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Judgment
(M. Sundar, CJ)
[1] The following abbreviations/short forms have been used in this order (for the sake of brevity, convenience and clarity):
| Sl. No. | Abbreviation/Short Form/other short references | Full Form/Expansion |
|---|---|---|
| 1. | WP | Writ Petition |
| 2. | MC | Miscellaneous Case |
| 3. | FIR | First Information Report |
| 4. | FIRs | First Information Reports |
| 5. | BNS | the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) |
| 6. | BNSS | the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) |
| 7. | BSA | the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) |
| 8. | Explosive Substances Act | the Explosive Substances Act, 1908 (6 of 1908) |
| 9. | UAPA | the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) |
| 10. | Arms Act | the Arms Act, 1959 (54 of 1959) |
| 11. | IPC | the Indian Penal Code (45 of 1860) |
| 12. | CrPC | the Code of Criminal Procedure, 1973 (2 of 1974) |
| 13. | Evidence Act | the Indian Evidence Act, 1872 (1 of 1872) |
| 14. | NSA | the National Security Act, 1980 (65 of 1980) |
| 15. | MHA | Ministry of Home Affairs |
| 16. | Detenu | Ningthoujam Chalamba Singh, aged about 29 years, s/o late N. Subol Singh of Khurai Kongpal Sajor Leikai, PS-Porompat, Imphal East District, Manipur. |
| Sl. No. | Abbreviation/Short Form/other short references | Full Form/Expansion |
| 17. | Writ petitioner | Ningthoujam Memma Devi (mother of detenu) |
| 18. | R1, R2, R3, R4, R5 | 1st respondent, 2nd respondent, 3rd respondent, 4th respondent, 5th respondent respectively |
| 19. | Detaining authority | R2 (District Magistrate, Imphal West District, Manipur) |
| 20. | Sponsoring authority | Superintendent of Police, Imphal West District, Manipur |
| 21. | Impugned preventive detention order | order dated 06.04.2026 made by R2 under section 3(3) of NSA bearing reference No. Crl/NSA/No. 2 of 2026 |
| 22. | Impugned approval order | order dated 13.04.2026 made by R1/R3 under Section 3(4) of NSA bearing Reference No. H-14/4/2026-HD-HD |
| 23. | Impugned confirmation order | order dated 27.04.2026 made by R1/R3 under Section 12(1) of NSA bearing Reference No. H-14/4/2026-HD-HD |
[2] Captioned WP has been filed in this Court on 30.06.2026 by writ petitioner with a habeas corpus plea assailing impugned preventive detention order, impugned approval order and the impugned confirmation order vide which her son {Ningthoujam Chalamba Singh (detenu)} now remains incarcerated in Manipur Central Jail, Sajiwa. Detenu was arrested on 09.02.2026 pursuant to FIR No. 46(2)2026 on the file of Singjamei Police Station dated 08.02.2026 for alleged offences under Sections 109/351(3)/324(4) BNS and 3 – Explosive Substances Act. Detenu moved a bail application in the Trial Court on 01.04.2026, pending bail application, sponsoring authority wrote to detaining authority a letter dated 06.04.2026 bearing Reference No. 22/Spl-Cell/2026(02):/6380 recommending the clamping of a preventive detention order qua detenu, acting on this letter of sponsoring authority, detaining authority made the impugned preventive detention order on the same day and this impugned preventive detention order was served on the detenu on the same day i.e., 06.04.2026. This means that the detenu who remains incarcerated from 09.02.2026 was formally arrested pursuant to impugned preventive detention order on 06.04.2026. To be noted, the grounds of detention dated 06.04.2026 was also served on the detenu on the same day. Thereafter, the regular bail application of the detenu filed on 01.04.2026 was rejected by the Trial Court in and by an order dated 30.04.2026. In such circumstances, captioned WP has been filed in this Court on 30.06.2026. R2, detaining authority has filed an affidavit-in-opposition dated 05.08.2026 and the same has been adopted by R1 and R3. R5 has filed a separate affidavit-in-opposition dated 06.08.2026. As regards R4, an affidavit-in-opposition dated 30.07.2026 has been filed. Thereafter, writ petitioner filed MC [W.P. (Crl.)] No. 3 of 2026 with a prayer to raise additional grounds and this MC was allowed by this Court in and by an order dated 17.09.2026. In the interregnum, post filing of captioned WP on 30.06.2026, 90 days from the date of arrest (actual arrest on 09.02.2026) elapsed on 10.05.2026 but charge sheet/final report had not been filed. No application for extension of time for filing charge sheet/final report as well as extension of remand by resorting to Section 43D(2) of UAPA was filed. In such circumstances, the detenu filed a default bail application on 28.07.2026 being Cril. Misc. (B) Case No. 272 of 2026 in the Trial Court and after putting on notice and hearing the Special Public Prosecutor, the default bail application has been allowed by the Trial Court on the same day i.e., 28.07.2026 on condition that a bond for Rs. 1,00,000/- (Rupees One Lakh only) with one surety of like amount should be furnished. A further condition that detenu should not leave the State of Manipur without the permission of the Court was also imposed. The detenu was unable to come out of jail and he remains incarcerated solely because of the impugned preventive detention order. In this regard, it is to be noted that prior to his arrest on 09.02.2026 (pursuant to FIR dated 08.02.2026) the detenu was arrested on 13.10.2023 pursuant to FIR No. 808(10)2023 on the file of Imphal Police Station for alleged offences under Section 20 of UAPA and 25 (1-B) of Arms Act but was released on bail on 20.10.2023, he was again arrested on 21.3.2025 pursuant to FIR No. 17(3)2025 on the file of Lamsang Police Station for alleged offences under Sections 20/38 of UAPA and 25 (1-C) of Arms Act but was released on bail on 27.03.2025, however considering the scope of legal drill at hand it is not necessary to dilate further on these details and it will suffice to write that the detenu now remains incarcerated solely owing to impugned preventive detention order.
[3] In the hearing today, Mr. S. Jhalajit, learned counsel for writ petitioner, Mr. S. Chittaranjan, learned Additional Advocate General for State of Manipur along with Mr. A. Priyokumar Sharma, learned State counsel for R1, R2, R3 & R5 and Mr. W. Darakeshwar, learned Senior Panel Counsel for Central Government (Sr. PCCG) for R4 are before this Court.
[4] Pleadings are complete in the aforesaid manner. As regards the additional grounds raised by writ petitioner vide MC [W.P. (Crl)] No. 3 of 2026, learned Additional Advocate General submitted that he would argue on the basis of records and the records are before this Court. The captioned WP was heard out in full.
[5] After hearing out the captioned WP in full, this Court comes to the conclusion that the captioned WP deserves to be allowed and the reasons are as follows:
The impugned preventive detention order is vitiated by non-application of mind on the part of detaining authority resulting in flawed subjective satisfaction. The impugned preventive detention order proceeds on the basis that the detenu is a hardcore member of Kangleipak Communist Party (Apunba) [KCP-Apunba] and that this KCP-Apunba is an ‘unlawful association’ as notified by the Government of India, MHA vide Notification No. SO 4899(E) dated 13.11.2023. impugned preventive detention order also very clearly says that detenu joined KCP-Apunba in July of 2023. The sponsoring authority has placed before the detaining authority the 13.11.2023 notification of MHA declaring KCP as an ‘unlawful association.’ This notification clearly states that vide proviso to sub-Section (3) of Section 3 of UAPA, the declaration shall take immediate effect i.e., on the same day (13.11.2023) but it is subject to any order that may be made under Section 4 of UAPA and it has also been made clear that the declaration is subject to any order under Section 4. Though this has been clearly articulated in the notification of MHA, the detaining authority has not verified whether the declaration has been confirmed by the Tribunal under Section 4. To be noted, Section 4 of UAPA vide sub-Section (3) makes it clear that the Tribunal shall make such a decision within six months from the date of issue of the notification (on or before 13.05.2024 in this case) and vide sub-Section (4) of Section 4, it has been made clear that the order of the Tribunal shall be published in the Official Gazette. The detaining authority should have at least checked the Official Gazette. This is more so as the 13.11.2023 notification of MHA was placed before the detaining authority on 06.04.2026 nearly 2(two) and half years after the notification. Another flaw in the subjective satisfaction is the grounds of detention order vide B.1. says that detenu joined KCP-Apunba in July of 2023 which is prior to 13.11.2023. This means that as per the material before the detaining authority, the detenu joined KCP-Apunba prior to it being declared as an ‘unlawful association’ by MHA on 13.11.2023 and there is neither material or averment to the effect that detenu continued to be a member post 13.11.2023 also. Therefore, for these two reasons i.e., not verifying whether any order has been made by the Tribunal under Section 4 within six months but proceeding on the basis that the 13.11.2023 notification continued to operate on 06.04.2026 and further proceeding on the basis that detenu joined the unlawful association even before it was declared to be ‘unlawful’ without any material or averment that he continued to be a member post such declaration also the subjective satisfaction is flawed by non-application of mind which vitiates the impugned preventive detention order. As regards subjective satisfaction, in Ameena Begum vs. State of Telangana & Ors. reported in (2023) 9 SCC 587, Hon’ble Supreme Court after a survey of various case laws on preventive detention including preventive detention orders under NSA made it clear that subjective satisfaction of detaining authority though subjective can be tested albeit on certain grounds and Hon’ble Supreme carved out six grounds. An adumbration of these six grounds is as follows.
(a)When the detaining authority has not applied its mind at all;
(b)When there is dishonest exercise of power by detaining authority;
(c)Exercise of power of detaining authority for improper purpose;
(d)Detaining authority acting under dictation of another body;
(e)When the subjective satisfaction recorded by detaining authority is based on application of wrong test or misconception of a statute;
(f)When the detaining authority has arrived at and recorded subjective satisfaction without the same being grounded on materials which are rationally probative value.
In the case at hand, we respectfully followed and applied Ameena Begum case. We find that the impugned preventive detention order is vitiated by (a), (e) and (f). Detaining authority has not applied its mind at all as the MHA notification itself clearly says that it is subject to any order under Section 4 and it is dated 13.11.2023, and it proceeds on the basis that the detenu is alleged to have joined KCP in July of 2023 without even an averment that he continued to be a member post 13.11.2023 also. This is also based on misconception of a statute i.e., UAPA.
As regards ‘unlawful associations’ vide 2(1)(p) of UAPA it is clear that the notification made by MHA should be referred to the Tribunal under Section 4 and the Tribunal should confirm the same within 6(six) months. It is also vitiated by (f) as the subjective satisfaction has been arrived at and recorded without the same being grounded on material which are of rationally probative value. In this case, material which is of rationally probative value is confirmation order of the Tribunal which was admittedly not before the detaining authority. This Court also had the benefit of perusing the records and it finds that other than the 13.11.2023 notification of MHA, no other material in this regard was before the detaining authority. To be noted, this MHA notification point popped up in the course of hearing and learned State counsel submitted records in response to above point and it is clear as daylight that no confirmation order of Tribunal was before detaining authority and in any event there is no mention either about this or continued membership in the impugned preventive detention order.
In the impugned preventive detention order, the detaining authority has set out in unambiguous terms that representations to State as well as Central Governments should be submitted within 3(three) weeks from the date of detention. In Premlata being Premlata Sharma (Smt.) vs. District Magistrate, Mathura & Ors. reported in (1998) 4 SCC 260, Hon’ble Supreme Court made it clear that right of a detenu to make representations subsists as long as the preventive detention order operates. This Court, by respectfully following Premlata principles inter alia in Yambem Manichandra Singh case reported in 2026:MNHC:100-DB (High Court of Manipur Neutral Citation) held that fixing of 3(three) weeks cap for sending representations is a clear infraction of Article 22(5) of the Constitution. Even prior to Yambem Manichandra Singh, this Court first so held in Mutum Ranjan Meitei @ Lamjingba vs. District Magistrate, Thoubal, Thoubal District & Ors. being order dated 11.02.2026 made in W.P.(Crl.) No. 34 of 2025 followed by Smt. Laishram Nilajit Shija vs. State of Manipur & Ors. being order dated 12.03.2026 made in W.P.(Crl.) No. 1 of 2026. All these orders viz, Mutum Ranjan Meitei, Laishram Nilajit Shija and Yambem Manichandra Singh have attained finality as State has accepted these orders and they have released the detenus in those cases. In the case at hand, the date of detention i.e., formal detention pursuant to impugned preventive detention order is 06.04.2026 and 3(three) weeks therefrom elapsed on 27.04.2026. The detenu sent representations dated 10.04.2026 to the detaining authority, 13.04.2026 to State Government, 15.04.2026 to the Central Government and 17.04.2026 to the Advisory Board. Therefore, the detenu in this case has sent representations within 3(three) weeks but in the additional grounds, more particularly, paragraph No. 5, the detenu has raised an additional ground that after 3(three) weeks, post submission of representations, the detenu wanted to send a second representation but did not do so owing to the 3(three) weeks time cap fixed. Paragraph No. 5 of the additional grounds to the extent relevant reads as follows:
‘5. ... Since the detaining authority set 3 (Three) weeks' time for submission of representation, after submission of the 1st representation to the detaining authority, the right of 2nd time representation to the detaining authority is curtailed in violation of Article 22(5) of the Constitution. ...’
As already alluded to supra learned State counsel as regards the additional grounds submitted that he will argue on the basis of the records. Learned State counsel submitted that the detenu has not made out any grievance regarding disposal of the first set of representations and therefore the question of sending second set of representations does not arise. This argument, though attractive in first blush, does not find favour with us as detenu has not said that he wanted to send second set of representations because he is not satisfied with the disposal of the first set of representations. All that the detenu says is that he wanted to send representation/s again (second time) which means he has been put on the wise about better and newer points or some other new circumstances, say ‘grant of default bail’ had to be projected but he respectfully did not do so owing to the 3(three) weeks cap. We find that grant of default bail is a very important point and that could have been articulated in a second representation if it had been made. In this view of the matter, this Court has no hesitation in coming to the conclusion that there is infraction of Article 22(5) of the Constitution owing to the impugned preventive detention order prescribing 3(three) weeks time cap i.e., 3(three) weeks from the date of detention for sending representations to State and Central Governments. In this regard, it is deemed appropriate to write that it has been repeatedly held that ‘representation’ has been interpreted as ‘effective representation’ and includes multiple representations.
[6] Though we have set out two points on which the impugned preventive detention order, impugned approval and confirmation orders stand vitiated, we noticed one other point and we deemed it appropriate to set out the same. In the listing on 07.09.2026, this Court noticed that the prosecution has not resorted to Section 43D(2) of UAPA and sought extension of period of remand/extension of time for filing charge sheet/final report and wanted to know the reasons. The proceedings made in 07.09.2026 listing of captioned WP reads as follows:
‘07-09-2026
[1] Read this in conjunction with and in continuation of earlier proceedings made in the previous listings.
[2] When the matter was taken up, Mr. S. Jhalajit, learned counsel on record for writ petitioner (mother of detenue), Mr. S. Chittaranjan, learned Additional Advocate General for the State of Manipur along with Mr. Y. Max, learned counsel for respondent Nos. 1 to 3 & 5 and Mr. W. Darakeshwar, learned Sr. PCCG (Senior Panel Counsel for Central Government) for respondent No. 4 were before this Court.
[3] At the outset, referring to earlier proceedings made in the previous listing on 01-09-2026, more particularly paragraph No. 5 thereat, learned Additional Advocate General, on instructions, submitted that the affidavit-in-opposition dated 05-08-2026 filed by respondent No. 2 (detaining authority) is adopted by respondent Nos. 1 & 3. This submission is recorded. This also means that respondent Nos. 1 & 3 are not filing separate affidavits-in-opposition.
[4] Adverting to the same paragraph No. 5 of the proceedings made in the listing on 01-09-2026, learned Additional Advocate General further submitted that all relevant official files are ready with him for production before this Court.
[5] Be that as it may, a point which pops up repeatedly, popped up in instant case also. Detenue was arrested on 09-02-2026 pursuant to FIR No. 46(2)2026 on the file of Singjamei Police Station pertaining to Sections 109, 351(3), 324(4) of the ‘Bharatiya Nyaya Sanhita, 2023 (45 of 2023)’ {‘BNS’ for the sake of brevity}, Section 3 of the ‘Explosives Act, 1884 (4 of 1884)’ {hereinafter ‘Explosives Act’ for the sake of brevity}, Section 25 (1-B) of the ‘Arms Act, 1959 (54 of 1959)’ {hereinafter ‘Arms Act’ for the sake of brevity} and Sections 16 and 38 of the ‘Unlawful Activities (Prevention) Act, 1967 (37 of 1967)’ {‘UAPA’ for the sake of brevity}. To be noted, this FIR is dated 08-02-2026. Learned Additional Advocate General submitted that the UAPA provisions were added on the next day i.e., 09-02-2026.
[6] We find that as regards UAPA provisions, Section 16 finds its place under Chapter IV and Section 38 finds its place under Chapter VI.
[7] In the above scenario, detenue filed Cril. Misc. (B) Case No. 142 of 2026 seeking regular bail which was first listed on 01-04-2026 and ultimately rejected by the Trial Court concerned on 30-04-2026.
[8] 90 days from the date of arrest elapsed on 10-05-2026 but neither final report was filed nor an application under Section 43D(2) of UAPA for extension of time for filing charge-sheet and extension of period of remand to 180 days (from 90 days) was filed. In this scenario, detenue filed a default bail application in Cril Misc. (B) Case No. 272 of 2026 on 28-07-2026 (nearly 2½ months after elapsing of 90 days) and the same (default bail) had been granted by the Trial Court concerned.
[9] This Court is informed that charge-sheet has not been filed in the trial court concerned until today.
[10] It was submitted by learned counsel for writ petitioner that the State having missed the bus in the regular law and order drill by not filing an application under Section 43D(2) and allowed the detenue to get default bail cannot now continue to detain the detenue relying solely on the impugned preventive detention under the National Security Act, 1980 (65 of 1980) {‘NSA’ for the sake of brevity}. However, learned counsel for writ petitioner sought time to ferret out case law inter alia on this point. This request acceded to.
[11] Mr. Y. Max, learned counsel assisting AAG sought time to get instructions as to why an application under Section 43D(2) of UAPA was not filed. This request of Mr. Y. Max, learned counsel is also acceded to. It is desirable that Prosecutor concerned is also present in Court along with learned AAG in the next listing to assist him.
[12] Owing to aforementioned request from both sides, let captioned matter stand over to 12-09-2026 (Saturday). List under the caption ‘PART HEARD HEARING’ on 12-09-2026 (Saturday).’
The response to above by learned State counsel was captured in the proceedings made in the listing on 12.09.2026 and the proceedings made on 12.09.2026 reads as follows:
‘12.09.2026
[1] Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 07.09.2026.
[2] Today, Mr. S. Jhalajit, learned counsel on record for writ petitioner, Mr. S. Chittaranjan, learned Addl. AG (Additional Advocate General) for State of Manipur for respondent Nos. 1 to 3 and 5 and Mr. W. Darakeshwar, learned Sr. PCCG (Senior Panel Counsel for Central Government) for respondent No. 4 are before this Court (Physical Court).
[3] Owing to earlier proceedings dated 07.09.2026, Mr. A. Gopendro Sharma, learned Spl. PP (Special Public Prosecutor), Imphal West is present in Court. Adverting to earlier proceedings, as regards the application under Section 43D(2) of ‘Unlawful Activities (Prevention) Act, 1967’ (‘UAPA’ for the sake of convenience), following two points were made by learned State counsel:
(i)advent of new Act namely, ‘Bharatiya Nagarik Suraksha Sanhita 2023 (46 of 2023)’ (‘BNSS’ for the sake of convenience), in place of erstwhile ‘Criminal Procedure Code, 1973’ (‘CrPC’ for the sake of convenience);
(ii)investigating officer has not approached learned Prosecutor with a request for extension of time for filing final report/extension of remand by resorting to Section 43D(2) of UAPA.
[4] In our considered opinion, as regards the second point supra, suffice to say that investigating officer had not been qui vive (alert). Be that as it may, if it becomes necessary, we will examine the first point, as the matter progresses.
[5] As regards hearing today, Mr. S. Jhalajit, learned counsel on record for writ petitioner, after some arguments, sought further adjournment stating that he needs to examine legal position, particularly regarding representations of detenu disposal turning on Article 22(5) of the Constitution of India. This adjournment request of learned counsel for writ petitioner is acceded to.
[6] In the light of narration thus far, we make it clear that Spl. PP, Imphal West, Mr. A. Gopendro Sharma need not be present in this Court in the ensuing listing/s.
[7] List under the same cause list caption i.e., ‘HEAIRNG PART HEARD’ on 17.09.2026.
[8] List on 17.09.2026.’
As regards the two reasons for not resorting to Section 43D(2) of UAPA, while the submission of prosecutor that the Investigating Officer did not approach the prosecutor with a request to file an application under Section 43D(2) of UAPA is acceptable from the prosecutor’s shoes but as a Court we find that the Investigating Officer not having requested learned prosecutor resort to Section 43D(2) of UAPA clearly means that State has allowed the matter to slip through its hands as regards the regular Law and Order drill, having allowed the matter to slip through its hands in the regular Law and Order drill and having allowed detenu to get default bail in the regular Law and Order drill, preventive detention order cannot be used to detain the detenu. Be that as it may, as regards the second reason, learned State counsel submitted that Section 531 of BNSS does not save provisions of erstwhile IPC, CrPC and Evidence Act. As Section 43D(2) of UAPA mentions only about CrPC and more particularly Section 167 of CrPC, with the advent of BNSS on 01.07.2024, application could not be filed. Though Section 531 of BNSS does not save the provisions of erstwhile CrPC, post 01.07.2024 i.e., post the three new enactments coming into force, the Ministry of Law and Justice has issued a notification dated 16.07.2024 bearing reference No. S.O. 2790(E) and scanned reproduction of this notification is as follows:
The above means that Section 167 of CrPC should now be read as Section 187 of BNSS. There is absolutely no impediment in filing an application under Section 43D(2) of UAPA seeking extension of time for filing charge-sheet/extension of remand by referring to the afore-referred notification of Ministry of Law and Justice and predicating the prayer on the plea that Section 167 of CrPC occurring in Section 43D(2) of UAPA should now be read as Section 187 BNSS. We make it clear that we have set out the obtaining correct legal position for the benefit of all concerned. Though detaining a person by resorting to a preventive detention statute after State allowing the matter to slip through its hands in the regular Law and Order drill may qualify as a ground, we make it clear that we are allowing the writ petition on the aforesaid two grounds.
[7] Ergo, sequitur is, captioned WP is allowed. The impugned preventive detention order dated 06.04.2026 bearing Reference No. Crl/NSA/No. 2 of 2026 made by R2 (District Magistrate, Imphal West District, Manipur), impugned approval order dated 13.04.2026 bearing Reference No. H-14/4/2026-HD-HD made by R1/R3 and impugned confirmation order dated 27.04.2026 bearing reference No. H-14/4/2026-HD-HD made by R1/R3 are all set-aside and Ningthoujam Chalamba Singh, aged about 29 years s/o late N. Subol Singh of Khurai Kongpal Sajor Leikai, PS-Porompat, Imphal East District now lodged in Manipur Central Jail, Sajiwa, is directed to be set at liberty forthwith, if not required in connection with any other case/s. There shall be no order as to costs.