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2010 DIGILAW 210 (GAU)

Yumnam Ningol Thingnam Ongbi v. Union of India

2010-03-19

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2010
JUDGMENT T. NK. Singh, J. 1. In this writ petition, the detention order being No. Cril/NSA/No. 37 of 2009, Imphal the 26.5.2009 issued by the learned District Magistrate, Imphal West, in exercise of power conferred under Sub-section (3) of Section 3 of the National Security Act, 1980 (for short "the NSA") read with Home Department's Order No. 17(1)/49/80-H (Pt-1) dated 12.5.2009, the approval order of the Government of Manipur being No. 17(1)/148/2009-H dated 5.6.2009 for approving the detention order and also the confirmation order of Government of Manipur dated 10.7.2009 for confirming the detention order and fixing the period of detention for twelve months from the date of detention of the petitioner/detenue, had been put to challenged on the score that there was a delay of 7 (seven) days in dispatching representation dated 5.6.2009 filed by the detenue against the detention order to the Secretary to the Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi, by the State respondents to the Central Government, New Delhi. 2. Heard Mr. W. Darakeshwor, learned Counsel appearing for the petitioner/detenue, Mr. Th. Ibohal, learned senior Government Advocate appearing for respondent Nos. 2 and 3 as well as Mr. C. Kamal, learned CGSC appearing for respondent No. 1, Union of India. Background fact : 3. The petitioner/detenue was arrested along with one Salam Ningol Irom Ongbi Romeobala Devi of Sagolband, Imphal by a Police team of Imphal West Commando on 22.5.2009 at 7.30 p.m. from the office of the Salai Apunba Nupi Lamjing Lup, Singjamei and handed over to the Singjamei Police Station on 23.5.2009 at about 7 p.m. The Officer-in-charge of Singjamei P.S., registered a case being FIR No. 108(5)/2009 under Sections 17/18/20 of the UA (P) A Act and 25 (1C) A Act. The petitioner/detenue along with the said Smt. Salam Ningol Irom Ongbi Romeobala Devi were produced before the learned CJM, Imphal on 24.5.2009 in connection with the said FIR and remanded to police custody till 27.5.2009. 4. While the petitioner/detenue was in police custody in connection with the said FIR i.e., FIR No. 108(5)/2009 of the Singjamei Police Station, the petitioner/detenue was served with the detention order i.e., order dated 26.5.2009. The learned District Magistrate, Imphal West, in pursuance of Section 8 of the NSA, furnished the grounds of detention to the petitioner/detenue under its letter being No. Cril/NSA/No. 37 of 2009 dated 30.5.2009. The learned District Magistrate, Imphal West, in pursuance of Section 8 of the NSA, furnished the grounds of detention to the petitioner/detenue under its letter being No. Cril/NSA/No. 37 of 2009 dated 30.5.2009. The detention order dated 26.5.2009 issued by the District Magistrate, Imphal West District, Manipur was approved by the State Government in exercise of power conferred under Section 3(4) of the NSA vide order of the State Government being No. 17(1)/1485/2009-H, Imphal, 5.6.2009. 5. The petitioner/detenue also filed representation dated 5.6.2009 through the Addl. Superintendent of Manipur Central Jail, Sajiwa for revocation of the detention order to the Secretary to the Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi. In the meanwhile, the State Government vide impugned order being No. 17(1)/1485/2009-H, Imphal 10.7.2009 confirmed the detention order dated 26.5.2009 and fixed the period of detention for twelve months from the date of detention. 6. The said representation dated 5.6.2009 to the Central Government was rejected on 29.6.2009 vide order dated 29.6.2009. The petitioner/detenue challenged the approval order and the confirmation order as stated above, only on the sole ground that there was considerable delay in disposing the representation by the Central Government because of the unexplained delay in dispatching the said representation dated 5.6.2009 along with parawise comment by the State respondents to the Central Government, as a result the right of the petitioner/detenue, guaranteed under Article 22(5) of the Constitution of India had been violated. 7. The Union of India, i.e., respondent No. 1 filed affidavit in opposition wherein it is stated that representation dated 5.6.2009 and parawise comments of the Detaining Authority thereon were received in the concerned section of Ministry of Home Affairs on 24.6.2009 through the State Government of Manipur vide their letter No. 17(1)1485/2009-H dated 10.6.2009. The said representation was put up on 24.6.2009 for consideration through various levels of officers viz., Under Secretary, Deputy Secretary and Joint Secretary (IS-II) and placed before the Union Home Secretary (who has been delegated the power of Central Government to decide such case) on 26.6.2009. The said representation was put up on 24.6.2009 for consideration through various levels of officers viz., Under Secretary, Deputy Secretary and Joint Secretary (IS-II) and placed before the Union Home Secretary (who has been delegated the power of Central Government to decide such case) on 26.6.2009. The Union Home Secretary, after having carefully gone through the materials on record including the order of detention and grounds for the same, representation of the detenue and comments of the Detaining Authority thereon found that the detenue was unable to bring forth any material cause or grounds in her representation to justify revocation of the detention order in exercise of powers of the Central Government under Section 14 of the NSA and passed an order on 29.6.2009 rejecting the representation. 8. The State respondent, i.e., respondent No. 2 filed affidavit in opposition stating mat the representation dated 5.6.2009 addressed to the Secretary to the Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi was received by the State Government on 6.6.2009 and immediate action was taken up for calling parawise comments from the Detaining Authority and on receipt of parawise comment the State Government vide their letter dated 10.6.2009 signed by the Under Secretary (Home) Government of Manipur sent the representation dated 5.6.2009 along with parawise comment to the Central Government. But the Central Government in their affidavit in opposition stated that the representation dated 5.6.2009 and parawise comment of the Detaining Authority thereon were received in the concerned section of Ministry of Home Affairs, only on 24.6.2009 through the State Government of Manipur vide their letter No. 17(1)/1485/2009-H dated 10.6.2009. The petitioner/detenue also filed reply/rejoinder affidavit stating that there is strong apprehension that there was an inordinate delay in transmitting representation dated 5.6.2009 along with parawise comment under letter of State Government No. 17(1)/1485/2009-H dated 10.6.2009 and, therefore, the petitioner prayed for directing the State Government to produce the relevant records along with Dispatch Register to ascertain date of dispatching the said letter of Government of Manipur dated 10.6.2009. Accordingly, the State respondent was directed to produce the Dispatch Register. Mr. Th. Ibohal, learned senior Government Advocate, accordingly, produced the Dispatch Register, on perusal of which it is clear that the concerned Clerk/Grade-IV employee had really dispatched the said letter of the Government of Manipur dated 10.6.2009 only on 17.6.2009. Accordingly, the State respondent was directed to produce the Dispatch Register. Mr. Th. Ibohal, learned senior Government Advocate, accordingly, produced the Dispatch Register, on perusal of which it is clear that the concerned Clerk/Grade-IV employee had really dispatched the said letter of the Government of Manipur dated 10.6.2009 only on 17.6.2009. It appears that the time taken in dispatching the representation dated 5.6.2009 along with parawise comment of the Detaining Authority thereon was only 11 (eleven) days and further, on perusal of the record, it appears that prompt steps had been taken by the State respondents for calling the parawise comment from the Detaining Authority to the said representation thereon and also Government of Manipur under the said letter dated 10.6.2009 sent the representation and parawise comment to the Central Government. It appears that not only in this case but also other cases there is little delay on the part of the concerned Clerk/Grade-IV employee in dispatching the important letter of the State Government concerning with the life and personal liberty of the citizen of India. 9. Mr. Darakeshwor, learned Counsel appearing for the petitioner by placing heavy reliance on the decision of the Apex Court in Rajammal v. State of T.N. and Anr. (1999) 1 SCC 417 , contended that as there was no justification regarding the delay in dispatching the said representation dated 5.6.2009, the parawise comment and also the said letter of Government of Manipur dated 10.6.2009 to the Central Government because of slackness and callous attitude of the concerned Clerk/Grade-IV employee, there is unexplained delay in disposal of the representation dated 5.6.2009 by the Central Government, which would render the continued detention impermissible and illegal. 10. In order to bolster up case of the petitioner/detenue, Mr. Darakishwor, learned Counsel also relied on the decision of the Apex Court in B. Alamelu v. State of T.N. and Ors. (1995) 1 SCC 306 , wherein the Apex Court, in the given case held that there was supine, slackness and callous attitude on the part of the Jail Superintendent, who had unreasonably delayed in transmitting the representation as an intermediary and had ultimately caused undue delay in disposal of the representation by the Government which received the representation, eleven days after it was handed over to the Jail Superintendent by the detenue. 11. 11. It is fairly well settled that the ratio of any decision must be understood in the background of the facts of that case. Further, it is well settled that a little difference in facts or additional facts may make a lot of difference in precedential value of a decision. The Apex Court in Ambika Quarry Works v. State of Gujarat (1987) 1 SCC 213 (vide SCC p. 221, para 18) Apex 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." In Bhavnagar University v. Paliatana Sugar Mill (P) Ltd. (2003) 2 SCC 111 (vide SCC p. 130, para 59) Apex 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. 12. In the present case, we are unable to persuade ourselves to accept the contention/case of the petitioner/detenue that there was slackness and callous attitude on the part of the State respondents as a whole in sending the representation dated 5.6.2009 and parawise comment of the Detaining Authority to the Central Government and also that because of little delay on the part of the concerned Clerk/Grade-IV employee in dispatching the said letter of the Government of Manipur dated 10.6.2009, this Court cannot come to the conclusion that there was slackness and callous attitude on the part of the State Government as a whole in sending the representation dated 5.6.2009 and parawise comment of the Detaining Authority to the said representation thereon to the Central Government. 13. 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) reads as follows : 8. 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) reads 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 : 1981 SCC (Cri) 25 : 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.... 14. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. 14. 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 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 detenus... (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 ). 15. 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 v. L. Hmingliana and Ors. (1991) 4 SCC 39 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. The Apex Court in Amir Shad Khan v. L. Hmingliana and Ors. (1991) 4 SCC 39 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 22 reads 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 : Para 3 of the SCC in Amir Shad Khan's case (supra)). 16. The Apex Court (Constitution Bench) in S. Pratap Singh v. State of Punjab AIR 1964 SC 72 (V 51 C 7) held that "The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse or power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. It is with these considerations in mind that we approach the facts of this case. 17. The Apex Court in S. Pratap Singh v. State of Punjab AIR 1964 SC 72 held that "The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. The Apex Court in City & Industrial Development Corporation v. Dosu Aadershir Bhiwandiwala and Ors. (2009) 1 SCC 168 held that "The manner in which the State has conducted itself in this case was unwarranted. The Court as sentinel on the qui vive is to mete out justice in given facts. The Apex Court in City & Industrial Development Corporation v. Dosu Aadershir Bhiwandiwala and Ors. (2009) 1 SCC 168 held that "The manner in which the State has conducted itself in this case was unwarranted. "It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the Court to discharge its constitutional duties. 18. In the given case, we, keeping in view of the decisions of the Apex Court discussed above, had given our anxious considerations as to the requirement to ensure that the authority to whom the powers are entrusted under the law had exercised truly, objectively and expeditiously for the purpose for which power/duty had been entrusted in transaction of the Government business. The doctrine of fairness and duty to act fairly is a doctrine developed in administration of law to ensure the rule of law and to prevent failure of justice. It is the principle of good conscience and equity, since the Courts are to act fairly and reasonably in accordance with law. The doctrine of unreasonableness is opposed to doctrine of fairness and very purpose of constitutional power under Article 226 being conferred on the High Court is that no one should be subjected to injustice by violation of law. 19. In the given case, we are of firm opinion that the concerned Clerk/Grade-IV employee who had been instructed to send the said letter of the Government of Manipur dated 10.6.2009 to the Central Government cannot leisurely and carelessly discharge their duty in the case involving life and personal liberty of the citizen of India guaranteed under Articles 21 and 22 of the Constitution of India. Accordingly, we direct the Commissioner/Secretary (Home), Government of Manipur to hold enquiry to identify the concerned Clerk/Grade-IV employee responsible for not dispatching the said letter of the Government of Manipur dated 10.6.2009 till 17.6.2009, within one month from the date of receipt of this judgment and order. We further impose an exemplary cost of Rs. 15,000/- (Rupees fifteen thousand) to the said Clerk/Grade-IV employee who is found responsible for not dispatching the said letter of the Government of Manipur dated 10.6.2009 till 17.6.2009 and the said amount of Rs. We further impose an exemplary cost of Rs. 15,000/- (Rupees fifteen thousand) to the said Clerk/Grade-IV employee who is found responsible for not dispatching the said letter of the Government of Manipur dated 10.6.2009 till 17.6.2009 and the said amount of Rs. 15,000/- shall be recovered from the salary of the concerned Clerk/Grade-IV employee and shall be deposited in the fund of the All Manipur Bar Association, Manipur for utilizing it in providing legal aid to the poor residents of Manipur. 20. It is also made clear that the Commissioner/Secretary (Home), Government of Manipur shall submit compliance report within three months from the date of receipt of this judgment and order to the Registry of this Bench. Registry is directed to furnish a copy of the judgment and order to the Commissioner/Secretary (Home), Government of Manipur and the General Secretary, All Manipur Bar Association, Cheirap Court Complex, Imphal. 21. For the foregoing reasons, the impugned detention order dated 26.5.2009 and the confirmation order dated 10.7.2009 are not interfered with. The writ petition is disposed of with the above direction. Petition dismissed.