2012 (5) TMI 732 - SC - Indian Laws

Challenging 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.

Summary

Issues:
Challenge to detention order under National Security Act, 1980 based on habeas corpus petition; Validity of detention order against a person already in custody; Requirement of compelling reasons for detention; Consideration of bail orders in similar cases for detention; Examination of grounds of detention for legality.

Analysis:
The appeal before the Supreme Court challenged the detention order under the National Security Act, 1980, which was based on a habeas corpus petition. The appellant's son was detained by the District Magistrate under the Act due to apprehensions of engaging in activities prejudicial to public order after being arrested under the Indian Penal Code and Arms Act. The Court emphasized the importance of personal liberty, citing previous judgments that highlighted the delicate balance between individual freedom and societal order.

The Court delved into the issue of detaining a person already in custody, citing various precedents. It was established that for a detention order to be valid in such cases, the authority must have compelling reasons to believe that the individual, upon release, would engage in activities prejudicial to public order. The Court emphasized the need for cogent material to support such a decision.

The judgment discussed the necessity of considering bail orders in similar cases for determining the likelihood of a person being released on bail. It was highlighted that the mere fact that someone in a similar case had been granted bail does not automatically justify detention. The detaining authority must have specific, reliable information to support the belief that the individual in question would likely be released on bail and engage in detrimental activities upon release.

In the specific case under consideration, the Court found that the detention order was not based on sufficient grounds. The bail orders referred to were unrelated to the present case, and there was no indication that the detenu was likely to be released on bail and engage in prejudicial activities. Therefore, the detention order was deemed invalid as it lacked the necessary legal basis. Consequently, the Court allowed the appeal, setting aside the impugned judgment and quashing the detention order dated 30.6.2011.

In conclusion, the judgment underscored the importance of following due process and having substantial grounds for preventive detention, especially when dealing with individuals already in custody. It reiterated that detention orders must be based on concrete evidence and cannot rely on mere assumptions or unrelated bail orders.