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2014 DIGILAW 101 (MAN)

Sanlut Letkhohao v. District Magistrate

2014-08-26

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. The petitioner, who has been detained by order dated 31.1.2014 under sub section 3 of Section 3 of the National Security Act, 1980, has filed this writ application challenging the said order of detention. 2. From the grounds of detention, it appears that the petitioner joined an armed gang namely, Pakan Re-unification Army (PRA in short) in the month of August, 2011 and got involved in several criminal activities such as kidnapping for ransom. On 24.1.2014 he was arrested by a team of Sekmai P.S. in connection with FIR No. 13(1)14 registered u/s. 365/34 IPC & 25(1-C) Arms Act. One Mobile hand-set with sim card and one driving licence were seized from his possession. While he was in custody in the aforesaid case, the impugned order of detention was passed on 31.1.2014 by the District Magistrate, Imphal West. The District Magistrate, while passing the order, recorded his subjective satisfaction in the following manner: And whereas, I am satisfied from the police report that Mr. Sanlut Letkhohao @ S. Micheal Haokip (32 yrs) S/o. Azang Haokip of N. Mollen Village, PS Saikul, District-Senapati, Manipur who is now in police custody, should be prevented from commission of prejudicial activities through an alternative preventive measure. The said order of detention was subsequently confirmed by the Board and the State. The representation of the petitioner addressed to the State Government as well as to the Union Govt. were also rejected. 3. Mr. R.K. Umakanta, learned counsel appearing for the petitioner assails the impugned order of detention on two grounds. The first ground taken by the learned counsel for the petitioner is that when the petitioner was in judicial custody and had not moved any application for bail in connection with the case for which he had been taken to custody, there was no scope on the part of the District Magistrate to exercise his powers u/s. 3 of the NSA, 1980 while passing the order of detention. Second ground of challenge with regard to delay in disposal of the representation, it is submitted by Mr. Umakanta, learned counsel for the petitioner that there was inordinate delay of 10-12 days in disposal of the representation which has not been explained in the counter affidavit. In view of the above, the order of detention is liable to be set aside. 4. Ms. Umakanta, learned counsel for the petitioner that there was inordinate delay of 10-12 days in disposal of the representation which has not been explained in the counter affidavit. In view of the above, the order of detention is liable to be set aside. 4. Ms. Manomala, learned State counsel referring to the counter affidavit filed on behalf of the State, submitted that even if no bail application is moved by the petitioner for being released on bail, if the District Magistrate on the basis of the documents placed before him was satisfied that an order of detention should be passed, no illegality could be found with such order. So far as delay in disposal of the representation is concerned, it was contended by Ms. Manomala, learned State counsel that the delay has been explained in the counter affidavit and the petitioner cannot take advantage of delay which has been explained. 5. Mr. Amarjit Naorem, learned CGSC only submitted that there was no delay on the part of the Union of India in disposal of the representation of the petitioner. Undisputedly, the date on which the impugned order of detention was passed by the District Magistrate, Imphal West the petitioner was in custody in connection the case, i.e. FIR No. 13(1)14 Sekmai P.S. It is also not in dispute that he had not moved any application for bail in the said case. In absence of any application for bail, there can be no justification for passing an order of detention and in this connection the judgment of the Apex Court in the case of Rekha Vs. State of Tamil Nadu & Ors reported in : (2011) 5 SCC 244 is relevant. Paragraphs-26 and 27 of the said judgment are quoted below: 26. It was held in Union of India V. Paul Manickam that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. 6. So far as delay in disposal of the representation of the petitioner, from the counter affidavit we find that the petitioner has submitted a representation on 14.2.2014 to the Chief Secretary, Govt. of Manipur which was disposed of on 26.2.2014. There is no explanation in the counter affidavit as to why the Government took 12 days to consider and dispose of the representation. Similarly, the representation of the petitioner dated 14.2.2014 was forwarded by the State Government to the Union Government on 26.2.2014. No reason has also been assigned in the counter affidavit as to why there was such delay of 12 days in sending the representation of the petitioner to the Union of India. In this connection, reference may also be made to a decision of this Court in the case of Hidangmayum Dhananjoy Sharma v. District Magistrate Thoubal, Manipur & Ors reported in : 2014 Cril. L.J. 1712 having held that no order of detention could have been passed when the petitioner was in custody and had not moved for bail and that there was unexplained delay in disposal of the representation, we have no other option except to allow the writ petition. 7. Accordingly, we quash the order of detention dated 31.1.2014 at Annexure-A/2 as well as the confirmation order dated 22.3.2014 Annexure-A/13 and direct that the petitioner namely, Mr. Sanlut Letkhohao @ S. Micheal Haokip be set at liberty forthwith unless his detention is required in any other case.