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2011 DIGILAW 636 (GAU)

Leima Devi v. State of Manipur

2011-07-29

HRISHIKESH ROY, T.NANDAKUMAR SINGH

body2011
JUDGMENT T. Nandakumar Singh, J. 1. The petitioner, who is the wife of the detenue, Shri Nongthombam Inaobi Meitei @ Laingamba, is challenging the detention order on two grounds:- (1) the copies of the documents which formed the grounds of detention and also the grounds of detention furnished to the detenue are not legible, as a result the right of the detenue guaranteed under Article 22(5) of the Constitution of India had been violated and (2) the full particulars of the materials for coming to the subjective satisfaction that detenue, now in custody, is likely to be released in bail in the near future unless provisions under section 3(2) of the National Security Act, 1980 is applied are not furnished to the detenue or in other words, there is absolutely no materials for coming to the subjective satisfaction. 2. Heard Mr. S.T.Kom, learned counsel appearing for the petitioner and also Mr.Th.Ibohal, learned Sr. Government Advocate appearing for the respondents No.1 and 2 as well as Mr.C.Komol, learned CGSC appearing for the respondent No.3. 3. Sans details, the succinct facts, sufficient for deciding the above two grounds are noted. The petitioner is the wife of the detenue, Shri Nongthombam Inaobi Meitei @ Laingamba, who is a social worker and at present elected Councilor of Ward No.1 of the Kumbi Nagar Panchayat. 3.1. On 08.02.2011 at about 3.30 p.m., the detenue was arrested by a team of Bishnupur District Police led by Hushen Jaman, NIPS, SDPO-Moirang from his house in connection with FIR Case No. 19(2)2011 MRG-PS u/s 20 UA(P) A. Act as disclosed by Shri H. Binodo Singh @ Ram that he was involved in the said FIR and remanded to police custody till 17.02.2011. When he was in custody in connection with the said FIR, a copy of the impugned detention order dated 17.02.2011 was furnished to the detenue. The detaining authority i.e. the District Magistrate, Bishnupur, under his letter dated 21.02.2011 furnished the grounds of detention and also the documents which formed the basis of the grounds of detention to the detenue. The documents or the materials which formed the basis of the grounds of detention are mentioned in Para no.4 of the grounds of detention, i.e. the statements of (1) SI Th. Bungbung Singh, CDO-BPR, (2) Havana. 1299152 Md. The documents or the materials which formed the basis of the grounds of detention are mentioned in Para no.4 of the grounds of detention, i.e. the statements of (1) SI Th. Bungbung Singh, CDO-BPR, (2) Havana. 1299152 Md. Hasim Ali of CDO-BPR, (3) Rfh.No.1194595 Ginsuankhai Zou of CDO-BPR recorded in connection with FIR No. 19(2)2001 MGR-PS u/s 20 UA(P) A.Act, (4) the notification No.S.O.2883(E) dtd. 13.11.2009, (5) the Seizure memo dated 7.02.2011 and (6) the Arrest Memo dated 8.02.2011. 4. The detenue filed representation dated 24.02.2011 to the detaining authority i.e., the District Magistrate, Bishnupur, Manipur, for furnishing legible copies of the detention order and also the documents, which formed the grounds of detention so as to enable him to make an effective representation against the detention order. The District Magistrate i.e. the detaining authority rejected the said representation of the detenue dated 24.02.2011 as it is devoid of merit vide the letter/order of the detaining authority dated 25.02.2011. 5. The State government, in exercise of the powers conferred under Section 3(4) of the National Security Act, 1980, after having carefully considered the grounds of detention furnished by the District Magistrate, Bishnupur District (the detaining authority) and being satisfied that the activities of the detenue are prejudicial to the security of the State and maintenance of public order, had approved the impugned detention order vide order of the State government being NO. 17(1)29/2011-H, Imphal the 24th February, 2011. The detenue filed a representation dated 05.3.2011 to the State government i.e. the Chief Secretary, Government of Manipur through the Addl. Superintendent, Manipur, Central Jail, Sajiwa, for revocation of the detention order on various grounds mentioned therein. The detenue also filed representation dated 05.3.2011 to the Central Government i.e., Secretary to the Govt. of India, Ministry of Home Affairs (Department of Internal Security), North Block, Delhi. Superintendent, Manipur, Central Jail, Sajiwa, for revocation of the detention order on various grounds mentioned therein. The detenue also filed representation dated 05.3.2011 to the Central Government i.e., Secretary to the Govt. of India, Ministry of Home Affairs (Department of Internal Security), North Block, Delhi. The said representation had been rejected as it was devoid of merit by the State government as well as by the Central government Subsequently, the State government also vide order dated 17.4.2011, after careful consideration of the past activities of the detenue being a hardcore member of the banned organization, namely, Kangleipak Communist Party (KCP in short) and the potential danger of his activities which are prejudicial to the security of the State and maintenance of public tranquility and the likelihood of his continuing such activities and also the opinion expressed by the Advisory Board, confirmed the detention order and fixed the period of detention for 12(twelve) months from the date of detention order. 6. The respondent No.2, i.e., detaining authority, filed an affidavit-in-opposition wherein it is stated that as per police investigation report, the detenue is a hard core member of the banned organization KCP-MC and that the detention order was passed after careful perusal of the police report as well as other supporting documents and the prejudicial activities of the detenue in the proximate past and his likelihood to continue to act in a manner prejudicial to the security of the State and maintenance of public order. In Para No.3 of the affidavit-in-opposition, the respondent No.2 denied the allegation of the detenue that copies of the documents, which formed the basis of the detention, furnished to the detenue are illegible. 7. The respondent No.3, i.e. the Union of India, also filed an affidavit-in-opposition wherein vide para Nos. 5 and 6, it is categorically stated that the representation of the detenue dated 05.3.2011 was received without the parawise comments of the detaining authority by the Central Government in the concerned section of Ministry of Home Affairs on 16.03.2011 through State government of Manipur vide letter No. 17(1)/29/2011-H dated 08.3.2011. Since parawise comments on the representation were not made available by the detaining authority, a wireless message was sent to the State government on 17.3.2011 seeking parawise comments on the said representation. Since parawise comments on the representation were not made available by the detaining authority, a wireless message was sent to the State government on 17.3.2011 seeking parawise comments on the said representation. However, the State government of Manipur had meanwhile sent the parawise comments on the representation of the detenue vide their letter No. No.17(1)/29/2011-H dated 15.3.2011, which was received in the concerned desk of Ministry of Home Affairs on 24.03.2011. The representation was examined by the Union Home Secretary, (who has been delegated with the powers by the Central government to decide such cases) on 24.03.2011 and rejected the representation on 25.03.2011 as it is devoid of merit. 8. Mr. S.T. Kom, learned counsel appearing for the petitioner strenuously contended that there is unexplained delay in disposing of the representation dated 05.3.2011 by the Central Government inasmuch as the representation could have been disposed of promptly without parawise comments of the detaining authority to the said representation and also that the parawise comments of the detaining authority to the said representation dated 05.3.2011 was not at all required as the Central Government had been furnished by the State government all the grounds on which the impugned detention order has been made and such other particulars as in the opinion of the State government have a bearing on the necessity of the impugned detention order in compliance of the provisions of Section 3(5) of the National Security Act, 1980. 9. This submission of Mr. S.T. Kom is devoid of merit as the Hon'ble Apex Court in Union of India v. Yumnam Anand Meitei @ Bocha @ Kora @ Suraj. : (2007) 10 SCC 190 had set aside the judgment and order of this Court passed in Yumnam Anand Meitei @ Bocha @ Kora @ Suraj v. State of Manipur & Qrs. reported in 2006 Cril.LJ 2654 wherein this Court held that parawise comments of the detaining authority to the representation filed to the Central government are not required to be called for deciding and disposing of the representation to the Central Government. 10. reported in 2006 Cril.LJ 2654 wherein this Court held that parawise comments of the detaining authority to the representation filed to the Central government are not required to be called for deciding and disposing of the representation to the Central Government. 10. The Parliament in 31st Year of Republic had enacted the National Security Act, 1980 for detention of a person with a view to prevent him from acting in any manner prejudicial to the defense of India, relations of India with the Foreign Powers, of the security of India and from acting in any manner prejudicial to the security of the State and also from acting in any manner prejudicial to the maintenance of Public Order. Clauses (4), (5), (6) and (7) of the Article 22 of the Constitution of India dealt with the fundamental rights of the detenue under the preventive detention law. Clauses (4) and (5) of Article 22 read as follows:- 22(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-. (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention; Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clause (a) and (b) of clause (7). 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. 11. 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. Prevention detention is an anticipatory measure and does not relate to an offence. 11. 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. Prevention detention is an anticipatory measure and does not relate to an offence. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent a person detained from acting in a manner prejudicial to certain objects which are specified by the law. The framers of our Constitution, no doubt, 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. Theses safeguards are required to be "zealously watched and enforced by the Court". The Apex Court in Rattan Singh v. State of Pubjab: (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 paralyzed 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 detenues....."(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: Kamalesh-kumar Ishwardas Patel v. Union of India & Ors: (1995) 4 SCC 51 ). 12. No doubt, the doctrine of preventive power of the Administrative/Executive authority constitutionally validate preventive process for maintaining the public order i.e. the security of the State National security, defense of India and relations of India with the foreign powers. The Hon'ble Apex Court in Amir Shad Khan v. L. Hmingliana & 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 Hon'ble Apex Court in Amir Shad Khan v. L. Hmingliana & 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 there under. 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)). 13. Justice S. Ratnavel Pandian in Kartar Singh v. State of Pubjab : (1994) 3 SCC 569 (C/B) observed that When Law ends, Tyranny begins. Legislation begins where Evil begins. The function of the Judiciary begins when the function of the Legislature ends. because the law is, when the Judges say it is since the power to interpret the law vest in the Judges. 14. The Hon'ble Apex Court in the State of Maharastra v. Bhaurao Punjabrao Gawande: (2008) 3 SCC 613 held that the Court must be conscious and mindful of the fact that jurisdiction of preventive detention is "suspicious jurisdiction" based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to the certain activities enumerated in the detention law. Interference by a court of law at that stage, must be an exception rather than a rule because the exercise can be undertaken by a writ court with extreme care, caution and circumspection. Para No.63 of the SCC in Bhaurao Punjabrao Gawande (supra) reads as follows:- 63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. Para No.63 of the SCC in Bhaurao Punjabrao Gawande (supra) reads as follows:- 63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in Addl. Secy. To the Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 : 1992 SCC (Cril) 301. The Court must be conscious and mindful of the fact that this is a "suspicious jurisdiction" i.e. jurisdiction based on suspicion and an action is taken "with a view to preventing" a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenue cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order. 15. The Hon'ble Apex Court (3 Judges) in Rekha v. State of T.N. 2011 4 Scale 387 also reiterated that the preventive detention is often described as jurisdiction of suspicion. Para No.40 of the SCC in Rekha's case (supra) reads as follows:- 40. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', (Vide State of Maharashtra v. Bharurao Punjabrao Gawande, (supra) - para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenue is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. 16. Regarding the first ground, we perused the copies of the documents which formed the basis of the detention and also the copy of the impugned detention order furnished to the detenue. 16. Regarding the first ground, we perused the copies of the documents which formed the basis of the detention and also the copy of the impugned detention order furnished to the detenue. On such perusal, we cannot even persuade ourselves to accept the first ground for assailing the detention order. In order to do complete justice and also to show that justice should not only be done, it should be seen to have been done, one advocate, namely, Miss H. Sarnalata Devi, who is completely neutral, was requested to read the documents furnished to the detenue. In our presence, she comfortably read the said documents. Accordingly, the first ground for assailing the detention order is rejected. For deciding the 2nd ground, we recall the decision of the Hon'ble Apex Court in Vashisht Narain Karwaria v. Union of India & Ors. AIR 1990 SC 1272 wherein the Hon'ble Apex Court held that the subjective satisfaction of the detaining authority on extraneous matters which are not referred to in the grounds of detention for detaining the detenue would result the detention order illegal. 17. From the ratio laid down by the Hon'ble Apex Court in Bhaurao Punjabrao Gawande's case (supra) and Rekha Devi's case (supra), it is clear that jurisdiction to order preventive detention is a suspicious jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to the certain activities enumerated in the relevant detention law. The interference of Court of law at that stage must be an exception rather than a rule. It is well settled that the suspicion should be based on materials i.e. on the objective basis. 18. This Court (one of us is the party) in Lourembam Sana Singh v. State of Manipur & Ors.: 2008 (2) GLT 813, held that:- 13. It is well settled law that subjective satisfaction of the detaining authority arrived at for detaining the detenue as a preventive measure under the preventive law is invalid if such satisfaction is based on non-existent or irrelevant ground only. Reference in Dwarika Prasad Sahu v. State of Bihar & Ors. reported in AIR 1975 SC 134 . The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention and the involvement of the detenue in different activities. Reference in Dwarika Prasad Sahu v. State of Bihar & Ors. reported in AIR 1975 SC 134 . The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention and the involvement of the detenue in different activities. Reference may be made in A.P. Saravanan v. State of Tamil Nadu reported in (2001) 10 SCC 212. There is no set standards laid down by the NS A for arriving at subjective satisfaction of the detaining authority on the basis of all the materials placed before it by the police. In the present case as stated above, the detaining authority had arrived at, on subjective satisfaction, for detaining the detenue under the NSA on the basis of the materials and the information placed by the Superintendent of Police, Imphal West. Therefore, the detention order cannot be said to be illegal on the ground of non application of mind. Reference in Gurudayal Singh v. Union of India reported in (2002) 1 SCC 545 . The Apex Court in Union of India v. Paul Manikham reported in (2003) 8 SCC 342 held that: Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced on the materials available and placed before it that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of the executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authorities. It is not practicable to lay down objective rules of conduct, the failure to confirm to which alone should lead to detention. 19. This Court in Thongam (Ongbi) Sanatombi Devi v. District Magistrate, Imphal West & Ors.: 2007 (4) GLT 931 also held that:- 13. It is not practicable to lay down objective rules of conduct, the failure to confirm to which alone should lead to detention. 19. This Court in Thongam (Ongbi) Sanatombi Devi v. District Magistrate, Imphal West & Ors.: 2007 (4) GLT 931 also held that:- 13. It is a settled position of law that the nature of satisfaction of the detaining authority in issuing the detention order under National Security Act for preventing a detenue from indulging in such activities which are prejudicial to the maintenance of the public order and the security of the State is only a subjective satisfaction but subjective satisfaction should not be on no material. 14. The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention in view of the decision of the Supreme Court in (2001) 10 SCC 212 A.P. Saravanan v. State of Tamil Nadu. According to the learned counsel for the respondents no set standards have been laid down by the Act for arriving at subjective satisfaction of the detaining authority. The subjective satisfaction in the present case had been arrived at by the detaining authority on the basis of all the materials placed before him. Therefore, the detention order cannot be said to be illegal on the grounds of non-application of mind in view of the principles laid down in Gurdev Singh v. Union of India (2002) 1 SCC 545 . 19. As we have discussed above, the satisfaction of the (sic) authority for issuing the detention order is only a subjective satisfaction. We, within the four corners of law laid down by the Apex Court in the cases discussed above, perused the materials available on record to see as to whether the relevant materials were placed before the detaining authority at the time of passing the detention order or not be effective to prevent him from the commission of further prejudicial activities. 20. We again recall the decision of the Constitution Bench of the Apex Court made more than half a century ago in State of Bombay v. Atma Ram Shridhar Vaidya AIR (38) 1951 SC 157 that subjective satisfaction of the detaining authority must be based on some grounds. 20. We again recall the decision of the Constitution Bench of the Apex Court made more than half a century ago in State of Bombay v. Atma Ram Shridhar Vaidya AIR (38) 1951 SC 157 that subjective satisfaction of the detaining authority must be based on some grounds. The question whether such grounds can give rise to the subjective satisfaction required for making the order is outside the scope of the inquiry of the Court. 21. We have given anxious consideration of our mind to the reasons and grounds for subjective satisfaction mentioned in the detention order and the grounds of detention and also the copies of the documents furnished to the detenue and are of the considered view that there is objective basis for coming to the subjective satisfaction of the detaining authority that it is necessary to detain the detenue with a view to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order and he is likely to be released on bail in the near future unless provisions under Section 3(2) of the National Security Act, 1980 is applied inasmuch as there are materials, such as police report, supporting documents, grounds and reasons mentioned in the letters of the District Magistrate i.e. the detaining authority dated 21.02.2011. 22. we may also refer to the decision of the Apex Court in Senthamilselvi v. State of T. N. & Anr: (2006) 5 SCC 676 wherein the Hon'ble Apex Court held that whether the prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be applied. As even in a case where the detenue had not filed any bail application, the detaining authority, for the reasons, could infer that there is every possibility of the detenue being released on bail. 23. For the foregoing reasons, we are of the considered view that the present writ petition is devoid of merit and accordingly, dismissed. Petition dismissed