JUDGMENT [ENTITY], J.
(1) This is a petition seeking appropriate writ of habeas corpus or any other appropriate direction under [SECTION] of the [ACT] for quashing the detention order dated 4.4.1994.
(2) [ENTITY], learned counsel for the petitioner, has argued that on 18.4.1994 a representation was made to the detaining authority for revocation of the detention order and supply of various documents and information. On 26.4.1994 a representation was made to the Chairman and the companion Members of the Central Advisory Board. The main thrust of the arguments of Mr.[ENTITY] is that at the time when detention order was passed on 4.4.1994, the petitioner had not moved any application for grant of bail and there was no imminent likelihood of petitioner being released. Learned counsel for the petitioner has stated that paragraph-9 of the ground of detention, the satisfaction recorded by the detaining authority is bad as the same is based on no material. The petitioner was already confined in Jail, he has assailed the detention order on the ground that there is a complete non-application of mind in passing the detention order in the absence of no 'material to show that his release was imminent. Learned counsel has also argued that the detention order was, in these circumstances, is punitive and not preventive and this is a case of double detention. He has argued that if the petitioner succeeds on this ground lone, there is no need to press for other grounds at this stage.
(3) On the other hand, Mr.[ENTITY], learned counsel for the respondent, has vehemently argued that the detention order is based on subjective material before the detaining authority and on account of past history and the whole grounds for order of detention be read in totality and the petitioner cannot read paragraph-9 of the detention order in isolation. Paragraph-9 of the detention order is as follows I - "I am aware that you are presently in judicial custody. I am also aware that prosecution and adjudication proceedings would be initiated against you. Nothing prevents you from filing bail application and getting enlarged on bail. Keeping in view your role in the case, I apprehend that, in the event of your getting released on bail, you will continue to engage yourself in the prejudicial activities in the like manner."
(4) [ENTITY] has further argued that in view of the law laid down by the Supreme Court in the case of [PRECEDENT]. what is required by the detaining authority is that the detaining authority was aware of the fact that detenu is already in detention and secondly there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. " Compelling reasons" implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenu is likely to be released from custody in the near future and 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.
(5) The question as to whether and in what circumstances the order for preventive detention was passed when the person is in custody, came up for consideration before the Supreme Court in the case of [PRECEDENT] and anr. which held that I - " 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 "
(6) In [ENTITY] V.District Magistrate, Etah the Supreme Court held 1- "ON a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail, an order of detention under the [ACT] should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in a series of cases relating to the preventive detention."
(7) In [PRECEDENT] the Supreme Court observed I - "IF there was a imminent possiblity of the man being set at' liberty and his detention coming to an end, then it appears, as a principle, if his detention is otherwise necessary and justified then there is nothing to prevent the appropriate authorities from being satisfied about the necessity of passing an appropriate order detaining the person concerned."
(8) Similar view has been taken in [ENTITY], Bihar and ors. " IFa 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 detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu 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 detenu might be released then these should have been made apparent "
(9) Same view was also taken in [PRECEDENT]. by the Supreme Court I- "EVERY citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order "
(10) In Vijay Narain [ENTITY] V. State of Bihar the Supreme Court observed I - " THElaw of preventive detention being a drastic and hard law , must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice "
(11) The question before me is whether there was material before the authority establishing that the detenu is likely to be released or that there was imminent possibility of his being released and whether the detaining authority satisfied itself about the said aspect in the ground of detention which I have reproduced above, the statement merely speaks of a possibility of the detenu's release and that possibility falls short of the requirement enunciated by the Supreme Court in [PRECEDENT] .
(12) In support of his contention the learned counsel for the petitioner has also cited the cases of [PRECEDENT] and ors. in [CASE NUMBER] decided by Supreme Court on .8.4.1993, [PRECEDENT] , [PRECEDENT] and a decision of this Court in [CASE NUMBER] decided on 8.4.1994. As the detaining authority has not issued the detention order in compliance with guidelines laid down by the Supreme Court in the aforesaid cases, it will not be of any use to deal with other grounds of challenge.
(13) Following the catena of cases as discussed above which squarely applies to the present case, I am of the opinion that the detention order on this ground alone cannot be sustained, the same is liable to be quashed. It is accordingly quashed. The detenu,if in custody, shall be released forthwith, if not required in any other case and is not being detained under an order of competent Court. Writ petition is disposed of accordingly.