T. NK Singh, J.@mdashThe challenge in this writ petition is to the impugned detention order being No. Cril/NSA/No. 10 of 2011 Imphal the 31st January, 2011 issued by the District Magistrate, Imphal West District, Manipur for detaining Shri Yumnam Somendro @ Somo @ Tiken s/o Y. Roton Singh of Churachandpur Thengra Leirak, P.S. Churachandpur, District-Churachandpur; the approval order of the Governor of Manipur in exercise of the powers conferred u/s 3(4) of the National Security Act, 1980 dated 7.2.2001 and also the confirmation order of the Governor of Manipur dated 18.3.2011 in exercise of the powers conferred u/s 12(4) of the National Security Act and fixing the period of detention for 12 (twelve) months from the date of detention mainly on the ground that the subjective satisfaction of the detaining authority for detaining the detune under NSA as the detune is likely to be released on bail in the near future by the normal criminal court as bails are granted in similar cases by the criminal courts, is nothing but ipse dixit of the detaining authority in the absence of particulars of the so-called similar cases where bails had been granted by the normal criminal courts and also the material particulars of the orders of the criminal courts for granting bails in those similar cases in the impugned detention order.
2. Heard Mr. M. Devananda, learned counsel appearing for the petitioner, who is the wife of the detune, Shri Yumnam Somendro, Mr. Th. Ibohal Singh, learned Sr. G.A. appearing for the respondents- 1 and 2 as well as Mr. Amarjit Naorem, learned CGSC appearing for the respondent No. 3 respectively.
3. On 21.3.1994 the detune was arrested in connection with FIR No. 478 (3)1994 IPS, u/s 13 UA (P) Act and remanded into custody. However, detune was released on bail by the normal criminal court. Again on 29.6.95 detune was arrested in connection with FIR No. 450(6)95 under Churachandpur P.S. u/s 386 and 34 IPC and remanded into judicial custody. The detune was released on bail by the normal criminal court. Again the detune was arrested in connection with FIR No. 190(5)98 IPS u/s 13 UA (P) Act and he was released on bail on 8.7.1998. On 16.1.2011 the detune was arrested by the personnel of Imphal Police Station in connection the criminal case being FIR No. 21(1)11 IPS u/s 302 IPC for murder of the then Chairman of the Board of Secondary Education, Manipur, namely Dr. N. Kunjabihari Singh, in his office room on 11.1.2011. He was produced before the concerned Magistrate on 17.1.11 and remanded into police custody till 31.1.2011.
4. On 31.1.2011 he was further remanded into police custody till 2.2.2011; and when he was produced before the Chief Judicial Magistrate in connection with the said case, he was served with the copy of the impugned detention order dated 31.1.2011 issued by the District Magistrate, Imphal West and thereby detaining him under the National Security Act,1980.
5. On 31.2.2011 the detune was served with the grounds of detention under NSA, 1980 under the letter of the detaining authority, i.e. District Magistrate, Imphal West being No. Cril/NSA/No. 10 of 2011 dated the 3rd February, 2011. By the said letter of the detaining authority dated 3.2.2011, copies of the documents which form the basis of the grounds of detention were furnished to the detune. In the said letter of the detaining authority dated 3.2.2011, it is clearly stated that the petitioner had been arrested a number of time in connection with the criminal cases and the detune was released on bail by the normal criminal courts in those cases. In such circumstances, the detaining authority was satisfied that after having availed of bail facility and becoming a free person, the detune being a member of KYKL, would continue to work in the KYKL and carry out dangerous activities such as murder of a Government officer for not agreeing to the dictates of KYKL which is prejudicial to the security of the State and maintenance of public order and therefore application of normal criminal law against the detune will not at all be effective to refrain the detune from commission of further prejudicial activities; an alternative preventive measure is immediately called for. For easy reference para Nos.- 1,2, 3, 4 and 5 of the said letter/grounds of detention dated 3.2.2011 are quoted hereunder:
1. That, you joined the banned organization namely, Kanglei Yaol Kanna Lup (KYKL in short) as a member in the last part of 1992 through Shri Okram Kumar Singh @ Goutam S/o O. Chandro Singh of Thoubal Okram Leikai (killed on 14.02.1997). Thereafter, you started to work in finance section of KYKL under the command of Shri O. Kumar Singh. You along with other members of KYKL finance section extorted huge amount of money from general public. On 21.03.1994 you were arrested by police in connection with FIR No. 478 (3) 1994 IPS u/s 13 UA(P) Act and remanded to judicial custody on 31.03.1994. However you were released on bail by the court in the month of November, 1994. Just after release on bail by the court, you resumed your work in KYKL organization. In the early part of 1995 you along with 59 KYKL new recruits imparted basic military training in a jungle located at Chandel District. After training you got promotion to the rank of S/S L/Corporal. On 29.06.1995 you were arrested in connection with FIR No. 450(6) 1995 CCpur P.S. u/s 386/34 IPC and remanded to judicial custody on 06.07.1995. But you were released on bail by the court on 24.06.1996. Then you worked for the organization without any delay. In the year 1997 you got promotion to SS Corpl and S/Sgt. in the year 1998. On 07.05.1998 you were released on bail by the court.
The avowed aim and objective of the Knaglei Yaol Kanba Lup (KYKL) is to secede the State of Manipur from the Union of India and to create a sovereign, independent State of Manipur. For this purpose, the said organization started procuring of arms and ammunition through foreign countries and recruited youngsters from various communities. In pursuance of their objectives, the members of this organization have committed series of heinous crimes like murder, dacoity, robbery, extortion, and kidnapping for ransom in different parts of Manipur. The ring leaders have sought foreign assistance and established links with countries like Bangladesh, Myanmar(Burma), Pakistan and other countries inimical to India and committed series of prejudicial activities affecting the sovereignty and territorial integrity of India.
In consideration of the large scale prejudicial activities of the Kanglei Yaol Kanba Lup (KYKL in short) the government of India, Ministry of Home Affairs declared the Kanglei Yaol Kanba Lup (KYKL in short) as Unlawful Association vide the Gazette of India, Notification under No. S.O. 2883 (E) dated 13.11.2009.
2. That, after release on bail by the court on 08.07.1998 you stayed at home along with your family members. But you could not stay longer in normal life as you were deeply rooted in the ideology of KYKL and always inclined to work for the organization. With this view in mind, you started to contact KYKL members. In the last part of 2001 you contacted Shri Achou Toijamba of Thangapat Mapal Konung Leikai, the then S/S Chairman of KYKL and started to work again for KYKL organization. Your service was utilized by Shri Achou Toijamba to escort KYKL cadres upto different camps located outside Manipur such as Nepal, Burma, Nagaland etc., to give medical assistance/treatment to the ailing cadres of KYKL at Imphal and Guwahati. Over and above, you delivered huge amount of money, camp materials, medicines and other essential commodities to KYKL camps. In the middle part of 2009 you recruited a new cadre of KYKL namely Shri Potshangbam Opendro Singh @ Open @ Pukchao of Mayang Imphal Konchak and utilized his services as a courier among KYKL cadres who were working in Imphal area. Since the last part of 2009 you along with other members of KYL including Potshangbam Opendro Singh @ Open @ Pukchao S/o (L) P. Ibotombi Singh of Mayang Imphal Konchak, Shri Athouba Singh @ Gopeshwor of Phubala, Shir Tombi Singh @ Dipak of Sagolband and Shri Kiran Singh of Bishnupur Mamang Leikai worked in ONK section, KYKL under the command of Chirom Ranjit Singh @ Lanngamba of Waheng Khuman. You and your party started to look after the Education Department of Manipur strictly in order to make wrongful gain in the name of bringing quality education in Manipur. Late Dr. N. Kunjabihari Singh, while he was secretary of the Council of Higher Secondary Education Manipur, was vehemently warned/threatened by cadres of the KYKL because of his defying the dictates of the KYKL. When the Government of Manipur recommended (L) Dr. N. Kunjabihari Singh for the post of Chairman, Board of Secondary Education, Manipur, you collusion with Shri Opendro, threatened him that you would kill him if he joined as Chairman of the BSEM. After becoming the Chairman of BSEM (L) Dr. N. Kunjabihari Singh did not issue orders of the tenders for publishing Books and supply of stationary items to KYKL. Instead, he issued orders of the tenders for publishing books and supply of stationary items to his close persons ignoring KYKL. In the situation Shri Ch. Ranjit Singh @ Lannagamba entrusted you and Shir P. Opendro Singh to take stern action against Dr. Kunjabihari Singh. Accordingly, on 11.01.2011 at about 3.30 p.m. you and Shir P. Opendro Singh shot dead Dr. Kunjabihari Singh, Chairman of BSEM at his office located at Babupara. It refers to FIR NO. 21(1) 2011 IPS u/s 302 IPC.
3. That, on 16.01.2011 at 11.40 a.m. you were arrested in connection with FIR No. 21(1) 2011 IPS u/s 302 IPC with the recovery of three mobile hand sets i.e. one ONIDA, model no. G570, one MICROMAX, model no. G55 and one SAMSUNG, model no. GT55603 and the same were seized by observing formality. Then you were remanded to Police custody till 31.01.2011.
4.That, in view of your tendencies and inclinations reflected in the offences you have committed in the proximate past as a member of the banned organization namely Kanglei Yaol Kanna Lup (KYKL) which aims at establishing a sovereign independent State of Manipur by waging war against the lawfully established Government of India and Manipur holding fire arms, I am satisfied that after having availed of bail facilities and becoming a free person, you being a member of the said organization would continue to work in KYKL and carry out dangerous activities like murdering a Government Officer for not agreeing to the dictates of KYKL, which is prejudicial to the security of the State and maintenance of the public order. Hence, the application of normal criminal law against you will not at all be effective to prevent you from the commission of further prejudicial activities. An alternative preventive measure is, therefore, immediately called for.
From the above grounds, I am satisfied that with a view to prevent you from acting in any manner prejudicial to the security of the Sate and maintenance of public order, I have made this order directing that you be detained under NSA, 1980.
5. That, the copies of the following documents which form the basic of grounds of your detention are enclosed herewith for your reference :-
(a) Your statement given before the I.O. on 16.01.2011
(b) Statement of Shri L. Rajmohon Singh (57 yrs) secretary, BSEM recorded u/s 161 Cr.P.C. in connection with FIR No. 21(1) 2011 IPS u/s 302 IPC.
(c) Statement of S.I. M. Jiten Singh of IPS, recorded u/s 161 Cr.P.C. in connection with FIR No. 21(1) 2011 IPS u/s 302 IPC.
(d) Statement of ASI E. Ajit Singh of IPS recorded u/s 161 Cr.P.C. in connection with FIR No. 21(1)2011 IPS u/s 302 IPC.
(e) Copy of Arrest Memo dated 16.01.2011
(f) Copy of Seizure Memo dated 16.01.2011
(g) Copy of Notification under No. S.O. 2883 (E) dated 13.11.2009
(h) Copy of FIR NO. 478(3)1994 u/s 13 UA(P) Act
(i) Copy of FIR NO. 450(6)1995 CCpur P.S. u/s 386 IPC
(j) Copy of FIR NO. 190(5)1998 IPS u/s 13 UA(P) Act
(k) Copy of FIR NO. 21(1)2011 IPS u/s 302 IPC
(l) Copy of Government of Manipur, Home Departments'' Order NO. 17(1)/49/80-H (Pt-I) dated 15.11.2010.
6. On bare perusal of the grounds of detention, it is clear that detune had been released on bail by the normal criminal courts in all those 3(three) FIR cases. In such circumstances, it appears that the subjective satisfaction of the detaining authority is on objective basis that the detune, after having availed of bail facility and becoming a normal person, he would indulge in commission of further prejudicial activities. An alternative preventive measure is therefore immediately called for.
7. In the given case, the strenuous submission of Mr. M. Devananda, by heavily relying on the decision of the Apex Court in
6. The relevant part of the grounds on which the said detention order has been made is as follows:
Thiru Elango, M. Pharm, male aged 43, S/O Ramasamy is working as a Drug Inspector, Drug Control Department Perambur Range, Zone-II, D.M.S. Complex, Teynampet, Chennai-18. On 15.03.2010, Thiru, Elango appeared before the Inspector of Police, Crimes P-6 Kodungaiyur Police Station and lodged a complaint against Thiruvalargal, Prabhakar @ Ravi, 2) Venkatesan, 3) Sanjay Kumar, 4) Sekar, 5) Baskar, 6) Pradeep Kumar Chordia and 7) Meenakshi Sundram.
In his complaint, he has stated that expired drugs collected from the medical shops of Chennai city and Suburban used to be dumped at dump yard of Corporation ground at Ezhil Nagar. Kodungaiyur, Chennai. On 15.3.2010, Thiru, Elango received a secret information that expired drugs dumped at the dump yard at Corporation ground, Ezhil Nagar, Kodungaiyur, Chennai, were taken by Thiru, Prabhakar @ Ravi residing at the first floor of No. A-6/541, 151st Street, Muthamizh Nagar, Kodungaiyur, Chennai and by keeping the same his associates tampered the same tampering the original labels and printing fresh labels to make it appear as though they are not expired drugs and redistribute the same for sale to the general public.
In para 4 of the grounds of detention, it is stated:-
4. I am aware that Thiru. Ramakrishnan, is in remand in P.6, Kodungaiyur Police Station Crime No. 132/2010 and he has not moved any bail application so far. The sponsoring authority has stated that the relatives of Thiru. Ramakrishnan are taking action to take him on bail in the above case by filing bail applications before the Higher courts since in similar cases bails were granted by the Courts after a lapse of time. Hence, there is real possibility of his coming out on bail in the above case by filing a bail application before the higher courts. If he comes out on bail he will indulge in further activities, which will be prejudicial to the maintenance of public health and order. Further the recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, which are prejudicial to the maintenance of public health and order. On the materials placed before me, I am fully satisfied that the said Thiru. Ramakrishnan is also a Drug Offender and that there is a compelling necessity to detain him in order to prevent him from indulging in such further activities in future which are prejudicial to the maintenance of public order under the provisions of Tamil Nadu Act 14 of 1982.
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 concerned court. 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. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon.
8. In our opinion, this itself is sufficient to vitiate the detention order.
9. It has been held in
Where the concerned person 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 jeopardize the security of the State or Public order.
8. In
18.... The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
In
59. ... It is also well settled that a little difference in facts or additional facts may make a lot of difference in the presidential value of a decision.
9. As held in
9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid''s theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co Ltd. Vs. Horton (AC at p 761) 1951 AC 737 Lord Mac Dermott observed (AII ER p.14-C-D).
The matter cannot, of course, be settled merely by treating the Ipsissima verba of Willes, J as though they were part of an Act of parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,....
10. In Home Office V Dorset Yacht Co. Ltd. (1970) 2 ALL ER 294 (HL) ALL ER p. 297 g-h) Lord Reid said, ''Lord Atkin''s speech ....is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.'' Megarry, J in Shepherd Homes Ltd. V Sandham (No. 2), (1971) 2 AII ER 1267 observed: (All ER p. 127 d).
One must not, of course, construe even a reserved judgment of even Russel, L.J. as if it were an Act of Parliament,
And, in Herrington v British Railways Board Lord Morris (1972) 1 All ER 749 (HL (E)) said: (All ER p.761c)
There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classics:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the color of one case against the color of another. To decide therefore, on which side the line a case falls, the broad resemblance to another case is not at all decisive.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.
(Emphasis supplied)
In the given case, the detune had the clear knowledge about the similar cases in which bails had been granted by the normal criminal courts. Therefore, subjective satisfaction of the detaining authority in the given case is on the objective basis.
10. The apex Court in
63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in
11. The Hon''ble Apex Court (3 Judges) in
40. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a ''jurisdiction of suspicion'', (Vide State of Maharashtra Vs. Bharurao Punjabrao Gawande, (supra) - para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detune is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest.
12. From the ratio laid down by the Hon''ble Apex Court in Bhaurao Punjabrao Gawande''s case (supra) and Rekha Devi''s case (supra), it is clear that jurisdiction to order preventive detention is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to the certain activities enumerated in the relevant detention law. The interference of Court of law at that stage must be an exception rather than a rule. It is quite well settled that the suspicion should be based on materials i.e. on the objective basis.
13. The Hon''ble Apex Court in
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 scrutinize 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.
14. This Court (one of us is the party) in
13. It is well settled law that subjective satisfaction of the detaining authority arrived at for detaining the detune as a preventive measure under the preventive law is invalid if such satisfaction is based on non-existent or irrelevant ground only. Reference in
Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced on the materials available and placed before it that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of the executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authorities. It is not practicable to lay down objective rules of conduct, the failure to confirm to which alone should lead to detention.
15. This Court in
13. It is a settled position of law that the nature of satisfaction of the detaining authority in issuing the detention order under National Security Act for preventing a detune from indulging in such activities which are prejudicial to the maintenance of the public order and the security of the State is only a subjective satisfaction but subjective satisfaction should not be on no material.
14. The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention in view of the decision of the Supreme Court in
19. As we have discussed above, the satisfaction of the (sic) authority for issuing the detention order is only a subjective satisfaction. We, within the four corners of law laid down by the Apex Court in the cases discussed above, perused the materials available on record to see as to whether the relevant materials were placed before the detaining authority at the time of passing the detention order or not be effective to prevent him from the commission of further prejudicial activities.
16. We again recall the decision of the Constitution Bench of the Apex Court made more than half a century ago in State of Bombay Vs. Atma Ram Shridhar Vaidya AIR (38) 1951 SC 157 that subjective satisfaction of the detaining authority must be based on some grounds. The question whether such grounds can give rise to the subjective satisfaction required for making the order is outside the scope of the inquiry of the court.
17. The Hon''ble Apex Court in Union of India vs. Paul Manickam & anr. AIR 2003 SC 6422 held that the detaining authority must show its awareness to the fact of subsisting custody of the detune and if the detaining authority is reasonably satisfied on cogent materials that there is likelihood of release on bail and in view of the antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging such prejudicial activities. In Paul Manickam''s case (supra), three conditions had been laid down which are to be satisfied for detaining a detune already in custody under the detention order. Para No. 12 of AIR in Paul Manickam''s case (supra) reads as follows:-
12. So far as this question relating to procedure to be adopted in case the detenue is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in Jail under some other laws, the detaining authority should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody the detenue by itself does not invalidate an order of his preventive detention, and decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. ordinarily, it is not needed when detenue is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order. If the detaining authority is reasonably satisfied on cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging such prejudicial activities the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenue was likely to be released on bail, the order would be vitiated. (See
18. The Hon''ble Apex Court in
7. The question is whether on the basis of such material, an order of detention was justified, even though the appellant was in custody on the date of issuance of the order of the detention. The principle in this regard is well settled. In
[12] As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against the person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order be passed against a person in jail ..... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
8. The principle was further elucidated in
7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defense. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detune, the detune was in jail. There is no indication that this factor or the question that the said detune might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detune might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with the both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.
9. In
13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher court.
10. Apart from these decisions learned counsel for the appellant also placed reliance on the decisions in
19. For the foregoing discussion, we are of the firm view that the subjective satisfaction of the detaining authority is based on material and also the detaining authority was very much aware that detune is in the custody and he is likely to be released on bail. Therefore, the conclusion of the detaining authority that the detune is required to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order as the detune is likely to be released on bail in the near future by the normal criminal court as bails are granted in similar cases by the criminal court, cannot be ipse dixit of the detaining authority. Hence, this writ petition is devoid of merit and accordingly dismissed.
