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2017 DIGILAW 23 (MEG)

Amar Thapa v. State of Meghalaya

2017-04-18

DINESH MAHESHWARI, VED PRAKASH VAISH

body2017
JUDGMENT : Dinesh Maheshwari, J. The petitioner, having been put under preventive detention under Section 3 of the Meghalaya Preventive Detention Act, 1995 by the order dated 18.10.2016 as issued by the District Magistrate, East Garo Hills District, Williamnagar and such detention having been ultimately confirmed in the order issued by the Governor on 02.12.2016, has preferred this petition seeking a writ of habeas corpus while questioning his detention as being entirely illegal and unauthorised. 2. In the detention order dated 18.10.2016, it is, inter alia, indicated that the petitioner had been indulging into repeated crimes while being a member of militant outfit by the name of A'chick National Cooperation Army (ANCA) and had been involved in various criminal cases including Williamnagar P.S. No. 104(12)14 under Sections 120B/121/122/384 IPC; and Williamnagar P.S. No. 70(6) 16 under Sections 385/506 IPC read with Section 66A Information & Technology Act, 2000. In the grounds of detention, another indication was made that Chokpot P.S. No. 18(8) 2014 under Section 302/364/384/120(B) IPC read with Section 25 (1-A)/27(2) of the Arms Act was also registered against the petitioner and his associates. 3. While challenging his preventive detention, the petitioner has essentially averred that there was total non-application of mind on the part of the authorities concerned inasmuch as in relation to Williamnagar P.S. No. 104(12)14 he had already been released on bail; and so far Williamnagar P.S. No. 70(6) 16 was concerned, no bail application was pending or filed by him before any court of law from the date of his arrest on 04.07.2016 until the date of detention order i.e., 18.10.2016. It has been averred in the petition that,- "The preventive detention passed by the District Magistrate in connection with Williamnagar P.S. No. 104(12) 14 and 70(6)16 is highly arbitrary and suffers from the vice of total non-application of mind for the simple reason that as far as in relation to Williamnagar P.S. No. 104 (12) 14 is concerned, the Detenu had already been released on bail much before his arrest on 04.07.2016 in connection with the Williamnagar P.S. Case No. no. 70( 6) 16 under section 385/506 IPC read with section 66A Information &Technology Act, 2000 and as far as Williamnagar P.S. Case No. 70 (6) 16 is concerned, no bail application is pending or filed by the Detenu before any court of law from the date of his arrest on 04.07.2016 to 18th October 2016. Therefore there is total none application of mind on the part of the detaining authority in passing the impugned order and also that the satisfaction of the detaining authority in passing the impugned order under preventive detention law is nothing but ipse dixit of the said authority. Hence this Petition before this Hon'ble Court." 4. After the issuance of notice in this petition, the respondents have filed a counter affidavit seeking to justify the detention order of the petitioner for his connectivity with a militant outfit and for his involvement in the aforesaid cases of serious nature crimes. 5. In the first session sitting of the Court today, taking note of the grounds aforesaid, we had posed the queries to the learned Government Advocate on the basis whereof, the authorities had the reasons to believe that there was a real possibility of release of the petitioner on bail when he would assert that the bail application had not been moved. We had also referred to the observations of the Hon'ble Supreme Court in several cases on this issue including the observations made in Criminal Appeal No. 827 of 2015 in the case of Champion R. Sangma decided on 22.05.2015, where the Hon'ble Supreme Court observed, inter alia, as under: "In the present case, as already pointed out above, the appellant was under incarceration as he is implicated in as many as 8 cases. In fact till date he is in jail and has not been granted bail. In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement. In fact till date he is in jail and has not been granted bail. In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement. In the instant case, though the detention order and even the grounds of detention record the factum of appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail. .................." 6. Faced with queries aforesaid, the learned Government Advocate, prayed for some time to take complete instructions and to advice the respondents appropriately. 7. In the second session sitting of the Court, the learned Government Advocate has reverted with the submissions that after finding the technical flaws in the said detention order, the authorities concerned have withdrawn the same and has placed before us the order No. POL.135/2016/32 issued today revoking the preventive detention of the petitioner. 8. However, learned counsel for the petitioner, after receiving a copy of the order issued today by the respondents, would submit that the authorities had been unjustified in passing the detention order in the first place. Learned counsel would further submit that the petitioner might have faced the regular trial but the detention order prevented him from moving a bail application. In regard to these submissions, learned counsel for the petitioner was posed the queries as to whether there was any prohibition against moving for bail in the criminal case even after passing of the preventive detention order; and as to whether the preventive detention order prevented the trial from proceeding? The learned counsel responded that of course, there was no law preventing the petitioner from moving for bail or impending the trial but in the normal regular process, in the absence of detention orders, the parties do apply for bail. The learned counsel responded that of course, there was no law preventing the petitioner from moving for bail or impending the trial but in the normal regular process, in the absence of detention orders, the parties do apply for bail. 9. As regards the submissions made on behalf of the petitioner, we are impelled to observe that so far the progress of trial is concerned, the submissions have no relevance at all because the preventive detention order had not, in any manner impeded or obstructed the regular trial which the petitioner is even otherwise required to face. However, the other submissions made on behalf of the petitioner make it clear that the petitioner indeed intends to move for bail in connection with Williamnagar P.S. No. 70(6)16. Noticeably, the only ground on which we had considered the matter earlier had been of want of material whereby, the authorities concerned had arrived at the satisfaction of the likelihood of the petitioner's release from custody, particularly when he had not applied for bail. However, in view of the submissions now made and in the peculiar circumstances of the case, even when the detention order has been withdrawn by the authorities concerned, we deem it appropriate to observe that the withdrawal of this detention order only for the technical flaws shall not prevent the authorities concerned from passing appropriate order in view of Section 15 (2) of the Meghalaya Preventive Detention Act, 1995, if occasion so arise. 10. In view of the revocation order passed today by the respondents in relation to preventive detention of the petitioner, this petition is taken as infructuous and stands disposed of as such but with the observations foregoing. Needless to add that there is no comment as regards the merits of the matter involved in Williamnagar P.S. No. 70(6)16 that shall be dealt with in the appropriate forum in appropriate manner, strictly in accordance with law.