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2012 DIGILAW 1084 (GAU)

Gurumayum Ningol Kgangembam Ongbi Nalinibala Devi v. District Magistrate, Imphal East

2012-09-11

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. Heard Mr. Kh. Mani, learned counsel for the petitioner and Mr. R.S. Reisang, learned State Counsel. I have also heard Mr. Amarjit Naorem, learned CGC. The petitioner is the wife of the detenu namely Kh. Ibotombi Singh. She has filed this writ petition challenging the Annexure-A/1 order dated 6.1.2012, by which, the detenu has been detained under Section 3(2) of the National Security Act, 1980. The said order was passed when four cases one of which is FIR No. 143(6) 2001 SJM PS under Section 10/ 13 UA(P) Act were pending against the detenu. In the order of detention, there is a reference to another case being FIR No. 210(5) 2011 SJM PS under Section 20 UA(P) Act involving another accused. The ground on which the detention order has been passed states that the accused involved in FIR No. 210(5) 2011 SJM PS under Section 20 UA(P) Act. having been granted bail, there is likelihood of the detenu being released on bail, although the fact of the matter is that he is not involved in the said case nor any co-accused has been released in connection with FIR No. 143(6) 2001 SJM PS under Section 10/ 13 UA(P) Act in which the petitioner is involved. In this connection, learned counsel for the petitioner has placed reliance on the decision of the Apex Court reported in AIR 2012 SC 2002 : Huidrom Konungjao Singh Vs. State of Manipur & Ors. in which the Apex Court has observed thus: In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been grated bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustainable in the eyes of law. 2. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustainable in the eyes of law. 2. Above apart, the learned counsel for the petitioner has also submitted that there was inordinate delay towards consideration of the representation made by the petitioner. In this connection, he has referred to paragraph 5 of the counter affidavit filed by the Union Government in the Ministry of Home Affairs, which reads as follows:- 5. That with regard to paras No. 9, 21 and ground para (viii) of the petition, it is submitted that a representation of the detenu without parawise comments on the same was forwarded to the Central Government in the Ministry of Home Affairs by the State Government of Manipur through its letter No. Cril/NSA/No.1 of 2012 dated 13.1.2012 which was received in the concerned Section on 2.2.2012. Hence, parawise comments was called for from the State Government of Manipur vide this Ministry's wireless message No. II/15023/13/2012-NSA dated 7.2.2012. A copy of the wireless message is enclosed as Annexure-C.A.I. The parawise comments dated 13.02.2012 of the State Government of Manipur was received by the Central Government in the concerned Section of the Ministry of Home Affairs on 14.02.2012. On receipt of the parawise comments from the State Government of Manipur, the representation was put up for consideration of the Union Home Secretary (who has been delegated with the powers by the Central Government to decide such cases) on 14.2.2012. 3. In support of the submissions made by the learned counsel for the petitioner, he has placed reliance on the decision of the Apex Court reported in AIR 1989 SC 1403 : Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India & Ors., in which referring to the earlier decisions of the Apex Court, it was further reiterated that representations should be considered with reasonable expedition and it is imperative on the part of the every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution. 4. In the instant case, as per the own admission of the Central Government, the representation was submitted by the petitioner on 12.1.2012 and the same was forwarded to the Central Government without parawise comments on 13.1.2012. However, the same was received in the concerned Section on 2.2.2012 i.e. after expiry of about 3 (three) weeks. Thereafter, parawise, comments were called for from the State Government vide letter dated 7.2.2012. The comments were received, on 14.2.2012 and on receipt of the said comments, the representation was put up for consideration of the Union Home Secretary on 14.2.2012. The representation was rejected on 24.2.2012 and the same was communicated through wireless message dated 29.2.2012. Thus, it took about 11/2 months for disposal of the representation, which in my considered opinion constitute inordinate delay about which the Apex Court put emphasis in Aslam Ahmed Zahire Ahmed Shaik (supra). 5. The learned State Counsel on the other hand referring to the decisions reported in (2012) 2 SCC 389 : G. Reddeiah Vs. Government of Andhra Pradesh and 2011 (3) GLT 819 : Loitongbam Manimohan Singh Vs. State of Manipur & Ors., has submitted that the subjective satisfaction recorded in the impugned order of detention and the grounds thereof will go to show that there was meaningful consideration of the entire records towards arriving at the satisfaction for detention of the detenu under NSA. 6. The fact of the matter is that the impugned order of detention speaks of the likelihood of release of the detenu in the near future as bail order was passed by the CJM, Imphal West on 1.6.2011 in another case, namely, FIR No. 210(5)/2011 SJM PS Under Section 20 UA(P) Act. Same has also been recited in paragraph 8 of the grounds of detention furnished to the detenu on 9.1.2012. For a ready reference, paragraph 8 and 9 are quoted below:- 8. From the above enumerated facts, it is clearly seen that you are a dangerous hand core member of banned organization namely Peoples' Liberation Army (PLA in short) who repeatedly joined the organization and carried out prejudicial activities which disturbs public order affecting public tranquility. You are also likely to be released on bail as done in Order of Chief Judicial Magistrate, Imphal West dated 1.6.2011 in connection with FIR No. 210(5) 2011 SJM PS (copy enclosed). 9. You are also likely to be released on bail as done in Order of Chief Judicial Magistrate, Imphal West dated 1.6.2011 in connection with FIR No. 210(5) 2011 SJM PS (copy enclosed). 9. In view of your prejudicial activities in the proximate past, it can be reasonably presumed that you would be continuing to act in the same manner prejudicial to the security of the State and maintenance of public order in case you are released on bail. Hence, the application of normal criminal laws against you with not at all be effective to prevent you from committing such activities. An effective measure to prevent you from committing further prejudicial activities is immediately called for, 7. Admittedly, the detenu is not involved in the aforesaid FIR No. 210(5) 2011 SJM PS. In the grounds of detention, the FIR No. 143(6) 2011 and FIR No. 281(12) 2003 along with some other FIRs have been referred to involving the detenu. However, the final subjective of satisfaction has been recorded in the above noted paragraphs 8 and 9 of the grounds of detention in reference to FIR No. 210(5) 2011 SJM PS in which the detenu is not involved. Thus, there was total non-application of mind in forming the subjective satisfaction towards detaining the detenu under NSA. 8. In view of the above, the decision in Huidrom Konungjao Singh Vs. State of Manipur & Ors. reported in AIR 2012 SC 2002 is squarely applicable in the instant case, paragraph 14 of which has been quoted above. In the instant case also, the detaining authority has recorded his satisfaction towards detaining the detenu under preventive detention on the ground of likelihood of being released on bail as such bail has been granted in favour of another detenu in connection with another case. 9. In G. Reddeiah (supra), the detention order was passed noticing the ground of detention which indicated that the detenu had been indulging in various activities of felling, transporting, smuggling of red sanders wood and he was habitually committing the same. The grounds of detention also indicated the details of involvement of the detenu under order of detention. It was noticed that the detenu was released on bail in connection with 4 (four) criminal cases. 10. The grounds of detention also indicated the details of involvement of the detenu under order of detention. It was noticed that the detenu was released on bail in connection with 4 (four) criminal cases. 10. In Loitongbam Manimohan Singh (supra), this Court noticing the fact that the detenu was arrested in connection with the particular case and was released on bail, the detenu was again arrested in connection with another case. In such a situation, subjective satisfaction of the detaining authority was upheld. 11. Unlike the aforesaid two cases, in the instant case in the impugned order of detention and also the grounds of detention it has been stated that the detenu is likely to be released on bail like that of another detenu connected with another case. Although, in the grounds of detention, several factors have been recorded but on ultimate analysis, the only satisfaction derived towards detaining the detenu was the said bail order granted to another detenu in another case and not connected with the cases in which the present detenu is involved. In view of the above, the writ petition is allowed setting aside and quashing the impugned detention order dated 6.1.2012 alongwith other consequential order. The detenu namely, Shri Kh. Ibotombi Singh shall be set at liberty forthwith, if no required in any other case. Petition allowed