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Personal liberty is the “most precious and prized right” guaranteed by the Indian constitution and it can’t be taken away without following the due procedure of law, says the Supreme Court.

The court said this as a caution while holding that a person who is already in custody could be ordered to remain in detention (under the National Security Act) only if there was a real possibility that his release on bail would lead to activities prejudicial to public order.

Holding that “there is no prohibition in law to pass detention order in respect of a person already in custody in respect of criminal case”, the apex court bench of Justice B.S. Chauhan and Justice Dipak Misra said: “Personal liberty of a person is sacrosanct and state cannot be permitted to take it away without following the procedure prescribed by law…”

Pronouncing the verdict, Justice Chauhan said any encroachment on personal liberty by the state without following the procedure prescribed under law would violate the fundamental rights of the constitution.

While permitting the courts to order detention of a person already in jail, the court said that such an order could be passed only if there was “reliable material” to believe that there was a real possibility that his release on bail could affect public order.

The court said authorities could move for the detention order if it was felt that it was necessary to prevent him from indulging in activities prejudicial to public order.

However, the court said, “in case either of these facts does not exist, the detention order would stand vitiati”.

The court said this while setting aside the detention order passed by the District Magistrate of Imphal West under the National Security Act on June 30 last year.

The detention order was upheld by the Imphal bench of the Gauhati High Court Jan 13, 2012.The apex court’s order came on an appeal by Huidrom Shantikumar Singh, whose son was to be detained. The son was arrested June 19, 2011.While passing the detention order, the district magistrate feared that he would indulge in anti-national activities.

The accused was charged with extorting of money and giving shelter to members of the outlawed Kangleipak Communist Party.”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,” the court concluded.

“Thus, as the detenu in the instant case has not moved bail application and no other co-accused, if any, had been enlarged on bail, resorting to the National Security Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit (unsupported assertion) (and) detention cannot be sustained in the eyes of law,” the ruling said.


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