AI Structured Summary
Not yet generated for this judgment
Judgment
This application has been filed for quashing the order dated 17.09.2016, passed by the District Magistrate, Senapati, respondent No. 2 in CRIL/NSA/C/18/16, whereby and whereunder the respondent No. 2, in exercise of power conferred under Sub- Section (3) of Section 3 of the National Security Act, 1980, passed the order of detention against the detenu, namely, Mr. Ngamkhoneh Lhouvum.
The grounds on which the order of detention was passed are that the detenu joined an armed organization, namely, Kuki Unification Frontal Organization (KUFO in short) as a member in the year 2013. The aims and objects of the said organization is to bring all the Kukis under one administrative unit called "Zelengam". However, in case of such integration not taking place, then to go for creation of 2 (two) Kuki States, one within Myanmar, and another within India. In pursuit to achieve such objectives, the organization started procuring arms and ammunitions and also started recruiting youngsters from Kuki communities. Apart from that, they also started committing serious heinous crimes such as murder, dacoity, robbery, extortion, kidnapping for ransom in different parts of Manipur.
After joining the said armed organization, the detenu got basic training in a camp located in a forest area. After completing training, the detenu started indulging himself in the activities prejudicial to the maintenance of public order and also started extorting money from general public, Government officials and businessmen. In the first week of June 2016, one Seineo Seitlhou handed over one 9 mm pistol with magazine to carry out mobilisation works and to recruit new cadres for the organization and also for committing offence of extortion over N.H. 2 and thereby, the detenu started doing those acts. On 06.09.2016, the detenu was apprehended along with one Seihen Lhouvum, by a column of 25th Assam Rifles and on search being made, 9 mm pistol along with magazine and also cartridges were recovered. Thereupon, the Assam Rifles handed over the detenu to Officer-in-charge of Sekmai Police Station with a written report and the incriminating article, on the basis of which case was registered as FIR No. 50(9)2016 Sekmai-PS under Section 400/34 of Indian Penal Code and also under Section 25(I-C) of the Arms Act. Subsequently, case was transferred to Kangpokpi PS and was registered as FIR No. 36(9)2016 Kangpokpi PS for the same offence. The petitioner was taken on police remand and then was remanded for judicial custody.
On such grounds, the respondent No. 2, after recording that detenu is acting in the manner prejudicial to maintenance of public order, passed the order of detention on 17.09.2016 which was approved on 28.09.2016. The aforesaid order of detention and its approval have been challenged on several grounds.
However, Mr. Ph. Sanajaoba, learned counsel appearing for the petitioner did confine his argument with respect to only one ground which is with regard to materials being absent for recording the satisfaction by the detaining authority that there is every possibility of the detenu being released on bail. In this regard, it was pointed out that it has been recorded that there has been likelihood of detenu being released on bail as persons involved in similar cases have been released on bail by the Court, but no reference is there relating to the person or even a case in which the accused persons have been admitted to bail, and therefore, it can easily be said that order of detention has been passed on ipse dixit ground and thereby, order of detention is fit to be quashed in view of the decision rendererd in a Case of Huidrom Konungjao singh vs. State of Manipur & Ors reported in (2012) 7 SCC 181 wherein their Lordships, after noticing similar facts as have been stated above, had been pleased to hold that the detention is based on mere ipse dixit statement in the ground of detention which cannot be sustained in the eye of law.
As against this, Mr. Sh. Yangya, learned G.A. appearing for the respondents submitted that from the order of detention, it does appear that the detaining authority, after having taken notice of the fact recorded in the ground of detention did satisfy himself that the detenu after being released on bail could indulge himself in the same activities which are prejudicial to the maintenance of public order and only after recording such satisfaction, the order of detention has been passed which never warrants to be interfered with by this Court.
It be stated that detaining authority, while passing order of detention in a case of detenu being in custody needs to observe following safeguards meticulously: (i) If the authority passing the order is aware of the fact that he is actually in custody:
(ii) If there is reason to believe on the basis of available materials placed before him -
(a) that there is every possibility of being released; and
(b) that on being so released he would be in all probability to indulge in prejudicial activities.
(iii) If it is felt essential to detain him to prevent him from doing so.
In this regard, we may refer to a decision rendered in case of Union of India -Vs- Paul Manickam, (2003) 8 SCC 342 laying down the requirements to be observed by the detaining authority passing the order of detention when the detenu is in custody which reads as follows:
"14.......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... The point was gone into detail in Kamarunnissa v. Union of India: (1991) 1 SCC 128: 1991 SCC(Cri.) 88. 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."
The same principle has been reiterated in a case of Huidrom Konungjao vs. State of Manipur & Ors (2012) 7 SCC 181 wherein it has been held that if such detention order is challenged, the detaining authority ought to satisfy the Court following facts:
(i) the authority was fully aware of the fact that detenu was actually in custody.
(ii) there was reliable materials before the said authority on the basis of which it could have reasons to believe that there is reliable possibility of release on bail and further on being released, he would probably indulge in activities which are prejudicial to the public order.
Further, it has been observed that in cases where this fact does not exists, the detention order would stand vitiated.
In the light of decision, if we examine legality of the detention order, we would find that the detaining authority has recorded its satisfaction that there is likelihood of detenu being released on bail on account of the fact that in similar nature of cases accused are being released on bail, but the detaining authority while coming to such conclusion, has not referred to either name of the person or even the case in which the persons have been admitted to bail. In absence of those facts, the order of detention can certainly be said to have been passed on mere ipse dixit ground which is not sustainable in law in view of the decision referred to above and accordingly, it is set aside.
Thus, we do find that the subjective satisfaction of the detaining authority of likelihood of accused being on bail is not based on any factual aspect and thereby, the order of detention and its approval being bad, are hereby quashed. Consequently, the detenu namely, Mr. Ngamkhoneh Lhouvum, s/o Mr. Shehlal Lhouvum of Old Thenjang Village, Ward No. 1, jalen Veng, P.O. - T. Waichong, P.S. - Tamei, District - Tamenglong, Manipur, is directed to be released forthwith if not wanted in any case. This writ petition stands disposed of.