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2006 DIGILAW 1070 (GAU)

Thounaojam Romen Singh v. District Magistrate

2006-12-05

I.A.ANSARI, UTPALENDU BIKAS SAHA

body2006
JUDGMENT I.A. Ansari, J. 1. On being arrested, on 6.7.2006, in connection with Imphal Police Station FIR No. 601(11) 1996, under Sections 121/ 121a of the Indian Penal Code, 13 Unlawful Activities (Prevention) Act, 25(1B) Arms Act and 5 of the Explosive Substances Act, while the Petitioner was still in custody, an order was passed, on 17.7.2006, by the District Magistrate, Imphal West, Manipur, under Sub-section (3) of Section 3 of the National Security Act, 1980 (hereinafter referred to as "the NS Act"). Based on this order, dated 17.7.2006, the Petitioner was placed under preventive detention and it the validity of this order, which stands impugned, in this application, made under Article 226 of the Constitution of India, by the Petitioner. 2. We have heard Mr. Ch. Ngongo Singh, learned Counsel for the Petitioner and Mr. K. Kumar, learned Central Government Counsel, appearing on behalf of the Union of India. We have also heard Md. Jalaluddin, learned Government Advocate, Manipur, for the State Respondents. 3. Before we enter into the merit of the present writ petition, certain salient features of the N.S. Act, relevant for the purpose of this writ petition, need to be borne in mind. The scheme of the N.S. Act shows that whenever an order of detention is made, under Section 3(3) of the N.S. Act, by a District Magistrate, he shall, according to the provisions of Sub-section (4) of Section 4, forthwith report to the State Government the fact that the order of detention has been made, the grounds on which the order of detention has been passed and such other particular as, in the opinion of the District Magistrate, have a bearing on the matter. Sub-section (4) of Section 3 further provides that an order made shall not remain in force for a period more than 12 days after the making of the order thereof unless, in the meantime, the order has been approved by the State Government. The proviso to Sub-section (4), however, makes it clear that when the grounds of detention are communicated to the detenu by the District Magistrate, who makes the order, after five days, but not later than 10 days from the date of detention, such period of 12 days shall stand substituted by, and be read as, 15 days. The proviso to Sub-section (4), however, makes it clear that when the grounds of detention are communicated to the detenu by the District Magistrate, who makes the order, after five days, but not later than 10 days from the date of detention, such period of 12 days shall stand substituted by, and be read as, 15 days. It is, therefore, clear that an order made by a District Magistrate, under Section 3(3) of the N.S. Act, does not remain in force unless within a period of 12 days or, in exceptional cases, as indicated hereinbefore, within a period of 15 days from the date of making of the order of detention, the State Government approves the order of detention. This position of law is not in dispute before us, for, a Constitution Bench, in Kamleshkumar Ishwardas Patel v. Union of India reported in (1995) 4 SCC 51 , observed and held as under: 34. In the National Security Act there is an express provision [Section 3(4)] in respect of orders made by the District Magistrate or the Commissioner of Police under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. 4. The fallout of what has been discussed above is that when the State Government approves an order of detention within the prescribed statutory period, the effect is that on and from the date of such approval, detention is authorized by the order of the State Government and it is the State Government, who becomes the detaining authority from the date of the order of approval. 5. 5. Coupled with the above, Section 8 of the N.S. Act makes it clear that when a person is detained on the strength of an order of preventive detention passed by a District Magistrate under Section3(3) of the NS Act, the District Magistrate shall, as soon as may be, but, ordinarily, not later than five days and in exceptional circumstances and for reasons to be recorded, in writing, not later than 10 days from the date of the detention, communicate to the detenu the ground on which the order has been made and shall afford to the detenu earliest opportunity of making a representation against the order to the appropriate Government. 6. What logically follows from the above scheme of the NS Act is that when the State Government has the power to approve or not to approve an order of detention made by a District Magistrate, a duty is cast on the State Government to consider the representation, if any, made by the detenu against the order of detention. Implicit in the right of making a representation by the detenu is the requirement that the detenu must be provided not only with the grounds of detention, but also with the materials, based whereon the order of detention is made meaning thereby that the detenu must be furnished with copies of the documents, which the detaining authority relies upon for the purpose of sustaining the detention order except, of course, the copies of such documents, disclosure whereof may not be permissible for reasons of the security of the State. The requirement of not only furnishing the grounds of detention to the detenu, but also the materials on which the detention order is made serves the purpose of giving an effective opportunity to the detenu to have his say against the order of detention. The right, thus, given to the detenu to make effective representation is not an idle formality, but a mandatory requirement and in order that the opportunity provided, in such a case, to the detenu to make representation does not remain a mere formality, he must be furnished with copies of the documents, which, as indicated hereinbefore, the detenu is entitled to receive so as to enable him to make an effective representation to the State Government. This, in turn, helps the State Government to decide as to whether the detenu needs to be kept in detention or not. If the State Government forms the view that the detention is not necessary, it may revoke the order of detention. These procedural safeguards provided to a detenu further indicates that if copy of a document furnished to the detenu is found illegible by the detenu and if the detenu, despite a request made, in this regard, is not provided with a legible copy of the document/documents on the basis of which the order of detention is made, it will amount to denial of effective opportunity to the detenu to have his say in the matter and such act or omission, on the part of the detaining authority, would render the entire detention order illegal and detention, on the strength of such an order, will not be sustainable. 7. Before proceeding further, it also needs to be noted that Sub-section (5) of Section 3 of the NS Act states that when any order is made or approved by the State Government, the State Government shall, within seven days, report to the Central Government the fact that the order of detention has been made. Sub-section (5) of the Section 3 makes it clear that the State Government shall also furnish to the Central Government the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. 8. Close on the heels of what Sub-section (5) of Section 3 of the Act states, Sub-section (1) of Section 14 reads as follows: 14. Revocation of detention order-(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1987 (10 of 1897), a detention order may, at any time, be revoked or modified- (a) Notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3 by the State Government to which that officer is subordinate or by the Central Government; (b) Notwithstanding that the order has been made by a State Government or by the Central Government. 9. 9. A combined reading of Sub-section (5) of Section 3 and Sub-section (1) of Section 14 makes it clear that the Central Government has the power to modify or revoke an order of preventive detention, passed, under Sub-section (3) of Section 3, by the State Government or even by the Central Government' 10. A Full Bench of this Court in the case of Hitendra Nath Goswami v. State of Assam and Ors., 1984 Cri. L.J. 1558, while considering, in the context of the provisions of Sub-section (5) of Section 3 of the Act, the object and scope of the discretionary power of the Central Government under Sub-section (1) of Section 14, held that the discretionary power of the Central Government, under Sub-section (1) of Section 14, is coupled with a duty to consider the report received from the State Government and mat such consideration shall be with reasonable expedition even if no representation is made by the detenu to the Central Government. To put it differently, when Sub-section (1) of Section 14 vests in the Central Government the discretion either to modify or revoke the preventive detention order made under Sub-section (3) of Section 3, the Central Government owes a duty, in law, to, at least, consider the report made over to it by the State Government, in terms of the provisions of Sub-section (5) of Section 3, in order to determine for itself if the order of detention needs to be modified or revoked. Such a consideration by the Central Government is mandatory irrespective of the fact as to whether the detenu has or has not made any representation to the Central Government seeking modification or revocation of the detention order. Omission to discharge this duty, intentionally or inadvertently, would deny to the detenu a right, which the law has vested in him. A preventive detention puts in peril the liberty of an individual and except the procedural safeguards, which the relevant enactment of preventive detention may contain in terms of the constitutional guarantees given by the provisions of Article 22, a detenu has really no other remedy. Hence, when a duty is cast upon an authority, not discharging of the duty may, in itself, make the detention of such a person illegal and not sustainable in law. 11. Even in the case of Somi Angkang v. Union of India and Ors. Hence, when a duty is cast upon an authority, not discharging of the duty may, in itself, make the detention of such a person illegal and not sustainable in law. 11. Even in the case of Somi Angkang v. Union of India and Ors. reported in (1985) 2 GLR 1, a Division Bench of this Court, relying on Hitendra Nath Goswami (supra), has held that it is the duty of the Central Government to consider, in terms of the provisions of Sub-section (1) of Section 14, the report submitted to it by the State Government under Sub-section (3) of Section 3. 12. In the case of Gopal Bow @ Gwojen Boro v. Union of India and Ors. reported in 2005 (3) GLT 33, a Division Bench of this Court interfered and set aside the order of detention for the reason that the Central Government had not taken any step in accordance with the requirements of Sub-section (1) of Section 14. We see no reason to take a view different from what has been taken in Gopal Boro (supra). 13. What emerges from the above discussion is that on being communicated with the order of detention and the grounds thereof, the Central Government owes a duty, as already indicated hereinabove, to, at least, consider the report made over to it by the State Government in order to determine if the order of detention needs to be modified or revoked. Such a consideration by the Central Government is, if we may repeat, mandatory irrespective of the fact as to whether the detenu has or has not made any representation to the Central Government seeking modification or revocation of the detention order. The omission to discharge this duty, even if inadvertent, would deny to the detenu a right, which the law has vested in him. The omission to discharge this duty, even if inadvertent, would deny to the detenu a right, which the law has vested in him. Implicit in this consideration is the imperative necessity that when a detenu complains to the Central Government that he has not been provided with the copies of the documents on the basis of which the order is passed or he has not been provided with legible copies of documents on which the detention order is based, the Central Government applies its mind to such grievances of the detenu, take all such steps as may be necessary, in the facts of a given case, to remedy the grievance of the detenu if such grievance of the detenu is true, correct and justified. If, on receiving a complaint from the detenu that he has not been provided with legible copies of documents, the Central Government remains silent and does not even bother to find out if what the detenu has alleged is true or not, such inaction or omission, on the part of the Central Government, would amount to ineffective consideration of the question as to whether the order of detention requires modification or revocation. Such infraction of law may, in a given case, and, particularly, when the Central Government fails to justify its inaction, make the Court strike down the detention order and set the detenu at liberty. 14. In the backdrop of the scheme of the NS Act and the procedural requirements, which the various authorities are required to adhere to so as to make an order of detention sustainable, we, now, turn to some of the glaring features of the present case. 15. Upon hearing the learned Counsel for the parties and on perusal of the materials on record, what attracts our eyes, most prominently, is that by making a representation, dated 17.8.2006, addressed to the Respondent Nos. 2 and 4, namely, Chief Secretary, Government of Manipur and Union of India respectively, the Petitioner made a request to supply to him legible documents so as to enable to make effective representation, the grievance of the Petitioner being that the copies of the documents given to him were, in general, not legible and those, which had been referred to under Ground No. 5 of the grounds of detention, were not legible at all. How the State Government dealt with this representation, dated 17.8.2006, can be best seen from the letter, dated 24.8.2006, issued by the Respondent No. 2 addressed to the detenu. For the sake of clarity, the relevant portion of the letter, dated 24.8.2006, is reproduced hereinbelow: I am directed to refer to your representation, dated 17.8.2006, on the above subject addressed to the Chief Secretary, Govt. of Manipur which was forwarded by the Inspector General of Prisons, Manipur vide his letter No. 9/4/2005-IG(J)421 dated 17.8.2006 against the detention under NSA and to inform you that your representation has been considered carefully by the State Government and it is required to inform that your request for revocation of the detention order cannot be acceded to as the representation is found to be devoid of merit. 16. A bare reading of the above letter, dated 24.8.2006, makes it abundantly clear that the authority concerned considered the detenu's letter or representation, dated 17.8.2006, as a representation made by the detenu requesting revocation of his detention order. There was no prompt denial, on the part of the detaining authority, i.e., the appropriate Government, that the legible copies of documents had been furnished to the detenu. Belatedly, however, Respondent No. 1, namely, District Magistrate, Imphal West District, Manipur, has taken the plea, in the present writ petition, that the copies of the documents supplied to the Petitioner were legible. When the specific grievance made by the Petitioner, in this regard, in his letter, dated 17.8.2006, had not been denied, the belated denial, in this regard, by the District Magistrate, West Imphal District and the State Government can be given no credence at all. 17. What also surfaces from the above discussion is that considering the letter, dated 17.8.2006, as a representation of the Petitioner seeking revocation of the detention order, the State Government, vide its letter, dated 24.8.2006, aforementioned communicated to the Petitioner that his representation had been considered carefully by the State Government and the State Government regrets that the Petitioner's request for revocation of detention order cannot be acceded to as the representation is found to be devoid of any merit. We are really shocked that the detenu's letter, dated 17.8.2006, aforementioned was not at all considered, for, had anyone taken the pain of even going through the said letter, it would have become amply clear that the said letter was not really a representation seeking revocation of the detention order, but a request for furnishing legible copies of the documents, in question. The State Government, however, assumed, without even caring to read the letter, that since the detenu had used the word 'representation' in his said letter, dated 17.8.2006, it was a representation seeking revocation of the order of detention. The conclusion, therefore, which is inescapable, is that by its letter, dated 24.8.2006, aforementioned, when the State Government communicated to the Petitioner that his representation, dated 17.8.2006, had been considered 'carefully' by the State Government, this assertion was completely false. 18. Moreover, in his writ petition, the Petitioner has specifically averred that as the documents supplied to him were illegible, his right to make effective representation was adversely affected. To the averments so made, the District Magistrate or the State Government has not stated anything, in their counter, to show that the Petitioner's grievance that the documents, furnished to him were illegible, had been considered by the Respondents concerned. In Mr. Kubice Dariusz v. Union of India and Ors., AIR 1990 SC 605 the Apex Court made it clear that when a detenu makes a representation asking for copies of documents in order to enable him to make representation, it is mandatory, on the part of the appropriate Government, to consider and act upon such representation at the earliest opportunity and failure to do so would be fatal to the detention order. 19. Though it has been considered by Mr. Jalaluddin, learned Government Advocate, that the detenu ought to have sought for legible copies of documents from the District Magistrate and not from the State Government, what needs to be noted is that though the order of detention was passed, on 6.7.2006, by the District Magistrate, the fact remains that the State Government, having approved the said order of detention, had become the detaining authority and it was, therefore, not improper, on the part of the detenu, to seek legible copies of documents from the State Government. 20. 20. We, now, turn to the role, which the Central Government has played in respect of the Petitioner's letter, dated 17.8.2006, aforementioned addressed to the Central Government informing them that the copies of the documents given to him by the detaining authority were not legible and that legible copies of documents be furnished to him so as to enable him to make an effective representation. In this regard, it is worth noticing that with regard to the Petitioner's letter, dated 17.8.2006 (which was really aimed at obtaining legible copies of documents relied upon by the detaining authority), the Union of India, in paragraph Nos. 6, 7 and 8 of its affidavit, has averred to the effect that the Petitioner's said letter, dated 17.8.2006, was received by the Central Government along with parawise comments of the detaining authority, the same were carefully considered and rejected. Owing to gravity of the inaction on the part of the Union of India, in dealing with the Petitioner's letter, dated 17.8.2006, we reproduce, hereinbelow, the averments made in paragraph Nos. 6, 7 and 8 of the Union of India, which run as under: 6. It is stated that a representation dated 17.8.2006 from the detenu along with the parawise comments of the detaining authority was received by the Central Government in the concerned desk in the Ministry of Home Affairs on 11.9.2006 through Government of Manipur vide letter No. 17(1)/1033/2005-H dated 28.8.2006 and 30.8.2006 respectively. 7. This representation was immediately processed for consideration and the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 12.9.2006. The Under Secretary carefully considered the case and with her comments put up the same before the DS (Security), Ministry of Home Affairs on 12.9.2006, the DS (Security) carefully considered the same and put up the same before the Joint Secretary, Ministry of Home Affairs on 13.9.2006. The Joint Secretary carefully considered the case and forwarded the same before the Additional Secretary (BM), Ministry of Home Affairs on 13.9.2006. The Additional Secretary (BM), considered the case and put up the same before the Union Home Secretary on 15.9.2006. The Union Home Secretary (who has been delegated powers by the Union Home Minister to decide such cases) considered the case of the detenu and rejected the representation of the detenu on 18.9.2006 and the file has received back in the section on 20.9.2006. 8. The Union Home Secretary (who has been delegated powers by the Union Home Minister to decide such cases) considered the case of the detenu and rejected the representation of the detenu on 18.9.2006 and the file has received back in the section on 20.9.2006. 8. It may also be mentioned that the parawise comments of the State Government on the representation of the detenu are necessary to be examined since it is observed that generally in all cases the detenu denies all the allegations against him and states that he is not guilty and detention order be revoked. The detaining authority in its parawise comments received through the State Government or directly refutes the arguments presented by the detenu in his representation, as they are charged with the responsibility of maintaining public order. They highlight the reasons as to why the detenu has been detained and should be kept under detention. Hence, the Central Govt. considers it judicious to give due consideration to the averments made by the detenu and the State Govt. before arriving at a decision for revoking the detention order or otherwise. 21. A cautious reading of what have been averred in paragraphs 6, 7 and 8 clearly shows that Union of India received parawise comments from the detaining authority. Had the Union of India applied its mind to the parawise comments in the light of the grievances expressed by the Petitioner in his letter, dated 17.8.2006, aforementioned, it would have become obvious to them that the Petitioner's letter, dated 17.8.2006, was not really a representation seeking revocation of his order of detention, but merely an effort to obtain supply of legible copies of documents, which the detaining authority had relied upon, so as to enable him to make an effective representation. The approach of the Union of India too was, thus, wholly mechanical inasmuch as it asserts, in its affidavit, that a detenu, generally, deny the allegations levelled against him and claims that he is not guilty and the detention order be revoked. This, in turn, clearly reflects that even the Central Government assumed the Petitioner's representation, dated 17.8.2006, as a representation seeking revocation of his detention order, though, in fact, it was not such a representation. This, in turn, clearly reflects that even the Central Government assumed the Petitioner's representation, dated 17.8.2006, as a representation seeking revocation of his detention order, though, in fact, it was not such a representation. Viewed thus, it is clear that though the Central Government owes a duty to consider the desirability of modifying or revoking the order of detention, no such meaningful exercise was really undertaken by the Central Government. 22. What, thus, crystallizes from the above discussion is that the Petitioner's letter, dated 17.8.2006, was not a representation seeking revocation of his detention order; rather, it was a letter requesting the State as well as the Central Government to furnish him legible copies of documents, which the detaining authority had relied upon, so that the Petitioner could make effective representation against the grounds on which he had been detained. None of the authorities concerned even cared to read the said letter of the Petitioner, far less, apply their mind to the contents of the letter. In consequence thereof, not only that the Petitioner's accusations that he had been furnished with illegible copies of documents remained undisputed, but that he was denied, on account of non-consideration of the contents of his letter, dated 17.8.2006, an effective opportunity to have his say in the matter. Thus, the Petitioner was wholly disabled from making any effective representation against his detention order and such act of omission, on the part of both the Governments-Central as well as State-shakes the very foundation of his detention and makes his detention wholly illegal and liable to be set aside. 23. Though what we have indicated above is sufficient to interfere with the detention order and set aside the same, there is yet Anr. important aspect of the present case, which has a crucial bearing on the outcome of this writ petition. The impugned order of detention states, inter alia, I am satisfied from the Police report that Shri Thounaoiam Romen (a), Romen Luwang (35) years, S/O Th. Netrajit Singh of Naoremthong Khullem Leikai, P.S.- Lamphel, District-Imphal West, Manipur, is 'likely to be released on bail in the near future. 24. From what has been noted above by the detaining authority, it is abundantly clear that according to the detaining authority, he was satisfied from the police report that the detenu was 'likely to be released on bail in the near future'. 24. From what has been noted above by the detaining authority, it is abundantly clear that according to the detaining authority, he was satisfied from the police report that the detenu was 'likely to be released on bail in the near future'. What we, however, notice is that there was no material whatsoever before the detaining authority, at the time when it passed the detention order, indicating that the detenu was, contrary to what the detaining authority has observed in the detention order, 'likely to be released on bail in the near future'. It is nobody's case that when a person is in custody in connection with a criminal offence or for the purpose of his prosecution for commission of an offence, an order, under preventive detention laws, cannot be passed. While a criminal proceeding aims at punishing a person for an offence committed by him, a preventive detention is an act done as an anticipatory measure. There is no parallel between the two. Pendency of a criminal proceeding is, therefore, no bar to the passing of an order of preventive detention nor does an order of preventive detention create a bar to a criminal prosecution. [See Alijan Mian v. District Magistrate, Dhanbad and Ors., AIR 1983 SC 1130 ] 25. When a person is in custody in connection with an offence, what factors must be considered or taken into account, for the purpose of sustaining an order of detention, has been considered at length and dealt with in the case of Kamarunnissa v. Union of India and Anr., AIR 1981 SC 1640 . In Kamarunnissa (supra), having considered a number of authorities, the Apex Court, at paragraph 13, observed thus: 13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court. What this Court stated in the case of Ramesh Yadav, (1985)4 SCC 232 : 1985 SCC (Cri) 514 was that ordinarily a detention order should not be passed merely to preempt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the Petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody." 26. From what have been observed and laid down in Kamarunnissa (supra), it becomes transparent that there is no legal impediment in making a detention order against a person, who may be in custody in connection with the commission of an offence. In order to, however, sustain an order of detention made against a person, who is already in custody, the order of detention must reflect that the authority passing the order is aware of the fact that the detenu is actually in custody. This apart, the detaining authority can make an order of preventive detention if he has reason to believe, on the basis of the materials placed before him, (a) that there is real possibility of the detenu being released on bail, (b) that the detenu, on being so released, will, in all probability, indulge in prejudicial activities and (c) that it is essential to detain him in order to prevent him from doing so. If an order of detention is passed against a person, who is already in custody and if such an order does not indicate that the detaining authority had based its satisfaction that the detenu is 'likely to be released on bail in the near future' on materials placed before it, a mere recitation in the order of detention, such as the present one, that the detenu is 'likely to be released on bail in the near future' would not make the order sustainable in law. 27. It is also, at this stage, pertinent to point out that passing of an order of detention against a person, who is not in custody, and a person, who is in custody, does not stand on the same footing. In what circumstances, an order of preventive detention can be passed against a person, who is already in custody, has been the subject of many authoritative pronouncements, the foremost amongst these being the Constitution Bench decision in Rameswar Shaw v. District Magistrate, Burdwan reported in (1994) Supp. 3 SCC 195 28. At a later stage, in Dharmendra Suganchand Chelawat v. Union of India reported in (1990) 1 SCC 746 , a three-Judge Bench of the Supreme Court, taking into account the earlier decision of the Apex Court including the Constitution Bench decision in Rameswar Shaw (supra), observed as follows : 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 detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue 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. 29. 29. From the observations made in Dharmendra Suganchand Chelawat (supra), it is clear that when a person is in custody and yet an order of detention is made against him, the detaining authority must be inferred to have arrived at its satisfaction of the necessity of passing of the order of detention on the basis of the materials available before it reflecting that the person, sought to be detained, is likely to be released on bail. Merely on the ground that the person concerned will, if released on bail, indulge in prejudicial activities, the law does not permit making of a detention order unless compelling reasons are reflected from the materials furnished by the detaining authority to show that the detaining authority had reasons to feel satisfied that the detenu, though in custody, is likely to be released from the custody in the near future. In the absence of any material available in this regard, an order of detention cannot be sustained. 30. Bearing in mind the above aspects of the law, when we revert to the facts of the present case, we notice, as already indicated hereinabove, that the detaining authority has, while making the order of detention, observed that the detenu was 'likely to be released on bail in the near future'. For the conclusion, which the detaining authority has so reached, or for the inference, which the detaining authority has so drawn, there ought to have been cogent materials available on record indicating that the detaining authority was justified in arriving at its satisfaction that there was likelihood of the Petitioner being released from, custody on bail in the near future. There is, however, not even an iota of material placed before this Court to show that there was some material, howsoever inadequate, to justifiably infer that the Petitioner, in the present case, was 'likely to be released on bail in the near future'. In the absence of any material whatsoever, as is the case at hand, showing that the detaining authority had reasons to conclude that there was likelihood of the Petitioner's being released on bail in the near future, the detaining authority had really no power under the law to pass the order of detention. 31. In the absence of any material whatsoever, as is the case at hand, showing that the detaining authority had reasons to conclude that there was likelihood of the Petitioner's being released on bail in the near future, the detaining authority had really no power under the law to pass the order of detention. 31. That there must be likelihood of the person, in detention, being released on bail in order to enable an authority to pass an order of detention has also been emphasized in Surya Prakash Sharma v. State of U.P. reported in (1994) Supp. 3 SCC 195, and Amrit Lal v. Union Govt. through Secretary, Ministry of Finance reported in (2001)1 SCC 341 32. In Binod Singh v. District Magistrate, Dhanbad reported in (1986) 4 SCC 416 , the Apex Court has made it clear that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not, ordinarily, be exercised. The Supreme Court has also held, in Binod Singh (supra), that there must be cogent materials before the officer passing the detention order to show that the detenu is likely to be released on bail. The inference must be drawn from the available materials on record and must not be ipse dixit of the officer passing the order of detention. In the matter of preventive detention, the test is not one of the prejudice, but one of the strict compliance with the provisions of the Act and when there is a failure to comply with these requirements, further order of detention becomes unsustainable. (See Mrs. Tsering Dolkar v. Administrator, Union Territory of Delhi and Ors. reported in (1987) 2 SCC 69). 33. Reminds us the Supreme Court, in the following words, in Rajesh Gulati v. Govt. of NCT of Delhi (2002) 7 SCC 129 , of the necessity to ensure compliance by the detaining authorities of both the subjective as well as procedural safeguards provided to a detenu: We are of the view that the High Court erred in accepting the Respondents' submissions and rejecting the Appellant's writ application. of NCT of Delhi (2002) 7 SCC 129 , of the necessity to ensure compliance by the detaining authorities of both the subjective as well as procedural safeguards provided to a detenu: We are of the view that the High Court erred in accepting the Respondents' submissions and rejecting the Appellant's writ application. This Court has repeatedly held that the law permitting preventive detention must be meticulously followed both substantively and procedurally by the detaining authority (Icchu Devi Choraria v. Union of India (1980) 4 SCC 531 : 1981 SCC (Cri) 25 : AIR 1980 SC 1983 ; Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984 SCC (Cri) 361 : AIR 1984 SC 1334 , Hem Lall Bhandari v. State of Sikkim, (1987) 2 SCC 9 : 1987 SCC (Cri) 262 : AIR 1987 SC 762 , and Ayya v. State of U.P. (1989) 1 SCC 374 : 1989 SCC (Cri) 153 : AIR 1989 SC 364 ) 34. Preventive detention is an anticipatory measure. The law of preventive detention is not punitive in object; but only preventive. It is resorted to when the executive is convinced, on the materials available or placed before it, that such detention is necessary in order to prevent the person, sought to be detained, from acting in a manner prejudicial to certain objects, which are specified by the law. Explaining the constitutional philosophy behind the preventive detention law, observed the Supreme Court, in Union of India v. Paul Manickam and Anr. reported in (2003) 8 SCC 342 thus, "The constitutional philosophy of personal liberty is an idealistic view, the curtailments of liberty for reasons 'of States' security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Smt. Ichhu Devi v. Union of India AIR 1980 SC 1983 , this judicial commitment was highlighted in the following words: The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. In Smt. Ichhu Devi v. Union of India AIR 1980 SC 1983 , this judicial commitment was highlighted in the following words: The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. * * * * * * In Hem Lall Bhandari v. State of Sikkim, AIR 1987 SC 762 at page 766 : 1987 Cri LJ 718 it was observed : It is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers.... 35. In the present case, if we may reiterate, there were no materials available to the detaining authority or considered by the detaining authority for coming to the conclusion, which it did, that the detenu is 'likely to be released on bail in the near future'. The satisfaction reached by an authority that a person is likely to be released on bail may be regarded as his subjective satisfaction, yet the fact remains that in order to reach such a subjective satisfaction, the authority concerned must consider the materials placed before it objectively. In the case at hand, there was no room for reaching subjective satisfaction that the detenu was 'likely to be released on bail in the near future' inasmuch as there was no material placed before the detaining authority to enable it to objectively consider the same and arrive at the conclusion, which it has reached, namely, that the detenu is 'likely to be released on bail in the near future'. If there were any material, which had impelled the detaining authority to form the opinion that the detenu was 'likely to be released on bail in the near future', such material ought to have been furnished to the detenu and also to this Court. Neither any such material was furnished to the Petitioner nor has any such material been made available to this Court. There can, therefore, be no escape from the conclusion there was no material available to corroborate or support the detaining authority's conclusion that the detenu was 'likely to be released on bail in the near future'. Neither any such material was furnished to the Petitioner nor has any such material been made available to this Court. There can, therefore, be no escape from the conclusion there was no material available to corroborate or support the detaining authority's conclusion that the detenu was 'likely to be released on bail in the near future'. Situated thus, we are constrained to take the view that there was no material before the detaining authority to come to the conclusion, which it had reached, namely, that the detenu is 'likely to be released on bail in the near future. In the absence of any material pointing that the detenu was 'likely to be released on bail in the near future', no order of preventive detention could have been made against the Petitioner. 36. What crystallizes from the above discussion is that the impugned order of detention suffers from incurable legal infirmities, for, such infirmities infringe the Petitioner's fundamental rights guaranteed by the Constitution. 37. Because of what have been discussed and pointed out above, we set aside the impugned order of detention, dated 17.7.2006, and direct that the Petitioner be set at liberty forthwith unless he is required to be detained in connection with any other case. 38. We, now, come to an extremely disturbing feature of the entire proceeding. It has been the specific case of the writ Petitioner that the District Magistrate, Imphal West District, Manipur, was not an officer empowered, at the relevant time, by the State Government, under Section 3 of the NS Act, to make an order of detention under the NS Act. While supplying the grounds of detention, the detaining authority furnished to the Petitioner a copy of the order, purported to have been made by the Governor of Manipur on 3.6.2006, empowering, amongst Ors., the District Magistrate, Imphal West District, to exercise powers under Section 3(3) of the NS Act. This copy of the order, dated 3.6.2006, is, according to the Petitioner, a forged and fabricated document. This copy of the order, dated 3.6.2006, is, according to the Petitioner, a forged and fabricated document. In the presence of the learned Counsel for the Petitioner as well as the Respondents, we examined the copy of the order, dated 3.6.2006, and we find, to our horror, that this copy prima facie appears to be a tempered one inasmuch as the order, which was shown to have been passed on 3.6.2006, was for a period of three months, but it is shown to have been received by the office of the Deputy Commissioner, Imphal West District, on 2.12.2006. 39. Keeping in view what have been indicated above, when we turn to the writ petition, we find that the detenu, in para 7, has averred thus: The said particular documents is a delegation of power to issue detention order by the District Magistrate under Section 3(3) of NSA. The purported document which is enclosed in the ground of detention is received by the office of D.C., Imphal West under RR No. 119 dated 2.12.05 or 2.12.06. There is lots of overwriting at the date of issue, received and the date of effect of the said particular document. It is doubtful that whether the District Magistrate has been delegated by the State Govt. for issuing detention order under Section3(3) NSA or not. This particular document is a manipulated one. Even if the District Magistrate has been delegated under Section 3(3) NSA for issuing the detention order by the State Govt., the said particular document has never been served to the Petitioner. In order to ascertain the said particular document is genuine or not and other documents which are not eligible to be read, the Petitioner submit a representation addressed to the Respondent No. 2 requesting to supply eligible document in order to submit effective representation on 17.8.2006. The Petitioner submits that the Respondent No. 2 is duty bound to furnish eligible document to the Petitioner as decided by series of decision of the Apex Court. Petitioner further submits that till today Petitioner has not been informed that the District Magistrate has been delegated to issue detention order under Section 3(3) NSA. 40. The Petitioner submits that the Respondent No. 2 is duty bound to furnish eligible document to the Petitioner as decided by series of decision of the Apex Court. Petitioner further submits that till today Petitioner has not been informed that the District Magistrate has been delegated to issue detention order under Section 3(3) NSA. 40. To the averments made above, what we notice is that as far as Respondent No. 1, namely, District Magistrate, West Imphal District, Manipur, is concerned, he has submitted, at paragraph 5 of his affidavit, thus: That, with regard to para No. 7 of the writ petition, I beg to state that the documents annexed to the grounds of detention are legible and I further beg to state that owing to clerk had written the date of receipt of the order of the Home Department regarding the delegation of power to the District Magistrate as 1.12.2006 instead of 3.6.2006. These averments show that according to the District Magistrate, Imphal West District, it is the clerk, in his office, who had written the date of receipt of the order as 2.12.2006 instead of 3.6.2006. In the absence of any material to support this contention and in the absence of any affidavit, in this regard, filed by the clerk concerned, we thought it fit to carefully examine the affidavit filed on behalf of the State Government by the Special Secretary, Home, Government of Manipur, and we find, to our surprise, that so far as the averments made in paragraph No. 7 of the writ petition are concerned, the affidavit, filed on behalf of the State Government, is completely silent. There is, thus, not even a whisper, in the affidavit filed by the State Government, that any such order, as is alleged to have been received by the District Magistrate, Imphal West District, was ever made by the State Government. In the face of these materials on record, one cannot help but conclude, albeit tentatively, that no order under Section 3 of the NS Act was issued by the State government empowering the District Magistrate, Imphal West District, to pass order of detention under the NS Act. If there was no valid order authorizing or empowering the District Magistrate, Imphal West District, to pass an order of detention, the whole detention order became illegal and without jurisdiction. 41. If there was no valid order authorizing or empowering the District Magistrate, Imphal West District, to pass an order of detention, the whole detention order became illegal and without jurisdiction. 41. Considering that the situation was grave, we directed the learned Government Advocate, for the State of Manipur, to produce the relevant records. As we found from the record that the original copy of the order, dated 3.6.2006, aforementioned was not available in the record, we directed, on 1.12.2006, the learned Government Advocate, for the State of Manipur, to produce the relevant copy of the order. The learned Government Advocate, however, submits that though he has communicated the order of this Court to the Respondents concerned, the copy of the order has not been made available to him. Situated thus, we are constrained to hold that the materials on record prima facie show that an attempt has been made by the Respondent No. 1, namely, District Magistrate, Imphal West District, to fabricate evidence for the purpose of sustaining the detention order. We also find that the Special Secretary, Home, Government of Manipur, has prima facie colluded in the District Magistrate's act of misleading the Court. We, therefore, consider it a fit case to direct the Central Bureau of Investigation to hold an inquiry into the matter and submit its report to this Court within a period of two months from the date of receipt of a copy of this order by the Director, Central Bureau of Investigation, New Delhi. The enquiry, as directed, shall ascertain not only as to whether any forgery, as prima facie appears, has been committed and, if so, who the author of this forgery is, but also determine the person or persons, within whose knowledge or by whose collusion or consent, the forgery has been committed, why such an act of forgery has been committed and who all colluded or conspired to such act forgery and who have tried or attempted to conceal or screen the identify of the offenders, if any. 42. Let a copy of this order be sent to the Director, Central Bureau of Investigation, New Delhi. 43. Let also a copy of this order be furnished to the standing counsel for the CBI, Gauhati High Court, Guwahati. 44. 42. Let a copy of this order be sent to the Director, Central Bureau of Investigation, New Delhi. 43. Let also a copy of this order be furnished to the standing counsel for the CBI, Gauhati High Court, Guwahati. 44. The file produced by the learned Government Advocate be kept in the safe custody of the Deputy Registrar (Judicial) and the said file shall not be handed over to anyone except in accordance with the directions of this Court. 45. With the above observations and directions, this writ petition shall stand disposed of. 46. No costs.