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2004 DIGILAW 641 (GAU)

Th. Ibochou Singh v. State of Manipur

2004-12-20

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2004
JUDGMENT M.B.K. Singh, J. 1. In this writ petition filed under Art, 226 of the Constitution of India, the petitioner Shri Thounaojam Ibochou Singh is challenging the order of detention of his son, Th. Brojen alias Romeo alias Korouhanba Singh, hereinafter referred to as the detenu, passed by the District Magistrate Imphal West on 23-1-2004 directing the detention of the said detenu under the National Security Act, 1980 and subsequent approval and confirmation of the said order by the State Government (Annexures A/1, A/2 and A/2-1). 2. There is no dispute in respect of the following facts : The detenu was arrested on 16-1-2004 at about 10.30 a.m. by police and an FIR case No. 16(1) 2004 Sing jamei P.S. under Section 10/13 U.A. (P) Act was registered against him. While he was in police custody, he was served with the said detention order (Annexure A/1) on 23-1-2004 at 3.30 p.m. The detention order was purportedly made with a view to prevent the detenu from acting in any manner prejudicial to the security of the State and maintenance of public order. The grounds of his detention (Annexure A/3) dated 27-1-2004 was also furnished to him on 28-1-2004 by the Jail Authority. The detention order was approved on 31-1-2004 by the State Government (Annexure-A/2) and the copy of the approval order was furnished to the detenu on 4-2-2004. The detenu submitted his representation dated 6-2-2004 addressed to the Chief Secretary, Govt. of Manipur through the Superintendent of Police Central Jail. Imphal with a copy to the District Magistrate, Imphal West. It was received by the District Magistrate only on 11-2-2004. The detenu was informed, vide letter dated 11-2-2004 (Annexure-A/7), that his representation was not considered by the District Magistrate, Imphal West as the detention had already been approved by the Government. The State Government confirmed the detention order on 4-3-2004 (Annexure-A/2-1) and it was served to the detenu on the same day. 3. We have heard Mr. M. I. Sharma, learned Advocate appearing on behalf of the petitioner and Mr. Jalal learned Addl. Government Advocate appearing on behalf of the respondents at length. The State Government confirmed the detention order on 4-3-2004 (Annexure-A/2-1) and it was served to the detenu on the same day. 3. We have heard Mr. M. I. Sharma, learned Advocate appearing on behalf of the petitioner and Mr. Jalal learned Addl. Government Advocate appearing on behalf of the respondents at length. The order of detention is challenged on the following grounds: 1) the detenu's representation dated 6-2-2004 was not considered at any point of time; 2) the detention order was passed without application of mind; 3) the detenu was not given any chance or opportunity of submitting his representation to the Central Government and as such the detenu was deprived of his right under Section 14 of the N.S. Act. 4. With regard to the first ground of challenge, the learned counsel for the petitioner draws this Court's attention to the letter dated 11-2-1984 of the District Magistrate, Imphal West (Annexure-A/7-II) informing the detenu to the effect that since the detention order had been approved by the Government, his representation dated 6-2-2004 could not be considered and submits that the failure to consider the representation vitiates the detention order. The said letter dated 11-2-2004 (Annexure-A/7-II) is as follows : "No. Cril/NSA/No. 44 of 2004 Imphal, 11th Feb/2004. To Shri Thounaojam Brojen Singh alias Ingocha alias Korouhanba alias Romeo (35 yrs) s/o Th. Ibochou Singh Waikhong, District-Thoubal, Manipur. Subject :-- Submission of representation by one NSA detenu of Manipur Central Jail, Imphal. Sir, In inviting a reference by your representation dated 6th February, 2004 on the above subject, I am to inform you that since the Secretariat, Home Department, Government of Manipur had already approved the said representation, your request for revocation of your detention order cannot be considered. Yours faithfully, Sd/- (Y. Surachandra Singh) District Magistrate, Imphal West District, Manipur." 5. On perusal of the said letter and the counter-affidavit of the respondent No. 2, it is ascertained that by the above said letter, the District Magistrate Imphal West, informed the detenu that his said representation could not be considered on the ground that the detention order had already been approved by the State Government. It does not mean that the representation was not considered at all by the State Government also after receiving it. It does not mean that the representation was not considered at all by the State Government also after receiving it. As per provisions of Sub-section (4) of Section 3of the NSA, (1980) an order passed by the District Magistrate under the said Act is not to remain operative beyond 12 days until and unless the order is approved by the State Government in the meantime and as such when the State Government had already approved the detention, there was no room for the District Magistrate to consider the said representation. The grounds of detention (Annexure-A/3) furnished to the detenu on 28-1-2004 clearly states that he would have right to make representation to the detaining authority within 12 days from the date of detention, or till the order was approved by the State Government whichever was earlier. As per the counter-affidavit of the respondents, the representation of the detenu was received only on 11-2-2004 and the detention order had already been approved by the State Government on 31-1-2004. In these circumstances, the failure on the part of the District Magistrate to consider the representation was of no consequence. Had the representation been received before the approval by the State Government, the result would have been otherwise. 6. The following facts, which are alleged in the counter-affidavit of the respondents, but not controverted by the petitioner, are also ascertained. The said representation of the detenu was rejected by the State Government after due consideration and he was also informed about it. The copy of the representation was also placed before the Advisory Board on 17-2-2004 for consideration. The Advisory Board held its sitting on 26-2-2004 and 28-2-2004 and heard the detenu in person. In the above circumstances, the first ground of challenge of the petitioner is not acceptable and it is accordingly rejected. 7. With regard to the second ground of challenge, the learned counsel for the petitioner submits that the fact of passing the detention order, while the detenu was in Jail in connection with investigation of the said FIR case clearly shows that it was an order passed without application of mind by the detaining authority. 7. With regard to the second ground of challenge, the learned counsel for the petitioner submits that the fact of passing the detention order, while the detenu was in Jail in connection with investigation of the said FIR case clearly shows that it was an order passed without application of mind by the detaining authority. According to the petitioner's-counsel, since the detenu was in the custody, he was not in a position to act in any manner prejudicial to the security of the State and maintenance of public order and as such by passing the detention order without considering the fact of the detenu being in custody, the detaining authority proceeded mechanically and without application of mind. Further, according to the learned counsel instead of issuing the detention order, the detenu should have been prosecuted under the ordinary criminal law. 8. There is no dispute that the detaining authority is to apply its mind to individual cases and ought not to adopt a mechanical approach to matters involving personal freedom. However, there is no law to the effect that an order of preventive detention can never be passed against a person in custody under any circumstances. The real hurdle to making an order of detention against a person already in custody is based on the view that it is futile. This objection cannot hold good if the earlier custody is likely to cease very soon. In Dharmendra Suganchand Chelawat v. Union of India, reported in the Hon'ble Supreme Court held : "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; (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 and antecedent activities of the victims, 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." 9. In our present case, the detention order in Annexure-A/1 clearly states about being satisfied on the basis of police report about the likelihood of the detenu being released on bail in connection with criminal case. The grounds of detention in Annexure-A/3 states that he had been arrested in connection with other FIR cases earlier also and that after being released on bail in respect of those cases, he committed illegal activities of the unlawful organisation of which he was a Member. After mentioning his involvement in illegal activities of the said unlawful organisation, para 5 of the said grounds of detention in Annexure-A/3 state as follows : "5. That, in view of your tendencies and inclinations reflected in the offences committed by you in the proximate past as hard core member of banned organisation namely United National Liberation Front (UNLF) in short whose aim is to establish independent sovereign State of Manipur by waging war against the lawfully established Government of India and Manipur holding fire arms, I am satisfied that after having availed of bail facilities and becoming a free person, you being a hard core member of the said organisation would continue to indulge in the same activities which are prejudicial to the security of the State and maintenance of the public order. Hence, the application of normal criminal laws against you will not at all be effective to prevent you from the commission of further prejudicial activities. An alternative preventive measure is, therefore, immediately called for. From the above grounds, I am satisfied that with a view to prevent you from acting in any manner prejudicial to the security of the State and maintenance of public order, I have made this order directing that you be detained under NSA, 1980." 10. An alternative preventive measure is, therefore, immediately called for. From the above grounds, I am satisfied that with a view to prevent you from acting in any manner prejudicial to the security of the State and maintenance of public order, I have made this order directing that you be detained under NSA, 1980." 10. In the above facts and circumstances and the submission of the petitioner's-counsel that the detention order was issued without application of mind is not acceptable. The detention order passed while in custody cannot be considered as an illegal one when there was subjective satisfaction on the part of the detaining authority about the likelihood of being released on ball. The plea that is advanced that the detenu could have been prosecuted under the ordinary law instead of resorting to preventive detention is not also tenable because it is well settled in Haradhan v. State of West Bengal, reported in wherein the Apex Court held that preventive detention may be made before or during the criminal prosecution. The power of preventive detention is qualitatively different from punitive detention. It is a precautionary power which can be exercised in reasonable anticipation. Accordingly the second ground of challenge is also rejected. 11. With reference to the third ground of challenge, the petitioner's-counsel draws our attention to the following decision of the Hon'ble Supreme Court in Kamlesh kumar Ishardas Patel v. Union of India JT(1995 (3) 639), made while interpreting Clause (5) of Article 22 of the Constitution, the Apex Court held (in para 14); "Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e. the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carried within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation." 12. The right to make a representation carried within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation." 12. The learned counsel of the petitioner submits that this Court also in Hemanta Nath v. State of Assam, reported in 1998 (2) G LT 344 relying on the above principles of law laid down by the Hon'ble Supreme Court, on finding that the detenu in that case had not been apprised of his rights to make a representation to the Central Government, held that there was denial of opportunity to make representation to the Central Govt. and as such the continued detention was vitiated. 13. In Thanglenmang Hangsing v. District Magistrate, Senapati District, reported in 2004 (1) G LT 646, after taking into consideration of the above decision, this Court held : "11. On the fact situation of this case, the ratio available in the above judgment would apply meaning thereby that the order of detention cannot be sustained for omission on the part of the detaining authority in informing the detenu of his right to make a representation before the Central Government within the purview of Section 14 of the National Security Act, 1980." 14. The same view is found to have been taken in an earlier decision of this Court made in Hokuto Sema v. Union of India 1997 (2) G LT 518. The above said position of law is, thus, settled. 15. In our present case, on perusal of the materials before the Court, it is ascertained that the detenu was not informed of his rights to make a representation to the Central Government under S; 14 of the N.S.A. read with Article 22(5) of the Constitution. Mr. Jalal, learned Addl. G.A. draws this Court's attention to the communication of the Government of India being No. 11.15028/1/2002-15(DO.II(pt)/NSA dated 28-4-2003 addressed to all Chief Secretaries of States and submits that as per the said communication, it was not necessary to inform the detenu that he could make a representation to the Central Government. The said communication is as follows : "To The Chief Secretary, Manipur, Imphal All States/UTs. Subject : Representations made by the detenus under the National Security Act, 1980. The said communication is as follows : "To The Chief Secretary, Manipur, Imphal All States/UTs. Subject : Representations made by the detenus under the National Security Act, 1980. Sir, The National Security Act, 1980 enables Central Government or State Government under Section 3(1) of the Act to order detention of a person if it is satisfied that it is necessary to do so prevent him from acting in any manner prejudicial to the defence of India or the relations of India with foreign powers or the security of India. The Act also enables the Central Government or the State Government under Section 3(2) of the Act to order detention of a person if it is satisfied that it is necessary to detain him with a view to preventing him from acting in any manner prejudicial to the Security of State or the maintenance of public order or the maintenance of supplies and services essential to the community. For these three latter purposes, in addition to Central/State Government specifically authorised District Magistrate(s)/Commissioner(s) of Police can also issue orders of detention. Section 8(1) of the Act enjoins upon the detaining authority to communicate the detenu the grounds of detention within five days from the date of detention and in exceptional circumstances for reasons to be recorded in writing, not later than ten days. Receipt of grounds of detention enables the detenu to make an early and effective representation against the order of the detention. The right to represent has been specifically laid down in Section 8(1) of the National Security Act, 1980 to the effect that the detaining authority shall afford him (the detenu) the earliest opportunity of making representation against the order to the appropriate Government. The definition of appropriate Government is laid down in Section 2(a) of the Act as follows:-- "appropriate Government" means, as respects a detention order made by the Central Government or a person detaining under such order, the Central Government, and as respects a detention order made by a State Govt. or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government. Most of the cases received by this Ministry are the ones in which detention orders are issued by the District Magistrates or Commissioners of Police. or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government. Most of the cases received by this Ministry are the ones in which detention orders are issued by the District Magistrates or Commissioners of Police. In the communication made to the detenu by the District Magistrate/Commissioner of Police they are also intimating them that as per Section 8, they are entitled to make representation to the Advisory Board or the Central Government or the State Government and accordingly they can send their representation to the State Government or Home Secretary, Government of India. The matter has been examined in this Ministry in consultation with the Ministry of Law, which have given opinion that it is not obligatory on the part of the Central Government to receive representation under Section 8 of the Act, against order passed by the State Government or officer subordinate to the Slate Government. But under Section 14, it is obligatory on the part of the Central Government to consider such representation, if received, by the Central Government irrespective of the fact that the order has been passed by which appropriate Government. It is obligatory on the part of the detaining authority to inform the detenu that he can make a representation to the Central Government under Section 14of the Act. The State Governments, are, therefore, requested to issue necessary directions to all the District Magistrates and Commissioners of Police to the effect that while communicating the grounds of detention they may, inform the detenu about making representation under Section 8 to 'appropriate Government' which would mean State Government in case when such detention orders are signed by the State Government/District Magistrate/Commissioner of Police. They should not mention about making representation to the Central Government under Section 8 of the National Security Act, 1980. They can also draw the attention to the provisions of Sections9 and 10 and advise that if detenu wants to submit any representation to the Advisory Board he may do so. Yours faithfully, Sd/- Ramesh Kumar Under Secy. to the Govt. of India." 16. The above said communication nowhere directs that a detenu is not to be informed that he can make representation to the Central Government. It only states that detaining authority should not mention about making representation to the Central Government under Section 8 of the National Security Act, 1980. to the Govt. of India." 16. The above said communication nowhere directs that a detenu is not to be informed that he can make representation to the Central Government. It only states that detaining authority should not mention about making representation to the Central Government under Section 8 of the National Security Act, 1980. At the same time, it clearly states that under Section 14, it is obligatory on the part of the Central Govt. to consider such representation, if received, by the Central Government irrespective of the fact that the order has been passed by which appropriate Government and that is obligatory on the part of the detaining authorities to inform the detenu that he can make a representation to the concerned Government under Section 14 of the Act. 17. In the light of the above consideration and having regard to the well settled position of law in this regard, the submission of the learned Additional Government Advocate is not tenable and it is rejected. The omission on the part of the detaining authority to inform the detenu about his right to make a representation before the Central Government within the purview of Section 14 of the N.S.A. vitiates the continued detention of the detenu. 18. For the reasons given above, this writ petition is allowed and the impugned order of detention is hereby quashed. The detenu, namely, Thounaojam Brojen alias Ingocha alias Korouhanba alias Romeo Singh, be set at his liberty forthwith unless otherwise wanted in connection with any other case or cases. No order as to cost.