JUDGMENT T.N.K. Singh, J. 1. Heard Mr. S. Rajeetchandra, learned counsel appearing for the petitioner-detune and Mr. A. Modhuchandra, learned G.A. appearing for the respondents. 2. By this writ petition filed by the petitioner-detune, the petitioner is challenging the detention order dated 16.4.2011 issued by the District Magistrate, Imphal East District, Manipur directing the petitioner-detune to be detained under Section 3(2) of the National Security Act, 1980 (for short NSA,1980) until further orders, the approval order of the State Government dated 26.4.2011 for approving the detention order dated 16.4.2011 and also the order of the Government of Manipur dated 2.6.2011 for confirming the detention order and fixing the period of detention for 12 months from the date of detention. 3. The only ground for assailing the impugned detention order is that there is non application of mind on the part of the detaining authority in passing the detention order dated 16.4.2011 inasmuch as the detention order was issued in absence of cogent material for coming to the subjective satisfaction that the petitioner detune who is already in custody is likely to be released on bail in the near future. The facts which would be sufficient for deciding the point raised in the present writ petition for assailing the detention order is briefly noted. On 8.3.2011 at about 6.30 p.m. a team of District Police, Imphal West in co-ordination with Aizawl Police picked up the Petitioner-detune from Bongkawn area in Aizawl in connection with FIR case No. 150 (12) 2008 LLI PS u/s 265/34 IPC & 25(1-B) A. Act. Thereafter, the petitioner-detune was brought back to Imphal on 10.3.2011 after getting the transit warrant from the concerned Magistrate of Aizawl. 4. On 22.3.2011, it is alleged, the petitioner-detune was subjected to joint interrogation at Kangla Imphal in connection with various criminal cases. On 22.3.2011 the petitioner-detune was produced before the concerned Judicial Magistrate for remanding him into judicial custody and the learned Magistrate allowed him to be arrested formally in connection with FIR case No. 86(9) 2010 NBL PS u/s 365/368/34 IPC and 16 UA(P) A. Act and remanded into police custody till 29.3.2011. 5. While the petitioner-detune was in custody in connection with the said case, on 16.4.2011 a copy of the impugned detention order was furnished to the petitioner-detune. 5. While the petitioner-detune was in custody in connection with the said case, on 16.4.2011 a copy of the impugned detention order was furnished to the petitioner-detune. In compliance with the provisions of Section 8 of the NSA, 1980, the detaining authority under his letter Porompat, the 19th April, 2011 not only the grounds of detention but also the copies of the documents which form the grounds of detention had been served to the petitioner-detune. Subsequently, the detention order dated 16.4.2011 had been approved by the State Government vide order dated 26.4.2011 and confirmed vide order dated 2.6.2011. 6. It is clear from the above facts that the petitioner-detune was already in custody when the impugned detention order dated 16.4.2011 was issued by the District Magistrate, Imphal East District. The impugned detention order indicates that the detaining authority had the knowledge that the petitioner-detune was already in custody when the impugned detention order was issued, and in the 4th paragraph of the impugned detention order dated 16.4.2011 it is stated that: And whereas, I am satisfied from the Police report that Shri Ingudam Bipin Singh (32 years) s/o I. Jugindro Singh of Oinam Awang Leikai, PS Nambol, Bishnupur District, Manipur is likely to be released on bail in the near future. 7. It is now well settled that the detune, who is already in custody, can still be detained under the detention order, but certain requirements are to be fulfilled for detaining the detune who is already in custody under the detention order; that requirements are mentioned in the decision of the Apex Court in Union of India v. Paul Manickam: (2003) 8 SCC 342 . In Paul Manickam's case (supra) it is clearly stated that preventive detention being necessary to prevent the detune from acting in any manner prejudicial to the security of the State, maintenance of public order and economic stability etc. ordinarily, it is not needed when the detune is already in custody. The detaining authority should show his awareness to the fact of subsisting custody of the detune and take that factor into account while making the order. If the detaining authority is reasonably satisfied with the cogent reasons that detune is likely to be released on bail, the detune can still be detained. 8. The detaining authority should show his awareness to the fact of subsisting custody of the detune and take that factor into account while making the order. If the detaining authority is reasonably satisfied with the cogent reasons that detune is likely to be released on bail, the detune can still be detained. 8. Keeping in view the decision of the Apex Court in Paul Manickam's case (supra), we have given our anxious consideration to the grounds of detention dated 19.4.2011 furnished by the detaining authority to the petitioner-detune. No doubt, in the grounds of detention there are as many as 12 paragraphs, but nowhere in the grounds of detention, reasons had been mentioned for coming to the subjective satisfaction that the petitioner-detune is likely to be released on bail. What is stated in the grounds of detention is that the petitioner-detune had been arrested in connection with some police cases or criminal cases. It is also alleged that the petitioner-detune is a member of the extremist organization, namely Kangleipak Communist Party (KCP (MTF Sunil Faction)). 9. As stated above, there shall be objective approach for coming to the subjective satisfaction that the petitioner-detune who is already in custody is likely to be released on bail. The Apex Court in Rekha v. State of Tamil Nadu through Secretary to Government and Another (2011) 5 SCC 244 held that Court still has power and jurisdiction to see as to whether there are materials for coming to the subjective satisfaction. It is also equally settled that the Court cannot scrutinize as to whether there are sufficient or insufficient materials in coming to the subjective satisfaction; what is required to see is if the subjective satisfaction is based on material or not. 10 The Apex Court in a recent decision in N.(O) Leima Devi v. State of Manipur & Ors passed in Cril Appeal No. 18 of 2012 held that in the absence of cogent material for coming to the subjective satisfaction that the petitioner-detune is likely to be released on bail, the detune who is already in custody cannot be placed under preventive detention. Relevant portions of the decision of the Apex Court in Leima Devi's case (supra) read as follows: Cases in which persons are put under detention while in custody in connection with a substantive criminal case have come before this Court on a number of occasions and this court has laid down the tests to be satisfied for putting a person under preventive detention in such circumstances. In Union of India vs. Paul Manickam & Anr., (2003) 8 SCC 342 , in paragraph 15 of the judgment, the Court held and observed as follows : 14. So far as this question relating to the procedure to be adopted in case the detune is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authority should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detune by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detune from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenue is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detune and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detune was likely to be released on bail, the order would be vitiated (See N. Meera Rani v. Govt. of Tamil Nadu, (1989) 4 SCC 418 and Dhamendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746 ). Where the detention order in respect of a person already in custody does not indicate that the detune was likely to be released on bail, the order would be vitiated (See N. Meera Rani v. Govt. of Tamil Nadu, (1989) 4 SCC 418 and Dhamendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746 ). The point was gone into detail in Kamarunnissa v. Union of India, (1991) 1 SCC 128 . The principles were set out as follows : even in the case of a person in custody, a detention order can be validly passed : (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a person to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail." In a more recent decision in Yumnam Ongbi Lembi Leima v. Sate of Manipur & Ors., ( 2012) 1 Scale 2, in paragraph 13 of the judgment, the Court once again reiterated as follows : 13. Having carefully considered the submissions made on behalf of respective parties, we are inclined to hold that the extra-ordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumnam Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. Article 21 of the Constitution enjoins that no person shall be deprived of his life or personal liberty except, according to procedure established by law. Article 21 of the Constitution enjoins that no person shall be deprived of his life or personal liberty except, according to procedure established by law. In the instant case, although the power is vested with the concerned authorities, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as such a detention order is an exception to the provisions of Article 21 and 22(2) of the Constitution. It is, thus, clear that the detention order passed in this case does not satisfy the tests laid down by this Court and is plainly violative of the constitutional guarantee under Article 22(2) of the Constitution of India. 11. Mr. Modhuchandra, learned Government Advocate supporting the detention order of the detaining authority submits that there are sufficient materials for coming to the subjective satisfaction that the petitioner-detune is likely to be released on bail by referring to different decisions of the Apex Court and one of the cited cases being The State of Bombay Vs. Ram Shridhar Vaidya AIR (38) 1951 SC 157 (CB). Para 5 of the Ram Shridhar's case (supra) reads as follows: 5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section 3, Preventive Detention Act, therefore, requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defense of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (3) the maintenance of supplies and services essential to the community or...... it is necessary so to do, make an order directing that such person be detained. According to the wording of S. 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the Court to sit in the place of the Central Government or the State Government and try to determine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a Court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a Court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government. 12. After careful reading of the decision of the Apex Court in Ram Shridhar's case (supra) it is clear that no doubt subjective satisfaction is the cumulative effect of all the materials available before the detaining authority. We are not disputing this settled position of law; even if the subjective satisfaction is the cumulative effect available before the detaining authority, the question is what are the materials? Para 8 of the grounds of detention is reproduced below: 8. That, in view of your prejudicial activities in the proximate past it is very likely that you would continue to act in the same manner prejudicial to the security of the State and maintenance of public order in case you are released on bail. Para 8 of the grounds of detention is reproduced below: 8. That, in view of your prejudicial activities in the proximate past it is very likely that you would continue to act in the same manner prejudicial to the security of the State and maintenance of public order in case you are released on bail. Hence, the application of normal criminal laws against you will not at all be effective to prevent you from committing such activities. An effective measure to prevent you from committing further prejudicial activities is immediately called for. What is stated in para 8 of the grounds of detention, as quoted above, is that in case the petitioner-detune is released on bail, he would indulge in prejudicial activities. As stated above, what is required to see is what are the reasons for coming to the subjective satisfaction that the petitioner-detune is likely to be released on bail. What is required is not the conclusion of the detaining authority that in case he is released on bail, the petitioner-detune shall indulge prejudicial activities; that satisfaction, according to our opinion, cannot be the hypothesis that if the petitioner is released on bail, the petitioner-detune will indulge in prejudicial activities. 13. One of the precious rights of a citizen of India is the right guaranteed under Art. 21 and 22 of the Constitution of India. Such precious right of the citizen guaranteed under Art. 21 and 22 of the Constitution of India cannot be infringed on a hypothesis that in case the petitioner-detune is released on bail, he will indulge in prejudicial activities. 14. We also appreciate the proposition of law propounded by Mr. Modhuchandra, learned Government Advocate in this case, but the seed of proposition of law sown by Mr. Modhuchandra, cannot grow in the facts and circumstances of this case. In other words, fact of the case is not suitable for accepting his proposition. 15. For the foregoing reasons, we have no alternative except to interfere with the impugned detention order, approval order and the confirmation order. In the result, the detention order dated 16.4.2011, the approval order dated 26.4.2011 and the confirmation order dated 2.6.2011 are hereby set aside and the petitioner-detune, namely Shri Ingudam Bipin Singh, be set at liberty forthwith if he is not required in connection with any other case. This writ petition is allowed. Petition allowed