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2009 DIGILAW 91 (GAU)

Lalshram Jotin @ Surjit Singh v. State of Manipur

2009-02-10

A.C.UPADHYAY, KETULHOU MERUNO

body2009
JUDGMENT K. Meruno, J. 1. By this writ petition the detenu, Laishram Jotin Singh has challenged the impugned detention order dated 14.07.2008 and approval order dated 23.07.2008 on the grounds that the sponsoring authority has supplied false and fabricated documents thereby affecting the formation of the satisfaction of the detaining authority. It is also contended that the sponsoring authority held back the material documents which would have affected the subjective satisfaction of the detaining authority. It is also contended that the detaining authority passed the order in a mechanic and cavalier manner without application of mind. The learned Counsel for the Petitioner submits that the detenu submitted application dated 25.07.2008 for supply of documents as mentioned in his application. An application was also made before the Advisory Board on grounds of non-supply of relevant documents for making effective representation amongst other grounds. 2. The learned Counsel for the Petitioner further submits that the sponsoring authority has suppressed relevant and material documents from the detaining authority thereby affecting the formulation of grounds for him to arrive at the requisite satisfaction. The requisite documents which have been mentioned in the representation dated 25.07.2008 are: 1. (F.I.R. No. 53 (4) 1997 Tbl. PS. under Section 120-B / 384B IPC& 13 UA (Petitioner) (Act) (i) Statement of co-accused Akoijam Khogen (ii) Statement of the detenu (iii) Statement of Shanta Singh owner of Yamaha motorcycle MN-01/E 5096 involved in the case. (iv) Bail application of the detenu and order. 2. (F.I.R. No. 10(1) 2001 Tbl. P.S. under Section 13 UA(Petitioner) Act) (i) Statement of the detenu (ii) Bail application of the detenu and order. 3. (F.I.R No. 337 (12) 1999 Imphal under Section 364A / 120-BIPC&10 / 13 UA(P) Act & 25(1-B) Arms Act.) (i) Statement of the detenu (ii) Statement of the alleged victim, (iii) Bail application of the detenu and order. 4. (F.I.R. No. 176(11)2005 Tbl. P.S. under Section 20 UA(P) Act) (i) Statement of complainant, (ii) Statement of the detenu (iii) Bail application of the detenu and order. 5. F.I.R. No. 172 (6) 2008 TBL. P.S. under Section 325 / 384 / 34 IPC) (i) Statement of complainant, (ii) Statement of alleged victim, (iii) Statement of the detenu, (iv) Test Identification report, if any. 6. (F.I.R No. 75(9) 2001 Lil. P.S. under Section 392 / 34 IPC & 25(1-B). 5. F.I.R. No. 172 (6) 2008 TBL. P.S. under Section 325 / 384 / 34 IPC) (i) Statement of complainant, (ii) Statement of alleged victim, (iii) Statement of the detenu, (iv) Test Identification report, if any. 6. (F.I.R No. 75(9) 2001 Lil. P.S. under Section 392 / 34 IPC & 25(1-B). (i) Statement of complainant, (ii) Statement of R.K. Neetasana, (iii) Test Identification report, if any. 3. These are the relevant documents sought for but the same was not supplied. The said documents were also not placed before the detaining authority as such the detaining authority could not have arrived at the subjective satisfaction and there was non-application of mind in passing the detention order. Moreover, the detention order has been signed and issued by one W. Rajen Singh as District Magistrate, while the counter affidavit has been sworn and signed by one R.K. Dinesh Singh as District Magistrate. Therefore, there does not arise the question of subjective satisfaction which is non-application of the mind. Relying on a decision of the Apex Court reported in AIR 1982 SC 1539 , learned Counsel for the Petitioner states that Shri R.K. Dinesh Singh, may be the holder of office of the District Magistrate but the subjective satisfaction of the holder of office is put in issue. The mere occupant of office cannot arrogate or substitute his subjective satisfaction. He may speak from the record but that is not the case here. therefore 2, the affidavit of Mr. R.K. Dinesh Singh has to be ignored and one must reach the confusion that the averments made by the detenu have remained uncontroverted. In this view of the matter and in the facts and circumstances of the case the detaining authority is liable to be quashed and set aside. 4. Counter on behalf of all the Respondents have been filed. The Respondents in the respective affidavits lave categorically denied the allegations and averments made in the writ petition. Mr. R.S.P. eisang, learned Addl. G.A. appearing for Respondent Nos. 1, 2 and 3 has vehemently objected the arguments put forth by the learned Counsel for the Petitioner. Mr. Reisang, at the very outset submits that the question of Mr. W. Rajen Singh and R.K. Dinesh Singh with regards to the District Magistrate, Thoubal District as appearing in the detention order and the counter affidavit could not be raised at this juncture. Mr. Reisang, at the very outset submits that the question of Mr. W. Rajen Singh and R.K. Dinesh Singh with regards to the District Magistrate, Thoubal District as appearing in the detention order and the counter affidavit could not be raised at this juncture. Nowhere in the writ petition this point has been raised. Neither any rejoinder affidavit has been filed to bring this point. In the absence of any pleadings in the writ petition nor any rejoinder to this effect this point raised by the learned Counsel for the Petitioner cannot be accepted. Mad the Petitioner raised this pertinent question in the writ petition or in any rejoinder the same would have been replied. Therefore, this Court may not consider this point raised by the learned Counsel for the Petitioner. Contesting on the poi it of non-supply of relevant documents Mr. Reisang, submits that all the documents sought for by the detenu had been supplied to him and all the documents which are supplied to the detenu and the detaining authority have been mentioned or rather incorporated in the grounds of detention dated 14.07.2008. Therefore, the question of non-supply of documents does not arise nor the requisite documents not being placed before the detaining authority by the sponsoring authority also does not arise. In the counter filed by Respondent No.2, the detaining authority in paragraph 9 of the counter it has been specifically and categorically stated that all FIRs along with Ejahars mentioned in the grounds of detention were furnished to the detenu. However, the documents such as statement of the detenu/complainant etc of the FIRs (1) FIRNo.53 (4) 1997 Thoubal RS., (2) FIR No. 10 (1) 2001 Thoubal RS., (3) FIR No.337 (12) 1999 Imphal RS., (4) FIR No. 176(11) 2005 Thoubal RS. and (5) FIR No.75 (9) 2001 Lilong RS. were not relied upon by the detaining authority. This statement of the detaining authority made in the counter affidavit has not been controverted by the detenu and no rejoinder affidavit or reply to this statement has been made by the detenu. and (5) FIR No.75 (9) 2001 Lilong RS. were not relied upon by the detaining authority. This statement of the detaining authority made in the counter affidavit has not been controverted by the detenu and no rejoinder affidavit or reply to this statement has been made by the detenu. The mere allegation made in the writ petition as well as the submissions made by learned Counsel for the Petitioner are baseless and only mere allegations not supported by any substance or documents in support of his submission, learned GA has relied on the decision of the Apex Court; (1) AIR 1988 SC 208 , (2) (1991) 1 SCC 128 , (3) AIR 2004 SC 4423 , (4) AIR 2006 SC 3606 and (5) (2007) 1 GLT 311: Abdul Kader Miah v. Union of India. Relying on the said decisions Mr. Reisang, submits that the Petitioner has miserably failed to make out a case and therefore, this writ petition deserves to be rejected and dismissed. 5. Mr. Amarjit, learned CGSC appearing on behalf of the Union of India submits that since there is no allegation against the Union of India by the detenu he has no submission to be made or reply to any allegation except to endorse and support the submissions made by the learned GA. 6. We have heard learned Counsel for the parties at length, we have also perused the pleadings, documents and the cited cases relied upon by the learned Counsel appearing for the parties. 7. The question as to whether the documents alleged by the detenu was supplied to the detenu or not, we have perused the records and it is undoubtedly clear that the documents sought for by the detenu have been supplied to him is evident from Para 7(1) to (10) as appearing in the grounds of detention dated 14.07.2008. It is also evident from the counter affidavit filed by Respondent No. 2 in Para 9 that the said documents were supplied to the detenu. Therefore, the question that relevant documents have not been supplied to the detenu as alleged by him holds no ground. It is also evident from the counter affidavit filed by Respondent No. 2 in Para 9 that the said documents were supplied to the detenu. Therefore, the question that relevant documents have not been supplied to the detenu as alleged by him holds no ground. The next question with regards to the subjective satisfaction and application of the mind of the detaining authority in passing the impugned detention order, we have perused the detention order dated 14.07.2008, the grounds of detention dated 14.07.2008 and the connected documents of the grounds of detention dated 14.07.2008 to consider the question of the detaining authority arriving to the subjective satisfaction and application of mind. In order to appreciate this aspect of the matter our attention has been drawn in the case of Kamanmnissa v. Union of India and Anr. (1991) 1 SCC 128 which has been elaborated in Para 13 of the said judgment, wherein it has been held: 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 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. What this Court stated in the case of Ramesh Yadav (1985) 4 SCC 232 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 was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody. 8. From the grounds of detention dated 14.07.2008 it is apparent from Para 4 of the said grounds of detention that the detenu was arrested on 25.1.2001 and was released on bail by the Court. Thereafter, in Para 5 it is also noted that the detenu was arrested again on 18.11.2005 and was released on bail. Again on 23.6.2008 the detenu was arrested and remanded to Police custody thereafter to judicial custody. These facts go to show that the detenu had been arrested and released on bail by the Court. Therefore, the subjective satisfaction derived at by the detaining authority was based on material and the detenu was likely to indulge in activities if enlarged on bail and therefore, there were compelling necessity to prevent him and the order of detention has been issued. The only requirement is that he detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the basis of material before the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. This is subjective satisfaction arrived at by the detaining authority based on materials. Normally such satisfaction is not to be interfered with. On the basis of material before the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. This is subjective satisfaction arrived at by the detaining authority based on materials. Normally such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases orders granting bail have been passed therefore, the subjective satisfaction and application of mind of the detaining authority in passing the detention order, in our considered opinion has been passed after subjective satisfaction and full application of mind and therefore it needs no interference. 9. The Court cannot substitute its own opinion over the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. There is no vagueness or staleness the instances have been highlighted in the grounds of detention coupled with definite indication as to the impact thereof which has been precisely stated in the grounds of detention. The instance clearly substitute the subjective satisfaction arrived at by the detaining authority as to how the acts of the detenu were prejudicial to the maintenance of public order and the order of detention has specific purpose to serve. Considering all aspects of the matter in its total perspective and the law laid down on this subject and what has been discussed above, we are of considered opinion that this writ petition has no merit and, therefore, we have no hesitation in rejecting this writ petition. In the result, this writ petition is rejected and dismissed. Petition dismissed