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2017 DIGILAW 25 (MAN)

S. BONGKHAM v. STATE OF MANIPUR

2017-10-25

KH.NOBIN SINGH, N.KOTISWAR SINGH

body2017
JUDGMENT : KH. NOBIN SINGH, J. 1. Heard Shri Ph. Sanajaoba, the learned counsel appearing for the petitioner and Shri A. Vashum, the learned Govt. Advocate appearing for the respondents. 2. In this writ petition, the validity and correctness of the detention order dated 24-01-2017 passed by the District Magistrate, Thoubal District are being questioned and challenged by the petitioner. 3. As per the grounds of detention, the petitioner's husband i.e., the detenu joined the armed underground organisation namely, National Socialist Council of Nagalim-Isak/Muivah faction (hereinafter referred to as "the NSCN-IM") as a member in the month of July, 2008 through Mr. Koko Maring. The objective of the NSCN-IM is to establish a sovereign State by unifying all the Naga inhabited areas in the North-East of India and Northern Burma and in order to achieve its objective, the NSCN-IM procured arms and ammunition from foreign countries and started committing serious of heinous crimes such as murder, dacoity, robbery, extortion, kidnapping for ransom, etc. in different parts of the North-Eastern States and in particular, Manipur and Nagaland. After joining the organization, the detenu came to Hebron Camp, Dimapur and on his arrival at Hebron Camp, he met many top leaders including S/S Kilonser Mr. Angaikham Maring and S/S Cabinet & Home Secretary Mr. Gabriel Anal. Having less representatives of Khoibu tribes in the NSCN-IM, the detenu was exempted from undergoing basic military training and permitted to sit in the examination of Section Officer. In the month of September, 2008, the detenu along with others appeared in the examination and after having passed the said examination, he was given the rank of Section Officer in November, 2008 and thereafter, he was promoted to the rank of Under Secretary, NSCN-IM. In the last week of December, 2013, Mr. Angaikham Maring directed the detenu to work at Chandel and Thoubal Districts after contacting Mr. Souphamshei Khoibu of Nungourok Village and accordingly, he left Hebron for Khangshim Village where he contacted Mr. Souphamshei Khoibu who directed him to start extortion of money from the vehicles plying on the NH-102 (Imphal-Moreh). Accordingly, the detenu along with other activists of NSCN-IM including Mr. Anga Maring extorted money from vehicles plying on the NH-102 and also extorted money from the general public including businessmen, contractors, Government employees residing at Pallel and Kakching areas. Souphamshei Khoibu who directed him to start extortion of money from the vehicles plying on the NH-102 (Imphal-Moreh). Accordingly, the detenu along with other activists of NSCN-IM including Mr. Anga Maring extorted money from vehicles plying on the NH-102 and also extorted money from the general public including businessmen, contractors, Government employees residing at Pallel and Kakching areas. The detenu and his associates threatened the victims with direct consequences not to report the matter to the security force/police. The extorted money were handed over either to Mr. Souphamshei Khoibu or Mr. Thamthrung Lamkang @ Julesh of Chandel Town and over and above, the detenu along with his associates watched the movement of security forces at Pallel Lamkhai and Kakching area and passed the information to the higher authorities of the NSCN-IM to lay ambush at opportune moment. 4. On 11-01-2017 at 07:20 p.m., the detenu was arrested by a police team of CDO-Thoubal led by Hav. N. Lolin Singh from the house of Mr. Ronglo Moshel and one.38 pistol with four live rounds, one Nokia mobile phone, one wallet containing vehicle Registration Certificate, one Aadhaar Card, two SIM cards, one HDFC Debit Card were seized from his possession. On the same day at around 05:30 p.m., he was handed over to O.C., Kakching P.S. with a written report and seized articles and on the strength of the said report, the O.C. Kakching, P.S. registered a regular case under FIR No. 7(01)2017 Kakching P.S. under section 17/20 UA(P) Act & 25 (1-C) A. Act and started investigation and during the course of investigation, he was arrested formally and remanded to judicial custody on 18-01-2017. While the detenu was in judicial custody, the District Magistrate, Thoubal District, Manipur passed the detention order dated 24-01-2017 in exercise of power conferred under sub-section (2) of Section 3 of the NSA to the effect that the detenu who was in judicial custody be detained under Section 3(2) of the NSA until further order. 5. Being aggrieved by the said detention order, the instant writ petition has been filed by the wife of the detenu namely, Mr. 5. Being aggrieved by the said detention order, the instant writ petition has been filed by the wife of the detenu namely, Mr. Ashang Honhsha mainly on two grounds that the detention of the detenu is based on no materials with the result that the detention order has been passed by the District Magistrate in a casual, mechanical and routine manner without applying his judicious mind and that the District Magistrate, Thoubal District, Manipur, while passing the detention order, has not followed the principles laid down by the Hon'ble Supreme Court in Union of India v. Paul Manickam & anr., (2003) 8 SCC 342 . 6. An affidavit-in-opposition on behalf of the respondent No. 1 has been filed wherein it is stated that the detenu is a hardcore member of the NSCN-IM which carried out activities which are prejudicial to the security of the State and maintenance of the public order and therefore, the detenu has been detained vide order dated 24-01-2017 passed by the District Magistrate, Thoubal District, Manipur. However, the affidavit is silent about the said principles being followed by the District Magistrate, Thoubal District, Manipur. 7. As regards the first ground, it may be noted that the detention of the detenu is based on the documents as detailed in the grounds of detention which have been held to be insufficient by the Hon'ble Supreme Court in Huidrom Konungjao Singh v. State of Manipur & ors., (2012) 7 SCC 181 for passing detention order. There are no other materials on the basis of which the District Magistrate could pass detention order and therefore, the detention order, impugned herein, can be said to have been passed without any basis. So far as the second ground is concerned, the contention of the learned counsel appearing for the petitioner has force and substance to the extent that the principles laid down by the Hon'ble Supreme Court in Paul Manickam's case (supra) have not been followed while passing the detention order. The principles which have been laid down in Paul Manickam's case(supra), are found in para 14 which is reproduced herein below:- "14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. The principles which have been laid down in Paul Manickam's case(supra), are found in para 14 which is reproduced herein below:- "14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. 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. (See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.) The point was gone into detail in Kamarunnissa v. Union of India. 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. (See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.) The point was gone into detail in Kamarunnissa v. Union of India. 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." 8. On perusal of the detention order dated 24-01-2017, it is seen that the District Magistrate, Thoubal District, Manipur has not recorded his satisfaction holding that the detenu is likely to be released on bail because he has moved an application for bail or that his co-accused has been released on bail. Since the detention order has been passed without following the principles as aforesaid, the same is bad in law and is liable to be quashed and set aside. In view of the above, the instant writ petition is allowed and the detention order dated 24-01-2017 passed by the District Magistrate, Thoubal District, Manipur is quashed and set aside with the direction that the detenu namely, Mr. Ashang Honhsha (42 yrs.), S/o H. Khongba of Khangshim Village, Kakching Lamkhai, P.S. Kakching, District, Thoubal, Manipur shall be released forthwith, if not wanted in any other case.