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2006 DIGILAW 390 (GAU)

Sagolsem Joychandra Singh v. State of Manipur and Ors.

2006-04-26

D.BISWAS, T.NANDA KUMAR SINGH

body2006
1. Heard Mr. Rajeet Sanjenbam, learned counsel for the petitioner as well as Md. Jalal Uddin, learned G.A. for the respondents 1, 2 and 3 and Mr. N. Ibotombi Singh, learned CGSC for the respondent no.4. 2. The succinct fact of the petitioner's case is that the petitioner was arrested after registering a criminal case being FIR No.184 (10)2005 U/S 20 UA (P) A.O. Act, 2004 & 25(1-A) Arms Act, against him and others. While the petitioner was in the custody, the District Magistrate issued the detention order being No.CRIL/NSA/No.109 of 2005 dated 18th October, 2005 for detaining him U/S 3(2) of the National Security Act 1980 (for short 'NSA') in exercise of the powers conferred under section 3(3) of NSA read with Home Department's Order No.17 (1)/49/80-H (PT) dated 6.9.2005. The ground of detention was furnished to the petitioner under the letter of the District Magistrate, Imphal West dated 22nd October, 2005 to the detune. According to the grounds of detention, the detention order was based on 11 documents mentioned in para-7 of the grounds of detention, one of which is a copy of the letter No.22/SPL-CELL/2005 (89) dated 17th October, 2005 along with its enclosed history sheets received from the Superintendent of Police, Imphal West. The detention order dated 18.10.2005 had been approved and confirmed by the State Government. 3. In this writ petition, the petitioner is assailing the detention order on the ground that (1) the copy of the letter No. 22/SPL-CELL/2005 (89) dated 17th October, 2005 was not furnished to the detenu as a result thereof the detenu could not file the effective representation against the detention order; (2) there is non-application of mind of the detaining authority in issuing the detention order inasmuch as the detaining authority while issuing the ground of detention order had mechanically reproduced the materials facts mentioned in the letter of the Superintendent of Police. 4. The respondents 1,2 and 3 also filed their affidavit-in-opposition denying the ground for assailing the detention order. The learned G.A. also placed the relevant Files of the Government of Manipur before this court for perusal and he also further submits that the petitioner had been furnished with the copy of the letter dated 17.10.2005 of the Superintendent of Police for furnishing the history sheet of the detenu/petitioner to the District Magistrate to the petitioner. The learned G.A. also placed the relevant Files of the Government of Manipur before this court for perusal and he also further submits that the petitioner had been furnished with the copy of the letter dated 17.10.2005 of the Superintendent of Police for furnishing the history sheet of the detenu/petitioner to the District Magistrate to the petitioner. The detenu/petitioner is also not denying that he had been furnished with the copy of the history sheet prepared by the Superintendent of Police, Imphal West. From the perusal of the Files, i.e. File No.CRIL/NSA/NO.109 of 2005, Imphal, the 18th October, 2005 and File No.17(1)956/2005-H of the Home Department, Govt. of Manipur, it is clear that the petitioner had been furnished with a copy of the said letter of the Superintendent of Police, Imphal West along with the enclosed history sheets and it has also been seen that there is a typographical mistake in describing the number of the said letter of the Superintendent of Imphal West. Since the petitioner/detenu had been furnished all the copies of the documents on which the ground of his detention were base, there is no difficulty on the part of the petitioner/detenu in filing effective representation. Accordingly this court is of the considered view that the plea of the learned counsel for the petitioner/detenu that the petitioner had been denied his right to file his effective representation against the detention order because of the failure to furnish the copy of the said letter of the Superintendent of Police, Imphal West cannot be sustained. 5. It is now fairly well settled that the satisfaction of the detaining authority for placing a person under the NSA is only subjective satisfaction. For this point, it is not required to burden ourselves by referring to various decisions of the Apex Court. It would be suffice to refer to: (1) Pushkar Mukherjee & 29 Ors -vrs - State of West Bengal: (1969) 1 SCC 10 ; (2) Choudarpu Raghunandan -vrs - State of T.M.: (2003) 3 SCC 754; (3) A.P. Saravanam -vrs - State of Tamil Nadu: (2001) 10 SCC 212; (4) Union of India -vrs - Paul Manickam: (2003) 8 SCC 342 ; (5) Alijan Mian -vrs - District Magistrate, Dhanbad & Ors: AIR 1983 SC 1130 ; 6. The learned counsel appearing for the State-respondents by referring to the ratio laid down by the Apex Curt in the above cases submits that subjective satisfaction of the detaining authority arrived at while considering the material and record was the cumulative result of all the grounds of detention. Further, according to the learned counsel for the state respondents, no set standard had been laid down by the NSA for arriving a subjective satisfaction of the detaining authority for detaining a detenu under the NSA. In the present case, the detaining authority had come to his subjective satisfaction on the basis of all the materials placed before him by the Superintendent of Police. It cannot be said that there is non-application of mind of the District Magistrate in issuing the detention order. Therefore, the detention order cannot be said to be illegal. It is also fairly well settled that the subjective satisfaction of the detaining authority should be reasonable and it is always open to the court exercising the power of judicial review to see whether there has been due and proper application of mind to the relevant and vital materials and also that this court in exercising the powers under Article 226 of the Constitution of India is not sitting as an appellate authority of the detention order. This court in exercising the writ jurisdiction is not re-appreciating the evidence available on the record for coming to a finding different to that of the detaining authority but this court is considering as to whether the subjective satisfaction of the detaining authority was not at all based on any material or not. With this limited scope, this court is considering as to whether there was non application of mind of the detaining authority in issuing the impugned detention order. The learned G.A. also placed the relevant file of the Govt. of Manipur for perusal before this court. From perusal of the record as well as the detention order itself, the grounds of detention, this court is of the considered view that the detention order cannot be said to be illegal on the ground of non-application of mind of the detaining authority. 7. It is no doubt to that procedural safeguards mentioned in the NSA should be strictly followed in issuing the detention order for detaining a citizen of India. 7. It is no doubt to that procedural safeguards mentioned in the NSA should be strictly followed in issuing the detention order for detaining a citizen of India. Under sub-section (4) of section 3, the detaining authority shall forthwith report the fact of detention along with the grounds of detention to the state Government. From the material available on the record, the District Magistrate submitted the grounds of detention to the State Government. The learned counsel appearing for the petitioner/detenu submits that according to sub-section (4) of section 3 the fact about the detention along with the grounds of detention should be submitted “forthwith”. In other words, the learned counsel for the petitioner/detenu contended that the grounds of detention should be immediately submitted to the State Government. The Apex Court (C/B) had discussed the meaning of the word “forthwith” in Keshav Nilkanth Jaglekar -vrs - The Commissioner of Police, Greater Bombay & Ors: 1957 SC 28 [(S) AIR V 44 C 6 Jan.]. Keshav Nilkanth Jaglekar(supra) is a case considering the detention order under the Preventive Detention Act, 1950 and the facts spelt out in para-2 of the judgment is that the Commissioner of Police, Greater Bombay issued the detention order on 13.1.1956 and he communicated the ground of detention to the State Government only on 21.1.1956. The detenu had challenged the detention order on the ground that since the ground of detention had not been communicated to the State Govt. forthwith there was procedural lapses and as a result detention order was illegal. The Apex Court (C/B) after considering the meaning of the word “forthwith” mentioned in section 3(3) of the Preventive Detention Act 1950 held that an act which is to be done forthwith must be held to have been so done. When it is done with all reasonable dispatch and without avoidable delay. Para-7 of the judgment in Keshav Nilkanth Jaglekar (supra) reads as follows: “(7) The meaning of the word 'immediately' came up for consideration in Thompson v. Gibson (1841) 8 M & W 282:151 E R 1045 at p.1047 (C). When it is done with all reasonable dispatch and without avoidable delay. Para-7 of the judgment in Keshav Nilkanth Jaglekar (supra) reads as follows: “(7) The meaning of the word 'immediately' came up for consideration in Thompson v. Gibson (1841) 8 M & W 282:151 E R 1045 at p.1047 (C). Holding that it was not to be construed literally, Lord A binger C. B. observed: “If they” (acts of Parliament) “could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, upon this act of Parliament, that it was the intention of the legislature that not a single moment's interval should take place before the granting of the certificate, I should think myself bound to defer to that declared intention. But it is admitted that this cannot be its interpretation; we are therefore to see how, consistently with common sense and the principles of justice, the words immediately afterwards' are to be construed. If they do not mean that it is to be done the very instant afterwards, do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within such reasonable time as will exclude the danger of intervening facts operating upon the mind of the Judge, so as to disturb the impression made upon it by the evidence in the cause”. In agreeing with this opinion, Alderson. B. expressly approved of the decision of Lord Hardwicke in Rex V. Francis (A). This construction of the word 'immediately' was adopted in Page v. Pearce (1841) 8 M. & W 677 at p.678: 151 E R 1211 at p. 1212 (D), Lord Abinger C.B observing: “It has already been decided, and necessarily so, that the words 'immediately afterwards' in the statute, cannot be construed literally; and if you abandon the literal construction of the words, what can you substitute but 'within' a reasonable time?...” In The Queen v. The Justices of Berkshire (1879) 4 Q.B.D. 469 at p. 471 (E), where the point was as to the meaning of “forthwith” in S 52 of 35 & 36 Vict, Chapter 94, Cockburn C.J. observed: “ The question is substantially one of fact. It is impossible to lay down any hard and fast rules as to what is the meaning of the word 'immediately' in all cases. It is impossible to lay down any hard and fast rules as to what is the meaning of the word 'immediately' in all cases. The words 'forthwith' and 'immediately' have the same meaning. They are stronger than the expression 'within a reasonable time', and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circumstances of the particular case”. The same construction has been put on the word “forthwith” occurring in contracts. In Hudson v. Hill, (1874) 43 LJCP 273 at p. 280(F) which was a case of charterparty, it was observed at page 280: “Forthwith” means without unreasonable delay. The difference between undertaking to do something 'forthwith' and within a specified time is familiar to everyone conversant with law. To do a thing 'forthwith' is to do it as soon as is reasonably convenient.” In Reg. V. Price, (1853-54) 8 Moo PC 203: 14 E R 78(G), it was held by the Privy Council that the word “forthwith” in a bail bond meant within a reasonable time from the service of notice. On these authorities, it may be taken, an act which is to be done forthwith must be held to have been so done, when it is done with all reasonable dispatch and without avoidable delay.” 8. In the present case, it is clear that the detaining authority after taking into consideration all the materials available on the record including the letter of the Superintendent of Police, Imphal West had come to the subjective satisfaction that after having availed of bail facilities and becoming a free person, the petitioner/detenu would continue to indulge in the same activities which are prejudicial to the security of the State and maintenance of the public order and hence the application of normal criminal law against the petitioner/detenu will not at all be effective to prevent him from commissioning of further prejudicial activities. Such being the situation the detention order cannot be said to be illegal on the ground of non-application of mind of the detaining authority in issuing the detention order. 9. In view of the above discussions and observations, we are of the considered view that this writ petition is devoid of merit and detention order is not required to be interfered with. Accordingly the writ petition is dismissed. No costs.