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2012 DIGILAW 758 (GAU)

Taorem Ongbi Kenika Devi v. State of Manipur

2012-06-19

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. The petitioner in the instant petition is the wife of the detenu, who is presently under detention under the National Security Act. Before his detention the detenu was arrested on 26.12.2011 by a team of CDO/Imphal West from Singjamei parking area and implicated in police case being FIR Case No. 407(12)/11 SJM PS under Sections 17/20 UA(P) Act read with Section 5 of the Explosive Substances Act and remanded to police custody till 31.12.11. He was produced before the Court on 31.12.11 for judicial remand and was served with an order of detention dated 31.12.2011 passed against him by the Respondent No. 2 (District Magistrate, Imphal West District, Manipur). The District Magistrate by his letter dated 3.1.2012 furnished the grounds of detention to the detenu under Sections 17/20 of the National Security Act, 1980 (hereinafter referred to as NSA in short). The respondent/ State Government by an order dated 5.1.2012 approved the impugned detention order whereupon he submitted a representation dated 7.2.2012 addressed to the respondent No. 3 (Union of India) through the Secretary of India, Ministry of Home Affairs Internal Security, North Block, New Delhi. The detenu also submitted a representation dated 7.2.12 addressed to the Chairman, Advisory Board through the Superintendent of Manipur, Central Jail. The Advisory Board, after deliberation and consideration of the materials on record, unanimously found that there was/is sufficient cause for detention/ continued detention of the detenu under the NSA and accordingly the impugned detention order was confirmed by the Government and fixed the period of detention for 12 months from the date of detention. The petitioner challenges the impugned detention order dated 31.12.2011 and the subsequent order of approval dated 5.1.2012 as well as the confirmation order dated 3.2.2012. Heard Mr. Ph. Dolen, learned counsel for the petitioner, Mr. Reisang, learned Government Advocate appearing for the Respondents No. 1 and 2 and Mr. Amarjit Noarem, learned CGSC, appearing for the Respondent No. 3. 2. Mr. Dolen learned counsel submits that the impugned order of detention is illegal and unsustainable under the law inasmuch as it was passed by the District Magistrate without satisfying himself that the detenu is likely to be released on bail. He further submits that the District Magistrate, while passing the detention order relied on documents and materials which are not relevant and connected with for detention of the detenu. He further submits that the District Magistrate, while passing the detention order relied on documents and materials which are not relevant and connected with for detention of the detenu. The detaining authority turned blind eye to the fact that the detenu did not apply for bail and he was not released on bail earlier in connection with the present case. The District Magistrate came to a conclusion in an ipsidixit manner that the detenu is likely to be released on bail primarily on the basis of fact that one Shri Nahakparn Sonathokpa Singh was arrested on 3.5.2011 in connection with an FIR case No. 38(5)/2011 WGI-PS under Section 17/20 UA(P) Act and was released on bail by a Court on 10.5.2011, in which the present detenu was not implicated as an accused. The specific submission of the learned counsel for the petitioner is that the subjective satisfaction of the detaining authority that the detenu was likely to be released on bail was based on no material and the apprehension expressed therein is absolutely without any foundation. In order to substantiate this submission, he relies on the following decisions - i) Rekha Vs State of Tamil Nadu & Anr.; (2011) 5 SCC 244 , ii) Yumnam(O) Lembi Leima Vs. State of Manipur; (2012) 2 SCC 176 , iii) Pebam Mikoi Devi Vs. State of Manipur (2010) 9 SCC 618 , iv) Smt. Amom Tongbi Vs. State of Manipur & Ors.; WP (Crl.) No. 119/12 and v) Judgment dated 17.5.2012 passed by the Apex Court in Huidrom Konungjao Singh Vs. State of Manipur; Crl. Appeal No. 840/2012 (unreported) 3. Secondly, it is submitted by the learned counsel for the petitioner that although the detenu submitted the representation addressed to the Advisory Board through the jail authority, as was done in the present case, the State Govt. is not absolved from constitutional obligation under Article 22(5) of the Constitution of India to consider the representation submitted by the detenu on the ground that it was not addressed to it. The State Govt. is cast with the duty to consider and deal with the representation as early as possible even if the detenu's representation is received by the Govt. after the meeting of the Advisory Board. Further he submits that the Govt. still has to consider the representation, if any, even after the order of detention has been confirmed. The State Govt. is cast with the duty to consider and deal with the representation as early as possible even if the detenu's representation is received by the Govt. after the meeting of the Advisory Board. Further he submits that the Govt. still has to consider the representation, if any, even after the order of detention has been confirmed. The specific submission of the learned counsel for the petitioner is that in any case the State Govt. is duty bound to consider and dispose of the representation submitted by the detenu, no matter whether it was submitted directly to the Advisory Board without addressing a copy thereof to the State Govt. In this regard he relies on the following case laws - (i) Thaiyam Ningol Salam Ongbi Ramani Devi Vs. D.M. Imphal; (2000) 3 GLT 489, (ii) Moosa Husein Sanghar Vs. State of Gujrat & Ors.; (1993) 1 SCC 511 , (iii) Kubic Dariusz Vs. Union of India; AIR 1990 SC 605 and (iv) Smt. Gracy Vs. State of Kerala & Anr; (1991) 2 SCC 1 . 4. Thirdly, it is submitted by the learned counsel for the petitioner that no cogent materials are available to invoke preventive detention in the instant case inasmuch as the allegations brought against the detenu could be taken up under the ordinary criminal law as per the principle laid down in Rekha's case (supra). 5. Mr. R.S. Reisang, learned Govt. Advocate per contra, referring to averments made in the counter affidavits filed by the Respondents No. 1 and 2, submits that the detaining authority passed the detention order on perusal of the materials placed before him and on giving due consideration as well as on being satisfied personally that the detention of the detenu was absolutely necessary to prevent him from acting in a manner prejudicial to the security of the State and maintenance of public order under the provision of the NSA. He argues that the materials found against the detenu justify the order of detention and there is no valid ground for quashing or setting aside the same. The detaining authority, as reflected from the detention order itself, was aware of the subsisting custody of the detenu who was found involved in a number of criminal cases in the proximate past and there was every chance of his securing release on bail from the Court of law. The detaining authority, as reflected from the detention order itself, was aware of the subsisting custody of the detenu who was found involved in a number of criminal cases in the proximate past and there was every chance of his securing release on bail from the Court of law. The detenu no doubt applied for bail but he may move for his bail and there is no bar for filing bail application at any time. In such circumstances, the learned Govt. Advocate submits that the Respondent/District Magistrate passed the impugned detention order after applying his judicious mind and on being satisfied with the relevant materials placed before him. 6. As regards the representation of the detenu, it is submitted by Mr. Reisang that the representation dated 7.2.12 was forwarded to the Central Govt. by the Slate Govt. on 9.2.12 and the parawise comments of the same was forwarded on 13.2.12 signed by the Additional Secretary(Home), Govt. of Manipur. The detenu also submitted representation dated 7.2.12 addressed to the Advisory Board but it could not be placed as the hearing of the Advisory Board in respect of the present detenu was already held on 17.1.12 and the report was also submitted on 20.1.12. In the said circumstances, the representation of the detenu was considered and treated as infructuous inasmuch as the detention order had already been approved on 5.1.12 by the State Govt. 7. First of all, I may advert to the first submission on subjective satisfaction of the detaining authority in passing the impugned order. The detaining authority was apprised by the police about the antecedent of the detenue by furnishing the information collected against him. The materials collected and placed before the District Magistrate were considered. In the grounds of detention there is a reference to an FIR case No. 407(12)/2011 SJM PS. But in the detention order there is no mention that the detenu was released on bail in the said FIR case. It was a case registered under Sections 17/20 of the UA(P) Act. In 2011, the detenu was arrested in connection with 3 FIR cases under Section 20 of the UA(P) Act read with Section 5 of the Explosive Substances Act. Before it, in 2009, he was arrested in connection with 2 FIR cases under Sections 17/20 of the UA(P) Act read with Section 25(1-C) of the Arms Act. In 2011, the detenu was arrested in connection with 3 FIR cases under Section 20 of the UA(P) Act read with Section 5 of the Explosive Substances Act. Before it, in 2009, he was arrested in connection with 2 FIR cases under Sections 17/20 of the UA(P) Act read with Section 25(1-C) of the Arms Act. In the backdrop of his involvement in such serious offences the detaining authority came to a conclusion that the detenu has been acting in a manner prejudicial to the maintenance of public order and it was considered imperative to detain him under the NSA inasmuch as there is every possibility of his release on bail. The only factor that has influenced the mind of the detaining authority is that the detenu who is similarly situated in the FIR case No. 38(5)/2011 WGI-PS under Sections 17/20 UA(P) Act, was released on bail by a Court of law. 8. While furnishing the ground of detention the detenu was furnished with copies of the FIRs in which he has been implicated as accused persons along with others. He was mainly alleged to have been involved in raising fund for the unlawful organisation, viz., PREPAK (BC Group) and acts of terrorism by using fire arms, explosives, etc., punishable under the UA(P) Act and Arms Act. Admittedly in the aforesaid FIR Case No. No. 38(5)/2011 WGI-PS only one person was named as an accused. His name is Nahakpam Sanathakpa Singh (52) years s/o (L) N. Nandeshwar Singh. He was involved in the acts of extortion, being a member of unlawful organisation, punishable under Sections 17/20 UA(P) Act. A copy of the order dated 10.5.2011 passed by the Judicial Magistrate, 1st Class, Imphal granting bail to the aforesaid accused person was furnished. The aforesaid order is reproduced hereunder- Accused N. Sanathokpa is produced by the I.O. of the case for remanding him into judicial custody for a period of 15 days i.e. till 24.52011. The accused person has filed an application praying for releasing him on bail by rejecting the remand prayer of the I.O. Seen the material evidences of investigation and perused accordingly. Heard the IO and the accused through his learned counsel. On hearing the case story and the submission of the Ld. The accused person has filed an application praying for releasing him on bail by rejecting the remand prayer of the I.O. Seen the material evidences of investigation and perused accordingly. Heard the IO and the accused through his learned counsel. On hearing the case story and the submission of the Ld. Counsel on behalf of the accused person, I have hereby considered and opined that the allegations are vague and cannot be substantiated with the allegation meted against the accused person. In the result, and for the ends of justice, the accused person is released on bail by his executing a bail bond of Rs. 10,000/- with the like amount of surety. The accused is to appear on 24.5.2011. 9. On the face of the bail order it is evident that the accused person in the said FIR Case applied for bail and the bail was granted to him as the learned Judicial Magistrate, 1st Class, Imphal found the allegations were vague and could not be substantiated. In the present detention order in question the Respondent/ detaining authority has not mentioned that the detenu ever applied for bail or there was any possibility of making application for bail or was intending to do so and the Court of law may grant him bail in near future. The present detenu has no nexus with the accused person who was arrested and released by Court in connection with aforesaid FIR case. In view of the above, there is no reason for the Respondent District Magistrate in coming to the conclusion that the present detenu is likely to be released on bail. 10. In support of passing the impugned detention order the detaining authority stated in the detention order that on his release on bail the detenu would continue to act in the manner prejudicial to the security of the State and maintenance of public order. The basis of such apprehension is not properly reflected in the detention order. Such apprehension was entertained by the detaining authority only because some FIR cases were registered against the detenu along with other accused persons. There may be apprehension of his further involvement in activities punishable under the NSA and if it is taken as correct there would not be any question of his release on bail. The detaining authority has taken contradictory stand regarding the likelihood of detenu's release on bail. There may be apprehension of his further involvement in activities punishable under the NSA and if it is taken as correct there would not be any question of his release on bail. The detaining authority has taken contradictory stand regarding the likelihood of detenu's release on bail. In one hand, there is an apprehension of the detaining authority that inspite of involvement in serious case, the detenu might be released on bail like the accused person in other case and on the other hand, there is an apprehension of his further involvement in future after his release on bail. At the time of granting bail it is always expected that the Court would consider the materials collected during investigation against the accused person. The Court is not expected to grant bail without applying its mind and without considering the materials placed by the Investigating Agency. If the materials placed by the police before the detaining authority are considered it is easily comprehensible that there is no chance of granting bail to the detenu. From the above discussion, there is no doubt that the detaining authority failed to apply his mind in passing the impugned detention order. Once it is found that the detaining authority did not apply his mind in passing the detention order, this Court in exercising the power of judicial review, can declare the detention order as invalid and unlawful. In such circumstances, it is not necessary to enquire and give a finding as to the correctness of the decision of the detaining authority in passing the detention order. 11. The Court is to find out as to whether there is a reasonable basis for passing a detention order supported by materials and in doing so the Court is entitled to scrutinise the materials relied upon by the detaining authority. In Pebam Mikoi Devi's case (supra) it has been held that the Court is entitled to scrutinise the materials relied upon by the authority in coming to its conclusion and accordingly determine if there is an objective basis for the subjective satisfaction. It means that for subjective satisfaction the detaining authority must consider the materials placed before him by the police. The materials so placed are the objective basis and the detaining authority, before passing the detention order, must be subjectively satisfied on the objective basis. It means that for subjective satisfaction the detaining authority must consider the materials placed before him by the police. The materials so placed are the objective basis and the detaining authority, before passing the detention order, must be subjectively satisfied on the objective basis. There is no escape for the detaining authority from looking at and considering the materials placed before him for his subjective satisfaction. Looking at and giving due consideration of the materials on record is an integral part of decision making process in the matter of passing the detention order. I am not satisfied that the Respondent/detaining authority resorted to proper decision making process inasmuch as he escaped himself from conscious and careful examination of the materials placed before him. It would not be unjustified to say that the detaining authority paid no due regard to the objection basis and there was no subjective satisfaction before passing the detention order. 12. The detaining authority while passing the impugned order of detention, no doubt took into consideration the information and materials furnished by the police. There is no doubt that materials are sufficient against the detenu warranting his detention under the NSA. The real dispute is that the detaining authority relied on an irrelevant and extraneous ground, viz., the bail order of a detenu/accused person of a case in which the present detenu is not connected at all, and thereby, non-application of mind writ large in passing the impugned detention order. Any order passed mechanically and in a routine manner without application of mind under the NSA is fatal and on that ground alone the detention order can be declared null and void. 13. Although, the learned counsel for the petitioner submits that the detention order is liable to be set aside and quashed on the ground of non consideration/non disposal of the representation submitted by the detenu and the state has failed to discharge the constitutional and legal duties in disposing the representation, as early as possible, as provided under the NSA, I am of the considered view that it is not necessary to delve into or decide the said question as the impugned detention order has been found and declared illegal due to non-application of mind by the detaining authority in passing the detention order. Once the detention order has been declared invalid and illegal on the former ground it is redundant to discuss the latter issue. 14. In view of the above discussion and well settled legal position, I cannot sustain the impugned detention order as well as the consequential approval and confirmation order in respect of detention of the detenu under the NSA. Accordingly, the impugned detention order and the subsequent approval and confirmation order passed by the respondents are set aside and quashed as being unconstitutional and illegal. The detenu Shri Taorem Manglemchandra Singh @ Ibungo @ Ketalog @ Sanajaoba @ Boy (35 yrs) be set at liberty forthwith if his further detention is no longer required in connection with any other case. The petition is allowed. Petition allowed