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2009 DIGILAW 919 (GAU)

Tongbram Nilababu Singh v. State of Manipur

2009-12-22

ASHOK POTSANGBAM, MAIBAM B.K.SINGH

body2009
JUDGMENT Maibam B.K. Singh, J. 1. Heard Mr. Ph. Dolen, learned Counsel appearing on behalf of the petitioner, Mr. Th. Ibohal, learned Government Advocate appearing on behalf of the State respondents and Mr. Amarjit Naorem, learned Counsel appearing on behalf of the respondent No. 3 2. There is no dispute in respect of the following facts: Shri Tongbram Shyamkumar Singh @ Shyamkesho @ Shyamkesho @ Thoiba, hereinafter referred to as "the detenu" was ordered to be detained under National Security Act, 1980, vide order No. Cril/NSA/No. 18 of 2009 dated 26.3.2009 passed by the District Magistrate, Imphal West, purportedly with a view to prevent the said detenu from acting in any manner prejudicial to the security of the State and maintenance of public order. The detenu was furnished with the grounds of detention vide letter No. Cril/NSA/no. 18 of 2009 dated 31.3.2009. At the time of passing the said detention order, the detenu was in custody in connection with the investigation of FIR Case No. 88(3) 2009 IPC under Section 17 / 20 UA(P) Act and 25(1-B)A Act. Allegations as against the detenu are to the effect that after joining the banned organisation, namely, Peoples Revolutionary Party of Kangleipak (PREPAK in short), he and his associates extorted huge amount of money from Engineers and other staff of PWD for the banned organisation and that he and his associates threatened officers/engineers with dire consequences to give work orders to contractors nominated by the said banned organisation. Further allegations as against the detenu are that in view of his tendencies and inclinations reflected in the offences committed by him in the proximate past as a hard-core member of the said banned organisation, the District Magistrate, Imphal West was satisfied that after having availed of bail facilities and becoming a free person, he, being a hard core member of the said organisation, would continue to indulge in the same activities prejudicial to the security of the state and maintenance of public order and that application of normal criminal law would not at all be effective to prevent him from commission of further prejudicial activities. The State Government approved and confirmed the above said detention order vide orders dated 4.4.2009 and 6.5.2009 respectively. 3. This writ petition has been filed by the father of the detenu challenging the legality of his son's detention under National Security Act, 1980 on various grounds. The State Government approved and confirmed the above said detention order vide orders dated 4.4.2009 and 6.5.2009 respectively. 3. This writ petition has been filed by the father of the detenu challenging the legality of his son's detention under National Security Act, 1980 on various grounds. One of the grounds submitted by the counsel of the petitioner is that the grounds of detention furnished to the detenu are vague lacking in particulars and other details and thereby the detenu's right of making an effective representation as provided under Article 22(5) of the Constitution of India has been denied. In this connection, learned Counsel of the petitioner draws our attention to the grounds of detention dated 31.3.2009, a copy of which is available at Annexure-N/2 to the writ petition, particularly at para No. 2 of the said grounds of detention and submits that the acts alleged therein are vague and as such, the detenu's right of making an effective representation as provided under Article 22(5) of the Constitution of India has been denied. Paragraph No. 2 of the said grounds of detention is as follows: 2. That, after joining the PREPAK organisation you started to work in Project-I, PREPAK along with Shri M. Mani Singh @ Roshan (32 yrs) of Naoremthong A/P Langol and Shri Jiten Singh @ Kiran @ Sur(40 yrs) of Thangmeiband Hijam Dewan Leikai as directed by Shri S. Boyai Singh, S/S Capt. you and your associates mention above extorted money from the office of PWD, Bishnupur, Imphal East and Imphal West. You freely entered in the office without any hesitation by the security force/Police being a registered contractor. Taking the advantage being of a registered contractor of a registered contractor, you and your associates entered PWD office of Bishnupur, Imphal East and Imphal West and extorted huge amount of money from Engineers and other staffs for PREPAK organisation. Over and above, you along with your associates threatened the officers/Engineers with dire consequences to give the work orders of Road construction to the contractors nominated by PREPAK organisation you and your associates extorted about 10 lacs of Rupees since the middle part of 2008 till the first part of 2009. You continued the similar task till your arrest. Over and above, you along with your associates threatened the officers/Engineers with dire consequences to give the work orders of Road construction to the contractors nominated by PREPAK organisation you and your associates extorted about 10 lacs of Rupees since the middle part of 2008 till the first part of 2009. You continued the similar task till your arrest. Such act of extortion and threatening the lives of Engineers you and your associates did gave a terror wave to the General Public and peril to the lives of Engineers which is prejudicial to the security to the State and maintenance of Public order. 4. Mr. Th. Ibohal, learned Government Advocate appearing on behalf of the State respondents refers to the decision of the Hon'ble Apex Court in Gurdev Singh v. Union of India and Ors. (2002) 1 SCC 545 and submits that since the detention order was passed on the subjective satisfaction of the detaining authority, who was entrusted with the power of making detention under the relevant provisions of the National Security Act, 1980, and as such, this Court is not to substitute its judgment for the satisfaction of the detaining authority on an investigation undertaken regarding sufficiency of the materials on which the said satisfaction was grounded. 5. The point raised by the learned Counsel of the petitioner is regarding the vagueness of the grounds of detention and as such of denying the right of making an effective representation to the detenu as against the detention order in violation of the provisions of Article 22(5) of the Constitution of India. In the present case, we are not considering the question of sufficiency or otherwise of the grounds of detention in respect of passing the said detention order. There is no dispute that under the National Security Act, 1980, a detention order is to be passed on subjective satisfaction of the concerned detaining authority. The submission made by the learned Government Advocate is not relevant in the present case and as such, it is not entertained. The above said decision of the Hon'ble Apex Court is not relevant in the facts and circumstances of the present case. The submission made by the learned Government Advocate is not relevant in the present case and as such, it is not entertained. The above said decision of the Hon'ble Apex Court is not relevant in the facts and circumstances of the present case. At the same time, it is to be noted that though a Court exercising power of judicial review does not consider the challenge to an order of detention, as if on an appeal re-appreciating the materials, yet since the order of detention in prison involves the fundamental right of a citizen, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the detaining authority as to the decision arrived. It is open to the Court to see whether there has been due and proper application of mind and whether all the relevant and vital materials for the purpose have been noticed, adverted to and considered. 6. On perusal of the materials before the Court, we have ascertained that particulars as to when, where and from whom the alleged extortions were made by the detenu and his associate are not mentioned in any of the documents furnished to the detenu. No particular in respect of any of the victims in respect of the alleged extortions is given. It is also not specified as to how much money was collected on every occasion of the alleged commission of extortion. No particular is also given as to who were threatened by the detenu and his associates with dire consequence to give work orders for road construction to the contractors nominated by PREPAK organisation. There is also no particulars in respect of any contractors said to have been nominated by the said organisation. Further, we have ascertained that the detenu was arrested on 21.3.2009 at about 11.00 a.m. by police and that an FIR Case being No. 88(3) 09 IPS, under Section 17 / 20 UA(P) A Act and 21(1-B)AAct was registered. 15 live rounds of 45 ammunition were said to have been seized from the possession of the said detenu. Apart from the fact of alleged seizure of live rounds of .45 ammunition, no particular is given as regards the alleged extortions and threat made by the detenu and his associates on behalf of the banned organisation. 15 live rounds of 45 ammunition were said to have been seized from the possession of the said detenu. Apart from the fact of alleged seizure of live rounds of .45 ammunition, no particular is given as regards the alleged extortions and threat made by the detenu and his associates on behalf of the banned organisation. We have also perused the alleged statement of the detenu and we have ascertained that the alleged admission of the detenu regarding the alleged extortion from engineers and others and also in respect of other acts on behalf of the said unlawful organisation are vague. We have no hesitation in holding that the grounds furnished to the detenu are vague. 7. It is well settled that grounds of detention furnished to a detenu should not be vague and general in nature. The allegations should be supported by particular incidences. The fact that the detenu could have but did not ask for further particulars is immaterial. In Mohd. Yousuf Rather v. State of Jammu and Kashmir and Ors. (1979) 4 SCC 370 , the Hon'ble Apex Court held at para No. 8, page No. 375: 8. ...This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenu under Article22(5) of the Constitution to make a representation against the order of detention when the grounds on which the order has been made are communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference in this connection may be made to this Court's decision in State of Bombay v. Atma Ram Sridhar Vaidya (1951) SCR 167 where the guarantee of Article 22(5)has been characterized as an elementary right of a citizen in a free democratic State, and it has been held that if a ground of detention is not sufficient to enable the detained person to make a representation at the earliest opportunity, it must be held that his fundamental right in that respect has been infringed inasmuch as the material conveyed to him does not enable him to make the representation. So as the aforesaid grounds of detention are vague, the petitioner is entitled to an order of release for that reason alone. It is true that, as has been held in Naresh Chandra Ganguli case (1960) 1 SCR 411 "vagueness' is a relative term, and varies according to the circumstances of each case, but if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation, it does not require much argument to hold that one such vague ground is sufficient to justify the contention that his fundamental right under Clause (5) of Article 22of the Constitution has been violated and the order of detention is bad for that reason alone. Reference in this connection may also be made to the decisions in Tarapada De v. State of W.B (1951) SCR 212, Dr. Ram Krisha Bhardwa J. v. State of Delhi (1953) SCR 708:, Shibban Lal Saksena v. State of U.P. (1954) SCR 418: Rameshwar Lal Patwari v. State of Bihar (1968) 2 SCR 505 :, Motilal Jain v. State of Bihar (1968) 3 SCR 587 and Pushkar Mukherjee v. State of W.B. (1969) 2 SCR 635 . 8. In our opinion, relying on the above said well settled principles of law, since the grounds furnished to the detenu were vague, they were not sufficient to enable the detenu to make an effective representation and thereby one of the procedural safeguards provided by Article 22(5) of the Constitution of India regarding affording of opportunity of making an effective representation against the detention order has been violated. In similar facts and circumstances, his Court referred to the decision of the Hon'ble Apex Court in Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and Anr. 1989 Supp (1) SCC 322 and held to the same effect in WP (Cril) No. 15 of 2009 on 13.11.2009 and also in WP (Cril) No. 29 of 2009 on 31.10.2009. 9. In view of the above findings, there is no need of making further consideration in respect of the remaining grounds of challenge. 1989 Supp (1) SCC 322 and held to the same effect in WP (Cril) No. 15 of 2009 on 13.11.2009 and also in WP (Cril) No. 29 of 2009 on 31.10.2009. 9. In view of the above findings, there is no need of making further consideration in respect of the remaining grounds of challenge. The continued detention of the detenu under National Security Act, 1980 has been vitiated in view of the above said finding about the violation of the provisions of Article22(5) of the Constitution of India. Accordingly, this writ petition is allowed. It is ordered that the detenu, namely, Shri Tongbram Shyamkumar Singh @ Shyamkesho @ Thoiba, be released immediately, if he is not required to be detained in connection with any. other case. 10. This writ petition stands disposed of. No order as to costs.