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2014 DIGILAW 99 (MAN)

Leishangthem Umakanta v. District Magistrate

2014-08-20

LAXMI KANTA MOHAPATRA, N.KOSIWAR SINGH

body2014
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. The petitioner, in this writ application, assails the order passed by the District Magistrate, Imphal West dated 29.3.2014 directing his detention under sub-section 2 of Section 3 of the National Security Act, 1980. 2. It is alleged in the grounds of detention in Annexure-A/2 that the petitioner joined a banned organization namely United National Liberated Front (UNLF) as a member in December, 1999. He went through different training programmes. On 12.1.2002 he was arrested by a police tem of CDO/Imphal West and one.38 Pistol with 5 rounds were seized from him. He was remanded to judicial custody on 19.1.2002. While he was in judicial custody, District Magistrate, Imphal West passed order of detention under the National Security Act on 19.1.2002. After completing the period of detention he was released on 13.1.2003. After being released in January, 2003 he again after gap of three years started working for the said organization and was involved in criminal activities. On 13.3.2014 he was again arrested by a team of CDO Thoubal and a driving licence, a mobile handset along with two Sim cards were seized from his possession. A case was registered in the Kakching P.S. vide FIR No. 36(3)2014 Kakching P.S. u/s. 18(B)/20 UA(P) Act. After being arrested in connection with the above case, he was remanded to jail custody on 21.3.2014 and while in Jail custody, he was formally arrested on the same date in connection with FIR No. 149(5)2009 Imphal P.S. u/s. 18/20 UA(P) A Act and 25(1-B)A Act and was further remanded to jail custody on 26.3.2014. He was released on bail by the Court on 26.3.2014 in connection with FIR No. 36(3)2014 Kakching PS but he continued to remain in Jail in connection with FIR Case NO. 149(5)2009 Imphal P.S. While continuing in Jail in connection with the above case, the impugned order of detention was passed on 29.3.2014 and subjective satisfaction recorded by the District Magistrate Imphal West in the impugned order of detention is quoted below: "And whereas, I am satisfied from the police report that Shri Leishangthem Umakanta @ Jiten @ Yohenba (43 yrs) s/o (L) L. Tomcha @ Tomba of Singjamei Leishangthem Leikai, PS-Singjamei, District-Imphal West, Manipur who is now in Judicial custody, should be prevented from commission of prejudicial activities through an alternative preventive measure." 3. Mr. Ch. Mr. Ch. Ngongo, learned counsel appearing for the petitioner, with regard to the order of detention as well as the grounds of detention, submitted that the petitioner was continuing in jail custody in connection with FIR 149(5)2009 I.P.S. and had not moved for bail in the said case and in absence of an application for grant of bail, while the petitioner was continuing in judicial custody, no order of detention could be passed by the District Magistrate, Imphal West. It was, further, submitted that there was delay in disposal of the representation submitted by the petitioner against his detention and the delay in disposal of the representation having not been explained in the counter affidavit, the petitioner is entitled to be released and order of detention is liable to be quashed. 4. Mr. A. Vashum, learned Government Advocate appearing for the State respondents submitted that for commission of similar offence the petitioner had earlier been released on bail twice-once in 2002 and again on 26.3.2014 and therefore the District Magistrate, Imphal West had every justification in apprehending that the petitioner may also be released on bail in connection with FIR 149(5)2009 I.P.S. the moment he applies for grant of bail. It was further contended by the learned counsel for the State that the delay in disposal of the representation has been explained in the counter affidavit and therefore claim, of the petitioner that delay in disposal of the representation has not been explained, is based on no material. 5. Mr. Amarjit Naorem, learned CGSC appearing for the Union of India submitted that there was no delay on the part of the Union of India in disposal of the representation submitted by the petitioner. 6. On examination of the records, specifically the grounds of detention, we find that in January 2002 the petitioner had been arrested with arms and ammunitions and a case was registered against him. He, having been detained under National Security Act, was released on 13.1.2003. Even after his release in January, 2003 he again started his activities under the said organization (UNLF) from 2006 and got involved in some criminal activities. He was arrested on 13.3.2014 and there was recovery of driving licence, one mobile hand-set and two Sim Cards. A case was registered for commission of offence u/s. 18/20 UA(P)A Act and in this case he was released on bail on 26.3.2014. He was arrested on 13.3.2014 and there was recovery of driving licence, one mobile hand-set and two Sim Cards. A case was registered for commission of offence u/s. 18/20 UA(P)A Act and in this case he was released on bail on 26.3.2014. While he was in judicial custody in connection with the above case, he was formally arrested in connection with FIR No. 149(5)2009 IPS and in the said case he has not moved for bail and is still continuing in judicial custody. 7. The question that arises for consideration is whether in absence of any bail application on behalf of the petitioner to be released on bail in connection with FIR No. 149(5)2009 IPS, the impugned order of detention could be passed or not. The learned counsel for the petitioner placed reliance on the decision of the Apex Court in the case of Rekha Vs. State of Tamil Nadu reported in : (2011) 5 SCC 244 . Relying on the aforesaid decision it was contended that in absence of any bail application when the petitioner was continuing in judicial custody, no order under the National Security Act directing detention of the petitioner could be passed. 8. The learned State counsel placed reliance on the decision of the Apex Court in the case of Baby Devassy Chully @ Bobby v. Union of India & Ors : (2013)4 SCC 531 and in the case of G. Reddeiah Vs. Govt. of Andhra Pradesh : (2012) 2 SCC 389 . In the case of Rekha V. State of Tamil Nadu(supra) the Apex Court decided that when the detenu is in custody in connection with the criminal case, and has not moved any application for bail, an order of detention under the NSA is not desirable. In the case of G. Reddeiah (supra) the said decision has been distinguished. In paragraph 22 and 23 of the judgment the apex Court while dealing with question of subjective satisfaction, decided in the following manner: "22. In a matter of detention, the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order. In paragraph 22 and 23 of the judgment the apex Court while dealing with question of subjective satisfaction, decided in the following manner: "22. In a matter of detention, the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order. Once the detaining authority is subjectively satisfied about the various offences labelled against the detenu, habituality in continuing the same, difficult to control him under the normal circumstances, he is free to pass an appropriate order under Section 3 of the 1986 Act by fulfilling the conditions stated therein. We have already concluded that there is no infirmity either in the reasoning of the detaining authority or the procedure followed by it. We are also satisfied that the detenu was afforded adequate opportunity at every stage and there is no violation of any of the safeguards. In these circumstances, we reject the contention raised by the learned Senior Counsel for the appellant. 23. Though an attempt was made to nullify the order of detention by drawing our attention to the latest decision of this Court in Rekha Vs. State of T.N., on going through the factual position and orders therein and in view of the enormous activities of the detenu violating various provisions of IPC, the A.P. Act and Rules, continues and habituality in pursuing the same type of offences, damaging the wealth of the nation and taking note of the abundant factual details as available in the grounds of detention and also of the fact that all the procedures and statutory safeguards have been fully complied with by the detaining authority, we are of the view that the said decision is not applicable to the case on hand. On the other hand, we fully agree with the reasoning of the detaining authority as approved by the Government and upheld by the High Court." 9. The other decision relied upon by the learned State counsel i.e. Baby Devassy Chully (supra) may not have application in facts as in the said reported case the detenu had been released on bail but did not avail bail. While he was continuing in custody even after being released on bail, the order of detention was passed. The other decision relied upon by the learned State counsel i.e. Baby Devassy Chully (supra) may not have application in facts as in the said reported case the detenu had been released on bail but did not avail bail. While he was continuing in custody even after being released on bail, the order of detention was passed. In reply to the submission of the learned State Counsel, it was contended by the learned counsel for the petitioner that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional ground later brought out. This decision may not have application in the present case considering the fact that the grounds of detention have to be taken as part of the order of detention. In the grounds of detention, detail activities of the petitioner have been mentioned and while passing the order of detention, the District Magistrate was also supplied with copy of the bail order passed in favour of the petitioner on 23.6.2014 in connection with FIR 36(3)2014 Kakching P.S. If a comparison is made between the offence committed in FIR No. 36(3)2014 Kakching PS and the FIR No. 149(5)2009 Imphal P.S., it will be found that both the cases have been registered for commission of offence u/s. 18/20 UA(P) A Act. An additional offence has been added in FIR No. 149(5)2009 IPS u/s. 25(1-B)A Act. As is evident from the grounds of detention in the said case there was no seizure of arms from the petitioner. From paragraph 3 of the grounds of detention, it is clear that when he was arrested on 13.3.2014, only one driving licence, Samsung Mobile handset and 2(two) Sim Cards were seized from his possession. Even if the said case relates back to an offence committed in 2009, no seizure has been made in connection with the said case. Therefore, in absence of any seizure of arm from the petitioner in connection with FIR No. 149(5)2009, there is every likelihood that the petitioner may be released on bail the moment he applies for bail as in similar case, he had earlier been released on bail on 26.3.2014. Therefore, in absence of any seizure of arm from the petitioner in connection with FIR No. 149(5)2009, there is every likelihood that the petitioner may be released on bail the moment he applies for bail as in similar case, he had earlier been released on bail on 26.3.2014. 10. As observed by the Apex Court, in the case of G. Reddeiah Vs. Govt. of Andhra Pradesh (supra) on going through the factual position of law and enormous activities of the detenu, his continuance and habituality in pursuing same type of offence, we are of the view that the decision rendered in the reported case of Rekha Vs. State of Tamil Nadu (supra) may not have application in the facts and circumstances of this case. The petitioner had earlier been arrested twice for commission of similar offence and had been released on bail. We are, therefore, of the view that even though the petitioner has not moved any application for bail in connection with the FIR No. 149(5) IPS, there is every likelihood of being released on bail the moment application for bail is moved. Therefore, in the grounds of detention, the District Magistrate was right in observing that after availing bail, the petitioner would continue to carry out various acts of UNLF which will be prejudicial to the security of the State and maintenance of public order. We are, therefore, of the view that on this ground the order of detention cannot be set aside. 11. The second ground of challenge is with regard to delay in disposal of the representation of the petitioner. From the counter affidavit filed on behalf of the respondent No. 2, we find that the representation addressed to the Chairman, Advisory Board was received by the Government on 14.4.2014 and was considered and rejected on 19.4.2014. It appears that 12th, 13th and 14th of April, 2014 were holidays and therefore the representation of the petitioner dt. 11.4.2014 could only be forwarded to the Government on 15.4.2014. Thereafter, 18th of April, 2014 was again a local holiday and the representation was rejected by the State Government on 19.4.2014. Therefore, effectively only two days were consumed in deciding the representation i.e. 16th and 17th of April, 2014. Though such facts are not mentioned in the counter affidavit, we have taken judicial note of the same. Thereafter, 18th of April, 2014 was again a local holiday and the representation was rejected by the State Government on 19.4.2014. Therefore, effectively only two days were consumed in deciding the representation i.e. 16th and 17th of April, 2014. Though such facts are not mentioned in the counter affidavit, we have taken judicial note of the same. Therefore, there was practically no delay in rejection of the representation by the State Government. So far consideration of the representation by the Union of India is concerned, the petitioner has no grievance. We are, therefore, of the view that on this count also the order of detention cannot be set aside. 12. We, accordingly, for the reasons mentioned above, do not find any merit in the writ petition and dismiss the same.