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2014 DIGILAW 118 (MAN)

Md. Riyajuddin v. District Magistrate

2014-09-19

LAXMI KANTA MOHAPATRA, N.KOTISWAR SINGH

body2014
JUDGMENT : N. Kotiswar Singh, J. Heard Mr. K. Rabei, learned counsel appearing for the petitioner and Mr. Aleng Vashum, learned State Govt. Counsel appearing for the State respondents and Mr. Amarjit Naorem, learned CGC for the Union of India. 2. The present petition has been filed challenging the detention of the petitioner under National Security Act, 1980 vide order dated 26.11.2013, which has been approved by the State Government on 03.12.2013 and subsequently, confirmed vide order dated 06.01.2014. The petitioner was arrested on 02.9.2013 along with Md. Anish Khan by the police commandoes from Chaobok Mairenkhong and one 9 mm pistol with a magazine loaded with 4-5 rounds were recovered from his possession and accordingly, a regular FIR case being FIR No. 74(9) 2013 Lilong P.S. u/s. 364-A/34 IPC, 16/18/20 UA(P) A. Act and 25(1-C) Arms Act was registered in connection with which he was arrested and remanded to police custody till 12.9.2013. Thereafter, he was remanded to judicial custody by an order passed on 12.9.2013 and lodged in Manipur Central Jail, Sajiwa. While the petitioner was under the judicial custody in connection with the aforesaid FIR case, the District Magistrate, Thoubal District issued the order for detention of the petitioner u/s 3(2) of the National Security Act, 1980 being satisfied from the police report that he was likely to continue to act in a manner prejudicial to the security of the State and maintenance of public order and his detention was necessary in order to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order vide detention order dated 26.11.2013. 3. Several grounds have been raised in challenging the aforesaid detention order. 3. Several grounds have been raised in challenging the aforesaid detention order. It has been contended, inter-alia, that the said detention order was passed mechanically and without application of mind, that there was no material for coming to the conclusion that there was likelihood of the petitioner to continue to act in any manner prejudicial to the security of the State and maintenance of public order and to prevent him from acting in any manner prejudicial to the security of the State, in as much as the petitioner was already in jail at the time of passing of the impugned detention order and he did not file any application for releasing him on bail, that the detenue was not afforded with an opportunity to make representation to the Advisory Board, etc. Mr. Rabei, learned counsel for the petitioner relying on the decision of the Hon'ble Supreme Court reported in Union of India (UOI) Vs. Paul Manickam and Another, AIR 2003 SC 4622 has submitted that there is no indication in the detention order that the detaining authority had shown awareness of the subsisting custody of the petitioner in jail in connection with an FIR case and there was no cogent material to show that there was likelihood of release of the petitioner which required invoking provisions of National Security Act to detain the petitioner. He also relied on the decision of the Hon'ble Supreme Court reported in Huidrom Konungjao Singh Vs. State of Manipur and Others, AIR 2012 SC 2002 in support of his case. Accordingly, it has been submitted that since the impugned order was issued by the authorities without being aware of the fact that the petitioner was already in custody and also there was no basis to believe that there was a real possibility of his being released on bail and that on being released, the petitioner would continue the prejudicial activities, the impugned order is vitiated and accordingly, liable to be set aside. 4. Mr. 4. Mr. Aleng Vashum, learned Government Advocate on the other hand, has submitted that even though it may not have been reflected in the detention order dated 26.11.2013 that the petitioner was in judicial custody, it has been mentioned in the grounds of detention furnished to the petitioner on 26.11.2013 that the petitioner was in judicial custody and as such, the detaining authority was fully aware of the subsisting custody of the petitioner at the time of passing of the detention order. However, as regards the subjective satisfaction of the detaining authority that the petitioner was likely to be released on bail and on being so released, he would indulge in prejudicial activities, it has been submitted by Mr. Aleng Vashum that the detaining authority in the affidavit-in-opposition in para No. 6 thereof had clearly stated that the detaining authority had reasonably apprehended that the petitioner would be released on bail at any moment when he files a bail application before the normal criminal Court and after being released on bail, he being a member of an armed gang, would indulge again in prejudicial activities, which is prejudicial to the security of the State and maintenance of public order. Accordingly, it has been submitted that there was due application of mind and requirements of law had been fully complied with at the time of passing of the detention order and as such, submitted that the detention of the petitioner is in order. 5. Heard the learned counsel for the parties. Law relating to detention of a person under preventive detention, who is already in custody, has been considered by the Hon'ble Supreme Court in a catena of decisions which have been discussed and stated in the case of Paul Manickam (supra). In para No. 14 thereof, the Supreme Court stated as follows:- "14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani Vs. Government of Tamil Nadu and Another, AIR 1989 SC 2027 and Dharmendra Suganchand Chelawat & Anr. Vs. Union of India & Ors., AIR 1990 SC 1196 ). The point was gone into detail in Kamarunnissa and Others Vs. Union of India and another, AIR 1991 SC 1640 . The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail." The principle so evolved had been reiterated in Huidrom Konungjao's case (supra). In para No. 9 thereof the Supreme Court stated as follows:- "9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is? already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of aforesaid settled legal proposition." 6. Therefore, from the above, what is evident is that if the petitioner who was already in judicial custody was sought to be detained by the detaining authority under National Security Act, it had to be shown by the detaining authority that (1) the detaining authority was fully aware of the fact that the petitioner was actually in custody; (2) that there was reliable material before the detaining authority that there was real possibility of his being released on bail and on being released so released, he would probably indulge in prejudicial activities and (3) the detention order was necessary in order to prevent him from indulging in prejudicial activities. 7. A perusal of the records, would show that the detaining authority was fully aware that the petitioner was already in custody as mentioned in the grounds of detention. 7. A perusal of the records, would show that the detaining authority was fully aware that the petitioner was already in custody as mentioned in the grounds of detention. However, nothing is mentioned in the detention order dated 26.11.2013 nor anything had been shown in the grounds of detention dated 26.11.2013 of the existence of any material to show that the petitioner had filed any application for bail or that there was a real possibility of the petitioner being released on bail. This being the situation, this Court is of the view that the authorities have failed to show that there was material on the basis of which the detaining authorities could have come to a subjective satisfaction that there was real possibility of the petitioner being released on bail. The contention of the State respondents that it had been stated in the affidavit-in-opposition filed by the detaining authority that the detaining authority had reasonable apprehension that the detenue would be released on bail at any moment when he files any application for bail before the normal criminal Court would be of no avail in as much as there is no material produced before this Court which enabled the detaining authority to come to such a conclusion that the petitioner was planning to file any bail application or that the petitioner had indeed moved any bail application or that any bail application was pending. Therefore, the subjective satisfaction of the detaining authority that he is likely to be released on bail or that there is real possibility of he being released on bail is based on no cogent material and as such, this Court is of the view that impugned detention order suffers from the vice of non-application of mind in the light of the decisions of the Hon'ble Supreme Court in the cases of Paul Manickam (supra) and Huidrom Konungjao (supra). 8. Accordingly, for the reasons discussed above, we are of the opinion that the impugned detention order dated 26.11.2013 cannot be sustained and accordingly, the same is set aside. The subsequent approval order dated 03.12.2013 as well as the confirmation order dated 06.01.2014 also stand quashed. In the result, the writ petition is allowed and the detenue, namely, Md. Riyajuddin (24 yrs) s/o (L) Md. Abdulhei of Lilong Kaleikhong, P.S. Lilong, shall be released forthwith unless his detention is required in connection with any other case. The subsequent approval order dated 03.12.2013 as well as the confirmation order dated 06.01.2014 also stand quashed. In the result, the writ petition is allowed and the detenue, namely, Md. Riyajuddin (24 yrs) s/o (L) Md. Abdulhei of Lilong Kaleikhong, P.S. Lilong, shall be released forthwith unless his detention is required in connection with any other case. Writ petition stands disposed of accordingly.