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2014 DIGILAW 112 (MAN)

Sapanam v. State of Manipur

2014-09-09

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT Laxmi Kanta Mohapatra; CJ. 1. Petitioner is the wife of the detenu, namely Md. Anish Khan who has been detained by an order of the District Magistrate, Thoubal dated 26th November, 2013 under the National Security Act, 1980 (in short NSA). The order of detention is the subject matter of challenge in the writ application. 2. From the grounds of detention, it appears that the detenu joined an armed gang namely Peoples' United Liberation Front (PULF in short) as a member towards the last part of 2004. After joining the said organisation, the detenu got involved in criminal activities such as extortion of money from the General Public, Shop Keepers etc. On 29.07.2010, the detenu was arrested and FIR No. 74(7)2010 Lilong PS was registered u/s. 400/384/511/34 IPC read with Section 25 of the Arms Act. However, he was released on bail in February, 2011. Thereafter, for a period of two years, there were no activities and again in July, 2013 the detenu started working for the said organisation. On 2.9.2013 the detenu along with one Md. Riyajuddin were arrested by a team of Commando/Thoubal. There was recovery of one mobile phone and one SIM card from his possession whereas from the possession of Md. Riyajuddin one 9 mm Pistol with magazine loaded four live rounds were seized. FIR No. 74 (9) 2013 was registered at Lilong Police Station against the detenu for commission of offence u/s. 364-A/34 IPC, 16/18/20 UA(P) A Act read with Section 25 of the Arms Act. He was remanded to police custody till 12.9.2013 and after 12.9.2013, he is in the Manipur Central Jail, Sajiwa. When the detenu was continuing in judicial custody, impugned order of detention was passed by the District Magistrate, Thoubal in exercise of powers conferred under Sub-section (3) of the NSA, 1980. 3. Shri Ph. Sanajaoba, learned counsel appearing for the petitioner assailed the impugned order of detention on the ground that the detenu had been arrested in connection with FIR No. 74(9)2013 on 2.9.2013. He had not moved any application for bail and while the detenu was in custody, impugned order was passed on 26th November, 2013. According to the learned counsel appearing for the petitioner, the subjective satisfaction recorded by the District Magistrate in the impugned order of detention is without any basis. He had not moved any application for bail and while the detenu was in custody, impugned order was passed on 26th November, 2013. According to the learned counsel appearing for the petitioner, the subjective satisfaction recorded by the District Magistrate in the impugned order of detention is without any basis. It was further submitted that when the petitioner had not moved any application for bail, there could not be any apprehension in the mind of the District Magistrate that the detenu would be released on bail and he would again get indulge in similar activities. 4. Shri A. Vashum, learned Addl. G.A. appearing for the state respondents submitted that the detenu had earlier been arrested in 2010 for committing similar offence and was released on bail in February, 2011. Since the detenu was earlier released on bail after commission of similar offence, District Magistrate had every justification to apprehend that in the event the detenu moves for an application for bail after the detenu's second arrest in connection with FIR No. 74(9) 2013 he would again be released on bail. Therefore, subjective satisfaction recorded by the District Magistrate in the order of detention is based on the fact that after committing similar offence, the detenu had earlier been released on bail which is not in dispute. 5. Undisputedly, the detenu was arrested on 2.9.2013 in connection with the FIR No. 74(9) 2013 of Lilong PS. It is also not in dispute that in the said case, after being arrested, the detenu has not moved any application for bail and when the detenu was continuing in judicial custody, impugned order of detention was passed. The subjective satisfaction recorded by the District Magistrate in the impugned order of detention is quoted below:- "And whereas, I am satisfied from the police report that Md. Anish Khan @ Mani (25 yrs) S/o. (L) Md. Abdul Rashid of Kaleikhong Heinou Makhong, Lilong, P.S.-Lilong, District-Thoubal, Manipur who is now in Manipur Central Jail, Sajiwa 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;" 6. In the case of Rekha Vs State of Tamil Nadu & Ors reported in : (2011) SCC 244, the Supreme Court in paragraphs No. 26 & 27 of the judgment observed as follows:- "26. In the case of Rekha Vs State of Tamil Nadu & Ors reported in : (2011) SCC 244, the Supreme Court in paragraphs No. 26 & 27 of the judgment observed as follows:- "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. 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." 7. When the detenu had not moved any application for bail and was continuing in judicial custody and in view of the above Supreme Court's decision, no order of detention could be passed by the District Magistrate. 8. Learned State counsel relied upon a decision of the Apex Court in the case of Baby Devassy Chully Alias Bobby-vs.-Union of India & ors reported in : (2013) 4 SCC 531 . The facts in the above reported case are completely different from the facts of the present case. In the above reported case, the detenu had been granted bail prior to passing of the order of detention but he continued to remain in jail when the impugned order of detention was passed. The facts in the above reported case are completely different from the facts of the present case. In the above reported case, the detenu had been granted bail prior to passing of the order of detention but he continued to remain in jail when the impugned order of detention was passed. Since the petitioner, in above case, had been released on bail but did not avail the same he could avail at any point of time and therefore, the Detaining Authority passed an order of detention. However, in the present case, the detenu has not moved any application for bail and therefore, apprehension of the District Magistrate that he may be released on bail in absence of any application for bail is mis-conceived. 9. Learned State Counsel also relied upon another decision of the Gauhati High Court (Imphal Bench) in the case of Loitongbam Manimohon Singh-vs.-State of Manipur & ors reported in : 2011 (3) GLT 819. In the said reported case, the detenu was arrested for commission of offence u/s. UA(P) A Act and was released on bail. He was again arrested for commission of offence under the same Act and therefore, the Detaining Authority was of the view that he would be released on bail again. In the present case, when the detenu was arrested in July, 2010, a case was registered bearing FIR No. 74(7)2010 Lilong P.S. u/s. 400/384/511/34 IPC read with Section 25 of the Arms Act. On his arrest on 2.9.2013, FIR No. 74(9) 2013 has been registered for commission of the same offence u/s. 364-A/34 IPC, 16/18/20 UA(P) A Act read with Section 25 of the Arms Act. The previous arrest was on 29.7.2010 and the detenu was released on bail in February, 2011, after remaining in judicial custody for 6 months. We are therefore, of the view that the present case cannot be equated with the facts of the above reported judgment of the Gauhati High Court. 10. The Court is also informed that co-accused Md. Riyajuddin who had been arrested along with the detenu is still in custody and has not been granted bail. We are therefore, of the view that the present case cannot be equated with the facts of the above reported judgment of the Gauhati High Court. 10. The Court is also informed that co-accused Md. Riyajuddin who had been arrested along with the detenu is still in custody and has not been granted bail. On consideration of the above facts and the decision of the Apex Court in the case of Rekha Vs State of Tamil Nadu & Ors (supra), we allow the writ application setting aside the impugned order of detention dated 26th November, 2013 and direct that the detenu namely Md. Anish Khan @ Mani (25 yrs) S/o. (L) Md. Abdul Rashid of Kaleikhong Heinou Makhong, Lilong, P.S.-Lilong, District Thoubal District, Manipur be released forthwith unless his detention is required in any other case. 11. With the above direction and observation, the writ application stands disposed of.