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TMI Blog2012 (5) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Manipur Ors., (2012) 2 SCC 176, this Court held that personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III 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 a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India Anr., 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 earlier judgments in Rajesh GuIati 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 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 above, it can be held that there is no 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: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 coaccused 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 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 application is pending, then there is no likelihood ..... X X X X Extracts X X X X X X X X Extracts X X X X
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