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2018 DIGILAW 2 (MAN)

Semon Gurung v. District Magistrate, Bishnupur

2018-01-24

KH.NOBIN SINGH, N.KOTISWAR SINGH

body2018
JUDGMENT : Kh. Nobin Singh, J. 1. Heard Shri Ch. Ngongo, the learned counsel appearing for the petitioner; Shri A. Vashum, the learned Government Advocate appearing for the State Government and Shri S. Samarjeet, the learned CGC appearing for the respondent No. 4, the Union of India. 2. The legality and correctness of the order of detention dated 12-07-2017 passed by the District Magistrate, Bishnupur, Manipur is under challenge in this writ petition. 3. The facts and circumstances as narrated in the grounds of detention are that the detenu was born at Tamenglong, Manipur and was brought up at Imphal as his father (L) Lalbahadur Gurung was working as a Havildar, 1st Bn. Manipur Rifles. After having failed at his 10th standard in the year 2002, the detenu gave up his further studies. However, the detenu was appointed as a Rifleman of 5th Bn. Manipur Rifles in the month of March, 2006 and after having undergone the basic training at the Manipur Police Training College, Pangei, the detenu was detailed as an escort of the Dy. Commandant and he continued in that capacity till the last week of May, 2017 when he was posted at Bn. Headquarter, Tamenglong. As the detenu could not maintain his family with the meagre amount of his salary, he thought of earning more money without hectic efforts as was being done by his associates namely, Rfm. Asem Brojen Singh and Rfm. Yahiya Khan whom he came to know from Mr. Fimrothang Hmar. Thereafter, the detenu along with his associates planned for a consignment and decided to deliver AK ammunitions on 30-5-2017 at Imphal for which 2780 ammunitions were handed over to him by his associates. As per plan, on 30-05-2017 the detenu and his associate, Mr. Fimrothang Hmar left 1st BN MR family line quarter in a white Maruti Swift Car being Registration No. MN-05A-8892 for delivery of the said ammunitions and while they were waiting for delivery at Chingmeirong near MBC Church, the detenu was arrested by a police team of CDO-Bishnupur while Mr. Fimrothang Hmar escaped from the police. The said ammunitions, two back pacts, the said white Maruti Car, one Samsung mobile J7 with JIO and Vodafone SIM cards were seized from his possession. Fimrothang Hmar escaped from the police. The said ammunitions, two back pacts, the said white Maruti Car, one Samsung mobile J7 with JIO and Vodafone SIM cards were seized from his possession. Thereafter, the detenu was handed over to O.C., Moirang PS with a written report and seized articles and was formally arrested in connection with a case under FIR No. 50(5)/2017 Moirang P.S. U/S. 400 IPC-265(1-C) Arms Act and remanded to the judicial custody on 06-06-2017. While in custody, the said order of detention dated 12-07-2017 was issued by the District Magistrate, Bishnupur. Being aggrieved by the said order of detention dated 12-07-2017, the instant writ petition has been filed by the detenu praying for setting aside it and also for setting him at liberty on various grounds as detailed at para 17 of the petition. 4. An affidavit on behalf of the respondent No. 2 has been filed wherein it has been stated that based on the police report and after due consideration of the reliable documents and materials furnished by the Superintendent of Police, Bishnupur, the order of detention was issued with a view to prevent the detenu from acting in a manner prejudicial to the maintenance of public order and security of the State. The grounds of detention dated 17-07-2017 were served upon the detenu and on 20-07-2017, the order of detention was approved by the State Government after due application of its judicious mind and the same was communicated to the Central Government as well as the Chairman, Advisory Board vide its order dated 21-07-2017. The representation dated 26-07-2017 which was received on 27-07-2017, was forwarded to the Central Government vide its letter dated 31-07-2017 and after due consideration of the grounds of detention and other relevant documents, the detention of the detenu was confirmed by the State Government on 31-08-2017. In the same manner as that of the affidavit filed on behalf of the respondent No. 2, the District Magistrate also filed an affidavit stating therein that on the basis of the police report and after due consideration of the relevant materials, the order of detention was passed by him as the detenu was acting in the manner prejudicial to the maintenance of public order and security of the State and was likely to continue to act in that manner. Since the detenu filed a bail application before the Chief Judicial Magistrate, Bishnupur for releasing him on bail, the District Magistrate was satisfied that the detenu was likely to be released on bail. The representation dated 26-07-2017 which was received by him on 27-07-2017, was duly considered and rejected on 29-07-2017. Although the order of detention was passed on 12-07-2017, the grounds of detention were formulated on 17-07-2017 in the form of a letter in order to make effective representation by the detenu. An affidavit on behalf of the Union of India, the respondent No. 4 also has been filed wherein it is stated that a report dated 25-07-2017 as envisaged under section 3(5) of the National Security Act was received on 02-08-2017 by the concerned section of the Ministry of Home Affairs and after the same being placed before the Joint Secretary (Internal Security-II), he took note of the same and felt that there was no reason to interfere with the order of detention. In the meantime, the representation of the detenu which was forwarded by the Under Secretary (Home), Govt. of Manipur, was received on 09-08-2017 and the parawise comments thereof were received on 22-08-2017 from the State Government and after the representation of the detenu being processed for consideration at various levels, the Joint Secretary (Internal Security-II) rejected the same on 28-08-2017 and thereafter, a wireless message was sent to the Secretary (Home), Government of Manipur; the District Magistrate and the Detenu on 01-09-2017 informing that the representation of the detenu had been considered and not acceded to. On the same day, a copy of the said wireless massage was sent to the detenu by post as well as the Superintendent of Central Jail, Manipur with a request to forward the acknowledgement from the detenu to the Ministry of Home Affairs. 5. Although various grounds have been raised in the writ petition, Shri Ch. Ngongo, the learned counsel appearing for the petitioner, during the course of hearing, did confine his argument only to one ground that the detaining authority did not formulate the grounds of detention before passing the order of detention and as such, the order of detention is liable to be set aside. Ngongo, the learned counsel appearing for the petitioner, during the course of hearing, did confine his argument only to one ground that the detaining authority did not formulate the grounds of detention before passing the order of detention and as such, the order of detention is liable to be set aside. In support his contention, he has relied upon the averments made in the affidavit of the District Magistrate, Bishnupur and in particular, the averment made in para 13 of the affidavit which states that the detention order was passed on 12-07-2017 and the grounds of detention were formulated on 17-07-2017 whereby the District Magistrate formulated the same in the form of a letter in order to make effective representation by detenu. Relying upon the various decisions rendered by the Hon'ble Supreme Court, it has been submitted by him that since the grounds were not in existence before the order of detention was passed, the order of detention was bad in law. The first decision relied by him is the one rendered in State of Bombay Vs. Ram Shridhar Vaidya, AIR 1951 SC 157 wherein the Hon'ble Supreme Court has held that the grounds of detention must be in existence when the order is made. Reliance has also been placed in Krishna Murari Aggarwala Vs. Union of India, AIR 1975 SC 1877 wherein the Hon'ble Supreme Court has held that since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. Similar view has been taken by the Hon'ble Supreme Court in Dhanajay Das Vs. District Magistrate, AIR 1982 SC 1315 as well. The last decision which he has relied upon, is the one rendered in Union of India Vs. Paul Manickam, (2003) 8 SCC 342 which has been decided by the Hon'ble Supreme Court on various other issues and not on the issue involved herein. However, as regards the expression "grounds" in the context of preventive detention, it has been observed by the Hon'ble Supreme Court that while the expression "grounds" for that matter includes not only conclusions of fact but also all the basic facts on which those conclusions were founded; they are different from subsidiary facts or further particulars on the basic facts. However, as regards the expression "grounds" in the context of preventive detention, it has been observed by the Hon'ble Supreme Court that while the expression "grounds" for that matter includes not only conclusions of fact but also all the basic facts on which those conclusions were founded; they are different from subsidiary facts or further particulars on the basic facts. The detenu is entitled to obtain particulars as to the grounds which will enable him to make an effective representation against the order of detention. 6. There is no and can be no dispute at all as regards the principles laid down by the Hon'ble Supreme Court in the aforesaid cases. In other words, there is no controversy at all and it is well settled that the order of detention shall be based on grounds which are in existence at the time of passing it. The learned counsel appearing for the petitioner has given emphasis heavily on the averment made at para 13 of the counter affidavit filed by the District Magistrate to contend that the order of detention has been passed by it before the grounds are formulated and in other words, the grounds are not in existence at the time of passing the order of detention. In order to appreciate his contention properly, the para 13 of the counter affidavit is required to be examined and considered minutely and carefully by this court for which the same is reproduced herein below: "13. That with reference to para 17(2) of the writ petition, I beg to state that that the detention order was passed on 12-07-2017 and the grounds of detention was formulated on 17-07-2017 whereby the deponent formulated in the form of a letter in order to make effective representation by detenu." From a careful perusal of the averment made at para 13 as aforesaid, it is seen that it comprises two parts-one, the order of detention was passed on 12-07-2017 which is not disputed by the petitioner at all and two, the grounds of detention were formulated on 17-07-2017 in the form of a letter in order to make effective representation by the detenu. This court is concerned with the second part and while construing it, it will be necessary for this court to revisit the provisions of Article 22 of the Constitution and Section 8 of the National Security Act. This court is concerned with the second part and while construing it, it will be necessary for this court to revisit the provisions of Article 22 of the Constitution and Section 8 of the National Security Act. The mandate of communicating grounds of detention is contained in Article 22(5) of the Constitution of India which provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the shall as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order but the time period is not prescribed therein. However, Section 8 of the National Security Act prescribes the time period within which the grounds of detention are to be communicated to the detenu. The conjoint reading of these two provisions makes it very clear that the grounds of detention will have to be communicated only after the order of detention is passed by the detaining authority. The expression "the grounds of detention was formulated on 17-07-2017" as contained in the affidavit of the District Magistrate shall not be read in isolation, as the same is qualified by the expression "in the form of a letter in order to make effective representation by the detenu" and the sentence itself is to be read as a whole so as to understand its meaning. The said expression "the grounds of detention was formulated on 17-07-2017" cannot be construed to mean that the grounds of detention were furnished to the District Magistrate only on 17-07-2017 after the order of detention had already been passed by it. It is nowhere mentioned in para 13 of the affidavit that the grounds of detention are not in existence prior to passing the order of detention nor are they formulated only after the order of detention is passed. All that it states is that the grounds of detention have been formulated in the form of a letter so that the detenu could make an effective representation. In fact, it has been done for the convenience of the detenu. All that it states is that the grounds of detention have been formulated in the form of a letter so that the detenu could make an effective representation. In fact, it has been done for the convenience of the detenu. However, in order to ascertain the correct position, the relevant file was called for for perusal by this court and on going through it, it is found that the grounds were in fact in existence which were furnished to the District Magistrate by the Superintendent of Police, Bishnupur District vide its letter dated 10-07-2017 enclosing therewith a history sheet and other relevant documents. Therefore, the contention of the learned counsel appearing for the petitioner has no substance and merit and since other grounds have been given up by him, there is no need of going into those grounds by this court. Having heard the learned counsels appearing for the parties and having perused the relevant documents on record, this court is of the view that the present petition is devoid of any merit and is accordingly liable to be dismissed. 7. In view of the above and for the reasons stated hereinabove, the instant writ petition is dismissed with no order as to costs.