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2016 DIGILAW 160 (MAN)

Lhingkholam Lhouvum v. State of Manipur

2016-09-23

R.R.PRASAD, SONGKHUPCHUNG SERTO

body2016
JUDGMENT : R.R. Prasad, J. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This application has been filed for quashing of order dated 10.5.2016 passed by District Magistrate, Senapati, respondent No.2 whereby and where under, respondent No.2, in exercise of power conferred under sub Section 3 of Section 3 of the National Security Act, 1980 passed order of detention in a case bearing No. Cril NSA/C/09/16 against the detenu, Satkholen Lhouvum after being satisfied that in order to prevent the detenu from acting in any manner prejudicial to the security of the State and maintenance of public order, it has become necessary to do so. 3. The grounds on which the order of detention was passed are that the detenu in the month of January, 2016 at the instance of one Haokhulen Lhouvum, joined a banned organisation namely Kuki Unification Frontal Organisation (KUFO), the aim and objective of which organisation is to create two Kuki States one within the Myanmar and another within India by amalgamating all the Kukis inhabited within India and outside. To achieve the said objective, arms and ammunitions were procured from foreign countries for the said organisation and to strengthen the said organisation, youngsters from Kuki communities were recruited. It is also the case that after joining the said organisation the detenu along with others including one Lamkhokai Sitlhou, started extorting money from general public, government officials, businessmen etc. The extorted money was deposited with Haokhulen Lhouvum. In course of time, the detenu as well as nineteen other new recruits of KUFO were imparted with military training, during which the detenu was directed to handover one AK 47 rifle with fifteen rounds in a magazine, 9 mm carbine machine gun with magazine to the cadres of KUFO. For that purpose the detenu along with Lamkhokai Sitlhou left the training centre and proceeded towards Thenjang Village via Daili Village. During that course the detenu as well as Lamkhokai Titlhou were arrested on 1.5.2016 by 25th Assam Rifles and recovered those arms and ammunitions under seizure memo. Both the persons arrested including the detenu were handed over to O/C Imphal P.S with a written complaint. On the basis of the said report a case was registered as Imphal P.S Case No.106 (5) 2016 under Section 400 of IPC as well as 25 1-C of the Arms Act. Both the persons arrested including the detenu were handed over to O/C Imphal P.S with a written complaint. On the basis of the said report a case was registered as Imphal P.S Case No.106 (5) 2016 under Section 400 of IPC as well as 25 1-C of the Arms Act. However, since the place of occurrence was falling within Kangpokpi P.S, the case was referred to there where the case was registered as KPI P.S. case No. 51(5) 2016 under the aforesaid section of the IPC and arms Act. On such grounds the respondent No.2 after recording that the detenu is acting in a manner prejudicial to the maintenance of public order, passed the order of detention on 10.5.2016 which was approved on 20.5.2016. The aforesaid orders of detention, approval and confirmation have been challenged on several grounds. 4. However, Mr. Sanajaoba, learned counsel for the petitioner did confine his argument with respect to only one ground which is with regard to material being absent for recording satisfaction by the detaining authority that there is every possibility of detenu being released on bail. In this regard, it was pointed out that it has been recorded that there has been likelihood of the detenu being released bail is being granted to the accused in similar series of cases but reference to those case have not been given so as to find out as to whether bail is being granted in similar nature of cases. Thus such satisfaction of detenu being released on bail is not based on any factual aspect, rather it is imaginary. 5. As against this, Mr. Sh. Yangya, learned counsel for the respondent submitted that from the order of detention it would appear that the detaining authority after having taken notice of the fact recorded in the ground of detention did satisfy himself that detenu after being released on bail, would indulge in the same activities which are prejudicial to the maintenance of public order and only after recording such satisfaction the order of detention has been passed which never warrants to be interfered with by this Court. 6. It goes without saying that in a case of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability. 6. It goes without saying that in a case of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability. There is no conviction which can only be warranted by legal evidence; whereas Article 21 of the Constitution of India declares that no person shall be deprived of life and liberty except in accordance with the procedure established by a law. In such situation, a machinery was definitely needed to examine the question of lawful detention with utmost promptitude. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to be released by the High Court and Supreme Court upon issuance of writ of habeas corpus. 7. It be stated that the Detaining Authority passes the order of detention on subjective satisfaction. Since clause specifically excludes the applicability of clause (3) of Article (1) & clause 22(2), the detenu is not entitled to a lawyer and the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this deterrent law, the law of preventive detention is to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is mandatory and vital. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. In this regard, we may refer to a decision rendered in a case of Rattan Singh v State of Punjab, reported in (1981) 4 SCC 481 : 1981 SCC(Cri) 853, wherein Their Lordships has observed: “4... ... May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenu.” In this context, we may refer to another decision rendered in the case of Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha, reported in (1987) 2 SCC 22 : 1987 SCC(Cri) 244 wherein it has been held: “5.. . B.K. Jha, reported in (1987) 2 SCC 22 : 1987 SCC(Cri) 244 wherein it has been held: “5.. . The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.” 8. Keeping in view the said principle, the Hon’ble Supreme Court subsequently in the case of Union of India Vs Paul Manickam, (2003) 8 SCC 342 : 2004 SCC(Cri) 239 recorded requirements to be made by the Detaining Authority passing order of detention when the detenue is in custody, which reads as follows: “14... ..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. 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..... The point was gone into detail in Kamarunnissa v. Union of India, (1991) 1 SCC 128 : 1991 SCC(Cri) 88. 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..... The point was gone into detail in Kamarunnissa v. Union of India, (1991) 1 SCC 128 : 1991 SCC(Cri) 88. 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. 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.” 9. In that event at the cost of repetition, we may record that Detaining Authority while passing order of detention in a case of detenu being in custody, needs to observe following safeguards meticulously: (i) If the authority passing the order is aware of the fact that he is actually in custody; (ii) If there is reason to believe on the basis of available materials placed before him- (a) that there is every possibility of being released; and (b) that on being so released he would be in all probability to indulge in prejudicial activities; (iii) If it is felt essential to detain him to prevent him from doing so. 10. Thus, in the context of the law laid down by the Hon’ble Supreme Court, we have to examine as to whether aforesaid safeguards have been observed meticulously by the Detaining Authority who has passed the order of detention when the detenu was in custody. 11. As we have said earlier that the detention order was passed after taking into account that accused was in custody. 11. As we have said earlier that the detention order was passed after taking into account that accused was in custody. There has been no denial of the proposition of law that the order of detention can be passed in respect of a person who is already in custody in respect of a criminal case. However, in a decision rendered in a case of Huidrom Konungjao Vs. State of Manipur & Ors., (2012) 7 SCC 181 , it has been held that if such detention order is challenged, detaining authority ought to satisfy the court following facts: (i) the authority was fully aware of the fact that detenu was actually in custody; (ii) there was reliable materials before the said authority on the basis of which it could have reasons to believe that there is reliable possibility of release on bail and further on being released, he would probably indulge in activities which are prejudicial to the public order. Further, it has been observed that in cases where this fact does not exist, the detention order would stand vitiated. 12. In the light of the decision, if we examine the legality of the detention order we would find that the detaining authority though has recorded that there is likelihood of detenu being released on bail on account of the fact that in similar cases bail is being granted but reference of not a single case has been given so as to find out whether bail is being granted in similar allegation and as such, it can be easily said that the said satisfaction has been recorded without there being any basis, rather it is imaginary one and, thereby the order of detention is not sustainable in the eye of law. 13. Thus, we do find that subjective satisfaction of the detaining authority of likelihood of the accused being released on bail, is not based on any factual aspect and thereby order of detention, being bad, is hereby quashed. Consequently, the detenu, Satkholen Lhouvum, s/o (L) Doukholun @ doulun Lhouvum of Lasan Village, P.S Tamei, District Tamenglong, Manipur, is directed to be released forthwith if he is not wanted in connection with any other case. Thus, this application is allowed.