Athokpam Ongbi Madhabi Devi vs The State of Manipur

N. Kotiswar Singh, J.—The present petition has been filed by the petitioner challenging the detention of the husband of the petitioner under National Security Act, 1980 (in short "NSA") vide order dated 10th February, 2014.

One of the grounds for challenging the said detention order is that this detention order has been issued without being satisfied that the detenu who is already in judicial custody was likely to be released on bail which would necessitate invoking provisions of NSA to prevent him from indulging in prejudicial to the security of the State and maintenance of public order.

It has been submitted that before detaining any person under NSA, particularly, in respect of a person who is already in custody, detaining authority has to be satisfied that he is most likely to be released on bail and in event of his release, considering his past activities he is likely to continue to indulge in acts prejudicial to the security of the state and which can be prevented by invoking the provisions of NSA. Mr. Modhu, learned counsel appearing for the petitioner has submitted that in the present case, the petitioner was already in judicial custody in connection with FIR No. 2(01)2014 KCG-PS u/s 17/ 20 UA(P) Act, 1967 & 25(1-C) A. Act having been arrested on 5.1.2014 and remanded to police custody and thereafter, to judicial custody on 10.1.2014. It has been submitted that the petitioner never applied for bail in the said case and as such, question of the petitioner being released from judicial custody did not arise. However, authority without considering this aspect issued the impugned order. He submits that in view of the law laid down by the Supreme Court in Union of India (UOI) Vs. Paul Manickam and Another, to the effect that in respect of a person who is already in custody, if the detention order does not indicate that detenu who is already in custody is likely to be released on bail, such a detention order is vitiated, the present detention order cannot also be sustained. In the present case, though the petitioner''s husband was already in judicial custody before he was detained under NSA, nothing has been mentioned in the detention order or in the grounds of detention furnished to him that the petitioner who was already in custody is likely to be released on bail. In view of the above, it has been submitted that the detention order dated 10.2.2014 cannot be sustained.

In this regard, as directed by this Court, Ms. Manomala, learned G.A. appearing for the state respondents has produced the record. Even in the records, there is no such reference about the petitioner being in judicial custody and observation that he is likely to be released on bail.

Considering the above legal position, we are of the view that there was non application of mind by the detaining authority with regard to subjective satisfaction to be arrived at by the detaining authority that the petitioner''s husband who was already in custody was likely to be released on bail and accordingly, the impugned order dated 10.02.2014 cannot be sustained.

For the reasons discussed above, the writ petition is allowed. The impugned order of detention passed under the National Security Act, 1980 dated 10.2.2014 is set aside. Accordingly, the detenu namely, Mr. Athokpam Tomba @ Huikap Tomba Meitei (45), S/o (L) A. Mohori Meitei of Leirongthel Pitra Tera Urak, PS- Yairipok, District - Thoubal, Manipur is entitled to be released forthwith unless he is required to be detained in any other case(s).