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2014 DIGILAW 119 (MAN)

Lourembam Busan Singh v. District Magistrate

2014-10-14

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. Both the writ applications relate to orders of detention passed by the District Magistrate, Imphal West under sub-section (3) of Section 3 of the NSA, 1980. Though the grounds of detention are different in both the cases, similar issues having been raised, on the request of the learned counsel appearing for the parties, both the cases were taken up together for hearing and are disposed of by this common judgment and order. 2. Petitioner in W.P. (Cril.) No. 27 of 2014 is the detenu. He has filed the writ application challenging the order dated 19th April, 2014 passed by the District Magistrate, Imphal West detaining him under the provisions of the National Security Act, 1980 when he was in judicial custody on the ground that it was necessary to prevent him from acting in any manner prejudicial to maintenance of the public order. The grounds of detention disclose that he joined a banned organization namely Kangleipak Communist Party-Noyon Faction (KCP-Noyon in short) towards the last part of 2013 through an important member of the said organization. Aim and object of the said organization is to separate the State of Manipur from Union of India to create an independent sovereign. For the above purpose, the organization was procuring arms and ammunitions from abroad and was recruiting youngsters from various communities in Manipur. In order to achieve the objects of the organization, its members have committed series of heinous crimes like murder, decoity, extortion of money, kidnapping for ransom in different parts of Manipur. It is further alleged in the grounds of detention that the petitioner, after joining the said organization, started delivering demand letters on behalf of the organization to general public and extorted huge amount of money in January and February, 2014. It's further alleged that in the first week of February, 2014, the petitioner was entrusted to hurl one hand grenade at the house of Potshangbam Devan Singh on the ground he was neglecting to pay the demand money made by the organization. The petitioner was arrested on 13.3.2014 by a police team of CDO/IW from a place near Singjamei Traffic point with recovery of one mobile handset and the sim card with four demand letters. On his disclosure, he was arrested on the same day in connection with another case. The petitioner was arrested on 13.3.2014 by a police team of CDO/IW from a place near Singjamei Traffic point with recovery of one mobile handset and the sim card with four demand letters. On his disclosure, he was arrested on the same day in connection with another case. While he was in police custody, the impugned order of detention was passed. 3. The petitioner in W.P. (Cril.) No. 28 of 2014 is also the detenu. In the writ application, he is challenging the order dated 19th April, 2014 passed by the District Magistrate, Imphal West under the provision of National Security Act, 1980 in order to prevent him from acting in any manner prejudicial to the maintenance of the public order. From the grounds of detention, it appears that the petitioner joined the banned organization namely People's Liberation Army (PLA in short) in the middle part of 1997 through his younger brother and started to work for the organization by extorting huge amount of money from the general public. On 30th November, 1997, he was arrested by a column of 30th A.R. and was released on bail by the Court in December, 1997. He was again arrested on 29.01.1999. Again he was arrested on 14.10.2001 and lastly, on 03.3.2009, he was arrested by 20th Assam Rifles and was released on bail on 6th March, 2009. After being released on bail on 6th March, 2009, it is alleged that the petitioner stayed at home along with his family members but again started working for the said organization with the objective of separating the State of Manipur from the Union of India and create an independent sovereign state by waging war against the lawfully established government by using fire arms. It is alleged that towards the last part of 2013, he was directed to extort money from the general public, government officials, contractors and businessmen, shop keepers located within the Imphal Area and he was handed over two 9 mm pistols with 19 live rounds for use. It is also alleged that the petitioner and his associates with use of such arms extorted Rs. 6 lakhs from the Agriculture Department and Rs. 3,30,000/- from the shop keepers located in the Imphal Area in the month of February, 2014. It is also alleged that the petitioner and his associates with use of such arms extorted Rs. 6 lakhs from the Agriculture Department and Rs. 3,30,000/- from the shop keepers located in the Imphal Area in the month of February, 2014. Ultimately, he was again arrested on 26.3.2014 by a police team of CDO/IW and seizures of mobile phone, sim card and one 9mm pistol with 12 live rounds had been made. While in custody, in connection with the case for which he was arrested on 26.3.2014, the impugned order of detention was passed. 4. Mr. Rajeetchandra, learned counsel appearing for the petitioners in both the cases assailed the impugned order of detention on several grounds. Such as: (i) Order of detention has to be passed either on the ground of breach of public order or on the ground of indulging in activities which are prejudicial to the security of the state. No order can be passed on both the grounds. It was contended with reference to the grounds of detention as well as order of detention that though in the grounds of detention, it is stated that order of detention has been passed considering the conduct of the petitioner which is prejudicial to the security of the State and maintenance of public order. In the order of detention, it is stated that it is for activities which are prejudicial to maintenance of public order. (ii) Representation submitted by both the petitioners to the State Government were neither considered nor disposed of by the State Government. (iii) Both the petitioners had applied for supply of the Police Report on the basis of which order of detention and the grounds of detention were made but such police report was not supplied to them. (iv) When the orders of detention was passed, both the petitioners had not moved for bail and there is no mention in the orders of detention that they are likely to be released on bail. (v) Grounds on which the orders of detention were passed cannot be supplemented by counter affidavit filed on behalf of the State. 5. (iv) When the orders of detention was passed, both the petitioners had not moved for bail and there is no mention in the orders of detention that they are likely to be released on bail. (v) Grounds on which the orders of detention were passed cannot be supplemented by counter affidavit filed on behalf of the State. 5. Learned counsel appearing for the petitioner, referring to the above issues submitted that though in the order of detention, it is only mentioned that the conduct of the petitioners was prejudicial to the maintenance of public order, in grounds of detention, it is stated that conduct of both the petitioners is not only prejudicial to maintenance of public order but also to the security of the state. According to the learned counsel appearing for the petitioners in both the cases, an order of detention has to be passed on the basis of either of the two grounds and not on both the grounds. It is also submitted by the learned counsel appearing for the petitioners that both the petitioners, after the detention, had submitted their respective representations to the State Government but the representations were neither considered nor disposed of. So far as the non-supply of documents is concerned, it was contended that both the petitioners had sought for supply of copy of the report on the basis of which grounds of detention had been prepared but such documents were never supplied to the petitioners and accordingly, they could not give effective representations. It was also contended by the learned counsel appearing for the petitioners that till the order of detention was passed, both the petitioners had not moved the Court for bail and from the counter affidavit, it appears that bail applications were filed on the date when the orders of detention were passed. Even accepting the fact that such bail applications were filed, in absence of apprehension of being released on bail, the Detaining Authority could not have passed an order of detention without satisfying himself that there is likelihood of both the petitioners of being released on bail. Learned counsel appearing for the petitioners also relied upon decisions of the Apex Court as well as the Gauhati High Court on different issues to support his contention. 6. Mr. Y. Asang, learned Addl. G.A. appeared on behalf of the state respondents in W.P. (Cril) No. 28 of 2014 whereas Mr. Learned counsel appearing for the petitioners also relied upon decisions of the Apex Court as well as the Gauhati High Court on different issues to support his contention. 6. Mr. Y. Asang, learned Addl. G.A. appeared on behalf of the state respondents in W.P. (Cril) No. 28 of 2014 whereas Mr. Vashum, learned Addl. G.A. appeared for the state respondents in W.P. (Cril.) No. 27 of 2014. It was contended on behalf of the State respondents that first ground of challenge is no more available to be made in view of the introduction of Section 5-A in National Security Act, 1980. With reference to the said section, it was contended by the learned state counsel that the impugned order of detention could be passed either on one ground or more than one ground and even if one ground fails, order of detention can be confirmed on the other ground. It is contended by the learned counsel appearing for the State that when the above amendment had not come into force, two decisions of the Apex Court on which reliance is placed by the petitioners had been rendered and as such they are not applicable to the present cases. So far as non supply of documents is concerned, it was contended by the learned counsel appearing for the state that it was not necessary to supply the police report sought for by the petitioners considering the fact that grounds of detention narrated every detail and non-supply of police report has not caused any prejudice to the petitioners. With regard to subjective satisfaction of the detaining authority that the petitioners are likely to be released on bail, it was contended by the learned counsel for the state that bail applications were filed on the date on which order of detention was passed. The petitioners in W.P. (Cril.) No. 28 of 2014 had earlier been arrested for commission of similar offences and on more than one occasion, the petitioner had been released on bail. The petitioners in W.P. (Cril.) No. 28 of 2014 had earlier been arrested for commission of similar offences and on more than one occasion, the petitioner had been released on bail. Though the detaining authority has not specifically mentioned in the order of detention that the petitioners are likely to be released on bail, considering the fact that earlier the said petitioner had been released on bail on more than one occasion for committing the same offence, apprehension in the mind of the District Magistrate that both the petitioners would be released on bail the moment they file applications, is justified. It was also contended by the learned State counsel that representations had not been addressed to the State Government and therefore, question of disposal of the representation by the State Government does not arise. 7. After hearing the learned counsel appearing for the petitioners as well as for the State respondents, we find that legal issues have been raised challenging the order of detention. In both the cases, the detaining authority in the grounds of detention has mentioned that activities of the petitioners is prejudicial to the security of the state and maintenance of public order. In the order of detention, however, it is stated that activities of the petitioners are prejudicial to maintenance of public order. It was contended by the learned counsel appearing for the petitioners that order of detention can only be passed either on the ground that activities of the detenu are prejudicial to maintenance of public order or prejudicial to the security of the state. Since grounds of detention is a part of the order of detention, no such order could be passed on both the grounds. Reliance was placed by the learned counsel appearing for the petitioners on two decisions of the Apex Court. In the case of Bhupal Chandra Ghosh-vs.-Arif Ali & ors reported in AIR 1974 SC 255 the petitioner therein was detained u/s. 3 of the Maintenance of Internal Security Act in order to prevent him from acting in any manner prejudicial to the maintenance of public order. But five out of the sixteen grounds supplied to him had no rationale connection with breach of public order and accordingly, the Apex Court held the order of detention to be invalid. But five out of the sixteen grounds supplied to him had no rationale connection with breach of public order and accordingly, the Apex Court held the order of detention to be invalid. It also observed that even though the grounds may have relevance to security of the state, those grounds should be ignored and could not be used to support the validity of the order as the order of detention had not referred to security of the state as one of its objects. In the case of G.M. Shah-vs.-State of Jammu & Kashmir reported in AIR 1980 SC 494 , an order of detention was passed under the Jammu & Kashmir Public Safety Act (6 of 1978). From para 7 of the judgment, it appears that while the order of detention disclosed that it was being made with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order, in the grounds of detention disclosed to him, it had been stated that the detenu's remaining at large was prejudicial to the maintenance of public order and also to the security of the state. Referring to the relevant provision contained in section 8 of the said Act, it was held by the Apex Court that an order of detention can be made either on the basis that detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the state or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but not on the basis of both. 8. With regard to applicability of the both the decisions, learned counsel for the state submitted that both the cases had been decided before introduction of Section 5-A in the National Security Act, 1980. According to the learned state counsel, under the amended provision, an order of detention can be passed on several grounds and even if some of the grounds fail, if the other grounds are found to be enough to hold that order of detention is justified taking into consideration the activities of the detenu which are prejudicial to the security of the state and/or prejudicial to the maintenance of public order. Such an order of detention, even if passed on both the grounds can be confirmed by the Court. 9. It will be appropriate to refer to the relevant provision of the NSA, 1980. Sub-section 2 of the Section 3 provides that Central Government or the State Government may, if satisfied with respect to any person that with a view to prevent from acting in any manner prejudicial to the security of the state or from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, can make an order that such a person be detained under Sub-section 3 of the Section 3. The District Magistrate is to be satisfied that it is necessary to do so with a view to prevent such person from acting in any manner prejudicial to the security of the state or from acting in any manner prejudicial to the maintenance of public order. Referring to the above provision, the Apex Court has decided in the case of G.M. Shah-vs.-State of Jammu & Kashmir (supra) that an order of detention can be passed either (1) to prevent from acting in any manner prejudicial to the security of the state or (2) to prevent such person from acting in any manner prejudicial to the maintenance of public order. An order of detention cannot be passed on the basis of both. Section 5-A was brought in the statue by way of Amendment w.e.f. 21.6.1984. The said amended provision provides that where a person has been detained in pursuance of an order of detention u/s. 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly, such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-vague, non existent, non-relevant, not connected or not proximately connected with such person, or invalid for any other reason whatsoever. Since the amended provision was not in existence when the above two decisions were rendered by the Court, the same could not have been taken into consideration. Since the amended provision was not in existence when the above two decisions were rendered by the Court, the same could not have been taken into consideration. In the present two writ petitions, it is stated in the grounds of detention that the order of detention has been passed to prevent the petitioner therein not only with a view to preventing him from acting in any manner prejudicial to the security of the state but also from acting in any manner prejudicial to the maintenance of public order. 10. So far as the W.P. (Cril.) No. 27 of 2014 is concerned, it is stated in the grounds of detention under Annexure A/2 that the petitioner therein namely Shri Lourembam Busan Singh had joined a banned organization namely KCP-Noyon in last part of 2013 and had been directed to extort money from general public, government officials, businessmen etc. by delivering demand letters on behalf of the organizations. It is stated in the grounds of detention that detenu along with his associates started delivering demand letters to general public and extorted huge amount of money in the month of January, 2014. They extorted about Rs. 3 lakh during that period. Again in the first week of February, 2014, the detenu was directed to hurl one grenade at the house of one Potsangbam Devan Singh for neglecting to pay the demanded money and accordingly, detenu along with another hurled one grenade at the courtyard of the said P. Devan Singh. For this incident, one FIR No. 33(2)2014 Singjamei P.S. was registered for commission of offence u/s. 307/506/34 IPC read with section 20 of the UA(P) A Act. In the grounds of detention, it is alleged that on 13.3.2014, detenu was arrested and one mobile handset with sim card and four demand letters of the organization had been seized from his possession and FIR No. 55(3)2014 SJM-P.S. was registered for commission of offence u/s. 16/17/20 of the UA(P) A Act. From the above grounds of detention, we find that the conduct of the detenu in extorting money from different persons was for the organization which has been banned by the State Government. Criminal activity such as hurling of one grenade at the house of one P. Devan Singh is also alleged. From the above grounds of detention, we find that the conduct of the detenu in extorting money from different persons was for the organization which has been banned by the State Government. Criminal activity such as hurling of one grenade at the house of one P. Devan Singh is also alleged. We are, therefore, of the view that grounds of detention can be the basis for subjective satisfaction of the District Magistrate to the effect that detenu needs to be prevented from acting in any manner prejudicial to the maintenance of public order at least, if not on both grounds. 11. Similarly, in W.P. (Cril.) No. 28 of 2014, grounds of detention under Annexure A/2 discloses that the petitioner therein had joined a banned organization namely People's Liberation Army (PLA in short) in the middle part of 1997. He was arrested on more than one occasion for indulging himself in criminal activities, such as extortion of money from different persons for the organization. At the time of his arrest also, apart from mobile sim card, one 9mm pistol with 12 live rounds of ammunition had been recovered from his possession. On plain reading of the grounds of detention the detaining authority could be satisfied that there was need to prevent the petitioner from acting in any manner prejudicial to maintenance of public order. Therefore, even if one of the reason for detention i.e. preventing the petitioner from acting in any manner prejudicial to the security of the state fails, order of detention cannot be rendered invalid as grounds of detention clearly makes out the case that conduct of the petitioner was prejudicial to the maintenance of public order. 12. One of the grounds of challenge is non-supply of documents sought for by the petitioners in both the writ petitions. It was submitted by learned counsel for the petitioners that both the petitioners, after order of detention were passed, prayed for supply of the police report on the basis of which grounds of detention was prepared and the order of detention was passed but the said police report was not supplied to them as a result, they could not give effective representation. In this connection, reliance was placed by the learned counsels on a decision of the Gauhati High Court in the case of Manik Khakhlary-vs.-State of Assam & ors reported in 1998(4) GLT 293. In this connection, reliance was placed by the learned counsels on a decision of the Gauhati High Court in the case of Manik Khakhlary-vs.-State of Assam & ors reported in 1998(4) GLT 293. In the said reported case, facts constituting the grounds of detention were not made available to the detenu and the plea was taken that disclosure of certain facts was against the public interest. The Court held that the detenu was denied an opportunity of making an effective representation and accordingly, set aside the order of detention. In the said reported case, order of detention was challenged on the ground that basic facts and materials constituting the grounds of detention as supplied to the detenu were not communicated, thus, depriving him of an opportunity of making an effective representation. It was further contended that the grounds of detention had not been prepared along with the order of detention thereby vitiating the subjective satisfaction arrived at by the detaining authority. Some vital facts constituting the grounds of detention had not been disclosed to the detenu. The state took the stand that the detention order was passed upon police dossiers wherein specific mention was made about the violent and illegal activities engaged in by the detenu which are prejudicial to the security of the state and to the maintenance of public order. The grounds supplied to the detenu were specific detailed enough to enable him to submit a representation against the order of detention. Making available of the dossier/report is subject to provisions of Article 22(6) and the same cannot be supplied to the detenu. Since the details of the activities of the detenu therein on the basis of which grounds of detention had been prepared were given, the Court held that the detenu was denied an opportunity of making effective representation. However, on plain reading of the grounds of detention in both the present cases, we find that every detail regarding the activities of the detenu in both the cases have given in the grounds of detention and supply of the police report on the basis of which grounds of detention was prepared could not have improved the case of the detenu. We are, therefore, of the view that since in both the cases, grounds of detention mentioned in details about the activities of the detenu therein, there was no need to supply the police report on the basis of which grounds of detention had been prepared. Moreover, both the detenu having not come up with any specific contention as to which fact had been withheld in the grounds of detention which was available in the police report, we find no substance in this ground taken by the learned counsel appearing for the petitioner. 13. Another ground taken by the learned counsel appearing for the petitioner is that their representations were not considered and disposed of by the State Government. In the counter affidavit filed by the state respondents, it is stated that the representation of the detenu dated 25.4.2014 in W.P. (Cril.) No. 27 of 2014 addressed to the District Magistrate, Imphal West was received from the District Magistrate on 28.4.2014 and the same was forwarded to the Chairman, Advisory Board on 2.5.2013. So far as W.P. (Cril.) No. 28 of 2014 is concerned, the representation was submitted by the detenu therein under Annexure A/3 addressed to the District Magistrate, Imphal West on 25th April, 2014. Though it is alleged that the said representation was not considered by the state government, counter affidavit is silent as to whether the said representation was considered or not. In this connection, reference may be made to the decision of the Apex Court in the case of D. Anuradha-vs.-Joint Secretary & anr. reported in (2006) 5 SCC 142 . It was held in the said case that representation sent by the detenu must receive immediate attention and the same must be considered by the appropriate authority as expeditiously as possible. Any delay in that regard shall cause prejudice to the detenu. In the case of Smt. Gracy-vs.-State of Kerala & anr. reported in AIR 1991 SC 1090 , it was held that dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Art. 22(5) when only one representation is made addressed to the detaining authority. It cannot be said that the detaining authority is relieved of its obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority. It cannot be said that the detaining authority is relieved of its obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority. In both the present writ petitions, detenu had submitted representation before the detaining authority but they were only sent to the Advisory Board. It was obligatory on the part of the State to consider the representations. Representations of both the detenus have not been considered by the State, on this count alone, order of detention becomes invalid. 14. Since we have held that non consideration of the representations submitted by the detenu by the State government makes the order of detention invalid, we have not discussed the other ground regarding subjective satisfaction of the detaining authority that the detenu may be released on bail when no bail application was moved. 15. We, therefore, allow both the writ petitions on the ground that the representations submitted by both the writ petitioners had not been considered by the State Government. Accordingly, the impugned orders of detention in both the writ petitions dated 19th April, 2014 are set aside and we direct that the detenu namely Shri Lourembam Busan Singh (28 yrs), S/o. L. Sarat Singh of Wangkhei yonglan Leirak, P.S.-Porompat, District-Imphal East, Manipur in W.P. (Cril.) No. 27 of 2014 and Shri Haobam Sunil Singh @ Boy (52 yrs) S/o. (L) H. Ibochou Singh of Singjamei Chingamathak Nameirakpam Leikai, P.S.-Singjamei, District-Imphal West, Manipur the detenu in W.P. (Cril.) No. 28 of 2014 be released forthwith unless their detention are required in any other case. 16. With the above direction and observation, the writ petitions stand disposed of.