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2013 DIGILAW 16 (MEG)

Champion R. Sangma v. State Of Meghalaya

2013-05-22

T.NANDAKUMAR SINGH

body2013
JUDGMENT : T. Nandakumar Singh, J. 1. Heard Mr. S. Dey, learned counsel for the petitioner/detenue and Mr. S. Sen Gupta, learned counsel for the respondents No. 1-3. By this writ petition, petitioner/detenue is assailing the detention order dated 30.01.2013 passed by the District Magistrate, West Garo Hills, Tura u/s 3(1) of the Meghalaya Preventive Detention Act, 1995 (for short "the Act of 1995"). 2. Two main grounds for assailing the impugned detention order are:-- (i) The impugned detention order dated 30.01.2013 passed u/s 3(1) of the Act of 1995 was not approved by the State Government u/s 3(3) of the Act of 1995 within the stipulated period or as on today there is no approval order of the State Government (ii) The petitioner/detenue has not given an opportunity to file a representation against the order of the State Govt. said to have been passed for approving the detention order dated 30.01.2013. 3. For deciding the above two grounds, it is not required to delve deep into the factual matters leading to the filing of the present writ petition. 4. On 30.07.2012, the petitioner/detenue was arrested by one Shri. K. Shabong, Sub-Inspector Special Cell, East Khasi Hills District, alleging that the petitioner/detenue is a member of a banned organization i.e. G.N.L.A. and it has also been alleged that a criminal case was also registered against the petitioner/detenue i.e. Pynursla Case No. 25 (7)12 u/s 16 , 38(1) and 38(2) of the Unlawful Activities (Prevention) Act and Section 12 of the LP. Act. After arresting the petitioner/detenue in connection with the said case, he was produced before the concerned Magistrate who remanded the petitioner/detenue to custody. 5. While the petitioner/detenue was in custody in connection with the said case, the Superintendent Jail furnished a copy of the impugned detention order dated 30.01.2013. It is also categorically pleaded in the present writ petition vide Para-16(b) of the writ petition that the impugned detention order dated 30.01.2013 was not approved by the State Govt. within the time limit u/s 3(3) of the Act of 1995. It is also further pleaded in the writ petition that the petitioner/detenue had not been informed of his right to file a representation against the detention order as mandated under Article 22(5) of the Constitution of India. 6. within the time limit u/s 3(3) of the Act of 1995. It is also further pleaded in the writ petition that the petitioner/detenue had not been informed of his right to file a representation against the detention order as mandated under Article 22(5) of the Constitution of India. 6. The respondents filed their affidavit-in-opposition, wherein the respondents are not denying the contents of the Para-16(b) of the writ petition which read as follows:-- 16(b). For that the detention order u/s 3(1) of the MPDA 1995, was not approved by the State Government u/s 3(3) of the said Act. 7. In the course of hearing, learned Govt. Advocate appearing for the respondents made a statement that the Govt. is confused with the many annexures filed by the petitioner/detenue in the writ petition. The prayer sought for in the writ petition is very clear. The prayer sought for in the writ petition reads as follows:-- In the premises aforesaid it is most humbly prayed that Your Lordships would be pleased to issue a rule, call for the records, and after hearing the parties be pleased to issue a Writ of Habeas Corpus quashing the Detention Order 30th January, 2013 vide No. CB 19/13/31 passed by the District Magistrate, West Garo Hills District, Tura and any subsequent order/orders that may have been passed in continuation of the said detention order and direct the respondent to release the Detenue forthwith. Therefore, there should be no confusion on the part of the Govt. or the learned Govt. Advocate as to what is the prayer sought for in the present writ petition. This Court made this observation, in view of the submission made by the learned Govt. Advocate appearing for the State respondents, that the writ petitioner/detenue also annexed a copy of the detention order dated 29.01.2013 only to show that the petitioner/detenue had already been detained in connection with the said detention order dated 29.01.2013. 8. Mr. S. Sen Gupta, learned Govt. Advocate appearing for the State respondents placed the Govt. File relating with the present detention order before this Court for perusal. On careful perusal of the File, it is clear that there is no order of the State Govt. for approving the impugned detention order dated 30.01.2013 within the period of 12 days from the date of issuing the detention order. File relating with the present detention order before this Court for perusal. On careful perusal of the File, it is clear that there is no order of the State Govt. for approving the impugned detention order dated 30.01.2013 within the period of 12 days from the date of issuing the detention order. For easy reference, Section 3(3) of the Act of 1995 is quoted hereunder:-- 3(3). When a detention order is made under this section by a District Magistrate or by the empowered officer such District Magistrate or officer as the case may be, shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved. Provided that where the grounds of detention are communicated u/s 3 to the person detained after five days not later than ten days from the date of detention, this sub-section shall apply subject to the modification that for words "twelve days" the words "fifteen days" shall be substituted. 9. The impugned detention order dated 30.01.2013 had not yet been approved by the State Govt. as provided u/s 3(3) of the Act of 1995, and accordingly the impugned detention order dated 30.01.2013 is no more valid. Hence, the continued detention of the petitioner/detenue under the impugned order dated 30.01.2013 is illegal. 10. The framers of our constitution accepted the preventive detention as an unavoidable necessity but that necessity should not be aggravated by an interpretation which would drain Article 22(4) to (7) of its contents, if a reasonable alternative construction was possible, it would avoid that result. The Apex Court in Hem Lal Bhandari Vs. Sikkim: : AIR 1978 SC 765 observed that: ...it is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers. In matter where the liberty of the citizen is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of the law. 11. In Vijay Narayan Singh Vs. In matter where the liberty of the citizen is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of the law. 11. In Vijay Narayan Singh Vs. Bihar: (1984) 3 SCC 14 , Chinnapa Redy, J. observed "our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter...Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the Constitution itself and incorporated as Fundamental Right...when demanded, where there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. 12. Lod Atkin in a great dissenting judgment (Liversidge Vs. Sir John Anderson) (1942) A.C. 224 declared "...amid the clash of arms, the laws are not silent...it has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the Executive, alert to see that any coercive action is justified in law. 13. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. The object of law of Preventive detention is not punitive but only preventive. Prevention detention is an anticipatory measure and does not relate to an offence. It is resorted when the Executive is convinced that such detention is necessary in order to prevent the persons detained from acting in a manner prejudicial to certain objects which are specified by the law. The framers of the constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22; certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court." The Apex Court in Rattan Singh Vs. These safeguards are required to be "zealously watched and enforced by the Court." The Apex Court in Rattan Singh Vs. State of Punjab: (1981) 4 SCC 481 observed that- ...May be that the detenu is a smuggler whose tribe (and how their numbers increased!) deserves no sympathy since its activities have paralysed the Indian economy. But the loss of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up. it is essential that at least those safeguards are not denied to the detenus.... (Ref : para 4 of the SCC in Rattan Singh's case (supra). 14. No doubt, the doctrine of preventive power of the Administrative/Executive authority constitutionally validates preventive process for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. The Apex Court in Amir Shad Khan Vs. L Hmingliana & Ors.: (1991) 4 SCC 39 held that-- The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under: 22.(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." (Ref. para 3 of the SCC in Amir Shad Khan's case (supra)). 15. The Constitution Bench of the Apex Court in Kamlesh Kumar Ishwardas Patel Vs. Union of India & Ors.: (1995) 4 SCC 51 observed that while discharging constitutional obligation to protect fundamental right of the people, more specifically right to personal liberty, the Court would not be influenced by the nature of the activity of the detenu. The history of liberty is the history of procedural safeguards. Union of India & Ors.: (1995) 4 SCC 51 observed that while discharging constitutional obligation to protect fundamental right of the people, more specifically right to personal liberty, the Court would not be influenced by the nature of the activity of the detenu. The history of liberty is the history of procedural safeguards. The safeguards enshrined in clauses (4) and (5) of the Article 22 are required to be jealously watched and enforced by the Court." 16. It is well settled law that the question of personal liberty of a person is sacrosanct and State authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. It is also equally well settled that the in the case of preventive detention, the procedure prescribed for issuing the detention order should be judiciously guarded and also the procedure prescribed should also be scrupulously followed. The Apex Court in Ayya @ Ayub Vs. State of U.P. & Anr.: (1989) 1 SCC 374 , held that in the case of preventive detention matters, the procedure prescribed should be scrupulously followed and in other words, preventive detention, the procedure prescribed for issuing the detention order should be judiciously guarded. 17. The Apex Court in Huidrom Konungjao Singh Vs. State of Manipur & Ors.: (2012) 7 SCC 181 . In Paras 4, 5, 6, 7 & 8, the Apex Court in Huidrom Konungjao Singh case (Supra) held as follows:-- 4. The question of personal liberty of a person is sacrosanct and State authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights under Articles 21 and 22 of the Constitution. In Ayya v. State of U.P.: (1989) 1 SCC 374 : 1989 SCC (Cri) 153 : AIR 1989 SC 364 , this Court held that the law of preventive detention is based and could be described as a "jurisdiction of suspicion" and the compulsion values of freedom of democratic society and of social order sometimes might compel a curtailment of individual's liberty. 5. In Yumman Ongbi Lembi Leima v. State of Manipur: (2012)2 SCC 176 (2012) 1 SCC (Cri) 701 , this Court held that: (SCC p. 182, para 27) 27. 5. In Yumman Ongbi Lembi Leima v. State of Manipur: (2012)2 SCC 176 (2012) 1 SCC (Cri) 701 , this Court held that: (SCC p. 182, para 27) 27. ...personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part-Ill thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizen, or seek to disturb public law and order, warranting the issuance of such an order. 6. Whether a person who is in jail can be detained under detention law has been the subject-matter of consideration before this Court time and again. In Dharamendra Suganchand Chelawat v. Union of India: (1990) 1 SCC 746 : 1990 SCC (Cri) 249 : AIR 1990 SC 1196 , this Court while considering the same issued has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan: : AIR 1964 SC 334 (1964) 1 Cri LJ 257 . Massod Alam v. Union of India: (1973)1 SCC 551 : 1973 SCC (Cri)435 : AIR 1973 SC 897 , Dulal Roy v. District Magistrate, Burdwan (1975) 1 SCC 837 : 1975 SCC (Cri) 329 , Alijan Mian v. District Magistrate, Dhanbad: (1983) 4 SCC 301 : 1983 SCC (Cri) 840 : AIR 1983 SC 1130 , Ramesh Yadav v. District Magistrate, Etah (1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315 , Suraj Pal Sahu v. State of Maharashtra: (1986) 4 SCC 378 : 1986 SCC (Cri) 452 , Binod Singh v. District Magistrate. Dhanbad: (1986)4 SCC 416 : 1986 SCC (Cri) 490 : AIR 1986 SC 2090 and Shashi Agarwal v. State of U.P.: (1988) 1 SCC 436 : 1988 SCC (Cri) 178 : AIR 1988 SC 596 and came to the following conclusion: ( Chelawat case (1990) 1 SCC 746 : 1990 SCC (Cri) 249 : AIR 1990 SC 1196 SCC P.754. para 21 ). 21. para 21 ). 21. The decision referred to above lead to the conclusion that an order for detention can be validly passed against the person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. 7. In Amritlal v. Union Govt.: (2001) 1 SCC 341 : 2001 SCC (Cri) 147 : AIR 2000 SC 3675 a similar issue arouse as the detaining authority recorded its satisfaction for detention under the Act, in view of the fact that the person, who has already in jail, was going to move a bail application. In the grounds of detention it had been mentioned that there was "likelihood of the detenu moving an application for bail" and hence detention was necessary. This Court held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. (See also N Meera Rani v. Govt. of T.N.: (1989) 4 SCC 418 : 1989 SCC (Cri) 732 , Kamarunnissa v. Union of India: (1991) 1 SCC 128 : 1991 SCC (Cri) 88 : AIR 1991 SC 1640 and Union of India v. Paul Manickam : (2003) 8 SCC 342 : 2004 SCC (Cri) 239 : AIR 2003 SC 4622 ). 8. This Court while deciding the case in A Geetha v. State of T.N.: (2006) 7 SCC 603 (2006) 3 SCC (Cri) 324 relied upon its earlier judgments in Rajesh Gulati v. Govt. 8. This Court while deciding the case in A Geetha v. State of T.N.: (2006) 7 SCC 603 (2006) 3 SCC (Cri) 324 relied upon its earlier judgments in Rajesh Gulati v. Govt. of NCT of Delhi: (2002) 7 SCC 129 : 2002 SCC (Cri) 1627 : AIR 2002 SC 3094 and held: (A Geetha case (2006) 7 SCC 603 (2006) 3 SCC (Cri) 324, SCC p. 606, para 10 ) 10. ...that the detaining authority should be aware that the detenue is already in custody and is likely to be released on bail. The conclusion that the detenue may be released on bail cannot be ipse dixit of the detaining authority. Its subjective satisfaction based on materials, normally, should not be interfered with. 18. In the present case, it is clear that the procedure prescribed for issuing the detention order had not been followed inasmuch as, the State respondents have not yet issued the order for approving the impugned detention order within the period prescribed u/s 3(3) of the Act of 1995. 19. Regarding the second ground, there is only the statement of the State respondents in their affidavit-in-opposition which is not supported by documents, that the impugned detention order had been, approved by the State Govt. by exercising their powers u/s 3(3) of the Act of 1995. In the affidavit filed by the State respondents, the State respondents had not even mentioned the dale on which the Govt. issued the order for approving the impugned detention order. In case, the Govt. had issued the order for approving the impugned detention order, a copy of it should have been furnished to the petitioner/detenue for enabling him to file a representation against the said order as guaranteed under Article 22(5) of the Constitution of India. 20. The Apex Court in catena of cases held that the provision under Article 22(5) of the Constitution of India has the same force and sanctity as any other provision relating to fundamental rights. The Apex Court in the State of Bombay Vs. 20. The Apex Court in catena of cases held that the provision under Article 22(5) of the Constitution of India has the same force and sanctity as any other provision relating to fundamental rights. The Apex Court in the State of Bombay Vs. Atma Ram Shridhar Vaidya: : AIR 1951 SC 157 , held that Article 22(5) of the Constitution imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. 21. The Apex Court in Abdul Karim Vs. State of West Bengal: (1969) 1 SCC 433 . Para-8 of the SCC held as follows:-- The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for by the respondent is correct, the constitutional right under Article 22(5) would be rendered illusory. Take for the instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. 22. The ratio decidendi of Abdul Karim case (Supra) had been reaffirmed by the (Constitution Bench) of the Apex Court in Pankaj Kumar Chakrabarty Vs. State of West Bengal: (1969) 3 SCC 400 , wherein it is observed that:-- It is true that Clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. State of West Bengal: (1969) 3 SCC 400 , wherein it is observed that:-- It is true that Clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions 'as soon as may be' and 'the earliest opportunity' in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though clause 5 does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. (emphasis supplied) 23. From the above ratio laid down by the Apex Court, it is clear that the petitioner/detenue should have been afforded an opportunity to file a representation against the detention order. In the instant case, if the State respondents had issued the order for approving the impugned detention order, a copy of it should have been furnished to the petitioner/detenue. In the result, the right of the petitioner/detenue guaranteed under Article 22(5) of the Constitution of India had been denied inasmuch as, the petitioner/detenu could not file the representation without having a copy of the so called approval order. For the foregoing reasons, this Court has to interfere with the impugned detention order dated 30.01.2013. Accordingly, the impugned order dated 30.01.2013 is hereby quashed. The petitioner should be set at liberty forthwith, if, he is not required to be detained with other cases.