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2018 DIGILAW 9 (MAN)

CHONGCHONG KHONGSAI v. STATE OF MANIPUR

2018-04-12

KH.NOBIN SINGH, N.KOTISWAR SINGH

body2018
JUDGMENT AND ORDER : N. KOTISWAR SINGH, J. 1. Heard Mr. Sanajaoba, learned counsel for the petitioner, Mr. Athouba, learned GA for the State and Mr. Samarjit, learned CGC for the Union respondent. 2. The husband of the petitioner has been detained under the National Security Act, 1980 (NSA) under order dated 12.7.2017 on the ground that he belongs to an armed gang namely, Kuki Liberation Army (KLA) having joined the same in the year 2009. It has also been alleged that after having joined the said organisation he underwent basic military training for three months and after his completion of training he was allotted Army No. 0234 and stayed at the Gamnon designated Camp doing camp routine works such as sentry duty, mobile and patrolling duty in and around the camp area as well as nearby surrounding villages. It is also stated that he had also taken active part in the encounter between KNF (P) and combined team of KLA & KRA on 21.7.2010, in connection with which FIR Case No. 39 (7) 2010 Yairipok P.S under Section 307/326/400/34 IPC & 25 (1-C) Arms Act was registered. Thereafter he was promoted to the rank of S/S Corporal and thereafter to S/S Sgt in the month of December, 2012 and thereafter as S/S Lieutenant directly in February, 2015. Further allegation is that he also contacted arms smugglers in the first quarter of 2017 and petitioner's husband contacted one Fimrothang Hmar, a Rifleman of Manipur Rifles as arranged by Mr. Jangkhohao Khongsai of Thingkanphai Village, Churachandpur and disclosed about the willingness to purchase huge number of A.K ammunition. Thereafter, he along with the said Jangkhohao Khongsai purchased five thousand rounds of A.K. ammunition at Rs. 7 lakhs at the rate of Rs. 140 per ammunition from Fimrothang Hmar. Thereafter, the petitioner's husband along with the aforesaid Jangkhohao Khongsai informed the said Fimrothang for purchasing some more rounds of A.K.ammunition and fixed 30.5.2017 for the next consignment at Chingmeirong near MBC Church, Imphal and accordingly, the petitioner's husband and Jangkhohao Khongsai left Churachandpur for Imphal in order to procure 2780 rounds of A.K. ammunition from Mr. Fimrothang at Chingmeirong near MBC Church, Imphal. Fimrothang at Chingmeirong near MBC Church, Imphal. However, on the way from Churachandpur to Imphal they were intercepted by the Police and they were arrested and thereupon one Semon Gurung was also arrested and 2780 rounds of A.K ammunition were recovered from a Swift Car bearing registration No. MN05 A-8892. However, the said Fimrothang Hmar made his good escape from the Police. 3. The charges made against the detenu is indeed serious which led to invocation of the NSA by the State authorities. However, the post detention action of the functionaries of the State Government has been focused by the petitioner to claim his liberty. 4. Mr. Sanajaoba, learned counsel for the petitioner submits that the detenu has every right to submit his representation at any point of time after his arrest which he did belatedly on 12.01.2018 though he was detained under the NSA on 12.7.2017. Mr. Sanajaoba, in contending that there is no period of limitation fixed under the law for submitting his representation, has relied on the decision rendered by the Hon'ble Supreme Court in Smt. Prem Lata Sharma v. District Magistrate, Mathura & Ors: AIR 1998 SC 2212 , wherein the Hon'ble Supreme Court observed in para-4 thereof that there is no, nor can there be, period of limitation regarding exercise of a right of a detenu to make a representation and there is a corresponding obligation of the Central Government to consider the same for deciding upon the question of revocation of the order of detention. It has been further held by the Hon'ble Supreme Court that such right of the detenu to submit representation and obligation of the State and Central Governments to consider the representation subsist so long as the detention continues. Mr. Sanajaoba accordingly submits that in view of the law laid down by the Hon'ble Supreme Court in Smt. Prem Lata Sharma(supra) there was nothing wrong on the part of the petitioner to submit the representation belatedly on 12.1.2018. 5. Mr. Mr. Sanajaoba accordingly submits that in view of the law laid down by the Hon'ble Supreme Court in Smt. Prem Lata Sharma(supra) there was nothing wrong on the part of the petitioner to submit the representation belatedly on 12.1.2018. 5. Mr. Sanajaoba, further submits that the detenu submitted there presentation to the Detaining Authority on 12.1.2018 and it was incumbent upon the detaining authority to forward copies of the same to the State Government and the Central Government as he had made a specific request in the representation to forward copies of the same to the State Government as well as to the Central Government as it was his right to submit representation as guaranteed under Article 22(5) of the Constitution of India. Mr. Sanajaoba, therefore, submits that since the detenu had specifically mentioned in the representation, the failure on the part of the Detaining Authority to forward the representation to the State Government as well as to the Central Government, is fatal. As to the fact that no representation was forwarded to the Central Government has been substantiated by the affidavit in opposition filed by the Union respondent, wherein it has been stated that they have not received any representation from the detenu. Therefore, in view of the above, the factual position remains that no representation was forwarded by the Detaining Authority to the Central Government though it was specifically so requested by the detenu. The State Government also has no explanation as regards aforesaid of the detenu. Therefore, the fact remains that the representation of the detenu was never forwarded to respondent Nos. 1 and 3. 6. In this regard, Mr. Sanajaoba, has relied on the decision of the Hon'ble Supreme Court in Amir Shad Khan v. L. Hmingliana & Ors : (1991) 4 SCC 39 in which, the Hon'ble Supreme Court held that it was incumbent upon the authorities to forward the representation submitted by the detenu to the State Government as well as to the Central Government, more so, when the detenu had made a request to that effect. The Hon'ble Supreme Court held in that case that the stand taken by the Detaining Authority as well as the State Government that they were not under any obligation to take out copies of the representation and forward them to the Central Government is contrary to the Constitutional right guaranteed under Article 22(5) read with Section 11 of the COFEPOSA. The Hon'ble Supreme Court accordingly, held that the action of the Detaining Authority and the State Government was unreasonable which resulted the denial of the detenu's Constitutional right which would render the detention illegal. 7. Accordingly, Mr. Sanajaoba, learned counsel for the petitioner, on the strength of the judgment of the Hon'ble Supreme Court in Amir Shad Khan case (supra)submits that non-forwarding of representation submitted by the detenu to the Central Government when specific request was made to the Detaining Authority to forward the same to the State Government as well as the Central Government amounts to denial of the detenu's right under Section 14 of the NSA, which is parameteria to Section 11 of the NSA, as well as Article 22(5) of the Constitution of India. Mr. Sanajaoba, learned counsel for the petitioner accordingly submits that on that ground alone the impugned detention order is required to be set aside. 8. Having heard the learned counsel for the parties and also considering the aforesaid undisputed fact that the representation of the detenu was not forwarded either to the State Government or to the Central Government, this Court in the light of the decision referred to above by the petitioner holds that, non-forwarding of representation of the detenu to the Central Government has prejudiced the right of the detenu as guaranteed under Article 22(5) of the Constitution and under Section 14 of the NSA. Accordingly, in spite of the seriousness of charges levelled against the detenu, because of the inefficiency on the part of the functionaries of the State Government, we have no alternative but to set the detenu at liberty with the hope and trust that he does not commit similar offences in future. 9. Accordingly, the petition is allowed. The impugned Detention order dated 12.07.2017, Approval order dated 20.07.2018 and Confirmation order dated 31.08.2017 respectively, in respect of the petitioner's husband, are set aside and quashed and the detenu namely, Mr. 9. Accordingly, the petition is allowed. The impugned Detention order dated 12.07.2017, Approval order dated 20.07.2018 and Confirmation order dated 31.08.2017 respectively, in respect of the petitioner's husband, are set aside and quashed and the detenu namely, Mr. Khaiginlal Haokip, s/o Zamkhai Haokip of Gamphajang Village, PS, Churachandpur, District, Churachandpur, Manipur, would be entitled to be set at liberty if not required to be detained in connection with any other case.