Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 784 (GAU)

Yumnam Ongbi Mary Jones v. State of Manipur & Ors.

2011-09-20

MUTUM B.K.SINGH, T.VAIPHEI

body2011
Mutum B.K. Singh, J. - Challenge in this writ petition is to the or­der of detention dated 10.02.2011 passed by the respondent no.2 in Cril./NSA/No. 12 of 2011 detaining Shri Yumnam Tomba @ Liklangamba of Nilakuthi Awang Yumnam Leikai under the National Security Act, 1980 (for short 'NSA'), the approval order dated 19.02.2011 and confirmation order dated 30.03.2011 issued by the Government of Manipur. 2. Heard Mr. H. Premkrishna Singh, learned counsel appearing on behalf of the petitioner, Mr. Th. Ibohal Singh, learned Sr.GA for the respondent nos. 1 to 3 and Mr. Amerjit N., learned CGSC for the respon­dent no.4. 3. Several grounds have been raised in this writ petition filed by the wife of the detenu for assailing the impugned detention order dated 10.02.2011 and its subsequent approval and confirmation orders. However, the learned counsel appearing for the petitioner can­vassed his argument only on the point of like­lihood of releasing the detenu on bail in the near future at the time of hearing. According to the learned counsel appearing for the peti­tioner, the statement of the Detaining Author­ity mentioned in paragraph no.4 of the im­pugned detention order is a mere ipse dixit of the Detaining Authority and that the said state­ment was made on no basis or without any cogent and reasonable materials on record. The relevant paragraph No.4 of the impugned detention order is reproduced hereinbelow for easy reference: "And whereas, I am satisfied from the po­lice report that Shri Yumnam Tomba @ Liklangamba (23yrs) S/o Y. Mangi Meitei of Nilakuthi Awang Yumnam Leikai, P.S. Heingang, District - Imphal East, Manipur who is now in judicial custody, is likely to be released on bail in the near future by the normal criminal court as bails are granted in similar cases by the crimi­nal courts." 4. Facts, in short, leading to filing of the present writ petition are that on 19.01.2011 at 3.00 PM, the detenu was arrested by a team of CDO, Imphal West at Langjing Bazar and also recovered one country made 9 mm pistol with one live round, two Chinese hand-grenades, 20 live round of AK 47 ammuni­tion together with two personal note books from his possession. The detenu was handed over along with the seized articles to the Patsoi Police Station with a written report and on the basis of which a regular case of Patsoi Police Station under FIR No.4( 1)2011 u/s 17/20 UA(P) A. Act, 25(1-C) A.Act & 5 Expl. Subs. Act was registered against the detenu. During the course of investigation, the detenu was arrested in connection with the said FIR case and remanded to police cus­tody till 25.01.2011. The detenu was, there­after, formally arrested in connection with five other FIR cases of different police stations, the particulars of which are mentioned in para­graph no. 3 of the grounds of detention. The detenu was remanded to the judicial custody on 4.2.2011 and while the detenu was in ju­dicial custody the impugned detention order dated 10.2.2011 was passed. After receiv­ing the grounds of detention dated 14.02.2011, the detenu submitted two rep­resentations on 26.03.2011 to the respondent nos. 1 and 4 for revocation of the detention order. The representations of the detenu were rejected by the respondent no.1 and 4 on 30.03.2011 and 8.4.2011 respectively. 5. The charges leveled against the detenu as projected in the grounds of detention are that the detenu joined a banned organization namely United National Liberation Front (UNLF in short) in February, 1997 through Shri Ngathem Nonglen Singh, an important member of UNLF organization, and started working as a member of UNLF under his command. The detenu, after receiving basic military training, started working as S/S L/ Corpl. in the fighting mobile group of UNLF under the command of one Shri Konthouba Singh. The detenu took active role in carry­ing out various crimes, like explosion of bombs, encounters in between UNLF and se­curity forces, etc., at different places in Manipur during the period from 2003 to 2008. Since September, 2009, the detenu started working in the organization section of Imphal West, UNLF under the command of one Shri Ingobi Singh of Uchiwa till his arrest on 19.01.2011. 6. The Detaining Authority having consid­ered the alleged activities of the detenu as prejudicial to the security of the State and maintenance of public order and believing that the detenu, after having availed of bail facili­ties, would continue to work in the fighting mobile group of UNLF, passed the impugned detention order in order to prevent him from further commission of prejudicial activities. 7. 7. On perusal of the grounds of detention, it appears that the grounds of detention were formed on the basis of the following docu­ments: a) Your statement given before the I.O on 20.1.2011. b) Statement of S.I. P. Dinesh Kanta of CDO/ IW, recorded u/s 161 Cr.P.C in connection with FIR No.4(1)2011 PSI-PS u/s 17/20 UA(P) A. Act, 25(1-C)A. Act & 5 Expl. Subs. Act. c) Statement of Hav. No.062007586 L. Premkumar Singh of CDO/IW, recorded u/s 161 Cr.PC in connection with FIRNo.4(1)2011 PSI-PS u/s 17/20 UA(P)A Act, 25(1-C)A. Act & 5 Expl. Subs. Act. d) Statement of Rfm. No.0022006128 E Dospa of CDO/IW, r ecorded u/s 161, Cr.PC in connection with FIRNo.4(1)2011 PSI-PS u/s 111 20 UA(P)A Act, 25(1-C)A. Act & 5 Expl. Subs.Act. e) Copy of Arrest Memo dated 19.1.2011. f) Copy of Seizure Memo dated 19.1.2011. g) Copy of Local daily "Poknapham" dated 8.3.99 h) Copy of Notification under No. S.O 2883 (E) dated 13.11.2009. i) Copy offIR No. 28(10)2003 JBM-PS u/s 307,34 IPC and25(1-B)A. Act. j) Copy offIR No. 29(10)2003 JBM-PS u/s 302/326/307/34 IPC and25(l-B)A. Act. k) Copy offIR No. 3(11)2003 Tousem PS u/ s 307/428 IPC, 25(1-B)A. Act, 13 UA(P) A. Act & 5 Expl. Subs. Act. 1) Copy offIR No. 19(4)2008 MCM PS u/s 326 IPC and 3 Expl. Subs. Act. m) Copy offIR No. 9(3)2008 MRH P.S u/s 307/302/34 IPC and 25(1-C) A. Act. n) Copy offIR No. 10(3)2008 MRH PS u/s 307/302/326/34 IPC, 20 UA(P)A.Act,25(1-C) A. Act&3Expl.Subs.Act. o) Copy offIR No. 4( 1 )2011 PSI-PS u/s 1II 20 UA(P) AAct, 25(1-C)A.Act& 5 Expl. p) Copy of the Government of Manipur, Home Departments' Order No. 17( 1 )/49/80-H (Pt-I) dated 07.08.2011." 8. From conjoint reading of the grounds of detention dated 14.02.2011 and the de­tention order dated 10.2.2011, it emerges that at the time of passing the impugned detention order the detenu was in judicial custody in connection with six FIR cases of different police stations registered against him. How­ever, the Detaining Authority in paragraph no.4 of the impugned detention order stated that he was satisfied from the police report that the detenu, who is hi judicial custody, is likely to be released on bail hi the near future by the normal criminal court as bails are granted in similar cases by the criminal courts. How­ever, the Detaining Authority in paragraph no.4 of the impugned detention order stated that he was satisfied from the police report that the detenu, who is hi judicial custody, is likely to be released on bail hi the near future by the normal criminal court as bails are granted in similar cases by the criminal courts. The petitioner in paragraph no.25 (1), (2) & (3) of the writ petition specifically stated that the detenu is an innocent citizen of India, he is/was not associated with any banned orga­nization and was arrested for the first time on 19.1.2011. There is no material for coming to the conclusion that the detenu is likely to be released on bail and that he did not file any bail application before any court till date. The respondent no.2 in paragraph no.4 of his affidavit-in-opposition stated that the Detain­ing Authority was aware of the subsisting cus­tody but very of ten similarly situated persons involved in number of cases were released on bail by the concerned courts before the expiry of the statutory period. The impugned detention order was passed with due appli­cation of judicial mind after a thorough study of the reports submitted by the police. In the said paragraph, the respondent no.2 men­tioned that one lady was arrested on 8.4.2010 in connection with FIR case No. 13 5(4)2010 IPS but she was released on bail on 14.4.2010. It may be mentioned that the facts which are not mentioned either in the deten­tion order or in the grounds of detention can­not be supplant subsequently in the form of affidavit-in-opposition. 9. Upon hearing the submissions of the learned counsel appearing for the parties, we are of the considered view that the only point involved for determination in this case is whether there are reliable/reasonable and co­gent materials before the Detaining Authority to justify his satisfaction that the detenu is likely to be released on bail in the near future as bails are granted in similar cases by the criminal courts. 10. We are very much conscious of our limitation in examining the materials on the basis of which the Detaining Authority formed his subjective satisfaction for passing order under the preventive laws. It has also been consistently held by the Hon'ble Apex Court that the Court has no jurisdiction to examine the sufficiency or inadequacy of the materials which formed the subjective satisfaction of the Detaining Authority. It has also been consistently held by the Hon'ble Apex Court that the Court has no jurisdiction to examine the sufficiency or inadequacy of the materials which formed the subjective satisfaction of the Detaining Authority. However, there is no bar in examining as to whether the subjective sat­isfaction arrived at by the Detaining Authority for passing detention order is/was based on reasonable/cogent and reasonable materials or on objective basis in view of the settled position of law that the detention order would be invalid unless the subjective satisfaction of the Detaining Authority is based on objective basis. 11. Thus, we have carefully gone through the impugned detention order, grounds of detention furnished to the detenu along with the materials which formed the grounds of detention, pleadings of the petitioner as well as the counter affidavit filed by the respon­dents in order to satisfy ourselves whether the alleged satisfaction of the detaining au­thority mentioned in paragraph No.4 of the impugned detention order is based on co­gent materials or not. Except the statement made in paragraph No.4 of the impugned detention order, we do not find any materi­als either in the grounds of detention or on the materials which formed the grounds of detention to justify the conclusion of the de­taining authority that the detenu was likely to be released on bail in the near future by the normal criminal courts as bails were granted in similar cases by the criminal courts. No details of any similar case in which bail was granted by the normal crimi­nal courts has been mentioned either in the impugned detention order or in the grounds of detention. In the absence of any sup­porting materials on record, we are of the considered view that the statement made in paragraph No.4 of the impugned deten­tion order is a mere Ipse dixit of the de­taining authority. 12. The law on this point has been ex­haustively discussed and explained by a three Judges Bench of the Hon'ble Apex Court in Rekha Vs. State of Tamil Nadu TR. Sec. to Govt. &Anr: 2011 AIR SCW 2262. The relevant portions, on this point are found in paragraph Nos. 7, 8, 10 and 11 of the Judgment which are reproduced hereinbelow: "7. State of Tamil Nadu TR. Sec. to Govt. &Anr: 2011 AIR SCW 2262. The relevant portions, on this point are found in paragraph Nos. 7, 8, 10 and 11 of the Judgment which are reproduced hereinbelow: "7. A perusal of the above statement in para 4 of the grounds of detention shows that no details have been given about the alleged simi­lar cases in which bail was allegedly granted by the concerned court. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-ac­cused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opin­ion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. 8. In our opinion, this itself is sufficient to vitiate the detention order. 10. On the other hand, Mr. Altaf Ahmed, learned senior counsel appearing for the State .of Tamil Nadu, has relied on the judgments of this Court in A. Geetha Vs. State of T.N. and Anr. (2006) 7 SCC 603 ; and Ibrahim Nazeer Vs. State of T.N. and Anr. (2006) 6 SCC 64 , wherein it has been held that even if no bail application of the petitioner is pending but if in similar cases bail has been granted, then this is good ground for the subjective satisfaction of the detaining authority to pass the detention order. 11. In our opinion, if details are given by the respondent authority about the alleged bail or­ders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the peti­tioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases which has not been done in the present case. A mere ipse dixit statement in the grounds of de­tention cannot sustain the detention order and has to be ignored." 13. The facts of the case projected in the present writ petition, in our considered view, are squarely covered by the aforementioned observation made by the Hon'ble Apex Court in Rekha's case (supra). Thus, we have no other alternative except to hold that the impugned detention order dated 10.02.2011 and its subsequent approval or­der dated 19.02.2011 and confirmation or­der dated 30.03.2011 are not sustainable in law. 14. Consequently, the impugned detention order dated 10.02.2011 and the subsequent approval order dated 19.02.011 and confir­mation order dated 30.03.2011 are hereby quashed. Resultantly, the detenu, namely, Shri Yumnam Tomba @ Liklangamba of Nilakuthi Awang Yumnam Leikai, be set at liberty forth­with, if he is not required to be detained in connection with any other case(s). 15. This writ petition is allowed. No or­der as to costs.