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2009 DIGILAW 95 (GAU)

Lal Shram Jotin @ Surjit Singh v. State of Manipur & Ors.

2009-02-10

A.C.UPADHYAY, K.MERUNO

body2009
K. Meruno, J.:- 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 spoasoring 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.RNo.53 (4) 1997 Tbl. P.S. under Sec­tion 120-B/3843 IPC& 13 U A (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 IE 5096 involved in the case. (iv) Bail application of the detenu and order. 2. (F.I.RNo. 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 364 A/120-B 1PC&10/13 U A(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 325/3 84/341 PC) (i) Statement of complainant. (ii) Statement of alleged victim. (iii) Statement of the detenu (iv) Test Identification report, if any. 6. (F.I.RNo.75(9)2001 Lil. P.S. under Section 392/341PC& 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. (ii) Statement of alleged victim. (iii) Statement of the detenu (iv) Test Identification report, if any. 6. (F.I.RNo.75(9)2001 Lil. P.S. under Section 392/341PC& 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 SC1539, 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, the affidavit of Mr. R. K. Dinesh Singh has to be ignored and one must reach the conclusion that the averments made by the detenu have remained uncon-troverted. 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 have categorically denied the allegations and averments made in the writ petition. Mr. R.S. Reisang, 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. Nowhere in the writ petition this point has been raised. Neither any rejoinder affidavit has been filed to bring this point. 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. Had 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 point 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 P.S., (2) FIR No. 10 (1) 2001 Thoubal P.S., (3) FIR No.337 (12) 1999 Imphal P.S., (4) FIR No. 176(11) 2005 Thoubal P.S. and (5) FIR No.75 (9) 2001 Lilong P.S. 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. 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 (Supp) 3606 and (5) (2007) 1 GLT 311: Abdul Kader Miah Vs. 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 de-serves 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. 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 Kamarunnissa Vs. Union of In­dia & Ann: (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 vaildly 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 pre-empt 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 vaild 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. 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 the 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 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. 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.