JUDGEMENT
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(1.)HEARD Ms. H. Bisheshwari, learned counsel appearing for the petitioner as well as Mr. Y. Ashang,
learned Addl. G.A appearing for the respondent Nos. 1
and 2 and none appears for the Union of India
(Respondent No.3).
(2.)IN the present petition, in challenging the detention order under the National Security Act, 1980,
learned counsel for the petitioner has relied on the
judgment of the Hon'ble Supreme Court in Huidrom
Konungjao Singh vs - State of Manipur & Ors.
reported in AIR 2012 SC 2002, decided by the Supreme
Court on 17.5.2012, the implication of which is that, if
the detaining authority reaches a conclusion to the effect
that the detenu is likely to be released on bail, such a
conclusion ought to be based on the fact of release of
other accused person in a similar case or in respect of co -
accused or involving similar provisions of law, and it
should not be based on ipse dixit statement of the
detaining authority. In other words, the detaining
authority must show similarities of the circumstances in
which the other person was released on bail, so as to
come to the conclusion that the detenu is also likely to be
released on bail. To be more precise, the relevant
observation of the Supreme Court may be reproduced
hereunder as below:
" 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 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 eye of the law."
The Supreme Court while deciding the case in Huidrom Konungjao Singh (supra) had relied on its
earlier decision rendered in Rekha vs. - State of Tamil
Nadu through Secretary to Govt. & Anr., (2011)5 SCC
244: (2011 AIR SCW 2262) and the relevant portions of it are also quoted in Hurdrom Konungjao case (supra)
which are again reproduced hereinbelow for better
appreciation of the case in hand.
"12. In Rekha vs - State of Tamil Nadu through Secretary to Govt. and Anr., (2011)5 SCC 244: (2011 AIR SCW 2262), 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 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 passed in respect of other co -accused in cases on the same footing as the case of the accused...... 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 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, because it is the normal practice of mot 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 not 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 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 had 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". (Emphasis added) 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 in enlarged on bail and on the basis of which the detenu could be enlarged bail."
(3.)THE detaining authority apparently does not seem to be aware of the aforesaid dictum of the Supreme
Court relating to the subjective satisfaction as regards
the likelihood of release of a detenue on bail. Accordingly,
the impugned detention order must suffer similar fate
which awaits any such order issued not in conformity
with the decision of the Supreme Court.
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