JUDGMENT - VISHNU SAHAI, J.:---Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Rajesh Bishamkumar Khanna @ Sagar has impugned the order dated 24th August, 2001 passed by the first respondent Mr. M.N. Singh, Commissioner of Police, Brihan Mumbai detaining him under 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as M.P.D.A. Act). The detention order alongwith the grounds of detention, which are also dated 24th August, 2001, was served on the petitioner detenu on 29th August, 2001 and their true copies are annexed as Annexures 'A' and 'B' respectively to this petition. 2. A perusal of the grounds of detention (Exhibit 'B') would show that the impugned order is founded on:—two CR's namely, CR No. 308/2000 under sections 307, 395, 397, 387, 450, 34 of the Indian Penal Code read with sections 3, 25, 27 of the Arms Act (subsequently on 28-2-2001 sections 3(1)(ii) (2) of the M.C.O.C. Act were applied in this case), registered on the basis of complaint dated 21-11-2000, lodged by Tushar Gautam Shah at Sion Police Station and CR No. I-24/2001 under sections 307, 504, 506 of Indian Penal Code read with sections 3, 25, 27 of the Arms Act, registered on the basis of a complaint dated 15th March, 2001, lodged by Prashant Omprakash Singh at Vasai Road Railway Police Station and in camera statements of two witnesses, namely, 'A' and 'B', which were recorded on 30-6-2001. Since in our view, a reference to the prejudicial activities of the petitioner-detenu contained in the said CR's and in-camera statements, is not necessary for adjudication of grounds 5(xi) and 5(xx) pleaded in the petition, on which grounds alone, in our judgment this petition deserves to succeed, we are not adverting to them. 3. We have heard the learned Counsel for the parties. Grounds No. 5(xi) and 5(xx) in substance are as under:--- At the time when the impugned detention order was passed, the petitioner-detenu was in judicial custody in CR No. 308 of 2000 which had also been registered under the M.C.O.C. Act and the stringent provisions for bail in the said Act have virtually made the grant of bail impossible. The Detaining Authority has not addressed himself to the question that the petitioner-detenu was not likely to be granted bail in the said CR. The Detaining Authority has not addressed himself to the question that the petitioner-detenu was not likely to be granted bail in the said CR. He has also not addressed himself to the question that the petitioner-detenu had not applied for bail in the said CR. In the circumstances, the pleading in the said ground is that the Detaining Authority was not aware of the stringent requirement whereunder bail can be granted under the M.C.O.C. Act and had he been aware there was no necessity for him to have issued the impugned detention order against the petitioner-detenu. 4. Ground 5(xi) and 5(xx) have been replied to in paragraph Nos. 17 and 24 respectively of the return of the Detaining Authority. It may be mentioned that paragraph 24 has been numbered twice in the affidavit of the Detaining Authority; once after paragraph 22 and once after paragraph 23; and the said ground has been replied to in paragraph 24, which is after paragraph 22. In short, the reply contained in paragraph 17 is as under: The impugned order is founded on four incidents, namely, those vide CR No. 308/2000 under sections 307, 395, 397, 387, 450, 34 of Indian Penal Code read with sections 3, 25, 27 of the Arms Act (subsequently provisions of the M.C.O.C. Act were also added), registered at Sion Police Station; CR No. I-24/2001 under sections 307, 504, 506 of I.P. Code read with sections 3, 25 and 27 of the Arms Act; and those contained in in-camera statements of two witnesses 'A' and 'B'. The reply, in brief, contained in paragraph 24, is as under :-- He (the Detaining Authority) at the time of the passing of the impugned detention order, was aware that the petitioner-detenu was in judicial custody in two CR's namely, CR No. 308/2000 and CR No. I-24/2001. He was also aware that the petitioner-detenu did not make bail applications in the said CR's, though there was no impediment for him in making such bail applications. He was aware that one of the co-accused had applied for bail in CR No. 308/2000 before the Sessions Court, but later on the application was withdrawn. He was further aware that both the co-accused of the said CR had preferred bail applications, which were rejected prior to the issuance of the detention order against the petitioner-detenu. He was aware that one of the co-accused had applied for bail in CR No. 308/2000 before the Sessions Court, but later on the application was withdrawn. He was further aware that both the co-accused of the said CR had preferred bail applications, which were rejected prior to the issuance of the detention order against the petitioner-detenu. The thesis of the Detaining Authority is that he had cogent and compelling reasons to assume that the petitioner-detenu may be granted bail under the normal law of the land and in that eventuality, was likely to revent to committing prejudicial activities similar to those contained in the grounds of detention, and, hence, it was imperative to preventively detain him. 5. We have perused the averments contained in grounds 5(xi) and 5(xx); those contained in paragraphs 17 and 24 of the return of the Detaining Authority, wherein the said grounds have been replied to; and heard the learned Counsel for the parties. We make no bones in observing that we find merit in grounds 5(xi) and 5(xx). As observed by us earlier, in our judgment, this petition deserves to succeed on the said grounds. 6. It is manifest from what has been set forth above that the petitioner-detenu was in custody in CR No. 308 of 2002 of Sion Police Station and CR No. I-24/2001 of Vasai Road Police Station, when the first respondent (the Detaining Authority) passed the impugned detention order against him. The Supreme Court in the of quoted case of (Dharmendra Suganchand Chelawat and another v. Union of India and others)1, reported in A.I.R. 1990 S.C. 1198 : 1990 Criminal Law Journal 1232, has after referring to a number of decisions earlier rendered by it in paragraph 19 laid down the prerequisites which have to be satisfied before a detention order can be issued against a person in custody. The said paragraph reads thus:-- “19. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the Detaining Authority was aware of the fact that the detenu is already in detention; and (ii) there was compelling reasons justifying such detention despite the fact that detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implied that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) 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.” 7. A perusal of the paragraph 19 of Chelavat's case (supra) would show that a detention order can be issued against a person in custody provided:—(a) awareness in the grounds of detention is shown by the Detaining Authority that the person sought to be preventively detained is in custody; and (b) there is compelling necessity to preventively detain him. 'Compelling necessity' has two facets namely.—(i) there should be cogent material that the person sought to be preventively detained is likely to be released on bail in near future; and (ii) looking to his past prejudicial activities the Detaining Authority is subjectively satisfied that, in order to prevent him from committing such acts in future, it is imperative to detain him. 8. We make no bones in observing in the instant case in the grounds of detention, the Detaining Authority has shown his awareness that the petitioner-detenu was in custody in CR's 308/2000 of Sion Police Station and CR No. I-24/2001 of Vasai Road Police Station. We also make no bones in observing that the belief of Detaining Authority namely that in the event of the petitioner-detenu being released on bail in the said CR's, there was likelihood of his committing prejudicial activities similar to those contained in the grounds of detention, is well founded. 9. However, we have no reservations in observing that the belief of Detaining Authority in terms that there was cogent material to show that the petitioner-detenu was likely to be released on bail in near future in CR No. 308/2000 of Sion Police Station is misconceived. We have seen that in paragraph 24 of his affidavit, the Detaining Authority has admitted that the petitioner-detenu did not apply for bail in the aforesaid CR. We have seen that in paragraph 24 of his affidavit, the Detaining Authority has admitted that the petitioner-detenu did not apply for bail in the aforesaid CR. We may also mention that section 21(4) of the M.C.O.C. Act has virtually made the grant of bail impossible in respect of a person who has committed an offence under the M.C.O.C. Act. We have seen that CR No. 308/2000 is also under sections 3(1)(ii)(2) of the M.C.O.C. Act. In our view it would be necessary to reproduce the provisions contained in sections 21(4) and 21(6) of the M.C.O.C. Act. They read thus :-- “21(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless :-- a) the public prosecutor has been given an opportunity to oppose the application of such release; and b) where the public prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely too commit any offence while on bail. 21(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.” 10. A perusal of section 21(4)(b) of the M.C.O.C. Act would show that before the Court grants bail not only has it to be satisfied that there are reasonable grounds for believing that the person is not guilty of such offences but it should also be satisfied that he is not likely to commit any offence while on bail. A perusal of section 21(6) would show that the limitations under section 21(4) are, in addition to those under the Code of Criminal Procedure or any other law for the time being in force in granting of the bail. 11. A perusal of section 21(6) would show that the limitations under section 21(4) are, in addition to those under the Code of Criminal Procedure or any other law for the time being in force in granting of the bail. 11. We have reached the conclusion that there was no cogent material for the Detaining Authority to conclude that the petitioner-detenu was likely to be released on bail in near future in CR No. 308/2000 because:—(a) the M.C.O.C. Act has been added to the said CR and in view of the provisions contained in sections 21(4)(b) of the M.C.O.C. Act, it is virtually impossible to procure the bail; (b) the petitioners not preferred any bail application in the said CR; and (c) the offences in it, namely, 395 and 397 of Indian Penal Code are offences in which bail is not ordinarily granted. 12. The expression 'cogent material' as used in Chelavats' case (supra) means there should be tangible material or plausible material with the Detaining Authority to believe that a person in custody is likely to be released on bail in near future. We are constrained to observe that, in the instant case, the thesis of the Detaining Authority that the petitioner-detenu was likely to be released on bail in CR No. 308/2000, cannot be put any higher than his mere ipse dixit. We say this because the only basis on which the Detaining Authority has reached the conclusion that there was cogent material before him to show that the petitioner-detenu was likely to be released on bail in the said CR in near future is that two co-accused persons had applied for bail and had been refused bail in it and there was no impediment for the petitioner-detenu in preferring a bail application. We feel that on these circumstances simpliciter, it cannot be said that there was 'cogent material' before him that the petitioner-detenu was likely to be released on bail in near future in the said CR. 13. We feel that on these circumstances simpliciter, it cannot be said that there was 'cogent material' before him that the petitioner-detenu was likely to be released on bail in near future in the said CR. 13. Since one of the facts of compelling necessity, as the said expression is used in para 19 of the Chelavats case (supra) is that there should be cogent material before the Detaining Authority on the basis of which he can conclude that a person in custody is likely to be released on bail in near future, and in the instant case such material is lamentably wanting, in our view, the impugned detention order would have to be struck down. 14. In the result :--We allow this petitions; quash and set aside the impugned detention order; direct that the detenu Rajesh Bishamkumar Khanna Sagar be released forthwith unless wanted in some other case; and make the rule absolute. Petition allowed. -----