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2012 DIGILAW 1242 (GAU)

Henel Kipgen v. State of Manipur and Ors.

2012-11-02

S.R.SEN

body2012
1. Heard the learned counsel for the petitioner, Mr. N. Mahendra, who submits that the detenue is the husband of the present petitioner and the detenue was arrested in connection with FIR No.189(11)2011and subsequently he has been booked under the National Security Act, 1980, without assigning any specific reason. The learned counsel also contends that the detention order speaks that the detenue may obtain bail and continue in the same act, which is prejudicial to the law and order. Such ground is merely on assumption; therefore, this order is bad in law. The learned counsel also, further, contends that personal liberty of a person cannot be curtailed without any specific reason so detention order dated 5th December, 2011 needs to be quashed. The learned counsel also contends that the grounds were prepared after detention order, which is after thought. In support of his submissions, petitioner's counsel has relied on the decisions of the hon'ble Supreme Court in the case of Pebam Ningol Mikoi Devi v. State of Manipur and Ors., (2010)9 SCC 618 . 2. On the other hand, learned State Counsel, Mr. R. S. Reisang, appeared for and on behalf of the State submits that this instant case is different from other cases as because earlier also, the detenue was arrested and after his released, he continued in the same activities and caught for several times so if he is released now again he will continue the same activities so writ petition may be dismissed. In support of his submissions, the learned State Counsel relied on the decisions in the case of Loitongbam Manimohon Singh v. State of Manipur, 2011 (3) GLT 819 and further submits that the writ petition may be dismissed. Learned CGSC, Mr. C. Kamal, has endorsed the same submissions of the learned State counsel. 3. I have perused the detention order dated 5th December, 2011. The operative part of the detention order is reproduced herein-below: ".........................And whereas, I am satisfied from the Police report that Mr. Henkholen Kipgen @ James (30 yrs) S/o Mr. Learned CGSC, Mr. C. Kamal, has endorsed the same submissions of the learned State counsel. 3. I have perused the detention order dated 5th December, 2011. The operative part of the detention order is reproduced herein-below: ".........................And whereas, I am satisfied from the Police report that Mr. Henkholen Kipgen @ James (30 yrs) S/o Mr. Somang Kipgen of Gangpijang Village, P.S. Sailkul, District — Senapati, Manipur who is now in Police custody, is likely to be released on bail since one accused Shri Oinam Ibohal Singh (45 yrs) S/o O. Kondumba Singh of Changphu Bazar, a member of KCP(MC) who was arrested on 14.1.2011 in connection with FIR No.8(1)2011 WGI-PS under section 17/19/20 UA(P)A Act with and released on bail by the hon'ble JMIC/Imphal on 22.1.2011 and also since he is likely to continue to act in the manner prejudicial to the security of the State and maintenance of public order, and also that an alternative preventive measure is called for." 4. On bare perusal of the above quoted grounds of detention, it appears that the District Magistrate, on perusal of the report of Police came to conclusion that the detenue may obtain bail and shall continue in prejudicial manner against public order and maintenance, hence, passed the detention order. 5. National Security Act, 1980 ('NSA 1980') is the special Act, which to tackle the special situation needs to apply carefully taking into consideration that, no way personal liberty of a person is curtailed, until and unless if it is required for the interest of maintaining law and order and interest of the Nation. Hon'ble Supreme Court in the case of Pebam Ningol Mikoi Devi v. State of Manipur and Ors., (2010) 9 SCC 618 was pleased to observed that: "3. Individual liberty is a Cherished right, one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country. On "liberty", William Shakespeare, the great play writer, has observed that "a man is master of his liberty". Benjamin Franklin goes even further and says that "any society that would give up a little liberty to gain a little security will deserve neither and lose both". The importance of protecting liberty and freedom is explained by the famous lawyer Clarence Darrow as "you can protect your liberties in this world only by protecting the other man's freedom; you can be free only if I am free". The importance of protecting liberty and freedom is explained by the famous lawyer Clarence Darrow as "you can protect your liberties in this world only by protecting the other man's freedom; you can be free only if I am free". In India, the utmost importance is given to life and personal liberty of an individual, since we believe personal liberty is the paramount essential to human dignity and human happiness." "4. The Constitution of India protects the liberty of an individual. Article 21 provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. In matters of preventive detention such as this, as there is deprivation of liberty without trial, and subsequent safeguards are provided in article 22 of the Constitution. They are, when any person is detained pursuant to an order made under any law providing for preventive detention, the authority making the order is required to communicate the grounds on the basis of which, the order has been made and give him an opportunity to make a representation against the order as soon as possible. It thus, cannot be doubted that the constitutional framework envisages protection of liberty as essential, and makes the circumstances under which it can be deprived." "26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The court is entitled to scrutinize the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting." "28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid." 6. On further perusal of the grounds of detention in the letter dated 7.12.2011, at Annexure N/1, it appears that the detenue was earlier arrested in connection with FIR No. 1(1)2009 SKL-PS U/S 400/34, IPC and 25(I-A)AAct and he was in custody and subsequently released on bail and thereafter, again continued prejudicial activities against the public interest as District Magistrate mentioned in his letter dated 7.12.2011 at para 2 "that, you stayed at home along with family member after release on bail by the court in the month of February 2009. But you could not stay longer in normal life as you were deeply rooted in the ideology of KNF(P) and always inclined to work for the organization. You did not think seriously about your arrest by the security force and detention of many days together in judicial custody and determined to rejoin KNF(P). Accordingly in the April 2009 you contacted Mr. Seipao Kuki aged about 40 yrs., an important member of KNF(P) and started to work for the organization. In the 1st week of June, 2009 you went to Pangjang Village and reported to Mr. Satlam Kipgen @ Eagle. You along with your associates under the command of Satlam Kipgen forcibly collected about 500 tins of paddy annually and transported the same to Ebenezer Peace Camp. Over and above your extorted huge amount of money from the villagers and deposited the same to Mr. Jangboy Kipgen. In the first week of November 2011, Mr. Jangboy Kipgen directed Mr. Satlam Kipgen to kidnap Mr. Seikhohao Sitlhou, Branch Manager SBI - Leimakhong Branch for neglecting to pay demand money of KNF(P). Then Mr. Satlam @ Eagle @ Hesat entrusted the mission to you. Accordingly, on 10.11.2011 you and your three associates kidnapped Mr. Seikhohao Sitlhou from Luwang Sangol Bridge. The victim was released on 15.11.2011 after getting a ransom Rs.23 lakhs from his family. Seikhohao Sitlhou, Branch Manager SBI - Leimakhong Branch for neglecting to pay demand money of KNF(P). Then Mr. Satlam @ Eagle @ Hesat entrusted the mission to you. Accordingly, on 10.11.2011 you and your three associates kidnapped Mr. Seikhohao Sitlhou from Luwang Sangol Bridge. The victim was released on 15.11.2011 after getting a ransom Rs.23 lakhs from his family. It refers to FIR No. 49(11)2011 G-SPM-PS under section 364/342/34, IPC you continued similar task till your arrest. Such act of extortion of money and kidnapping for ransom carried you by you and your associates gave a terror wave and peril to the lives of general public which is prejudicial to the security of the State and maintenance of public order." 7. After perusal of the grounds of the detention as quoted above, it appears and understood that the detenue has previous records of involvement in the crimes, which prejudicial to the maintenance of law and order, and even after his release he continued and re-arrested and booked under the NSA 1980. After reading the grounds, I find the District Magistrate has reasons and grounds to pass the detention order. 8. A Division Bench of this court, in the case of Loitongbam Manimohon Singh v. State of Manipur and Ors, 2011 (3) GLT 819, at para 14, was pleased to observe that: "14. In the instant case, the detenue herself admitted that she was once arrested in connection with the case, i.e., FIR No. 135 (4)2010, Imphal Police Station for an offence under the UA(P)A Act and she was released on bail; and for the second time she was arrested in connection with another FIR, i.e., FIR No. 55 (6) 2010 LPS for the offence under UA(P)A Act. In such situation, the subjective satisfaction of the Detaining Authority that the detenue, who is now in judicial Custody is likely to be released on bail in near future by the normal Criminal Courts, as bails are granted in similar cases by the Criminal Courts, cannot be only an ipse dixit of the Detaining Authority inasmuch as it is the clear admission of the detenue that she was released on bail earlier in connection with the FIR for an offence under UA(P) A Act. Hence, the submission of Mr. Dolen, learned counsel for the petitioner that the present case is squarely covered by the decision of Rekha's case (supra) is not acceptable. Hence, the submission of Mr. Dolen, learned counsel for the petitioner that the present case is squarely covered by the decision of Rekha's case (supra) is not acceptable. As discussed above, the ratio of any decision must be understood in the background of the fact of additional fact may make a lot of difference in precedential value of the Apex Court in Rekba's case (supra)". 9. It is also admitted by the petitioner's counsel that the detenue was previously also arrested and released on bail. Therefore, in my humble understanding, this instant case is squarely covered by the Division Bench judgment as quoted above. Further, I am of the view that the judgment relied on by the petitioner's counsel is not applicable in the facts and circumstances of this case. 10. Hence, I am unable to consider the petition. Accordingly the writ petition stands dismissed and disposed of. No order as to costs.