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Gauhati High Court · body

2012 DIGILAW 1245 (GAU)

Tete Making v. State of Manipur and Ors.

2012-11-07

S.R.SEN

body2012
1. Heard the learned counsel for the petitioner, Mr. Ph. Dolen, who submits that the instant petitioner is the wife of the detenue, Mr. Jenthaingam Longmei, who was initially arrested in connection with FIR Case No.40( 12)2011 LSG-PS under section 17/20 UA (P) Act, and subsequently booked under the National Security Act, 1980. 2. The learned counsel for the petitioner, further, contends that the detenue has no antecedent of earlier being arrested or released on bail and committed any crime threatening to the security of the public order and maintenance; therefore, his detention under the National Security Act, 1980 is on mere presumption so, he may be released. 3. On the other hand, learned P.P., Mr. R.S. Reisang, appeared for and on behalf of the State has fairly admitted that from the records nowhere it reflects that the detenue had earlier been arrested in connection with any other case(s) and on his being released he indulged on criminal activities threatening to public maintenance and order. The submissions of the learned P.P., is endorsed by the learned CGSC, Mr. C. Kamal, appeared for and on behalf of the respondent No.3. 4. I have perused the detention order dated 19.6.2012,at page 19, wherein it appears that the learned District Magistrate, Imphal West came to conclusion that the detenue may be released on bail and on his being released he may continue to act in the manner prejudicial to the security of the State and maintenance of public order. Hence, his detention is necessary so he has been detained under the National Security Act, 1980. 5. I have also perused the grounds of detention, Annexure N/2, at page 20, which has been replaced by a corrigendum issued by the District Magistrate, which is at Annexure N/4, at page-41. 6. On mere perusal of the detention order and grounds of detention, it appears that the learned District Magistrate has accepted the Police report as gospel truth without considering the facts and circumstances of the case and without applying the mind. National Security Act, 1980 ('NSA1980'), a Special Act, which has been adopted to tackle the special situation, so needs to apply cautiously keeping in mind that free movement of a person is a constitutional guarantee. Personal liberty of a person can not be curtailed until and unless it was required by law and for cogent reason. National Security Act, 1980 ('NSA1980'), a Special Act, which has been adopted to tackle the special situation, so needs to apply cautiously keeping in mind that free movement of a person is a constitutional guarantee. Personal liberty of a person can not be curtailed until and unless it was required by law and for cogent reason. In the case ofPebam Ningol Mikoi Devi v. State ofManipur 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 li berty 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. 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. 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." 7. Therefore, after considering the submissions advanced by the learned counsel for the petitioner as well as the learned counsel for the State and Central Government and after examining the detention order dated 19.6.2012, at Annexure N/l, and grounds of detention at Annexure N/ 2 and N/4, to the writ petition and further, taking into consideration the principal of personal liberty as guaranteed by the Constitution of India, I am of the considered view that the detention order dated 19.6.2012, Annexure N/l, grounds of detention at Annexure N/2 and N/4, and subsequent approval and confirmation orders are bad in law and without application of mind, hence, need to be set aside. Accordingly detention order, grounds of detention and subsequent approval and confirmation orders are hereby set aside. Authority concerned is directed to release the detenue, namely, Mr. Jenthaingam Longmei of Maringphai Village, Chandel, forthwith in case he is not required in connection with any other case(s). 8. Accordingly detention order, grounds of detention and subsequent approval and confirmation orders are hereby set aside. Authority concerned is directed to release the detenue, namely, Mr. Jenthaingam Longmei of Maringphai Village, Chandel, forthwith in case he is not required in connection with any other case(s). 8. With this observation and direction, the instant writ petition is allowed and stands disposed of. No order as to costs.