and when the police party surrounded the,,,,,,
petitioner and his associates to apprehend them, the members of the police party were challenged and were attacked and the petitioner aimed a cut on",,,,,,
the head of the Inspector with a patta knife but which fell on his left forearm causing a bleeding injury and similarly some of the associates of the,,,,,,
petitioner inflicted injuries on the constables and stones were pelted against them which caused injuries. However, Veeramani and his associates were",,,,,,
apprehended but Veeramani threatened the general public and thereby instilled a sense of fear and panic in their minds. Some more details of the,,,,,,
crime were mentioned and finally it was concluded that from this material, the detaining authority was satisfied that the detenu and his associates",,,,,,
acted in a manner prejudicial to the maintenance of public order. At the same time, we must bear in mind that the Hon'ble Supreme Court was",,,,,,
considering the challenge to the detention order on the ground that detaining authority was not aware that the detenu was in custody. It had not applied,,,,,,
its mind to this aspect. We are, therefore, of the opinion that the decision in Veeramani turns on its own facts.",,,,,,
21.Similarly in the case of Senthamilselvi (supra), three grounds were urged to support the petition. The grounds are culled out in paragraph 3 of the",,,,,,
judgment. One of the ground was that the detenu had not filed any bail application and the detaining authority could not have inferred that there was,,,,,,
possibility of he being released on bail. Several judgments were relied upon but in paragraph 10 of the Senthamilselvi (supra), the Hon'ble Supreme",,,,,,
Court held as under :,,,,,,
“10. It was also submitted that since the detenu had not filed any bail application, the detaining authority could not have inferred that there was",,,,,,
possibility of his being released on bail. Strong reliance is placed on several decisions of this Court. It has to be noted that whether prayer for bail,,,,,,
would be accepted depends on circumstances of each case and no hardÂandÂfast rule can be applied. The only requirement is 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. On the basis of materials before him, the detaining authority came to the conclusion that there is",,,,,,
likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered",,,,,,
with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on",,,,,,
bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. The appellant has not disputed correctness of his,,,,,,
statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati Vs. Govt. of NCT of Delhi (2002)7ÂSCCÂ129. The,,,,,,
factual scenario in that,,,,,,
case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not a",,,,,,
`normal' case. The high Court was justified in rejecting the stand of the appellant.â€,,,,,,
22.Thus, the Hon'ble Supreme Court has emphasised that the detenu may not be enlarged on bail and may be in custody when the detention order is",,,,,,
made. He may have also applied for bail, but still, a detention order can be made, provided, there are materials before the detaining authority to come",,,,,,
to the conclusion that there is likelihood of the detenu being released on bail and that on being released on bail, he is likely to resume or revert back to",,,,,,
his criminal activities.,,,,,,
23.Even in the case of Aarif @ Yasir Ahmed Sattar Ahmed (supra), the judgment of the Division Bench of this Court turns essentially on facts. There",,,,,,
also, the ground of challenge was, inter alia, that there is no possibility of the detenu being termed as a dangerous person, for, satisfaction in terms of",,,,,,
subÂsection (1) of Section 3 of MPDA Act is lacking. In that case as well, the materials before this Court indicated that there was no substance in",,,,,,
that challenge. The ground was rejected in the factual matrix that after the detention order was passed, the detenu has been released on bail in two",,,,,,
out of three cases based on which the order of detention was made. Thus, there was a real possibility of he being enlarged on bail and that the detenu",,,,,,
would revert back to his criminal activities. Thus, the wider issue, as to whether there is a conflict in the views expressed in the two Judge Bench",,,,,,
decisions and the three or Constitution Bench judgment of the Hon'ble Supreme Court requiring a reference to the Rule of Precedents, need not be",,,,,,
gone into in the case at hand.,,,,,,
Pertinently, when the knowledge or awareness of the factual aspect of the detenu being in custody is lacking, then, the preventive detention order is",,,,,,
exÂfacie untenable and unsustainable is the law and principle laid down in all the judgments cited before us. Secondy, if there is awareness of this fact",,,,,,
and still the detention is warranted, then, both two Judge and three Judge judgments, demand that there must be a real possibility of the detenu being",,,,,,
released on bail and reverting to his criminal activities. In the instant case, only vague statement is made that in the earlier cases the detenu continued",,,,,,
to commit various serious offences after getting released on bail (see para 6 of the detention order, page 20). However, the detention order itself",,,,,,
states that the case at serial nos.2 to 6 from chart at pages 14 and 15 are not taken into consideration and the detention order is passed taking into,,,,,,
consideration the cases at serial nos.7 and 8 (recent ones of 2017). This is apparent from paragraph no.3 of the order at page 15 of the paper book. In,,,,,,
the recent cases as above, the detenu is in custody for more than a month as noted above. He did not seek bail. Hence, there was no satisfaction",,,,,,
about his imminent release or his possibility of release and resuming his criminal activities. The statement in that regard is bald and mere ipse dixit of,,,,,,
the detaining authority. Hence, it is clearly vitiated in law.",,,,,,
24.In all the three Judge Bench judgments and bearing in mind the matter in the case of Rekha Vs. State of Tamil Nadu (supra), the Hon'ble Supreme",,,,,,
Court has not shown lack of awareness of this principle. In fact, it refers to this very principle and then proceeds to hold as under :",,,,,,
“7. 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 coÂaccused 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. All that has been stated in the grounds of detention is that,,,,,,
“in similar cases bails were granted by the courtsâ€. In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied",,,,,,
upon. In our opinion, this itself is sufficient to vitiate the detention order.",,,,,,
8.It has been held in T.V.Sravanan Vs. State (2006)2Â SCCÂ664, A. Shanthi Vs. Govt of T.N. (2006)9ÂSCCÂ711, Rajesh Gulati Vs.Govt. Of NGT",,,,,,
of Delhi (2002)7ÂSCCÂ129, etc. that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention",,,,,,
order under the preventive detention law is illegal. These decisions appear to have followed the Constitution Bench decision in Haradhan Saha Vs.,,,,,,
State of W.B. (1975)3ÂSCCÂ198 Wherein it has been observed : (SCC p.209, para 34) :",,,,,,
“34. … … … where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely,,,,,,
to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the",,,,,,
likelihood of such a person indulging in activities which would jeopardise the security of the State or public order.â€,,,,,,
9.On the other hand, Mr.Altaf Ahmed, earned Senior Counsel appearing for the State of Tamil Nadu, has relied on the judgments of this Court in A.",,,,,,
Geetha Vs. State of T.N. (2006)7ÂSCCÂ603 and Ibrahim Nazeer Vs. State of T.N.(2006)6ÂSCCÂ64 wherein it has been held that even if no bail,,,,,,
application of the petitioner is pending but if in similar cases bail has been granted, then this is a good ground for the subjective satisfaction of the",,,,,,
detaining authority to pass the detention order.,,,,,,
10.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 coÂaccused 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 coÂaccused has been granted bail and his case is on the same footing as that of the,,,,,,
petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in",,,,,,
similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order",,,,,,
and has to be ignored.,,,,,,
11.In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail",,,,,,
and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.",,,,,,
12.Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be",,,,,,
challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which",,,,,,
the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for",,,,,,
exercise of the power did not exist, that the subjective satisfaction was irrational, that there was nonÂapplication of mind, that the grounds are vague,",,,,,,
indefinite, irrelevant, extraneous, non existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding",,,,,,
the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or",,,,,,
that the reference was belated etc.,,,,,,
13.In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution.",,,,,,
An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution.",,,,,,
Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer",,,,,,
and without a trial. As observed in R.V.Secy. Of State for the Home Deptt. Ex p. Stafford (1998)1ÂWLRÂ503 (CA) : (WLR p.518 FÂG) :,,,,,,
“... … The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with",,,,,,
ordinary concepts of the rule of law.â€,,,,,,
Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional",,,,,,
cases, and it cannot override the main rule.",,,,,,
14.Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won,,,,,,
by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom",,,,,,
struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty",,,,,,
would be placed on the highest pedestal along with the right to life as the basic right of the people of India.,,,,,,
15.Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of,,,,,,
hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer.",,,,,,
17.Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But,,,,,,
Article 22(3) specifically excludes the applicability of clause (1) of Article22 to cases of preventive detention. Therefore, we must confine the power",,,,,,
of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after",,,,,,
long, arduous and historical struggles, will become nugatory.",,,,,,
21.It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of",,,,,,
one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called,,,,,,
preventive or punitive ?,,,,,,
26.It was held in Union of India Vs. Paul Manickam (2003)8ÂSCCÂ342 that if the detaining authority is aware of the fact that the detenu is in,,,,,,
custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent,,,,,,
activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made.",,,,,,
27.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 and 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. However, details of such alleged similar",,,,,,
cases must be given, otherwise the bald statement of the authority cannot be believed.",,,,,,
29.Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in",,,,,,
England (except during war time). Since, however, Article 22(3)(b) of the onstitution of India permits preventive detention, we cannot hold it illegal but",,,,,,
we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by",,,,,,
Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the",,,,,,
land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.",,,,,,
30.Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : was the,,,,,,
ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case,",,,,,,
the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs,,,,,,
and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.â€",,,,,,
25.Prior to that the Hon'ble Supreme Court in Pebam Ningol Mikoi Devi Versus State of Manipur and others reported in (2010)9ÂSCCÂ618 declared,,,,,,
the principles of law as under :,,,,,,
“3. Individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country.",,,,,,
On “libertyâ€, William Shakespeare, the great play writer, has observed that “a man is master of his libertyâ€. Benjamin Franklin goes even",,,,,,
further and says that “any society that would give up a little liberty to gain a little security will deserve neither and lose bothâ€. The importance of,,,,,,
protecting liberty and freedom is explained by the famous lawyer Clarence Darrow as “you can protect your liberties in this world only by,,,,,,
protecting the other man's freedom; you can be free only if I am freeâ€. In India, the utmost importance is given to life and personal liberty of an",,,,,,
individual, since we believe personal liberty is the paramount essential to human dignity and human happiness.",,,,,,
4.The Constitution of India protects the liberty of an individual. Article 21 provides that no person shall be deprived of his life and personal liberty,,,,,,
except according to procedure established by law. In matters of preventive detention such as this, as there is deprivation of liberty without trial, and",,,,,,
subsequent safeguards are provided in Article 22 of the Constitution. They are, when any person is detained pursuant to an order made under any law",,,,,,
providing for preventive detention, the authority making the order is required to communicate the grounds on the basis of which, the order has been",,,,,,
made and give him an opportunity to make a representation against the order as soon as possible. It thus, cannot be doubted that the constitutional",,,,,,
framework envisages protection of liberty as essential, and makes the circumstances under which it can be deprived.",,,,,,
26.What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same.",,,,,,
The Court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective",,,,,,
basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be,,,,,,
detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public,,,,,,
order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.,,,,,,
28.We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the",,,,,,
court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the",,,,,,
subjective satisfaction of the detaining authority under the NS Act, is nonÂexistent or misconceived or irrelevant, the order of detention would be",,,,,,
invalid.â€,,,,,,
26.Pertinently in this judgment the Hon'ble Supreme Court says that 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 and that is where",,,,,,
a coÂaccused whose case stands on the same footing, had been granted bail. In such case, 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.",,,,,,
However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. It is therefore",,,,,,
necessary that the details have to be set out. In the absence of details, the reason or satisfaction is mere ipse dixit and cannot be relied upon. If the",,,,,,
details are given, then, of course, it can 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. Pertinently, the respondent authority should have given the details about the alleged bail order in similar case, which in the case of Rekha",,,,,,
(supra) was lacking. It is in such circumstances that by referring to all the earlier decisions, the Hon'ble Supreme Court concludes that such an order",,,,,,
of detention cannot be sustained.,,,,,,
27.We are, therefore, not required to go into larger controversy. Even if we follow the dictum in Veeramani's case, the details therein justifies the",,,,,,
order of passing the detention order. If the detention order has to be passed when the detenu is in custody, the details prescribed under law ought to be",,,,,,
present in the detention order itself. The subjective satisfaction, as reflected in the detention orderin this case, does not make any reference to any",,,,,,
details, leave alone a case of coÂaccused being enlarged on bail. There are, therefore, no instances or details of similar cases in which bail orders",,,,,,
have been passed indicating the real possibility of detenu being enlarged on bail. It is thus a bald statement or a mere ipsi dixit of the detaining,,,,,,
authority. That would not suffice. Even in the affidavitÂinÂreply the stand, as taken by the detaining authority, is specifically reproduced by us.",,,,,,
Beyond stating that she has gone through the charge sheets and after considering the over all nature of the offences she was satisfied that there was,,,,,,
imminent and real possibility of detenu being released in future, there is no reliable material based on which the apprehension is expressed that there is",,,,,,
possibility of detenu being enlarged on bail. Moreover, this statement overlooks the fact that there was not one but two cases and in each of them the",,,,,,
charge sheet was filed long time back, the detenu was in custody and for more than a month. Secondly, the inÂcamera statements relied on some",,,,,,
instances of 11th June 2017 and 27th July 2017. These statements were recorded on 28th July 2017 and 12th August 2017. After these instances as,,,,,,
well, two crimes, as noted above, were registered and the detenu was taken into custody. In such circumstances, the details as are demanded by the",,,,,,
judgments of Hon'ble Supreme Court, ought to be on record. None of these details are forthcoming. In the circumstances awareness of the fact that",,,,,,
the detenu has not applied for bail, is not sufficient in this case. In the facts and circumstances of this case, the detaining authority should have",,,,,,
recorded a satisfaction that there is a real possibility of the detenu being enlarged on bail. That possibility should be indicated with reference to cogent,,,,,,
and satisfactory materials. Pertinently, there are no bail orders passed in the cases of coÂaccused as well.",,,,,,
28.The order of detention dated 27th September 2017 cannot be sustained. It is accordingly quashed and set aside. Rule is made absolute. The detenu,,,,,,
be released forthwith, if not required in any other case.",,,,,,