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2014 DIGILAW 79 (MAN)

Leimujam Loya v. State of Manipur

2014-07-16

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. The petitioner, in this writ application, questions the legality of the order passed by the District Magistrate, Imphal West in Annexure-A/1 dated 19.11.2013 directing his detention under sub section 3 of Section 3 of the National Security Act, 1980. 2. From the grounds of detention, it appears that the petitioner was first arrested on 18.9.99 from Natum Ching in connection with FIR No. 92(9)99 by Lamlai P.S. and 1 US carbine with 80 rounds and three extra magazines were recovered from him. Subsequently, on 30.9.1999 he was released on bail. It is alleged in the grounds of detention that he is a member of a banned organisation namely People Liberation Army and was involved in activities detrimental to the interest of the State. He was again arrested on 20.9.2013 from a rented house and several documents, mobile phones were seized from him. He was handed over to Officer in-Charge of Imphal Police Station with a written report and the seized articles. On the strength of the said report a case was registered in the said Police station vide FIR No. 250(9)13. When that case was being investigated into, he was arrested formally in connection with FIR case No. 33(10)05. In both the cases he had been remanded to judicial custody. While in judicial custody, the impugned order of detention was passed. 3. Mr. H. Komol, learned counsel appearing for the petitioner challenges the order of detention basically on two grounds. The first ground of challenge is that on the date the impugned order was passed the petitioner was in judicial custody and had not moved any application for grant of bail. Therefore, the subjective satisfaction recorded by the District Magistrate that he may be released on bail is without any basis. The second ground of challenge is -delay in sending the representation of the petitioner to the Central Government for consideration which has not been explained in the counter affidavit. 4. Mr. Y. Ashang, learned G.A. appearing on behalf of the State respondents- 1 and 2 and Mr. Amarjit Naorem, learned CGSC appearing for the respondent No. 3, referring to the grounds of detention, submitted that the documents seized after arrest of the petitioner on 20.9.2013 clearly indicate that he is a member of the said banned organisation and was carrying out activities of the said organization against the interest of the State. Amarjit Naorem, learned CGSC appearing for the respondent No. 3, referring to the grounds of detention, submitted that the documents seized after arrest of the petitioner on 20.9.2013 clearly indicate that he is a member of the said banned organisation and was carrying out activities of the said organization against the interest of the State. It was further submitted that the petitioner had been arrested earlier in 1999 and weapons were recovered from him, but he was released on bail. Therefore, the District Magistrate had every justification for having apprehension that the moment bail application is filed by the petitioner, he would be released on bail. 5. Undisputedly, the order of detention was passed on 19.3.2013 when the petitioner was in judicial custody. From paragraph 3 of the grounds of detention, it appears that in connection with FIR No. 250(9)2013 the petitioner had been remanded to police custody till 10.10.2013. When he was produced before Court on that day for remand to judicial custody, he was formally arrested in connection with FIR No. 33(10)05 and was further remanded to police custody till 14.10.2013. Only after 14.10.13 he has been remanded to judicial custody and was continuing as such when the impugned order of detention was passed on 19.11.2013. It is not also in dispute that no application for bail was pending on behalf of the petitioner for being released on bail in the above two cases. The question that comes up for consideration is as to whether in absence of any application, the order of detention could be passed. In this connection reference may be made to the decision of the Apex Court in the case of Rekha Vs State of Tamil Nadu & Ors reported in : (2011) 5 SCC 244 . The relevant two paragraphs of the 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. 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. When there was no application for bail on behalf of the petitioner to be released in the above two cases and the petitioner was continuing in judicial custody, there was no reason on the part of the District Magistrate to pass the order of detention on 19.11.2013 solely on the ground that the petitioner is likely to be released on bail as bail is granted in similar cases by the criminal court. No document was placed before the District Magistrate to show that in similar cases bail had been granted by the criminal court. Apart from the above, there has been a gap of more than 14 years in between the first arrest and the second arrest. 7. So far as the second ground of challenge is concerned, from the counter affidavit filed on behalf of the State respondents, it appears that the petitioner had submitted representations to the State as well as to the Central Government on 6.12.2013. The representation addressed to the Chief Secretary, Govt. of Manipur was rejected on 16.12.2013 and the representation addressed to the Central Govt. was forwarded by the Govt. Of Manipur to the Central Govt. on 16.12.2013. In paragraph 6 of the counter affidavit, though these facts are admitted, no explanation is offered as to why there was delay of 10 days in either rejecting the representation by the State Govt. or forwarding the representation to the Central Government for consideration. was forwarded by the Govt. Of Manipur to the Central Govt. on 16.12.2013. In paragraph 6 of the counter affidavit, though these facts are admitted, no explanation is offered as to why there was delay of 10 days in either rejecting the representation by the State Govt. or forwarding the representation to the Central Government for consideration. This fact also gets support from the counter affidavit filed on behalf of the Central Government in which it is specifically stated that the representation of the petitioner dt. 06.12.2013 was forwarded to the Central Govt. by the Government of Manipur on 16.12.2013. There being no explanation whatsoever for the above delay of 10(ten) days, on this count also the petitioner is entitled to the relief claimed. 8. For the reasons stated above, we allow the writ application, set aside the order of detention, the order of confirmation and direct that the petitioner namely Leimujam Sanou @ Loya @ Ibungo @ Jiban Singh be set at liberty forthwith unless his detention is required in any other case.