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2004 DIGILAW 457 (GAU)

State of Manipur v. Arambam Kameshwar Singh

2004-08-04

AMITAVA ROY, P.P.NAOLEKAR

body2004
JUDGMENT Amitava Roy, J. 1. The State of Manipur seeks a review of the judgment and order dated 22.4.2004 setting aside the detention of the Respondent Sri Arambam Kameswar Singh @ Kame under Section 3 of the National Security Act, 1980 (for short "Act" hereinafter). Though none had appeared on behalf of the Review applicants, we, having regard to the importance of the legal issue raised have finally heard the matter in presence of Mr I. Choudhury, Advocate for the Respondent. 2. The Respondent had approached this Court with the aforementioned writ petition assailing the validity of the order of his detention under the Act. 3. The factual background in short, as narrated in the writ petition is that, on 28.11.2003 the Respondent was arrested by the Manipur police in connection with a criminal case bearing No. FIR No. 63(11) 03/HNG-PS under Sections 121/121-A IPC, 10/13n U.A.(P) Act, 25(1-C) Arms Act and 6(1-A) IWT Act and was remanded to police custody till 8.12.2003. On 8.12.2003, the District Magistrate, Imphal (West) District passed an order in exercise of power under Section 3(3) of the Act detaining him thereunder "until further orders" The operative portion of the said order is extracted hereinbelow: Now, therefore I.Y. Surchandra Singh, District Magistrate, Imphal East District, Manipur in exercise of the power conferred upon me by Sub-section 3 of the Section 3, read with Section 3(2) of the National Security Act, 1980 read with Home department's Order No. 17(1)/49/90-H Pt.) dtd. 2/12/2003 make this order directing that the above said person who is now in police custody be detained until further orders. 4. The Petitioner submitted a representation on 8.12.2003 itself. However, being furnished with the grounds of detention on 9.12.2003, he submitted another representation before the Central Government, the State Government and the detaining authority on 17.12.2003. His representation before the State Government was rejected, the decision to the said effect being conveyed to him by communication dated 24.12.2003 issued by the Joint Secretary (Home), Govt. of Manipur. According to the Petitioner, his representation before the Central Government remained undisposed., the Petitioner's detention order eventually came to be confirmed by the State Government by orders passed on 30.12.2003. The Petitioner thus situated, assailed his detention inter alia on the ground that the same was in contravention of the provisions of the Act. 5. of Manipur. According to the Petitioner, his representation before the Central Government remained undisposed., the Petitioner's detention order eventually came to be confirmed by the State Government by orders passed on 30.12.2003. The Petitioner thus situated, assailed his detention inter alia on the ground that the same was in contravention of the provisions of the Act. 5. After hearing the learned Counsel for the parties, this Court reiterated its view recorded in 2004(2) GLR 592 : 2004 (2) GLT 716: (Amrit Ballav Goswami @ Mizu Phukan v. Union of India and Ors.) based on a decision of the Apex Court in 1988 Supp. SCC 568 (Commissioner of Police and Ors. Appellants v. Gurbux Anandaram Bhiriyani, Respondent) and quashed the order of detention holding that as the same did not specify the period of detention, it was in violation of the mandate of the Act under Section 3 to the said effect. This Court was of the opinion that as the detention order dt. 8.12.2003 did not specify the period of detention and instead mentioned "until further orders" and the order of approval also omitted to mention the period of detention, those were not in accordance with the mandatory requirements of the Act and therefore unsustainable in law and on facts. 6. The principal ground on which the review of the judgment and order is sought for is that the decision of the Apex Court in Commissioner of Police and Anr. v. Gurbux Anandram Bhiryani (supra) has since been reversed by the Apex Court in Mrs T. Devaki, Petitioner v. Government of Tamil Nadu and Ors., Respondents AIR 1990 SC 1086 . According to the review applicant, in terms of the said decision, a detention order under Section 3 of the Act need not specify the period of detention and therefore, the order of detention dated 8.12.2003 and that of the approval/confirmation thereof do not in any way contravene the provisions of the Act. We have gone through the decision in T. Devaki (supra) and find ourselves in agreement with the contentions of the review applicant. 7. In the above factual premises, we deem it necessary and expedient at this stage to mention the circumstances in which the view in Amrit Ballav Goswami (supra) was taken and reiterated in the present writ petition. We have gone through the decision in T. Devaki (supra) and find ourselves in agreement with the contentions of the review applicant. 7. In the above factual premises, we deem it necessary and expedient at this stage to mention the circumstances in which the view in Amrit Ballav Goswami (supra) was taken and reiterated in the present writ petition. In course of the arguments therein where a similarly worded detention order under the Act was assailed., the Petitioner's learned Counsel relied on the decision in Commissioner of Police and Anr. v. Gurbux Anandaram Bhiryani (supra). Our attention was particularly drawn to the following passage of the said decision. The order is bad on another ground, namely the period of detention has not been indicated by the detaining authority. The scheme of this Act differs from the provisions obtained in similar Acts by not prescribing a period of detention but as Section 3 of the Act indicates, there is an initial period of detention which can extend up to three months and that can be extended for periods of three months at a time. It was open to the detaining authority to detain the detenue even for a period of lesser duration than three months. That necessitated the period of detention to be specified and unless that was indicated in the order, the order would also be vitiated. In scores of decisions this Court has been emphasizing the necessity of strict compliance with the requirements of the preventive detention law; yet authorities on whom the power is conferred have not been complying with the requirements and even if there is merit to support the order of detention, the procedural defects lead to quashing thereof as a result of which the purpose of the Act is frustrated and the suffering in the community does not abate. It was argued on the basis thereof that as Section 3 of the Act was in peri materia with Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act 1981 in the reported decisions, in terms thereof, the impugned order of detention was liable to be set aside. Incidentally, the Apex Court in the said decision had quashed the detention order as it did not specify the period of detention. 8. Incidentally, the Apex Court in the said decision had quashed the detention order as it did not specify the period of detention. 8. Though the arguments noticed hereinabove were advanced in presence of the learned Counsel for the Central as well as State Government, the above view recorded in the reported decision or the arguments on the basis thereof were not resisted by them, it was neither poitned out to us that the reported decision in the meantime, had been reversed by the Apex Court in any subsequent judgment involving the same question. This Court, therefore, on a consideration of all relevant aspects, relying on the decision of the Apex Court mentioned hereinabove, quashed the order of detention. 9. The detention in Mrs. T. Devaki (Supra) which was under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers Drug-offenders, Forest offenders, Immoral Traffic Offenders and Slum Grabbers Act, 1982 was inter alia assailed on the ground that the order of detention did not specify the period thereof. Reliance was placed on the decision in Commissioner of Police v. Gurbux Anandaram Bhiryani (supra) in support of the contention. The Apex Court after examining the scheme of the said Act as well as that of the Preventive Detention Act, 1950, the Maintenance of National Security Act, COFEPOSA Act and the National Security Act held that in none of these enactments the detaining authority was required to specify the period of detention. With reference to Section 3 of the Tamil Nadu Act, the Apex Court ruled that Section 3(1) conferred power on the State Government to pass an order of preventive detention with a view to prevent a person from acting in a manner prejudicial to the maintenance of public order. Section 3(2) empowered the State Government to delegate its power to a District Magistrate or a Commissioner of Police if it was satisfied that the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or Commissioner of Police made it necessary to delegate the said power to them. The order of delegation was to be in writing specifying the period during which the District Magistrate or the Commissioner of Police would be authorized to exercise the power of the State Government under Section 3(1). The order of delegation was to be in writing specifying the period during which the District Magistrate or the Commissioner of Police would be authorized to exercise the power of the State Government under Section 3(1). It held that the proviso to Sub-section (2) laid down that the delegation should not be for an unlimited period. Instead, it should not be for a period of more than three months and that if the State Government was satisfied that it was necessary to extend the period of delegation, it could amend its order extending such period from time to time, but at no time the extension should be for a period of more than three months. It held that neither Sub-section (1) nor Sub-section (2) of Section 3of the Tamil Nadu Act required the detaining authority to specify the period of detention. Referring to its earlier decision in Commissioner of Police v. Gurbux Anandaram Bhiryani (supra) the Apex Court held that the scheme of Maharashtra Act involved therein was not different and that therefore, the view expressed that the order of detention in absence of any period thereof was invalid was incorrect. In recording the said conclusion, the Apex Court recounted its decisions in Ujagar Singh v. State of Punjab AIR 1952 SC 350 , Suna Ullah Butt v. State of Jammu Kashmir AIR 1972 SC 2431 , Suresh Bhojari Chelani v. State of Maharashtra AIR 1983 SC 181 and A.R. Roy v. Union of India AIR 1982 SC 710 . The view taken in Gurbux Anandaram Bhiryani (supra) on the interpretation of Section 3 of the Maharashtra Act was therefore held to be incorrect observing that the order of detention under the Tamil Nadu Act was not rendered illegal on account of detaining authority's failure to specify the period of detention in the order. 10. In course of the arguments, the arguing counsel for the Respondent did not assert that there was a later decision of the Apex Court altering its view expressed in Mrs. T. Devaki (supra) on the issue. 11. In face of the above judgment of the Apex Court, our view in Amrit Ballav Goswami @ Mizu Phukan (supra) and reiterated in some other cases is per incuriam and can have no binding effect. T. Devaki (supra) on the issue. 11. In face of the above judgment of the Apex Court, our view in Amrit Ballav Goswami @ Mizu Phukan (supra) and reiterated in some other cases is per incuriam and can have no binding effect. The judgment rendered in Gurbux Anandaram Bhiryani's case though reversed in a subsequent decision of the Apex Court was cited before us on behalf of the Petitioner in Amrit Ballav Goswami @ Miju Phukan (supra). Though the case was argued in presence of the learned Counsel for the Respondents, neither the view expressed in Gurbux Anandaram Bhiryani (supra) was opposed by them, nor the contention based thereon was questioned as untenable in view of any subsequent decision. The position of law as expressed in Gurbux Anandaram Bhiryani (supra) was seemingly accepted by the learned Counsel for the Respondent and accordingly the issue was decided by us on the basis of law cited at the Bar. It now transpires that updated and latest position of law was not brought to our notice resulting in our decision in Amrit Bhallav Goswami @ Mizu Phukan, a view reiterated by us in the related writ petition in hand. 12. The Apex Court in State of U.P. and Ors. v. Synthetics and Chemicals Ltd. and Anr. (1991) 4 SCC 139 while dwelling on the principle of per incuriam observed thus: Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplance Col Ltd.) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In the above factual premises, we are of the considered view that the order of detention would not be constitutionally invalid for not mentioning the period of detention, we therefore, deem it fit and appropriate to review our decision rendered in the writ petition and in the interest of justice recall the same. 13. The Apex Court in S. Nagraj and Ors. Petitioner v. State of Kamataka and Anr., Respondents 1993 Supp. (4) SCC 595 had fathomed the pristine objectives of reviewing a judicial order. 13. The Apex Court in S. Nagraj and Ors. Petitioner v. State of Kamataka and Anr., Respondents 1993 Supp. (4) SCC 595 had fathomed the pristine objectives of reviewing a judicial order. We consider it befitting in the present circumstances to quote the following passage therefrom: Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law, Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the. Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. 14. Before parting, we cannot, but record a few thoughts which the factual background alluded hereinabove impels us to make. In a justice administration system, the Bar and Bench have essentially to act in cohesion to propound the correct law to render justice in accordance therewith. It is a constitutional order based on mutual faith and confidence. In an adversarial system of justice administration, the counsel of both sides are under a solemn obligation to place before the Court the correct position of law discemable from the legislations involved as well as the precedents. We by saying so, in no way wish to moderate the role of the Court in this context. All that is sought to be underlined is that to render justice in accordance with law the Bar and Bench is to act in coordination, it being unavoidably essential for the Court to confide in the Bar for being properly posted with the facts and law to decide a lis before it. We hope and expect that such a situation would not recur in future. 15. In view of our opinion now expressed with regard to the interpretation of Section 3 of the Act qua the period of detention, our observations made on the basis of Amrit Ballav Goswami (supra) stands accordingly modified. This, however should not be construed to signify that the Respondent authorities would cease to be mindful about their obligations under the Constitution and the Act to exercise their powers relating to preventive detention as prescribed thereby. 16. The registry would forward a copy of this order to the Special Secretary, (Home), Government of Manipur, Secretariat, Imphal, who would cause the same to be circulated amongst the concerned authorities of the State Administration. 17. 16. The registry would forward a copy of this order to the Special Secretary, (Home), Government of Manipur, Secretariat, Imphal, who would cause the same to be circulated amongst the concerned authorities of the State Administration. 17. In the wake of the above, the judgment and order dated 22.4.2004 passed in W.P.(Crl) No. 8/2004 is hereby recalled on review. The Respondent authorities are at liberty to take back the Respondent Shri Arambam Kameshwar Singh in custody in terms of the detention order dated 8.12.2003. Further detention of the Respondent under the above order would however, abide by the final decision in the writ petition. 18. The review petition is, therefore allowed, as the writ petition had been disposed of only on the ground referred to above. It has to be heard on merits afresh on other points raised by the Petitioner. Accordingly, list the accompanying writ petition for hearing on 6.8.2004. There would be no order as to costs. Petition allowed.