Kangjam Dimajit Singh @ Naochou v. District Magistrate
2010-02-18
MAIBAM B.K.SINGH, TINLIANTHANG VAIPHEI
body2010
DigiLaw.ai
JUDGMENT T. Vaiphei, J. 1. Heard Mr. Rajeetchandra, learned Counsel for the Petitioner, Mr. R.S. Reisang, learned Addl. GA appearing for the State Respondents and Mr. C. Kamal, learned ASG appearing for the Union of India. 2. In this writ petition, we have been called upon to examine the validity of the detention order in respect of the Petitioner who is detained under Section 3 of the National Security Act (NSA), 1980 ('the Act'). 3. The facts giving rise to this writ petition, briefly stated, are that: The Petitioner was arrested on 30.05.2009 in connection with FIR No. 109(5)2009 SJM PS under Section 302 / 120-B / 123 / 34 IPC, 16 / 18 / 20UA (P) A Act & 25 (1-B) A Act. While he was in custody the Respondent No. 1 issued the order dated 5.6.2009 preventively detaining him purportedly for maintaining the public order. He was remanded to judicial custody on 6.6.2009 and was furnished with the grounds of detention on 8.6.2009. His detention order was approved by the State Government on 16.6.2009. On 17.6.2009, he filed an application to the Respondent No. l for supplying him the Police Report, which was refused on 18.6.2009. On 29.6.2009 he submitted separate representations to the Chief Secretary, Government of Manipur, Advisory Board, NSA and Secretary, Government of India in the Ministry of Home Affairs, New Delhi. On 20.07.2009, his detention order was confirmed. 4. The case of the Petitioner is that he was arrested on the sole charge of being a member of the KYKL without any stretch of evidence and that the impugned detention order suffers from the vice of non-application of mind. The subjective satisfaction arrived at by the Respondent No. 1, on the facts and circumstances of the case, is not satisfaction at all. The writ petition is contested by both the State-Respondents as well as the Central Government, who have now filed their respective affidavits in oppositions. 5. It is the contention of Mr. Rajeetchandra, learned Counsel for the Petitioner that the impugned detention order is in violation of the procedural safeguards guaranteed under Article 22(5) of the Constitution inasmuch as the Police Report including the history sheet, upon which Respondent No. 1 issued the impugned detention order, were not furnished, which prevented him from making effective representation against the impugned detention order.
Rajeetchandra, learned Counsel for the Petitioner that the impugned detention order is in violation of the procedural safeguards guaranteed under Article 22(5) of the Constitution inasmuch as the Police Report including the history sheet, upon which Respondent No. 1 issued the impugned detention order, were not furnished, which prevented him from making effective representation against the impugned detention order. He also contends that there is no material from which Respondent No. 1 can form an opinion that there is imminent possibility of his being released on bail. He further submits that the grounds of detention are vague and also based on extraneous materials, which are sufficient to vitiate the impugned detention order. 6. On the other hand, Mr. R.S. Reisang, learned State counsel argues that the State Respondents furnished to the detenu all the documents which were relied upon by the Respondent No. 1 in issuing the detention order and that the history sheet of the detenu is not one of the documents relied upon by the Respondent No. 1 or is not a document which is required to be furnished to him. The learned State counsel submits that in any case withholding of the history sheet does not in any manner cause prejudice to the detenu inasmuch as the documents furnished to him are not different from the history sheet in respect of the detenu. The learned State counsel heavily relies on Section 5A of the Act to repel the contention of the counsel for the Petitioner that some of the grounds of detention are vague or irrelevant and contends that when one of the grounds of the detention is found to be correct, the detention order can be sustained in law by invoking the provisions of Section 5A. Finally, he submits that on the materials on record, there is no infirmity in the view taken by the Respondent No. 1 that there was imminent possibility of the detenu being released on bail by a Criminal Court. 7. Mr. C. Kamal. learned ASG also make submission along the lines advanced by the learned Counsel for the State. According to him, the impugned detention order is perfectly in order and is sustainable in law. 8.
7. Mr. C. Kamal. learned ASG also make submission along the lines advanced by the learned Counsel for the State. According to him, the impugned detention order is perfectly in order and is sustainable in law. 8. On perusing the grounds of detention, there can be no dispute that as many as 8 (eight) documents including the extract of the statement of the detenu recorded by the I.O. were furnished to the detenu. In our opinion, these documents do form what is known as a Police Report. From the impugned order it is evident that these are documents relied upon by the Respondent No. l in issuing the detention order. No law or authority has been cited by the learned Counsel for the Petitioner to persuade us to hold that the omission to furnish the history sheet to the detenu will render the detention illegal. In this connection, we may reproduce the following paragraphs of the Apex Court in State of Tamil Nadu and Ors. v. Abdullah Kadher Batcha and Anr. (2009) 1 SCC 333 (a decision cited by the learned State counsel). 7. The Court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/or whether the non-supply was prejudicial to the detenu. Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be called as relied upon documents, While examining whether non-supply of a document would prejudice a detenu, the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. 9. The submission of learned Counsel for the Petitioner is that some extraneous materials which apparently found a place in the history sheet were relied upon by the Respondent No. 1 in issuing the impugned detention order, which caused serious prejudice to him. 10.
9. The submission of learned Counsel for the Petitioner is that some extraneous materials which apparently found a place in the history sheet were relied upon by the Respondent No. 1 in issuing the impugned detention order, which caused serious prejudice to him. 10. We have seen the grounds of detention and we are unable to find any materials which are not available from the documents furnished to the detenu by the Respondent No. 1. In our opinion, the omission to supply the history sheet cannot possibly cause prejudice to the case of the detenu since all the essential facts are found in the grounds of detention. In other words, the failure to furnish history sheet cannot in any manner prevent the detenu from making effective representation against the detention order. Coming to the second contention of learned Counsel for the Petitioner that there is no material for the Respondent No. 1 to form an opinion that the detenu is most likely to be released on bail by a Criminal Court, there is no substance in this contention either. The fact that the detenu has been arrested and, is accused of committing heinous crimes are not in dispute. From these two facts coupled with the peculiar circumstances prevailing in and around Manipur, if the Detaining Authority took such a view, the view taken by him cannot be said to be a perverse view or an irrational view. This Court cannot substitute the opinion of the Detaining Authority with its opinion. Only when a case of irrationality is made out can this Court interfere with the decision or a decision making process of the Detaining Authority. This is a well settled law in public law domain. 11. On the contention of learned Counsel for the Petitioner that the grounds of detention are vague and also irrelevant, we have minutely gone through the grounds of detention given in Annexure-A/2. We have also perused the statement of the detenu recorded by the I.O. on 30.05.2009. This statement, to say the least, is incriminating. True, it may not stand the scrutiny of a criminal Court, but such statement can be validly utilized by the Detaining Authority for his subjective satisfaction that the detenu is likely to create terror in the community thereby disturbing public order.
This statement, to say the least, is incriminating. True, it may not stand the scrutiny of a criminal Court, but such statement can be validly utilized by the Detaining Authority for his subjective satisfaction that the detenu is likely to create terror in the community thereby disturbing public order. If this type of statement can be used by a Criminal Court for the purpose of granting or denying bail, we do not see how a Detaining Authority under a preventive detention law cannot validly rely on the same for arriving at his subjective satisfaction. It is a well known fact that preventive detention law is different from punitive law. The true test for judging the validity of grounds of detention is whether there are some evidence which supports the conclusion of the Detaining Authority. On reading and re-reading of the grounds of detention and other materials on record, we are satisfied that the conclusion of the Detaining Authority is not based on vague materials but are supported by some evidence. This is enough for the purpose of preventive detention, under Section 5A of the Act, it is provided that even if one of the grounds of detention is sustainable in law, the detention order need not be invalidated even if the other grounds are vague or irrelevant, etc. As found by us earlier, when at least one of the grounds of detention is in order, assuming the contention of learned Counsel for the Petitioner that some of the grounds are vague to be true also, the detention order can be sustainable in law by invoking the provisions of Section 5A of the Act. For the reasons stated in the foregoing, this writ petition is devoid of merit and, is accordingly dismissed. However, on the facts and circumstances of the case, parties are directed to bear their own costs. Petition dismissed.