REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1849 OF 2010 (Arising out of S.L.P. (Crl.) No. 2555 of 2010)

Smt. Pebam Ningol Mikoi Devi                                  ...…………Appellant

Versus

State of Manipur and Ors.                                         ………..Respondents

J U D G M E N T

H.L. Dattu, J.

1)           Leave granted.

2)           By our order dated 14.09.2010, after hearing the learned  

counsel for the parties to the lis, we had directed the release of  

the  detenu,  since we were  satisfied that  the appellant  prima-

facie had made out a case for release of the detenu.  Now we  

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give  our  reasons  for  allowing  this  appeal  in  support  of  our  

pre-emptory order.  

3)           Here is an unfortunate case involving a person who ought  

not to have been detained under preventive detention and have  

his  liberty  curtailed  by  virtue  of  his  incarceration  under  

Section  3(2)  of  the  National  Security  Act,  1980  (hereinafter  

“NS Act”).   

4)           Individual liberty is a cherished right, one of the most  

valuable Fundamental Rights guaranteed by the Constitution to  

the  citizens  of  this  Country.   On  “liberty”,  William  

Shakespeare, the great play writer, has observed that “a man is  

master of his liberty”. Benjamin Franklin goes even further and  

says that “any society that would give up a little liberty to gain  

a  little  security  will  deserve  neither  and  lose  both”.   The  

importance of protecting liberty and freedom is explained by  

the famous lawyer Clarence Darrow as “you can protect your  

liberties  in  this  world  only  by  protecting  the  other  man's  

freedom;  you can  be  free  only  if  I  am free.”   In  India,  the  

utmost importance is  given to life and personal liberty of an  

individual, since we believe personal liberty is the paramount  

essential  to  human  dignity  and  human  happiness.  The  

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Constitution  of  India  protects  the  liberty  of  an  individual.  

Article 21 provides that no person shall be deprived of his life  

and personal liberty except according to procedure established  

by law.  In matters of preventive detention such as this, as there  

is  deprivation  of  liberty  without  trial,  and  subsequent  

safeguards are provided in Article 22 of the Constitution.  They  

are,  when any person is  detained pursuant  to  an order  made  

under any law providing for preventive detention, the authority  

making the order is required to communicate the grounds on the  

basis  of  which,  the  order  has  been  made  and  give  him  an  

opportunity to make a representation against the order as soon  

as possible.  It thus, cannot be doubted that the Constitutional  

framework  envisages  protection  of  liberty  as  essential,  and  

makes the circumstances under which it can be deprived.

5) The appellant  is  the wife of Mr.  Ranjit  Oinamcha @ Oinam  

Ranjit  Singh,  who is  the  detenu under  the  National  Security  

Act.  She is questioning the detention order dated 24/09/2009  

passed  by  the  District  Magistrate,  Imphal  West  District,  

Manipur, against which, a challenge was made in the form of a  

habeas  corpus  petition  in  the  Gauhati  High  Court  (Imphal  

Bench) in Writ Petition (Crl.) No. 111/2009.  By an order dated  

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18/02/2010,  the  High  Court  dismissed  the  writ  petition.  

Aggrieved by the same, the appellant has filed this appeal.  

6)               The facts of this case, in a nutshell, are that the detenu was the  

Editor  of  a  Manipuri  Daily  evening  paper  named  ‘Paojel’,  

having its printing press at Keisamthing Top Leirak, Manipur.  

The assertions and allegations leading to his detention, as stated  

in  the  Grounds  of  Detention  order  passed  by  the  District  

Magistrate dated 28/09/2009, are that the detenu could not get  

enough  money  from his  press  to  maintain  it  or  support  his  

family,  particularly  due  to  the  high  rates  of  essential  

commodities in Manipur.  Therefore, in 2003, he contacted Mr.  

Irom Priyobarta Singh @ Naocha with the intention of earning  

money without labour.  From July 2003, he was in touch with  

Mr. Ratan @ Inao @ N. Ibochouba Singh, who was the Finance  

in-Charge  of  the  United  National  Liberation  Front  (UNLF),  

Imphal  West,  after  discussion  with  whom he  decided  to  get  

involved in extorting money from contractors and engineers of  

Public Health Engineering Department (“PHED” for short) and  

Forest  Department  of  Manipur  Government  by  delivering  

demand letters which he printed in his own press.  He and Mr.  

Irom  Priyobarta  Singh  were  to  receive  a  10%  share  of  the  

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extortion money.  They accordingly started carrying out such  

extortion  by  printing  these  demand  letters  in  his  press  and  

delivering  them  to  the  aforementioned  contractors  and  

engineers,  and even issued  threats  to  them not  to  report  the  

matter to the Security Forces.  This extortion resulted in a terror  

wave  in  the  general  public  which  is  prejudicial  to  the  

maintenance of public order. The Grounds also pointed out that  

the UNLF is an unlawful association (declared so vide Gazette  

of  India  Notification,  under  No.  S.O.  1992(E),  dated  

13/11/2007) which looks to create an independent,  sovereign  

State of Manipur by seceding from the Union of India, and that  

the said organization has involved itself in procuring arms and  

ammunitions from foreign countries, recruiting youngsters, and  

committing heinous crimes such as murder, dacoity, extortion,  

kidnapping for ransom etc.

7) Further, it is pointed out that on 17/09/2009 at 8 PM, a team of  

CDO/IW led by  S.I.  T.  Khogen Singh came to  the  detenu’s  

house as disclosed by Mr. Irom Priyobarta Singh, arrested him,  

and seized after observing due formality `10,04,000/- from him,  

as well as one Nokia handset from Mr. Irom Priyobarta Singh.  

An F.I.R. No. 183(9)09 SJM-P.S. was registered under Section  

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17/20 of the Unlawful Activities (Prevention) Act,  1967, and  

the  detenu  was  arrested  on  18/09/2009  and  remanded  into  

police  custody  till  24/09/2009.   On  24/09/2009,  he  was  

presented  before  the  Magistrate  for  judicial  remand,  and the  

detention order passed by the District Magistrate, Imphal West,  

was served on him. The Grounds of Detention were served on  

him on 28/09/2009, as required under Section 8 of the National  

Security Act.

8) The version of the detenu, on the contrary, as emerges from his  

Representation  made  to  the  Secretary,  Ministry  of  Home  

Affairs, Government of India, as well as to the Chief Secretary,  

Manipur  State,  and  the  District  Magistrate,  Imphal  West  on  

09/10/2009,  is  that  he  was  indeed  the  editor  of  ‘Paojel’,  an  

evening  daily,  which  was  established  on  08/04/2006.  On  

17/09/2009 at about 4:30 PM, Mr.  Irom Priyobarta  Singh @  

Naocha, who was a ‘locality brother’, brought to his residence a  

sum of  `10,04,000/-  for safe keeping,  which he claimed was  

received  for  contract  work,  and  which  the  detenu  bona  fide  

believed, and kept the money with him.  The detenu then claims  

that at around 8:30 PM on the same day, police personnel of  

CDO,  Imphal  West,  along  with  Mr.  Irom Priyobarta  Singh,  

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came to his residence and asked him to hand over the money,  

which he did.  On 18/09/2009, i.e. the next day, he was told to  

report  to  the  Officer  in-Charge  of  the  CDO,  Imphal  West,  

where he asserts he was interrogated regarding the money and  

forced to sign on a back dated Seizure Memo for 17/09/2009, as  

well as a back dated Arrest Memo.  He was then detained and  

handed over to the Singjamei Police Station, where he was told  

that he was made a co-accused with Mr. Irom Priyobarta Singh,  

and a police case F.I.R. No. 183(9)09 SJM-P.S. was registered  

under  Section  17/20  of  the  Unlawful  Activities  (Prevention)  

Act, 1967.  Then, on 19/09/2009, he was remanded to police  

custody  till  24/09/2009,  when  he  was  produced  before  the  

Magistrate for judicial remand, and the detention order passed  

by the District  Magistrate,  Imphal West,  was served on him,  

which was followed by the Grounds of Detention given to him  

on 28/09/2009 at his cell at Manipur Central Jail, Sajiwa.  He  

denies all the allegations made against him in the Grounds for  

Detention, claiming that he was not in any way involved with  

the UNLF or any of its associated cadres, that he started the  

press only in 2006 and could not have been involved in printing  

demand letters since 2003, that he did not even know Mr. Ratan  

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@ Inao @ N. Ibochouba Singh, that the arrest and seizure was  

not done on 17/09/2008,  but actually on 18/09/2009, and that  

he has not committed any acts so as to disturb the maintenance  

of public order and cause prejudice to the security of the State  

in any manner so as to have the NS Act invoked against him.

9)            The Representation made by the detenu was rejected by State of  

Manipur on 03.10.2009. The Advisory Board constituted under  

Section 9 of the Act opined that there was sufficient cause for  

detention of  the husband of the appellant  under the National  

Security  Act.   The  Governor  of  Manipur,  in  exercise  of  the  

power conferred under Section 12(1) of the Act, has approved  

the opinion expressed by the Advisory Board and has ordered  

that the detention of the husband of the appellant made by the  

District Magistrate, Imphal West District, dated 24.09.2009,and  

fixed the period of the detention for 12(twelve) months from  

the date of detention by his order dated 07.11.2009.  There was  

delay  in  forwarding  the  Representation  of  the  detenu  to  the  

Government of India.  It was filed on 09/10/2009 and it was  

forwarded  to  the  Central  Government  on  16/10/2009  by  the  

State  Government  and  received  only  on  28/10/2009,  before  

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being  finally  rejected  by  the  Central  Government  on  

03/11/2009.

10)           The detention order was questioned before the Gauhati  High  

Court in W.P. (Crl.) No.111/2009. The Court in the course of  

its order has noticed the main contention of the petitioner (who  

is the appellant in this appeal).  They are: (1) the allegations  

made in the detention order are vague and irrelevant and not  

sufficient  to  deprive  the  detenu  of  his  fundamental  rights  

guaranteed under Art. 22(5); (2) there are no cogent materials  

upon  which  the  subjective  satisfaction  of  the  detaining  

Authority that the detenu was likely to be released on bail was  

arrived  at;  (3)  there  was  a  delay  of  6  days  in  forwarding  

representation  to  the  Central  government.   (4)  All  the  

procedural  requirements  of  Article  22  are  mandatory  in  

character and even if one of the procedural requirements is not  

complied with, the order of detention would be rendered illegal.

11) The High Court has responded to each of these, by holding that  

the allegations projected in the grounds of detention have been  

corroborated  in  material  particulars.  Further,  the  allegations  

were not vague or ambiguous, and the material was sufficient  

for  the  detaining  Authority  to  arrive  at  the  subjective  

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satisfaction that the detenu was acting in a manner prejudicial  

to the maintenance of the public order.  The High Court has  

also pointed out that the statement incriminating himself under  

Section 161 was prepared by a public servant,  and there is a  

presumption of regularity, which the appellant has a burden to  

disprove in order to prove them false and fabricated, which was  

not  done  in  this  case.   It  highlighted  that  the  exercise  of  

discretionary power involved objective and subjective elements,  

and the subjective elements if derived from objective elements  

cannot  be  questioned  on  grounds  of  adequacy  of  subjective  

satisfaction by a judicial review.

12)            On the  second ground,  the  Court  held  that  the  likelihood of  

detenu being released on bail can be determined by objective  

criteria, such as the conditions prevailing in Manipur, the fact  

that  he  was  charged  with  heinous  offences,  and that  he  was  

remanded to judicial  custody;  it  refused to interfere  with the  

determination as it said it was not irrational, and the Court in  

such circumstances could not substitute its view for that of the  

detaining Authority. On the issue of delay, it pointed out that  

even  though no explanation  has  been  given  by  the  State  on  

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delay, it is not inordinate enough to quash the order, and that  

delay per se cannot be a ground to quash the order.

13) At  the  time  of  hearing,  learned  Counsel  for  the  appellant  

Mr.Dolen Phurailatpam argued,  that  though a  few days  have  

remained for the detention period to expire, the appeal need not  

be  disposed  of  as  having  become  infructuous,  since  the  

reputation of the detenu is sacrosanct and the right of reputation  

is a facet of right to life under Article 21.   He took considerable  

time explaining the factual background of the case.  He pointed  

out that the printing press of the detenu was established only in  

2006, and therefore, there could be no question of him having  

been involved in printing demand letters from 2003 or 2004.  

He further explained that there was no supportive material  to  

sustain  the detention order,  and that  the  same had also  been  

mentioned in the writ petition filed before the High Court. He  

also stressed the point of delay of forwarding the representation  

of the detenu, and that no adequate reasons for the same had  

been given by the respondents in either the affidavit or in the  

pleadings before the Court.

14) Per  contra,  the  learned  counsel  for  the  State  of  Manipur  

Mr.Khwairakpam Nobin Singh urged the factual background on  

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the basis of which the decision to detain had been taken, and the  

difficulty  faced  due  to  the  special  conditions  prevailing  in  

Manipur in getting the evidence to prove the illegal activities of  

people such as the detenu and further the prosecution would not  

be in a position to procure any evidence to sustain conviction.  

It is also urged that with the documents available, the detaining  

authority could form an opinion that the person to be detained is  

likely to act in a manner prejudicial to the security of the State  

or from acting in any manner prejudicial to the maintenance of  

the  public  order  etc.   He  did  not,  however,  provide  any  

explanation  regarding the  reason for  delay  in  forwarding the  

representation.  The learned counsel appearing for the Union of  

India Ms. Charu Wali Khanna, when questioned by this Court,  

also did not shed any further light on this issue.

15) To decide the correctness or otherwise of the detention order,  

two issues of importance arise before this Court.  The first is,  

regarding the documents  and material  on which reliance was  

placed  by  the  detaining  Authority  in  passing  the  detention  

order.  Secondly,  with those materials,  the detaining authority  

was justified in arriving at a finding that the detenu should be  

detained under the National Security Act without any trial.  In  

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matters of this nature, this Court normally will not go into the  

correctness  of  the  decision  as  such  but  will  only  look  into  

decision making process.  Judicial review, it may be noted, is  

not  an  appeal  from a  decision  but  review of  the  manner  in  

which  the  decision  was made.   The purpose  of  review is  to  

ensure that the individual receives a fair treatment.

16) Some of the  decisions  of  this  Court  may be of  relevance  in  

determining in what manner such subjective satisfaction of the  

Authority must be arrived at, in particular on Section 3(2) of the  

National  Security  Act.  In  Fazal  Ghosi v.  State  of  Uttar   

Pradesh, (1987) 3 SCC 502, this Court observed that:

“The District Magistrate, it is true, has stated that the  detention of the detenus was effected because he was  satisfied that it  was necessary to prevent them from  acting  prejudicially  to  the  maintenance  of  public  order,  but  there  is  no  reference  to  any  material  in   support  of  that  satisfaction.  We are  aware  that  the  satisfaction of the District Magistrate is subjective in   nature, but even subjective satisfaction must be based  upon some pertinent material. We are concerned here  not with the sufficiency of that material but with the   existence of any relevant material at all.” (emphasis  supplied) (Para 3).

17) In Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC  

556, this Court opined :-

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“Preventive  detention  is  a  serious  inroad  into  the  freedom  of  individuals.  Reasons,  purposes  and  the  manner of such detention must, therefore, be  subject   to  closest  scrutiny  and  examination by  the  courts.”  (emphasis supplied) (Para 5).

This Court further added:

“…there must be conduct relevant to the formation of   the  satisfaction  having  reasonable  nexus  with  the  action of  the petitioner which are prejudicial  to the  maintenance  of public  order.  Existence of  materials   relevant to  the  formation  of  the  satisfaction  and  having  rational  nexus  to  the  formation  of  the  satisfaction that  because  of  certain  conduct  "it  is  necessary" to make an order "detaining" such person,  are  subject  to  judicial  review.”  (emphasis  supplied)  (Para 5).

18) In  State  of  Punjab v.  Sukhpal  Singh,  (1990)  1  SCC 35,  this  

Court held:

“…the grounds supplied operate as an objective test   for  determining  the  question  whether  a  nexus   reasonably exists between grounds of detention and  the detention order  or whether some infirmities had  crept in.” (emphasis supplied) (Para 9).

19) In  State of Rajasthan v.  Talib Khan, (1996) 11 SCC 393, this  

Court observed that:

“…what  is  material  and  mandatory  is  the  communication  of  the  grounds  of  detention  to  the  detenu  together  with  documents  in  support  of   subjective  satisfaction reached  by  the  detaining  authority.” (emphasis supplied) (Para 8).

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20)         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 two fold.  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.

21)         In  light  of  these  decisions,  to  determine  the  validity  of  the  

detention order, it is necessary to go into the materials relied on  

by the detaining Authority in passing the detention order. The  

documents relied upon by the District Magistrate, West Imphal,  

as mentioned in the Grounds for Detention dated 28/09/2009  

are:

a) The statement of the detenu given before the I.O. on  

18/09/2009.

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b) Statement  of  S.I.  T.  Khogen  Singh  of  CDO/I.W.  

recorded  under  S.  161  Cr.P.C.  in  connection  with  

F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the  

Unlawful Activities (Prevention) Act, 1967.

c) Statement of Rfm. No. 15007038 L. Rajen Singh of  

CDO/I.W.  recorded  under  S.  161  Cr.P.C.  in  

connection with F.I.R. No. 183 (9) 09 SJM-P.S. under  

S. 17/20 of the Unlawful Activities (Prevention) Act,  

1967.

d) Statement  of  C/No.  0601193  S.  Khomei  Singh  

recorded  under  S.  161  Cr.P.C.  in  connection  with  

F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the  

Unlawful Activities (Prevention) Act, 1967.

e) Copy of arrest memo dated 17/09/2009.

f) Copy of seizure memo dated 17/09/2009.

g) Copy of Manipur Local daily “the Poknapham” dated  

08/03/1999.

h) Copy of Notification under No. S.O. 1922 (E) dated  

13/11/2007.

22) We are conscious of the fact that the grounds stated in the order  

of detention are sufficient or not, is not within the ambit of the  

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discretion of the court and it is the subjective satisfaction of the  

detaining authority which is implied.  However, if one of the  

grounds or reasons which lead to the subjective satisfaction of  

the  detaining  authority  under  NS  Act,  is  non-existent  or  

misconceived  or  irrelevant,  the  order  of  detention  would  be  

invalid.   

23) Keeping in  view these well  settled legal  principles,  we have  

perused the grounds of detention and the documents relied on  

by the detaining authority while passing the order of detention.  

In our considered view, the grounds on which detention order is  

passed has no probative value and were extraneous to the scope,  

purpose and the object of the National Security Act.  This Court  

in  the  case  of  Mohd.  Yousuf  Rather  Vs.  State  of  Jammu &  

Kashmir and Ors.  (AIR 1979 SC 1925) has observed that under  

Article 22(5),  a detenu has two rights (1) to be informed, as  

soon as may be, of the grounds on which his detention is based  

and  (2)  to  be  afforded  the  earliest  opportunity  of  making  a  

representation  against  his  detention.  The  inclusion  of  an  

irrelevant or non-existent ground among other relevant grounds  

is  an  infringement  of  the  first  right  and  the  inclusion  of  an  

obscure  or  vague  ground  among  other  clear  and  definite  

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grounds is an infringement of the second right. No distinction  

can be made between introductory facts, background facts and  

`grounds’  as  such;  if  the  actual  allegations  were  vague  and  

irrelevant, detention would be rendered invalid.  In so far as the  

documents on which reliance is placed, in our opinion, none of  

these documents provide any reasonable basis for passing the  

detention order. The primary reliance has been on the accused’s  

own statement made to an Investigating Officer. This cannot be  

said to be sufficient to form the subjective satisfaction of the  

detaining  Authority.  Statements  under  Section  161,  Code  of  

Criminal Procedure, 1973, (hereinafter Cr.P.C.) cannot be taken  

as  sufficient  grounds  in  the  absence  of  any  supportive  or  

corroborating  grounds.  Section  161  statements  are  not  

considered  substantive  evidence,  but  can  only  be  used  to  

contradict the witness in the course of a trial. The same is clear  

from the wording of Section 162(1) of the Cr.P.C and has been  

so held time and again by this  Court.   In  Rajendra Singh v.  

State of Uttar Pradesh, (2007) 7 SCC 378, this Court laid down  

that:

“A  statement  under  Section  161  Cr.P.C.  is  not  a  substantive piece of evidence. In view of the proviso  to  Sub-section  (1)  of  Section  162  Cr.P.C.,  the  

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statement can be used only for the limited purpose of   contradicting  the  maker  thereof  in  the  manner  laid   down in the said proviso. Therefore, the High Court  committed  a manifest  error  of  law in  relying  upon   wholly inadmissible evidence...” (emphasis supplied)  (Para 6).

23) Furthermore,  none  of  the  other  documents  substantiate  the  

involvement of the detenu in unlawful activities as alleged in  

the detention order. Thus, it is clear that there was no pertinent  

or relevant material on the basis of which, the detention order  

could be passed.

24) The second issue is that of delay. There has been a delay of 7  

days,  i.e.  from 09/10/2009  to  16/10/2009,  in  forwarding  the  

representation of the detenu to the Central Government. There  

has been no explanation of the reasons for this delay given by  

the respondents.  

25) Article  22(5)  of  the  Constitution  of  India  mandates  in  

preventive detention matters.   The detenu should be afforded  

the  earliest  possible  opportunity  to  make  a  representation  

against  the  order.  With regard to  the importance of  delay  in  

preventive detention matters under the National Security Act, it  

has  been  held  by  this  Court  in  Union  of  India v.  Laishram  

Lincola Singh @ Nicolai, (2008) 5 SCC 490, that:

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“There can be no hard and fast rule as to the measure  of reasonable time and each case has to be considered  from the facts of the case and if there is no negligence  or  callous  inaction  or  avoidable  red-tapism  on  the  facts of a case, the Court would not interfere. It needs  no reiteration that it is the duty of the Court to see that  the  efficacy  of  the  limited,  yet  crucial,  safeguards  provided in the law of preventive detention is not lost  in  mechanical  routine,  dull  casualness  and  chill  indifference,  on the part  of  the authorities  entrusted  with  their  application.  When  there  is  remissness,   indifference  or  avoidable  delay  on  the  part  of  the   authority,  the  detention  becomes  vulnerable.”  (emphasis supplied) (Para 6).

26) On  the  specific  ground  of  delay  in  forwarding  the  

representation  under  the  National  Security  Act,  it  has  been  

observed  by  this  Court  in  Haji  Mohd.  Akhlaq v.  District   

Magistrate, 1988 Supp (1) SCC 538, that:

“There  can  be  no  doubt  whatever  that  there  was  unexplained  delay  on  the  part  of  the  State  Government in forwarding the representation to the  Central  Government with  the  result  that  the  said  representation  was  not  considered  by  the  Central  Government till October 16, 1987 i.e. for a period of  more  than  two  months.  Section  14(1)  of  the  Act  confers  upon the  Central  Government  the  power  to  revoke an order of detention even if it is made by the  State Government or its officer. That power, in order  to be real and effective, must imply a right in a detenu  to  make  representation  to  the  Central  Government  against the order of detention. Thus, the failure of the   State Government to comply with the request of the   detenu  for  the  onward  transmission  of  the  representation  to  the  Central  Government  has   deprived the detenu of his valuable right to have his   

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detention  revoked  by  that  Government.”  (emphasis  supplied) (Para 3).

27) In the matter before us, a delay of 7 days has occurred in the  

forwarding of the representation. This may not be inordinate;  

however, at no stage has there been an explanation given for  

this delay. The State Government or Central Government has  

not clarified the same and thus the delay remains unexplained.

28)            In light of the fact that none of the documents relied on by the  

detaining  Authority  in  passing  the  detention  order  can  be  

deemed to be pertinent, and the fact that the delay has remained  

unexplained,  there  is  sufficient  ground made  out  in  order  to  

quash  the  order  of  preventive  detention  made  against  the  

detenu.

29)         Before parting with the case, we wish to add that in a criminal  

case, if it is initiated against the detenu, the prosecution would  

not be in a position to procure evidence to sustain conviction  

cannot  be a  ground to  pass  an order  of  preventive  detention  

under National Security Act.  Therefore, we cannot agree with  

the submission made by the learned counsel  for the State  of  

Manipur.      

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30)       As  a  result  of  our  above  discussion,  we  cannot  sustain  the  

impugned judgment and order of the High Court and the order  

of detention passed by the detaining authority.   Accordingly,  

the appeal is allowed.  The impugned order of the High Court  

and the order of detention passed by the detaining authority are  

set aside.  Ordered accordingly.   

…………………………………J.                                                                                     [ D.K. JAIN ]

…………………………………J.  [ H.L. DATTU ]

New Delhi, September 27,  2010.  

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