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2009 DIGILAW 845 (GAU)

Thoudam Shyam Singh v. District Magistrate

2009-11-27

KETULHOU MERUNO, T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nandakumar Singh, J. 1. Heard Mr. A. Bimol, learned Counsel appearing for the petitioner. Also heard Mr. Th. Ibohol Singh, learned Senior Government Advocate appearing for the respondent Nos. 1 and 2 as well as Mr. C. Kamal, learned C.G.S.C. appearing for the respondent No. 3. 2. The petitioner Shri Thoudam Shyam Singh is presently detained in the Manipur Central Jail, Sajiwa, Imphal West under the impugned detention order dated 2.6.2009, approval order of the State Government dated 11.6.2009 and confirmation order of the State Government dated 15.7.2009 for a period of 12 months from the date of detention. 3. Sheet anchor of the petitioner-detenu's case, is briefly recapitulated. The petitioner-detenue was arrested on 26.5.2009 by a team of Manipur Police in connection with the murder case of Professor Md. Islamuddin and remanded to the police custody till 2.6.2009 and later on to the judicial custody till 16.6.2009 by the learned Chief Judicial Magistrate, Imphal. While the petitioner-detenue was in the custody in connection with the said criminal case, the learned District Magistrate, Imphal West passed an order being No. Cril/NSA/No. 41 of 2009, dated 2.6.2009 in exercise of the powers conferred under Sub-section (3) of Section 3 of the National Security Act, 1980 ('NSA') read with Home Department's Order No. 17(1)/49/80-H(Pt-I) dated 12.5.2009, directing the petitioner-detenue to be detained under Section 3(2) of the NSA until further order. Thereafter, in pursuance of Section 8of the NSA, the learned District Magistrate, Imphal West, under his letter being No. Cril/NSA/No. 41 of 2009, dated 5.6.2009 has furnished the grounds of detention; in para No. 6 of the said letter dated 5.6.2009, it is clearly mentioned that the petitioner-detenue has the right to make representation against the order of detention passed against him to the Government of Manipur as well as to the Central Government and also to the detaining authority, within 12 days from the date of detention or till the order is approved by the State Government whichever is earlier. 4. Admittedly, the petitioner-detenue filed the representation dated 8.6.2009 to the District Magistrate, Imphal West, Manipur through the Additional Superintendent, Central Jail, Sajiwa, Imphal, Manipur, against the detention order dated 2.6.2009 so as to release him without further delay. Para No. 11 of the said representation filed by the petitioner-detenue dated 8.6.2009 reads as follows: 11. 4. Admittedly, the petitioner-detenue filed the representation dated 8.6.2009 to the District Magistrate, Imphal West, Manipur through the Additional Superintendent, Central Jail, Sajiwa, Imphal, Manipur, against the detention order dated 2.6.2009 so as to release him without further delay. Para No. 11 of the said representation filed by the petitioner-detenue dated 8.6.2009 reads as follows: 11. I humbly request you to take photo copies of this representation and send the same to the concerned Authorities of the State Government as well as the Central Government for their kind consideration in view of the facts and circumstances stated herein above so as to revoke and/or set aside the order of my detention and order my release forthwith. 5. Admittedly, the detaining authority, pursuant to the request of the petitioner-detenue, in para No. 11 of the representation dated 8.6.2009 quoted above, did not take the photo-copies of the said representation and sent the same to the concerned authorities of the State Government as well as the Central Government for consideration so as to revoke and/or set aside the detention order dated 2.6.2009 of the petitioner-detenue. Accordingly, the petitioner-detenue filed the present writ petition, assailing the impugned detention order dated 2.6.2009, approval order of the State Government dated 11.6.2009 and confirmation order of the State Government dated 15.7.2009 solely basing on the decision of the Apex Court in Amir Shad Khan v. L. Hminglianna and Ors. AIR 1991 SC 1983 . 6. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. The object of law of preventive detention is not punitive but only preventive. Preventive detention is an anticipatory measure and does not relate to an offence. It is resorted when the Executive is convinced that such detention is necessary in order to prevent the persons detained from acting in a manner prejudicial, to certain objects which are specified by the law. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses, (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses, (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". The Apex Court in Rattan Singh v. State of Punjab (1981) 4 SCC 481 observed that- "...May be that the detenue is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the loss of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenues...." [Ref. : Para-4 of the SCC in Rattan Singh's case (supra)]. The Apex Court (Constitution Bench), by relying on the earlier decision in Rattan Singh's case (supra) held that procedural safeguards provided for protection of persons sought to be preventively detained should be seriously enforced by the court. [Ref. : Kamaleshkumar Ishwardas Patel v. Union of India and Ors. (1995) 4 SCC 51 ]. 7. No doubt, the doctrine of preventive power of the Administrative/Executive authority, constitutionally validate preventive process for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. The Apex Court in Amir Shad Khan (supra) held that - The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of Clauses (1) and (2) of the said article, Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22reads as under: 22. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." [Ref. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." [Ref. : Para 3 of the SCC in Amir Shad Khan's case (supra)]. 8. The Apex Court in Union of India v. Paul Manickam and Anr. (2003) 8 SCC 342 , held that the history of liberty has largely been the history of observance of procedural safeguards. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical, is mandatory. Para Nos. 8 and 9 of the SCC in Paul Manickam's case (supra) read as follows: 8. It has been said that the history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right is stressed in the words of Lord Denning as follows: Whenever one of the King's Judges takes his seat, there is one application which by long tradition has priority over all other, counsel has but to say: My Lord, I have an application which concerns the liberty of the subject and forthwith the Judge will put all other matters aside and hear it. It may be an application for a writ of habeas corpus, or an application for bail but whatever form it takes, it is heard first" (Freedom under the Law, Hamlyn Lectures, 1949). 9. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of the State's security, public order, disruption of national economic discipline, etc., being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Icchu Devi Choraria v. Union of India (1980) 4 SCC 531 : AIR 1980 SC 1983 this judicial commitment was highlighted in the following words: (SCC p. 538, para 5). In Icchu Devi Choraria v. Union of India (1980) 4 SCC 531 : AIR 1980 SC 1983 this judicial commitment was highlighted in the following words: (SCC p. 538, para 5). 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. * * * This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention.... 9. In India, the common taw doctrine of precedent is embodied as a constitutional norm in Article141 of the Constitution, which prescribes: The law declared by the Supreme Court shall be binding on all courts within the territory of India". The Supreme Court of India functions in Benches of different strength. Sometimes, this results in conflicts in decisions. In such cases, how to resolve the conflicting decisions are discussed by the Apex Court in Mattulal v. Radhe Lal (1974) 2 SCC 365 (para 11), State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 (para 22) and CIT v. Trilok Nath Mehrotra (1998) 2 SCC 289 (para 4). If it is not possible to reconcile the conflicting observations in the two decisions, the law declared by the larger Bench has to be followed. The High Court, for this purpose, is to try to find out and follow the opinion expressed by larger Benches of the Apex Court in preference to those expressed by smaller Benches of the Apex Court. 10. Lord Halsbury in Quinn v. Leathern 1901 AC 495 (HL), 506, observed that - ...a case is only an authority of what it actually decides. The Supreme Court or the High Court may authoritatively decide the principle of law to settle the legal Controversy arising before it, but the ultimate conclusion in that case may not follow that principle because of some peculiar features of that case. There may be variation in the pronouncement of the principle of law and the conclusive order; and yet the decision will not lose its authoritative value for the principle of law settled by it [Ref. : Union of India v. Dhanwanti Devi (1996) 6 SCC 44 ]. There may be variation in the pronouncement of the principle of law and the conclusive order; and yet the decision will not lose its authoritative value for the principle of law settled by it [Ref. : Union of India v. Dhanwanti Devi (1996) 6 SCC 44 ]. The other important aspects of the rule of precedent are: (i) The only thing binding in a judgment is the principle upon which the case is decided and not every observation made in the judgment. Decisions, which finally settle legal issues between parties without deciding any principle of law, may operate res judicata between the parties, but do not constitute precedent. [Ref. : Makhija Constructions & Engg. (P.) Ltd. v. Indore Development Authority (2005) 6 SCC 304 ]. (ii) A judgment is not to be read as if it is a statue. (iii) A case is only an authority for what it actually decides, and not what can be logically deduced form various observations in the judgment. (iv) The generality of expressions are not intended to be expositions of law but are governed and qualified by the particular facts of the case. (v) Facts in one case cannot be used as a precedent to determine the conclusion on the facts in another case. (vi) There are situations in which the judgment of the Supreme Court is binding on all concerned whether they are parties to the judgment or not [Ref. : Shenoy & Co. v. CTO (1985) 2 SCC 512 (para 23)]. (vii) Ratio decidendi is not the relief given on special facts, or when exercising the power under Article 142. (viii) Ratio decidendi is not a point disposed of on concession. (ix) Ratio decidendi cannot be built by extracting a sentence here and there from a judgment. (x) Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be a declaration of law. (xi) The order dismissing a case in limine is not a precedent. (xii) Summary dismissal of a special leave petition under Article 136 of the Constitution does not constitute a precedent under Article 141; but it may constitute a precedent when it is dismissed by a reasoned and speaking order. The statement of law contained in the order is a declaration of law within the meaning of Article 141 [Ref. : Kunhayammed v. State of Kerala (2000) 6 SCC 359 ]". The statement of law contained in the order is a declaration of law within the meaning of Article 141 [Ref. : Kunhayammed v. State of Kerala (2000) 6 SCC 359 ]". [See J.-40 and J.-41 of the SCC in (2009) 3 SCC (J)] 11. Time tested and well settled principle for reading of a judgment is that, judgment is to be understood in the facts and circumstances the case without adding anything to it. One of the decisions of the Apex Court regarding this settled principle is in Sarva Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd. and Anr. (1993) 2 SCC 386 . The Constitution Bench of the Apex Court in Kartar Singh v. State of Punjab : (1994) 3 SCC 569 , held that law is, what the Judges say it is since the power to interprets the law vests in the Judges because - When Law ends, Tyranny begins; Legislation begins where Evil begins. The function of the Judiciary begins when the Function of the Legislature ends, the law is, what the judges say it is since the power to interpret the law vests in the judges. Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons, better understanding of its reality and implicit obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes falls in crisis. 12. The practice of certain High Courts of distinguishing the Supreme Court's decisions on the basis of facts came to be depreciated in Fuzlunbi v. K. Khader Vali (1980) 4 SCC 125 . Undisputedly, the High Courts are not interpreting the decisions of the Apex Court like a statute and take it as precedent in the light of the settled principles for taking as precedent. 13. It is equally well settled that a decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. 13. It is equally well settled that a decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of decision. [Ref. : Bhavnagar University v. Palitana Sugar Mill (P.) Ltd. and Anr. (2003) 2 SCC 111 , para-59; and U.P. State Electricity Board v. Pooran Chandra Pandey and Ors. (2007) 11 SCC 92 ]. Para Nos. 13 and 14 of the SCC in Pooran Chandra Pandey's case (supra), read as follows: 13. In Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213 (vide SCC p.221, para 18) this Court observed: 18. ...The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 14. In Bhavnagr University v. Palitana Sugar Mill (P.) Ltd. (2003) 2 SCC 111 (vide SCC p. 130, para 59) this Court observed: 59. ...It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. A judgment as is wed known is not to be read as a statute. It must be read reasonably and in its entirety. The effect of a judgment must be found out from the wordings used by it and the attending circumstances in which they have been used. (See Prem Singh and Ors. v. State of Haryana AIR 2009 SC 2573 , para-16). 14. The fact of the case in Amir Shad Khan's case (supra) is identical with the present case. In that case, the detenue had filed a representation addressed to the detaining authority. In that representation the detenue requested the detaining authority to send a copy of his representation to the State Government and the Central Government for their kind considerations to revoke and/or set aside the order of detention. The said request made by the detenue was not acceded to by the detaining authority and, accordingly, the copies of the representation were not sent to the State Government and the Central Government. The said request made by the detenue was not acceded to by the detaining authority and, accordingly, the copies of the representation were not sent to the State Government and the Central Government. As such, the detenue filed the writ petition in the hon'ble Bombay High Court, assailing the detention order on the ground that his right guaranteed under Article 22(5) of the Constitution of India had been infringed for the failure of the detaining authority to send the copies of the said representation to the State Government and the Central Government. The hon'ble Bombay High Court was of the view that the detaining authority has no obligation under Article 22(5) of the Constitution of India to take out xerox copies of the representation and forwarded the same to the State Government and the Central Government and, accordingly, the writ petition was dismissed. The appeal against the said judgment of the Bombay High Court was allowed by the Apex Court by holding that the request of the detenue was not unreasonable; on the contrary the action of the detaining authority and the State Government was unreasonable resulting denial of the detenue's constitutional right. The impugned detention order, therefore, liable to be quashed. The relevant portion of para Nos. 2, 10 and 11 of the AIR in Amir Shad Khan's case (supra) are quoted below: 2. ...By Clauses (iii), (iv) and (v) of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to (i) the State Government; (ii) the Central Government; and (iii) the Advisory Board against the detention orders, if they so desired-It was further stated that the representation to the State Government should be addressed to the Minister of State for Home, Mantralaya Bombay. They were informed that to facilitate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining authority so that the Home Department can put up the case to the Minister for consideration. It was further stated that the representation to the Central Government may be addressed to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi through the Superintendent of Jail. It was further stated that the representation to the Central Government may be addressed to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi through the Superintendent of Jail. In the case of the Advisory Board the appellants were informed that the representation may be addressed to the Chairman, Advisory Board constituted under the Act and may be forwarded through the Superintendent of jail. On the basis of this advise contained in the grounds of detention the appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superintendent of Jail, Arthur Road Central Prison, Bombay. It is not necessary to state the various grounds made out in the representation for the revocation of the detention orders but it would suffice to reproduce the last paragraph of the representation. That paragraph reads as under: I would also like to request you that the copies of these representations be Bent to the State and Central Government for their kind consideration in view of the above facts so as to revoke and/or set aside my order of detention and order my release forthwith. It is not disputed that the representation was considered and rejected by the State Government. It was, however, not forwarded to the Central Government and, hence, the Central Government bad no occasion to consider the representation of the appellants for the revocation of the detention orders. As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions which were numbered Criminal Writ Petition Nos. 530-31 of 1991 in the High Court of Bombay under Article 226of the Constitution. The High Court on a detailed consideration of the various contentions raised by the appellants dismissed both the writ petitions. On the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government, the High Court answered in the negative for the reason that the detenues who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of address to various authorities could not be allowed to reap the benefit of their own default. On the question whether the fundamental right guaranteed by Article 22(5) of the Constitution was violated, the High Court observed as under: So far we have not come across any authority of this Court or of the Supreme Court wherein it has been ruled that despite this express communication to the detenue, if the detenue makes any representation, the Detaining Authority is under obligation under Article 22(5) of the Constitution to take out xerox copies of the same and forward to the State Government or the Central Government. We are afraid, we cannot infer such obligation on the Detaining Authority or the State Government under Article 22(5) of the Constitution. But, however, it is advisable that upon receipt of such representation from the detenue, the Detaining Authority may immediately inform the detenue about the procedure that he has to follow in forwarding representations to the State Government, the Central Government or the Advisory Board against the order of detention.... The point which we have been called upon to consider is whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appellants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutional/statutory right to have their representation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that around. 10. It must be realized that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Government for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation to the Central Government for consideration. It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial. It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial. Detenues may be literate or illiterate, they may have access to legal advice or otherwise, they may or may not be in a position to prepare more than one copy of the representation and if they make a request to the authorities which have the facilities to take out copies to do so and forward them for consideration to the Central Government would it be just and fair to refuse to do so? In such circumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenue by Article 22(5) of the Constitution read with Section 11 of the Act. We are, therefore, of the opinion that the Detaining Authority as well as the State Government were not justified in taking a hyper-technical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government. We think that this approach on the part of Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 22(5) read with Section 11 of the Act to have their representation considered by the Central Government. The request of the detenues was not unreasonable. On the contrary the action of the Detaining Authority and the State Government was unreasonable and resulted in a denial of the appellants' constitutional right. The impugned detention orders are, therefore, liable to be quashed. 11. In the result we allow these appeals, set aside the order of the High Court and quash the detention orders on this single ground. We direct that both the appellants who are in detention shall be set free at once unless they are required in any other pending matter. 15. To the contra, Mr. Th. Ibohol Singh, learned Senior Government Advocate has forcefully put up the case of the State-respondents by contending that the decision of the Apex Court in Amir Shad Khan's case (supra) is in conflict with the decisions of the Apex Court in different cases. 15. To the contra, Mr. Th. Ibohol Singh, learned Senior Government Advocate has forcefully put up the case of the State-respondents by contending that the decision of the Apex Court in Amir Shad Khan's case (supra) is in conflict with the decisions of the Apex Court in different cases. As discussed above, we are not going to make any endeavour to adopt the practice of distinguishing the Apex Court's decisions on the basis of facts which is depreciated by the Apex Court in the cases discussed above. The only proper course permissible under the law left to us is to follow the opinion expressed by the larger Benches of the Apex Court in preference to those expressed by the smaller Benches of the Apex Court. Unfortunately, the illuminating and thought provoking argument put up by Mr. Th. Ibohol Singh, learned Senior Government Advocate are happened to be based on the decisions of the smaller Benches of the Apex Court (two-Judge) in comparison with the Bench of the Apex Court (three-Judge) in Amir Shad Khan's case (supra). Accordingly, we are of the considered view that the impugned detention order dated 02.6.2009 passed by the District Magistrate, Imphal West and the approval order of the Government of Manipur dated 11.6.2009 as well as the subsequent confirmation order of the Government of Manipur dated 15.07.2009 are required to be interfered with, inasmuch as, the right of the petitioner-detenue guaranteed under Article 22(5) of the Constitution of India had been infringed for the failure on the part of the detaining authority to take copies of the said representation and sent the same to the State Government and the Central Government. 16. For the foregoing discussions, the detention order dated 2.6.2009 passed by the District Magistrate, Imphal West and the approval order of the Government of Manipur dated 11.6.2009 as well as the subsequent confirmation order of the Government of Manipur dated 15.07.2009 are quashed. The petitioner-detenue, namely, Shri Thoudam Shyam Singh, S/o Thoudam Megha Singh should be set at liberty forthwith, if he is not required to be arrested or detained in any other case(s). This writ petition is allowed accordingly. Petition allowed.