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2010 DIGILAW 664 (GAU)

Sagolshem Ongbi Pinky Devi v. State of Manipur

2010-08-27

ASHOK POTSANGBAM, MADAN B.LOKUR

body2010
JUDGMENT A. Potsangbam, J. 1. Heard Mr. T. Rajendra, learned Counsel appearing for the Petitioner. Also heard Mr. R.S. Reisang, learned Government appearing on behalf of the State-Respondents and Mr. C. Kamal, learned Assistant Solicitor General appearing on behalf of the Union of India. 2. The relevant facts which are necessary for disposal of this case may be noticed as hereunder: 2.1 On 20.11.2009, an order being No. Cril/NSA/No. 10 of 2009 was issued by the District Magistrate, Imphal East District, for detention of one Shri Sagolshem Okendro Singh @Toto, S/o Shri S. Mubi Singh of Khural Thangjam Leikai, P.S. Porompat, District Imphal East Manipur, hereinafter referred to as the detenue, under the National Security Act 1980, purportedly with a view to preventing him from acting in any manner prejudicial to the security of the State and maintenance of public order. At the relevant time, the detenue was in custody in connection with the investigation of FIR Case No. 146(10) 2009 Lamphel P.S. under Section 20UA(P)A. Act and on transfer of the aforesaid FIR from Lamphel P.S. to Heingong P.S. on 31.10.2009, FIR No. 120(10) 2009 under Section 20UA(P)A. Act. and 25(1-C)A. Act was registered. The Detaining Authority was of the opinion that on the basis of the police report, the detenue was likely to be released on bail in the near future by the normal criminal court and the detenue may continue to act in the same manner prejudicial, to the maintenance of public order in case of release on bail. The detenue was furnished with the grounds of detention by letter No. Cril/NSA/No. 10 of 2009 dated 20.11.2009. 2.2 The substance of the allegation in the grounds of detention is that the detenue was a member of Peoples Liberation Army ('PLA'), a proscribed organization, and his service was utilized by one Y. Chourajit Singh of PLA, in procuring, transporting of arms and ammunition from one place to another for use by the PLA members. One SLR which was handed over to the detenue by the said Y. Chourajit Singh was seized along with some ammunition by the police on 25.10.2009 but the gun was without butt. At the relevant point of time, the detenue was already appointed as a Constable in the Manipur Police Department and he was in the process of police verification. 3. At the relevant point of time, the detenue was already appointed as a Constable in the Manipur Police Department and he was in the process of police verification. 3. By an order under No. 17(1)1612/2009-H issued by the Additional Secretary (Home), Government of Manipur, the detention of the detenue under NSA was approved by the Government of Manipur in exercise of power conferred under Section 3(4) of the NSA Act. By another order dated 5.1.2010 issued by the Commissioner of Home, Government of Manipur, the detention of detenue was confirmed in consonance with the opinion expressed by the Advisory Board. 4. This writ petition has been filed by the wife of the detenue, challenging the aforesaid detention order, approval order and the confirmation order on various grounds. Though various grounds have been taken by the Petitioner in this writ petition, the Petitioner chose and relied upon mainly on three grounds in the course of argument before the court. 5. One of the grounds submitted by the learned Counsel for the Petitioner challenging the detention order is that at the time of issuing the detention order dated 20.11.2009 there was no cogent materials on the basis of which the detaining authority could have formed a subjective satisfaction about the likelihood of the detenue being released on bail in the near future as no bail application for release of the detenue was then pending before any court. The learned Counsel further submits that the subjective satisfaction formed by the detaining authority was merely a ipse dixit and that it was not on the basis of materials before him and as such, the detention is vitiated. 6. On the contrary, Mr. R.S. Raisang, learned Government Advocate submits that there is no dispute that the detenue was in custody in connection with the investigation of FIR case No. 120(10)/2009 HNG PS case under Section 20 UA(P)A Act and 25(1-e) Act at the time of issuing the impugned detention order and the learned District Magistrate was fully aware of this fact as reflected in the impugned detention order dated 20.11.2009. Mr. Raisang further submits that when the Petitioner was produced on 4.11.2009 along with his younger brother Shri S. Ojit Singh and one Shri Ch. Premjit Singh, the learned judicial Magistrate, Imphal East, released the said Ojit Singh and Ch. Mr. Raisang further submits that when the Petitioner was produced on 4.11.2009 along with his younger brother Shri S. Ojit Singh and one Shri Ch. Premjit Singh, the learned judicial Magistrate, Imphal East, released the said Ojit Singh and Ch. Premji Singh on bail on 4.11.2009, i.e., on the first day of production before the court. Thus, on perusal of the materials, the learned Magistrate could reasonably form a subjective satisfaction about the likelihood of the detenue being released on bail in the near future. The learned Government Advocate submits that in Senthamilselvi v. State of T.N. and Anr. (2006) 5 SCC 676 , the Apex Court, dealing with similar situation, held that "the only requirement is that the detaining authority should be aware that the detenue was already in custody and is likely to be released on bail. The conclusion that the detenue may be released on bail cannot be ipse dixit of the detaining authority who, on the basis of the materials before him came to the conclusion that the detenue was likely to be released on bail. This is subjective satisfaction based on materials. Normally such satisfaction is not to be interfered with". Relying on the aforesaid judgment of the Apex Court, the learned Government Advocate further submits that the detaining authority was fully aware that the detenue was in custody in connection with the aforesaid FIR case and on the basis of materials before him, the detaining authority formed his subjective satisfaction that the detenue was likely to be released on bail in the near future. Therefore, the contention of the Petitioner that the subjective satisfaction formed by the detaining authority was merely ipse dixit is not acceptable. Accordingly, this contention of the Petitioner is rejected. 7. The second ground submitted by the learned Counsel for the Petitioner is that there was a delay in disposal of the representation dated 8.12.2009 by the Respondent No. 4, Union of India, and as such this unexplained delay vitiates the detention order. We have carefully gone through the affidavit filed by the Respondents and also the records produced by the Government and found that the representation dated 8.12.2009 submitted by the Petitioner was disposed of by the State Government on 10.12.2009. We have carefully gone through the affidavit filed by the Respondents and also the records produced by the Government and found that the representation dated 8.12.2009 submitted by the Petitioner was disposed of by the State Government on 10.12.2009. The representation addressed to the Respondent No. 4 was sent by the State Government on 11.12.2009 with para-wise comment through speed post and the same was received by the Central Government on 22.11.2009 and the representation came to be disposed of on 24.12.2009. In the affidavit of the Respondent No. 4 it is categorically stated that 25.12.2009 to 28.12.2009 being holidays for Central Government, the rejection order was conveyed on 29.12.2009 by a wireless message. The contention of the Petitioner is that the State Government has taken 11 days from 11.12.2009 to 22.12.2009 in sending the representation dated 8.12.2009 to the Central Government is plainly contrary to facts. We have carefully perused the records produced by the Government and found that the representation was sent along with para-wise comments on 11.12.2009 and there is no dispute that 11, 12, 18, 19 of December, 2009 being holidays for Central Government, there were only 7 working days. The mode of communication is by speed post and in such circumstances, the stated delay being on account of vagaries of Postal Department, it is not attributable to the State. Similar nature of case came up for consideration before the Apex Court in Ahamed Nassar v. State of Tamil Nadu and Ors. AIR 1999 SC 3897 where some delay has been caused due to communication through postal department. In such circumstances, the Apex Court held that it is not possible to hold that there was delay in disposal of the representation by the Central Government The relevant paragraph is quoted below: 11. We have to keep in mind that mode of communication for the statutory authorities has to be in the mode prescribed which has to be reasonable. It has been stated and we have also found from the file placed before us that the mode of these communications were through speed post. This could not be construed as callous, slack or casual disposing of his representation. For the Respondent it was stated form the records that the communication between the central Government at New Delhi and sponsoring authority and detaining authority at Chennai was through speed post. This could not be construed as callous, slack or casual disposing of his representation. For the Respondent it was stated form the records that the communication between the central Government at New Delhi and sponsoring authority and detaining authority at Chennai was through speed post. The stated delay was on account of vagaries of the postal department. It is not attributable to the States. Hence on the facts and circumstances of this case, it is not possible to hold there was any delay in the disposal of the detenue's representation by the Central Government in our considered opinion there was no delay in consideration of detenue's representation both by the state and the Central Government. 8. Therefore, we have no hesitation to hold that the State Government took prompt action in sending the representation of the detenue along with para-wise comments on 11.12.2009 and the same was disposed of within. 3 days by the Central Government from the date of receipt of the same and the delay caused by the Postal Department cannot be held attributable to the State Government, therefore, the submission of the learned Counsel for the Petitioner, on this ground, has no substance and the same is rejected. 9. The last ground submitted by the Petitioner is that there is no materials to show that the said Premjit Singh was arrested along with the detenue and his younger brother but the Detaining Authority stated in the grounds of detention that the detenue was arrested along with the said Premjit Singh, therefore, the detention order suffers from non-application of mind. We have repeatedly asked the learned Counsel for the Petitioner as to whether his client, the detenue, has ever been prejudiced by the aforesaid statement appearing in the grounds of detention, or whether the detenue had ever been prevented from making any effective representation in terms of Article 22(5) of the Constitution of India. But the learned Counsel appearing for the Petitioner has failed to show and establish that any prejudice has been caused to the detenue by the aforesaid statement in the grounds of detention and as such this ground also fails. 10. In the result, we do not find any valid and acceptable ground for interfering with the continuing preventive detention of the detenue under the National Security Act, 1980. The writ petition has no merit and it is hereby dismissed. No order as to costs. 10. In the result, we do not find any valid and acceptable ground for interfering with the continuing preventive detention of the detenue under the National Security Act, 1980. The writ petition has no merit and it is hereby dismissed. No order as to costs. Petition dismissed.