JUDGMENT - VISHNU SAHAI, J.:---Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes himself as the brother of the detenu Sphel @ Chinya Rashid Shaikh, has impugned the order dated 15th December, 2000 passed by the first respondent Mr. M.N. Singh, Commissioner of Police, Brihan Mumbai detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the 'said Act') read with Government Order, Home Department (Special) No. DDS 1300/1/SPL-3(B) dated the 19th October, 2000. The detention order alongwith the grounds of detention which are also dated 15-12-2000, was served on the detenu on 20-12-2000 and their true copies are annexed as Exhibit 'A” and 'B' respectively to this petition. 2. A perusal of the grounds of detention would show that the impugned order is founded on one C.R., namely C.R. No. 113/2000, under sections 365, 302, 328, 120(B), 201, 34 of the Indian Penal Code, registered on the basis of a complaint dated 19-4-2000 lodged by P.S.I. Baburao Maruti Mohite at Police Station Colaba and in-camera statements of two witnesses, namely, 'A' and 'B', which were recorded on 14-7-2000 and 15-7-2000 respectively. Since in our view a reference in the prejudicial activities of detenu contained in the grounds of detention is not necessary for adjudication of ground 7(P), pleased in the petition, on which ground alone this petition deserves to succeed we are not adverting to them. 3. Ground 7(P), in short, is that if the Detaining Authority was satisfied that the detenu's activities were prejudicial to the maintenance of the public order, the Detaining Authority should have opposed the bail application of the detenu rather than resorting to the issuance of a preventive detention order. The pleading is that this having not been done smacks of mala fide and the detention order warrants to be quashed and set aside. 4. Mr. Solkar, learned Counsel for the petitioner urged that a perusal of paragraph 6 of the grounds of detention shows that the detenu was in custody at the time when the impugned order was passed. The pleading is that this having not been done smacks of mala fide and the detention order warrants to be quashed and set aside. 4. Mr. Solkar, learned Counsel for the petitioner urged that a perusal of paragraph 6 of the grounds of detention shows that the detenu was in custody at the time when the impugned order was passed. He contended that one of the pre-requisites laid down by the Apex Court is that a detention order can only be issued against a person in custody if there is 'cogent material' to indicate that he is likely to be released from custody in near future. Mr. Solkar contended that in this case there was no cogent material for the Detaining Authority to conclude that the detenu was likely to be released from custody in near future. To press home his submission, he invited our attention to the observations contained in paragraph 19 of the decision of the Apex Court rendered in case of (Dharmendra Suganchand Chelawat and another v. Union of India)1, reported in A.I.R. 1990 S.C. 1196. 5. Ground No. 7(P) has been replied in paragraph 21 of the return of the Detaining Authority. In the said paragraph the Detaining Authority has urged that since the co-accused in C.R. 113/2000 had preferred an application for bail which was pending before the issuance of the order of detention, he was satisfied that there were cogent and compelling reasons for issuing the detention order. The averment further is that he had reason to believe that the detenu would also prefer an application for bail as there was no impediment in his way in preferring it. The averment also is that after he had passed detention order, it was brought to his notice that the co-accused who applied for bail was granted bail from the Court of Sessions. 6. We have considered the averment contained in Ground 7(P) of the petition, those contended in paragraph 21 of the return of the Detaining Authority, where the same ground has been replied to, and heard the learned Counsel for both the parties. As mentioned earlier, we find merit in Ground 7(P). 7. The Supreme Court in paragraph 19 of A.I.R. 1990 S.C. 1196 (supra) has 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. As mentioned earlier, we find merit in Ground 7(P). 7. The Supreme Court in paragraph 19 of A.I.R. 1990 S.C. 1196 (supra) has 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 were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies 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.” 8. A perusal of the said paragraph would show that if the Detaining Authority issues a detention order against a person in custody not only has he to show his awareness in the grounds of detention about the person being in custody and that of the likelihood of his committing prejudicial activities similar to those mentioned in the grounds of detention but there should be cogent material before him on the basis of which he was satisfied that the person sought to be preventively detained was likely to be released from custody in near future. 9. As mentioned above Mr. Solkar, the learned Counsel for the petitioner strenuously urged that there was no cogent material on the basis of which the Detaining Authority could have concluded that the detenu was likely to be released on bail in near future. Mr. 9. As mentioned above Mr. Solkar, the learned Counsel for the petitioner strenuously urged that there was no cogent material on the basis of which the Detaining Authority could have concluded that the detenu was likely to be released on bail in near future. Mr. Solkar urged that despite the fact that C.R. 113 of 2000 was registered on 19-4-2000 and the impugned order was passed against the detenu on 15-12-2000 in this period of over 8 months it has not been reflected in the return of the Detaining Authority that the detenu moved an application for bail before any Court Mr. Solkar contended that in such a situation the averment in the return of the Detaining Authority that there was cogent material for him to conclude that the detenu was likely to be released on bail in near future is his ipse dixit. 10. Refuting the above submission of Mr. Solkar, Mr. D.S. Mahispurkar, learned Counsel for the respondents has strenuously urged that the circumstance that the co-detenu had applied for bail in the same C.R. and was granted bail subsequent to the issuance of the detention order against the detenu is sufficient to conclude that there was cogent material before the Detaining Authority justifying his inference that the detenu was likely to be released on bail in near future and hence his subjective satisfaction in passing the impugned order cannot be faulted. We are constrained to observe that we do not find any merit in his submission. In our judgment, merely because a co-accused applies for bail cannot be termed as a cogent material to conclude that the detenu is likely to be released on bail. The expression 'cogent material' means tangible material, concrete material, and plausible material. To our regret even if the said explanation of the Detaining Authority is accepted on its face value, what at the highest which can be said is that the Detaining Authority thought that there was a possibility of the detenu being released on bail. In our view on this mere possibility it cannot be concluded that there was cogent material before the Detaining Authority, in terms of Dharmendra Suganchand Chelawats' case (supra) that the detenu was likely to be released on bail in near future. 11. So far the submission of Mr. In our view on this mere possibility it cannot be concluded that there was cogent material before the Detaining Authority, in terms of Dharmendra Suganchand Chelawats' case (supra) that the detenu was likely to be released on bail in near future. 11. So far the submission of Mr. Mahispukar that since the co-detenu was actually granted bail from the Court of Sessions after the detention order had been passed by the Detaining Authority against the detenu and, therefore, it can safely be said that there was cogent material for the Detaining Authority to conclude that detenu was likely to be released on bail in near future is concerned the less said the better. 12. The question is whether there was cogent material before the Detaining Authority at the time when he passed the detention order. Merely because the co-detenu was actually granted bail from the Sessions Court after the Detaining Authority had issued the impugned detention order against the detenu does not mean that there was cogent material for him to conclude that the detenu was likely to be released on bail in near future. We dare say that this explanation of the Detaining Authority is prompted by the circumstance that the co-detenu had been granted bail subsequently. 13. We wish to emphasis that the expression cogent material as used in Chelawats' case (supra) means that material which is subsisting at the time when the Detaining Authority issues a detention order and does not include the material which sees the light of the day after he has issued the detention order; such as the co-detenu being released on bail in the instant case. 14. For the aforesaid reasons, in our judgment, the impugned detention order cannot be sustained and has to be set aside. 15. In the result :-We allow this petition, quash and set aside the impugned detention order; direct that the detenu Shri Sohel @ Chinya Rashid Shaikh be released forthwith unless wanted in some other case; and make the rule absolute. Certified copy expedited. Petition allowed. -----