Md. Kyaw Kyaw Naing @ Abdul Rahim, S/o. Abdul Jabar @ Ula Sin v. State of Manipur, represented by the Special Secretary (Home), Govt. of Manipur, Manipur Secretariat
2022-08-31
M.V.MURALIDARAN, SANJAY KUMAR
body2022
DigiLaw.ai
ORDER : (Sanjay Kumar, CJ.) : 1. Challenge in this writ petition is to the order of detention dated 28.04.2022 passed by the Special Secretary (Home), Government of Manipur, in exercise of power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. 2. Heard Mr. L. Shashibhushan, learned counsel for the petitioner; Mr. Th. Vashum, learned Government Advocate, appearing for the State authorities; and Mr. Kh. Samarjit, learned ASG, appearing for the Union of India. 3. The main ground urged by Mr. L. Shashibhushan, learned counsel, is that, after the petitioner was subjected to preventive detention under the impugned order dated 28.04.2022, he submitted his representation against the same on 30.05.2022 but the said representation was not disposed of till 21.06.2022 by the State and till 04.08.2022, by the Central Government. Learned counsel would contend that this delay on the part of the authorities in disposing of the petitioner’s representation vitiates the order of detention. 4. Reliance is placed on the recent judgment of the Supreme Court in Sarabjeet Singh Mokha Vs. the District Magistrate, Jabalpur, and others [Criminal Appeal No. 1301 of 2021, decided on 29.10.2021]. Therein, the Supreme Court held that the delay of nearly 2 months in disposing of the detenu’s representation was fatal. The Supreme Court noted that simultaneous representations could be made by the detenu to the State and Central Governments, as enunciated in Haji Mohd. Akhlaq Vs. District Magistrate [1988 Supp SCC 538], and observed that even the failure of the State Government to transmit the representation of the detenu to the Central Government within a reasonable time would deprive the detenu of his valuable right to have the detention revoked by the Central Government. 5. In the case on hand, the petitioner admittedly submitted his representation on 30.05.2022. The same was forwarded by the Inspector General of Prisons, Manipur, to the Special Secretary (Home), Government of Manipur, on 01.06.2022. On 02.06.2022, the representation was forwarded to the Director General of Police, Manipur, by the Deputy Secretary (Home) Government of Manipur, requesting him to furnish para-wise comments thereon. The Superintendent of Police, Thoubal District, forwarded his para-wise comments to the Superintendent of Police, Narcotics and Affairs of Border, Manipur, under letter dated 06.06.2022.
On 02.06.2022, the representation was forwarded to the Director General of Police, Manipur, by the Deputy Secretary (Home) Government of Manipur, requesting him to furnish para-wise comments thereon. The Superintendent of Police, Thoubal District, forwarded his para-wise comments to the Superintendent of Police, Narcotics and Affairs of Border, Manipur, under letter dated 06.06.2022. The Deputy Secretary (Home), Government of Manipur, however, addressed letter dated 15.06.2022 to the Director General of Police, Manipur, requesting him to re-examine the para-wise comments in consonance for the proposal for preventive detention, vide letter dated 28.04.2022, and to draw up a comprehensive report for taking necessary action. Upon receipt of the revised para-wise remarks, the Deputy Secretary (Home), Government of Manipur, addressed letter dated 21.06.2022 to the petitioner stating that upon consideration of the representation dated 30.05.2022, the same was found to be devoid of merit. It appears that the Government of Manipur forwarded the representation dated 30.05.2022 of the petitioner to the Deputy Secretary (PIT–ND&PS), Ministry of Finance, Department of Revenue, Government of India, New Delhi, only on 22.06.2022. The delay in the dispatch of the representation is stated to have been due to the fact that the State Government prepared para-wise remarks on the said representation for onward transmission to the Central Government and that is the reason why the process took some amount of time. These facts are reflected in the Government files produced by Mr. Th. Vashum, learned Government Advocate, before this Court. The reasons offered constitute sufficient cause to explain the delay in so far as the Government of Manipur is concerned. 6. However, the same is not the situation with the Central Government. It may be noted that, by order dated 12.08.2022, passed in this writ petition, this Court took note of the fact that neither the Central Government nor the State Government had addressed the issue of delay in the disposal of the petitioner’s representation in their affidavits and observed that unless the delay was shown to unconscionable and without justification, it would not constitute a ground in itself to set aside the detention order. The matter was accordingly adjourned to 29.08.2022 to enable the Central and State Governments to file their affidavits, giving details as to why they took the amount of time that they did for disposal of the petitioner’s representation dated 30.05.2022. 7.
The matter was accordingly adjourned to 29.08.2022 to enable the Central and State Governments to file their affidavits, giving details as to why they took the amount of time that they did for disposal of the petitioner’s representation dated 30.05.2022. 7. Pursuant to the aforestated order, the Under Secretary in the Department of Revenue, Ministry of Finance, Government of India, filed affidavit dated 24.08.2022. Therein, he admitted that the petitioner’s representation dated 30.05.2022 was forwarded by the Government of Manipur, vide e-mail dated 22.06.2022, to the Central Government. He then went on to state that the representation was examined along with the relevant materials provided by the State Government and then submitted to the competent/appropriate authority on 21.07.2022, who disposed of the representation by rejecting the same, vide Memorandum dated 04.08.2022. No explanation was offered as to why nearly a month was taken to submit the representation and the relevant material to the competent/appropriate authority. Further, lapse of another fortnight from that day till the competent authority rejected the representation is also not accounted for. 8. Section 12 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, empowers the Central Government to revoke an order of detention passed by the State or Central Governments under the provisions of the said enactment. In the light of the Constitutional and statutory schemes pertaining to the law of preventive detention, the authorities concerned are under a mandatory duty to dispose of the representation filed by a detenu against his preventive detention within reasonable time. Though, no hard and fast rule can be laid down in that regard, the authorities concerned must at least have reasons to explain as to why they took a certain length of time in a particular case. 9. In the case on hand, the delay on the part of the Central Government in disposing of the petitioner’s representation is neither explained nor justified. In the light of the law laid down by the Supreme Court in the context of such unexplained delay, this Court is constrained to hold that the impugned detention order stands vitiated on that count straightaway. 10. The writ petition is accordingly allowed, setting aside the order of detention dated 28.04.2022 passed against the petitioner by the Special Secretary (Home), Government of Manipur. In the circumstances, there shall be no order as to costs.