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Judgment
Heard Mr. S. Rajeetchandra, learned counsel for the petitioner. Heard also Mr. Y. Ashang, learned GA for the State.
In challenging the detention of the petitioner vide order dated 17.08.2017 under the National Security Act, 1980, (NSA) Mr. S. Rajeetchandra, learned counsel for the petitioner has mainly relied on the following 2 (two) grounds.
Firstly, it has been submitted that though bail application was moved by the petitioner before the learned Judicial Magistrate, First Class, Imphal West-II, Manipur on 01.08.2017 in connection with FIR No. 51(7)2017 PATSOI P.S. U/S 365/342/368/34 I.P.C. & 18/20 UA(P) Act and hearing of the bail application was fixed on 05.08.2017, it was adjourned to another date on the prayer of the I.O. According to the petitioner, the bail application is yet to be considered. It has been submitted that this fact alone would not be sufficient for the detaining authority to come to the conclusion that the petitioner is likely to be released on bail in near future. Mr. Rajeetchandra, learned counsel for the petitioner submits that in the present case no other materials, for example, bail order in respect of any other co-accused in this case has been referred to. In fact, no other co-accused has been released on bail. Mr. Rajeetchandra submits that even though the detaining authority had stated in the grounds of detention in para no. 5 that the detaining authority is satisfied that the petitioner is likely to be released on bail in the near future since there are instances of release on bail by the competent court in similar cases, the detaining authority has not referred to any such order passed and as such, the subjective satisfaction arrived at by the detaining authority is without any cogent material. Further, it has been submitted by Mr. Rajeetchandra, learned counsel that as provided under Section 43D of the Unlawful Activities (Prevention) Act, 1967, once a person is arrested and detained under any provision of the Unlawful Activities (Prevention) Act, 1967 for commission of any cognizable offence, normally, he can be detained for a period of 180 days and since the petitioner was arrested and detained only on 08.07.2017 there was no likelihood of the petitioner of being released on bail so soon before completion of 180 days. Therefore, the possibility of the likelihood of the petitioner to be released on bail is remote and as such, it cannot be said that the subjective satisfaction arrived at by the detaining authority has been so properly arrived.
Secondly, Mr. Rajeetchandra, learned counsel submits that this is the second instance the petitioner has been detained under the National Security Act. Earlier he had been detained under an order dated 8.4.2013 issued under the NSA. It has been submitted that the said detention order was however, set aside by this Court in W.P. (Cril.) No. 26 of 2013 vide order dated 13.02.2014. He submits that though the said detention order was set aside by the Court, the same grounds on which first detention order dated 8.4.2013 was based have been relied again for passing the impugned detention order dated 17.08.2017. Mr. Rajeetchandra submits that in view of the law laid down in Chhagan Bhagwan Kahar Vs. N.L. Kalna, AIR 1989 (SC) 1234 : 1989 (2) SCC 318, it is not permissible to refer to the same or even some of the grounds of earlier detention order which had been already set aside by the Court in the subsequent detention order. In the said case of Chhagan Bhagwan (supra), it has been held by the Hon''ble Supreme Court that if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari, the grounds of the said order should not be taken into consideration either as a whole or in part even along-with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order. Accordingly, it has been submitted by Mr. Rajeetchandra that since the earlier detention order was quashed and set aside by this Court, the detaining authority could not have relied on those grounds which were used while issuing the earlier detention order, in the second detention order. He submits that the said principle has been already followed by this Court in Veineikim Haokip Vs. State of Manipur and Ors., 2012 Cril J 1336 as well as in Smt. Laishram Shama Devi Vs. State of Manipur and Others, 2013 Cril LJ 25. Accordingly, it has been submitted that the impugned detention order dated 17.08.2017 is liable to be set aside.
In response, Mr. Y. Ashang, learned GA has submitted that if at the time of passing the detention order any bail application was pending, it would be sufficient for the purpose of drawing the conclusion that the detenue is likely to be released on bail as held by the Hon''ble Supreme Court in Rekha Vs. State of Tamil Nadu, (2011) 5 SCC 244 in para 27 as follows : "27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."
Mr. Ashang submits that it has been also held by the Hon''ble Supreme Court in Senthamilselvi Vs. State of T.N. and Another, (2006) 5 SCC 676 that pendency of any bail application is not necessary if there are other materials available before the detaining authority to show that the detenue is likely to be released on bail and the detaining authority is not expected to make a roving enquiry to find out as to whether the detenue is likely to be released on bail.
First, we will deal with the submission of the petitioner that the subjective satisfaction arrived by the detaining authority about the likelihood of the petitioner being released on bail is not based on legally permissible materials and hence, vitiated.
As we proceed to examine this issue, it may be necessary to keep in mind the following most relevant facts in the present case: (i) the petitioner was already in judicial custody and was arrested in connection with FIR No. 51(7)2017 Patsoi P.S. u/s 365/342/368/34 IPC & 18(b)/20 UA(P)Act on 8.7.2017.
(ii) the petitioner had moved a bail application before the Court of Judicial Magistrate, First Class, Imphal West - II on 1.8.2017 in connection with the aforesaid FIR case and the hearing of the bail application was fixed on 5.8.2017 which was adjourned to another date for submission of the bail objection report.
(iii) thus the bail application was pending consideration when the detention order under NSA was issued on 17.8.2017.
A revisit of the relevant law may also be apposite. Whether a person who is already in judicial custody can be detained under the preventive detention law had been the subject matter before the Hon''ble Supreme Court from time to time as observed by the Hon''ble Supreme Court in Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181. The Hon''ble Supreme Court in Kounungjao case had summarised the position of law in this regard as follows: "6. Whether a person who is in jail can be detained under detention law has been the subject-matter of consideration before this Court time and again. In Dharmendra Suganchand Chelawat v. Union of India3, this Court while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan4, Masood Alam v. Union of India5, Dulal Roy v. District Magistrate, Burdwan6, Alijan Mian v. District Magistrate, Dhanbad7, Ramesh Yadav v. District Magistrate, Etah8, Suraj Pal Sahu v. State of Maharashtra9, Binod Singh v. District Magistrate, Dhanbad10 and Shashi Aggarwal v. State of U.P.11 and came to the following conclusion: (Chelawat case3, SCC p. 754, para 21)
"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression ''compelling reasons'' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
In Amritlal v. Union Govt.12 a similar issue arose as the detaining authority recorded its satisfaction for detention under the Act, in view of the fact that the person, who was already in jail, was going to move a bail application. In the grounds of detention it had been mentioned that there was "likelihood of the detenu moving an application for bail" and hence detention was necessary. This Court held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. (See also N. Meera Rani v. Govt. of T.N.13, Kamarunnissa v. Union of India14 and Union of India v. Paul Manickam15.)
This Court while deciding the case in A. Geetha v. State of T.N.16 relied upon its earlier judgments in Rajesh Gulati v. Govt. of NCT of Delhi17, Ibrahim Nazeer v. State of T.N.18 and Senthamilselvi v. State of T.N.19 and held: (A. Geetha case16, SCC p. 606, para 10)
"10. ... that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority." Its subjective satisfaction based on materials, normally, should not to be interfered with.
In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts:
(1) The authority was fully aware of the fact that the detenu was actually in custody.
(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.
(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.
In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition."
It is to be remembered that in Konungjao''s case, the detenue had not moved any bail application as recorded in para 10 of the judgment. " 10. The learned counsel for the appellant Shri L. Roshmani has submitted that the detenu had never moved the bail application after his arrest and he had not been involved in any criminal case earlier. Reliance had been placed upon two bail orders."
However, in the present case, the petitioner did file an application for bail which was pending at the time of passing the impugned detention order.
To understand the evolution of the law relating to detention of a person already under custody, under the preventive detention law, we may examine the facts/considerations in the cases referred to in the Konungjao''s case. 1. Rameshwar Shaw v. D.M., Burdwan, (1964) 4 SCR 921 : AIR 1964 SC 334 : (1964) 1 Cri LJ 257(Constitution Bench)
In this case, it was held that as to whether a detention order can be passed of a person who is already in jail will always be determined in the circumstances of each case.
"12. As abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail..............Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. (emphasis added)
Masood Alam v. Union of India, (1973) 1 SCC 551 In this case, the Hon''ble Supreme Court held that the real hurdle in making an order of detention against a person already in custody is based on the view that it is futile to keep a person in dual custody under two different orders but this objective cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease.
Dulal Roy v. District Magistrate, Burdwan (1975) 1 SCC 837. In the said case, since the State did not file any affidavit in opposition it was held that there was nothing to suggest what were the materials on the basis of which the said detention order was passed when the detenue was already in jail.
" 9. While it is true, as an abstract legal proposition, that an order of preventive detention under the Act may be validly passed against a person in jail custody on the same facts on which he is being prosecuted for a substantive offence in a court, such an order of detention is more easily vulnerable - than the one against a person not in such custody - to the charge that without there being any basis whatever for the satisfaction of the detaining authority, which is a condition precedent for taking action under Section 3, the power has been misused as a cloak solely for the purpose of punishing the detenue for the substantive offence for which he was being prosecuted, by subverting and circumventing the penal law and irksome court procedure. To make the detention order immune against such an attack, the detaining authority in its counteraffidavit must particularise all the material circumstances on the basis of which he was satisfied as to the necessity of the preventive action despite the detenue being already in jail custody and having no freedom of action on the date of the detention order. In the present case this has not been done. No counter-affidavit has been filed by the person who had made the impugned order."
Alijan Mian v. District Magistrate, Dhanbad (1983) 4 SCC 301 : 1983 SCC (Cri) 840. In this case, no detail reason was given by the Supreme Court except for observing that if detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood and it was necessary to prevent them from acting in a manner prejudicial to public order, detention order could be passed.
Ramesh Yadav v. District Magistrate, Etah (1985) 4 SCC 232 In this case, the Supreme Court held that bail application should be opposed and if granted should be challenged in the higher forum as follows:
" 4. In the grounds of detention, apart from specifying the above five grounds, reference was made to the fact that the detenu creates public terror on account of his criminal activities which are absolutely prejudicial to the maintenance of public order. It was further mentioned therein:
"At this time you were detained in the District Jail, Mainpuri and you have filed an application for bail in the Court of law which is fixed for hearing on September 17, 1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will indulge in activities prejudicial to the maintenance of public order."
On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in a series of cases relating to preventive detention. The impugned order, therefore, has to be quashed.
Suraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC 378 : 1986 SCC (Cri) 452. While agreeing with the decision in Ramesh Yadav (supra), it was observed that this principle will have to be judged and applied in the facts and circumstances of each case.
" 28. In Ramesh Yadav v. District Magistrate, Etah (1985) 4 SCC 232, it was held that merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed. If the apprehension of the detaining authority was true, Court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. We respectfully agree with this conclusion. But this principle will have to be judged and applied in the facts and circumstances of each case......"
While dealing with the case of Rameshwar Shaw, 1964 (supra), it was observed that while as an abstract proposition of law, there might not be any doubt that Section 3(1)(a) of the said Act did not preclude the authority from passing an order of detention against a person while he was in detention or in jail. But the relevant facts in connection with the making of the order might be different and that might make a difference in the application of the principle that the order of detention could be passed against a person in jail, the Court, however, was reluctant to lay down any inflexible test. In that case the petitioner was ordered to be released on the ground that he was served with the order of detention while he was in jail custody. In this case in Suraj Pal Sahu, the petitioner was not in jail custody.
Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : 1986 SCC (Cri) 490. In this case, it was observed by the Hon''ble Supreme Court that there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly.
In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified.
Shashi Aggarwal v. State of U.P., (1988) 1 SCC 436 In this case, the Supreme Court was concerned with the interconnectivity of the possibility of being enlarged on bail with the apprehension that he will continue his prejudicial activities.
" 8. The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in Poonam Lata v. M.L. Wadhawan2. The principles may be summarised as follows: Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.
Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746, at page 754 :
In the said case, the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention on October 11, 1988. The Supreme Court also noted that the grounds of detention disclosed that the appellants were engaged in activities which are offences punishable with imprisonment under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot, therefore, be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13, 1988 and their being released from custody at the time when the order for preventive detention of that appellant was passed on October 11, 1988. It was, however, clarified by the Hon''ble Supreme Court that in case the appellants are released from custody in the aforesaid criminal proceedings, the question of their preventive detention under the Act on the above material may be reconsidered by the appropriate authority in accordance with law and this decision shall not be construed as an impediment for that purpose.
Amritlal v. Union Govt., (2001) 1 SCC 341 : 2001 SCC (Cri) 147. In this case, the Hon''ble Supreme Court held that the reasoning given by the detaining authority that there is "likelihood of his moving an application for bail" is different from "likelihood to be released on bail" which is not sufficient compliance with the requirements of law.
N. Meera Rani v. Govt. of T.N., (1989) 4 SCC 418 : 1989 SCC (Cri) 732 In this case, the Supreme Court observed that there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail.
" 22. We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision 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 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; but, even so, if the detaining authority is reasonably satisfied on cogent material 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 even in anticipation to operate on his release. This appears to us, to be the correct legal position.
Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority''s awareness of the fact of detenu''s jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail........"
Kamarunnissa v. Union of India, (1991) 1 SCC 128 : 1991 SCC (Cri) 88. In this case, the Hon''ble Supreme Court did not follow the observation made in Ramesh Yadav, 1985 (supra) that the if the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Though the larger Bench in Suraj Pal Sahu (supra), a three Judges Bench agreed with the view in Ramesh Yadav (supra), it also observed that this principle will have to be judged and applied in the facts and circumstances of the case. It may be noted Kamarunnissa made a departure from the aforesaid view in the Ramesh Yadav (supra). It held that,
" 13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court........"
There were some other notable features in the case of Kamarunnissa which may be taken note of:
(i) Two of the detenus had already applied for bail. The court had not rejected their applications but had adjourned them as the investigation was in progress. That gave rise to the belief that bail would be granted.
(ii) It was then submitted that one of the detenus had not applied for bail and, therefore, there was no question of his being released on bail.
(iii) The Supreme Court did not think that there was any merit in this submission for the simple reason that if the co-accused were released on bail he too could seek enlargement on bail at any time. Therefore, it has held that the possibility of all the detenus being released on bail was a real one and not an imaginary one.
Union of India v. Paul Manickam, (2003) 8 SCC 342 : 2004 SCC (Cri) 239, at page 353: In this case also, the detenu was already in custody. The Supreme Court reiterated the law in N. Meera Rani v. Govt. of T.N. (supra) and Dharmendra Suganchand Chelawat (supra), Kamarunnissa (supra), but held that in the case at hand the order of detention and grounds of detention showed an awareness of custody and/or a possibility of release on bail.
Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64. In this case, the Supreme Court held that the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts. It was accordingly, held that,
" 7. It has to be noted that whether prayer for bail would be accepted depends on the circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be an ipse dixit of the detaining authority. On the basis of materials before it, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of the detenu being released on bail. It has been clearly stated that in similar cases, orders granting bail are passed by various courts.
Senthamilselvi v. State of T.N., (2006) 5 SCC 676 : (2006) 3 SCC (Cri) 50. The Supreme Court held that even if the detenu had not filed any bail application, whether prayer for bail would be accepted depends on circumstances of each case and no hard-and-fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority. It was held in the said case that on the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. It was held that on the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. The appellant also did not dispute the correctness of this statement.
From the above decisions which were also considered in Konungjao''s case, what one can gather is that the Constitution Bench in Rameshwar Shaw, 1964 (supra) had laid down that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. Though it was held in Ramesh Yadav that if the apprehension of the detaining authority was true that the detenue after being released on bail would carry on his criminal activities, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised, which was also agreed in Suraj Pal Sahu. It was also held in Suraj Pal Sahu that the relevant facts in connection with the making of the order might be different and that might make a difference in the application of the principle that the order of detention could be passed against a person in jail and the Court did not lay down any inflexible test. However, the principle laid down in Ramesh Yadav Sahu, was not accepted in Kamarunnissa in which it was held that if the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court.
Keeping the aforesaid principles in mind and keeping into considerations the peculiar facts of the case, we observe that in the present case: (i) the petitioner was arrested in connection with FIR No. 51(7)2017 Patsoi P.S. u/s 365/342/368/34 IPC & 18(b)/20 UA(P)Act on 8.7.2017 and already in judicial custody when the impugned detention order was issued on 17.8.2017.
(ii) the petitioner had moved a bail application before the Court of Judicial Magistrate, First Class, Imphal West - II on 1.8.2017 in the said FIR case and the hearing of the bail application was fixed on 5.8.2017 which was adjourned to enable submission of the bail objection report.
(iii) thus the bail application was pending consideration when the detention order under NSA was issued on 17.8.2017.
(iv) in the grounds of detention it has been stated that the petitioner after joining an armed insurgent organisation namely, United National Liberation Front (UNLF) in 1994 was arrested on 12.10.2003, but was realised on bail by the Court on the same day.
(v) he was arrested again on 24.7.2012 but released on bail on 26.10.2012.
(vi) he was arrested again on 20.3.2013 and thereafter detained Under the National Security Act, but realised by the Court in the last week of March 2014.
(vii) he was arrested again on 28.8.2014 in connection with another case under FIR No. 251 (08) 2014 Porompat P.S. U/s 17/20 UA (P) Act but released by the Court on bail on 3.9.2014.
(viii) on 30.12.2016, the petitioner was again arrested in connection with another case under FIR No. 75 (12) 2016 Patsoi P.S. U/s 17/20 UA (P) Act but released on 11.3.2017.
(ix) lastly, he was arrested on 8.7.2017 in connection with the case referred above and he applied for bail on 1.8.2017.
From the above, it is seen that before his latest arrest on 8.7.2017, the petitioner was arrested on 5 (five) earlier occasions, and he was realised on bail by the Court on all the four occasions soon after the arrests, and during one arrest, he was detained under the NSA, but the Court realised him also in that case subsequently. He was also arrested in connection with FIRS involving UA (P) Act, but was released on bail without much delay. Even though he was arrested in connection with offence under Unlawful Activities (Prevention) Act, in spite of Section 43 D, he was released much earlier before completion of 180 days.
In view of the facts and circumstances as revealed in the grounds of detention, this Court would hold that the subjection satisfaction arrived by the detaining authority as recorded in paragraph no. 5 of order of detention that "Whereas, I am satisfied from the police report that Shri Sougrakpam Surjit Singh @ Manglem @ Ibungo @ Piba (45 yrs) S/o (L) S. Yaima Singh of Singjamei Sougrakpam Leikai, P.s. - Singjamei, District - Imphal West, Manipur who is now in judicial custody, is likely to be released on bail in the near future since there are instances of release on bail by the competent court in similar cases and that, he would resume activities which are prejudicial to the security of the state and to the maintenance of public order on being released on bail and that therefore, he should be prevented from commission of such prejudicial activities through an alternative preventive measure" as well as in the grounds of detention that "I was satisfied that you are likely to be released on bail in the near future since there are instances of release on bail by the competent court in similar cases" are based on cogent materials. We would hold that when the detaining authority was referring to many instances of release on bail by the competent Court in similar cases, it can refer to the cases in which the petitioner himself was arrested in earlier occasions and released on bail soon thereafter. The petitioner''s own history clearly provides the basis for the detaining authority to come to the conclusion that the petitioner is most likely to be released on bail, more so, as he has already moved a bail application. This Court would also hold that the proposition that there was real possibility of the detenue''s being released on bail cannot be stretched too far to hold that the release of the detenue is imminent. Law does not contemplate such a requirement. After all, whether to release a detenue or not is to be decided by the Court based on various considerations of facts and law, which may not be properly and fully comprehended by the detaining authority. In the opinion of this Court, even filing of a bail application may be sufficient for the detaining authority to arrive at such a subjective satisfaction in the light of the past legal records or antecedents of the detenue as in the present case. In the instant case, in the past, as the detenue was arrested as many as five times and was released without much delay, except when he was detained under the National Security Act, and since the detenue has already filed a bail application, which was not also rejected, the detaining authority can legitimately draw the conclusion that there is real likelihood of the petitioner who was already in jail, of being released on bail. Thus, this subjective satisfaction of the detaining authority that the petitioner is likely to be released on bail cannot be said to be without cogent materials. Accordingly, the first ground of challenge raised by the petitioner is rejected as devoid of merit.
The second issue raise by the petitioner based on the judgment in Chhagan Bhagwan (supra) had been raised before this Court on earlier occasions also. In Smt. Laishram Shama Devi v. The State of Manipur and Ors, 2013 CRI. L. J. 25, one of us (Justice N.Kotiswar Singh) sitting Singly as a Bench of the Gauhati High Court (Imphal Bench) had dealt with this issue elaborately and had expressed certain doubts about the applicability of the law laid down in Chhagan Bhagwan (supra) in a similar case as the present one, but it was held that, it nevertheless would be binding on the Court till necessary clarification is made by the Hon''ble Supreme Court. We, also accordingly, take the same view that in a subsequent detention order in respect of the same detenue, it would be not be permissible to rely on the grounds which had been taken in an earlier detention order which had been set aside by the Court. The Hon''ble Supreme Court held in Chhagan Bhagwan (supra) that, "12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order." (emphasis added)
In the present case also, the detaining authority had relied upon or referred to various grounds, which also formed the grounds of the earlier detention order passed in 2013. The grounds of the earlier detention order were furnished on 10.4.2013. Most of the grounds taken in the first detention order have been also referred to in the grounds of impugned second detention order, though new facts and grounds have been stated in the grounds of the second detention order. According to the petitioner the first detention order was set aside by the Court in W.P.(Cril) No. 26 of 2013 vide order dated 13.2.2014, reported in Sougrakpam Surjit Singh Vs. District Magistrate, State of Manipur, 2014 Legal Eagle 18. Thus, if the earlier detention order was set aside by the Court by issuing high prerogative writ, the grounds taken in the said detention order could not have taken for issuing the second impugned detention order. However, since it was done, which is impermissible, the impugned second detention order is liable to be set aside. However, we are concerned to note that this lapse on the part of the detaining authority has been repeated, especially, in such case like this, where the detaining authority had considered the detenue to be an active member of an outlawed organisation indulging in serious criminal and seditious activities whose alleged criminal activities have been meticulously recorded since the detenue allegedly joined the underground armed organisation in 2003 and who continued to indulge in these criminal activities till the time of detention. The State/ detaining authority does not seem to be concerned to avoid this error inspite of reservations and observations made by the Court relating to this issue in the aforesaid case of Smt. Laishram Shama Devi (supra). We, are therefore, constrained to make certain observations and directions in the facts and circumstances of the case. While doing so we, re-examine the exercise undertaken in the said case of Smt. Laishram Shama Devi (supra) by the Court by analysing the decision in Chhagan Bhagwan (supra).
We, therefore, revisit the decision in Chhagan Bhagwan (supra), for which reference to the certain basic facts involved in the said case of Chhagan Bhagwan (supra) may be necessary. The detenu in the case of Chhagan Bhagwan (supra) was detained under Gujarat Prevention of Anti-social Activities Act, 1985 (PASA for short) under an order of detention dated 21-10-1988. It was stated in the grounds of detention, inter alia, that the detenu was illegally keeping in possession country liquor and openly selling the same and that he had been arrested in 1988 for offences under the Bombay Prohibition Act in respect of which a number of cases were registered which cases were pending trial. There were other allegations of the detenu engaging other persons to assist his bootlegging activities. One of the grounds for assailing the legality and validity of the order of detention was that the detaining authority for drawing his requisite subjective satisfaction, had taken into consideration the grounds of detention given in the earlier detention order, which was successfully challenged before the High Court of Gujarat. The Gujarat High Court by its judgment dated 3-8-1987 had quashed the earlier order of detention and directed the release of the detenu forthwith. It was the contention of the petitioner in the said case of Chhagan Bhagwan (supra) that once the previous grounds of detention had been quashed on their merit, the detaining authority had no justification to take into consideration the grounds of detention mentioned in the previous detention order for passing the second detention order, which should have been based only on the fresh grounds that were available subsequent to the quashing of the previous detention order. Certain judgments including Ghulam Nambi Zaki v. State of Jammu and Kashmir: (1970) 3 SCR 35 : (1971 Cri U (N) 24) were referred to and considered by the Hon''ble Supreme Court. In Ghulam Nambi Zaki (supra), the Hon''ble Supreme Court held that: "The matter is not res integra. In a number of decisions of this Court to which reference will be made presently, this point has been considered and it has been held that once an order of revocation is made, another order detaining the same person can only beassed if some additional or fresh material is in possession of the State Government on which action can be based."
The Hon''ble Supreme Court in Chhagan Bhagwan (supra) also referred to the decisions of the Constitution Bench in Hadibandhu Das v. District Magistrate, Cuttack, (1969) 1 SCR 227 : (AIR 1969 SC 43) : (1969 Cri LJ 274), and Har Jas Dev Singh v. State of Punjab (1974) 1 SCR 281 : (AIR 1973 SC 2469) : (1973 Cri LJ 1602) which held that unless fresh or additional materials are available, subsequent detention on the very same grounds would be invalid. The Hon''ble Supreme Court in Chhagan Bhagwan (supra) however, observed that those decisions mentioned albeit were cases wherein the first detention order ceased to be either by revocation or by expiry of the period of detention and went on to consider as to what would be the legal implications and ultimate effect of quashing an order of detention by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India and referred to the decision in Ibrahim Bachu Bafan v. State of Gujarat, (1985) 2 SCC 24: (AIR 1985 SC 697) : (1985 Cri LJ 533), wherein it the Supreme Court had held that: "........When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a high prerogative writ like habeas corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by Section 11(1) of the Act, the other is not known to the statute and is exercised by an authority beyond the purview of sub-section (1) of Section 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-section (2) of Section 11 is not applicable and the detaining authority is not entitled to make another order under Section 3 of the Act on the same grounds."
On the basis of the aforesaid decisions, the Supreme Court in the said case of Chhagan Bhagwan (supra) held that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order. Accordingly, the Hon''ble Supreme Court in Chhagan Bhagwan (supra) quashed the second detention order by holding that: "13. In the present case, no doubt, the order of detention contains fresh facts. In addition to that the detaining authority has referred to the earlier detention order and the judgment of the High Court quashing it, presumably for the purpose of showing that the detenu in spite of earlier detention order was continuing his bootlegging activities. But what the detaining authority says clearly in paragraph 9 of his affidavit in reply is that he took into consideration the previous grounds of detention also for his conclusion that the detenu ''was engaged in bootlegging activities since long''. In other words the detaining authority has taken into consideration the earlier grounds of detention which grounds had been nullified by the High Court in Special Criminal Application No. 46 of 1987 by issuing a prerogative writ of habeas corpus.
Examination of the aforesaid decision in Chhagan Bhagwan would indicate that the Hon''ble Supreme Court basing on the decision in the Ibrahim Bachu Bafan (AIR 1985 SC 697 : 1985 Cri LJ 533) (supra) held that the grounds used in the earlier detention order, if the same had been quashed by the High Court on merit, cannot be used at all again in the second detention order.
However, it is to be noted that in Ibrahim Bachu Bafan (supra), which was decided by a three Judges Bench, the Hon''ble Supreme Court held in para No. 5 of the judgment that : "5. Law of preventive detention within the ambit of which the Act is covered has been accepted by our Constitution. Challenge to legislations of preventive detention as being ultra vires the Constitution has, therefore, been repelled by this Court on more than one occasion. The inbuilt safeguards provided by the different statutes dealing with preventive detention have been accepted to be in keeping with the rule of law. There is judicial consensus that under the preventive detention law, before the Act in question came into the field, repeated orders of detention could not be made. This Court had clearly indicated that more than one order of detention on the same grounds in succession would not be valid, notwithstanding the aforesaid legal position, S. 11(2) of the Act authorises making of "another detention order under S. 3 against the same person." Counsel for both the parties have agreed that all the three orders of detention made in these cases were on the same grounds.........."
Again, in para No. 9 of the said judgment in Ibrahim Bachu Bafan (supra), the Hon''ble Supreme Court also held that,
"9. The power conferred under clauses (a) and (b) of sub-s. (1) of S. 11 is in fact extension of the power recognised under S. 21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of S. 11(1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a high prerogative writ like habeas corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down the same it nullifies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and while one process is covered by S. 11(1) of the Act, the order is not known to the statute and is exercised by an authority beyond the purview of sub-section (1) of S. 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has beenquashed by the High Court, sub-s. (2) of S. 11 is not applicable and the detaining authority is not entitled to make another order under S. 3 of the Act on the same grounds."
Therefore, it is abundantly clear that the Hon''ble Supreme Court in Ibrahim Bachu Bafan (supra) was dealing with a case where the second detention order was based on the same grounds which were the basis for the first detention order, which was already set aside by the High Court, which the Hon''ble Supreme Court held categorically as not permissible to be used again in the subsequent detention order. A reading of the Ibrahim Bachu Bafan (supra) case shows that the Hon''ble Supreme Court was not dealing with a case where there were additional or fresh grounds as in the case of Chhagan Bhagwan(AIR 1989 SC 1234 : 1989 Cri LJ 1145) (supra).
However, it appears that the Hon''ble Supreme Court in the case of Chhagan Bhagwan (supra) had expanded the scope of the said principle of declaring such subsequent detention based on the same grounds as not permissible, by holding that once the earlier detention order was quashed by the High Court, even a part of the ground used in the earlier detention order cannot be used in the second detention order as stated in para No. 12 of the judgment reproduced above. It matters not even if fresh grounds are also available, according to Chhagan Bhagwan (supra).
The aforesaid decision in Chhagan Bhagwan (supra) was followed subsequently in Jahangirkhan Fazalkhan Pathan vs. The Police Commissioner, Ahmedabad and Anr., AIR 1989 SC 1812 : (1989 Cri LJ 2097) and Ramesh v. State of Gujarat, AIR 1989 SC 1881 : (1989 Cri LJ 2094) (all by two Judges Bench of the Hon''ble Supreme Court). In Jahangirkhan (supra), the Hon''ble Supreme Court held: "6. In the present case, admittedly in the grounds of detention specific reference has been made to the earlier two orders of detention made in 1985 and 1986 against the petitioner. It is also evident that in the schedule of documents annexed to the grounds of detention not only the copies of the order of detention but also of the grounds of detention in the earlier detention cases have been given to the petitioner. It also appears from the statements made in the grounds of detention that the detaining authority took into consideration the previous grounds of detention as well as the orders made therein even though the same were nullified by the High Court as well as by the Advisory Body, presumably, for the purpose of showing that the detenu in spite of those earlier orders of detention was continuing in his bootlegging activities. It has been tried to be contended on behalf of the detaining authority that though the earlier two detention orders have been mentioned in the grounds of detention and the copy of the orders passed in the previous detention cases as well as the grounds of detention were supplied to the detenu yet these were not at all considered by him in forming subjective satisfaction for clamping the order of detention. This submission cannot be sustained in view of the statements made in the grounds of detention."
Similarly, in Ramesh (supra), the Hon''ble Supreme Court held that: "10. On a careful scrutiny of the grounds of detention, we unreservedly hold that the detaining authority has taken into consideration the two criminal cases mentioned under Sr. Nos. l and 2 of the table which were the materials in the earlier order of detention that had been quashed and that it cannot be said that those two cases are mentioned only for a limited purpose of showing the antecedents of the detenu.
In view of the above finding, we hold that the ratio laid down in Chhagan Bhagwan Kahar case (AIR 1989 SC 1234) : (1989 Cri LJ 1145) will squarely apply to the facts of the present case and the impugned order has become liable to be quashed."
In the said case of Smt. Laishram Shama Devi (supra), the High Court considered the submission made on behalf of the State of Manipur based on Section 5-A of the National Security Act, 1980. As per Section 5-A of the National Security Act, 1980, if the grounds mentioned in the detention order are separable, such order of detention shall be deemed to have been made separately on each of such grounds. It was accordingly, submitted that the detention order will not be vitiated on the ground that one of the grounds is invalid for any other reason whatsoever. Section 5-A of the National Security Act, 1980 reads as follows: "5-A. Grounds of detention severable.-Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds."
It was thus submitted by the State that in view of Section 5-A (a)(v) of the National Security Act 1980, even if the said old grounds cannot be acted upon as invalid by virtue of being already set aside by the Court, since the grounds are separable, the detention order can be sustained on the basis of the remaining fresh grounds as per the aforesaid provision of Section 5-A of the NSA which makes a deeming provision that whenever a detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds.
It was thus argued that even if the said old grounds cannot be used in the subsequent detention order, and to that extent held invalid, yet it has to be presumed that there are other separate detention orders on the basis of other new grounds. The validity of the remaining grounds has to be tested on their own merit and cannot suffer the automatic disqualification by virtue of Chhagan Bhagwan (supra) and to render the entire subsequent detention order invalid.
The validity and constitutionality of such a provision (viz., Section 5-A) providing for severability of grounds was upheld by the Constitution Bench in Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 : (AIR 1994 SC 2179 : 1995 Cri LJ 426) which was dealing with a similar provision under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), viz. Section 5-A of COFEPOSA, which had been held to be in parimateria with Section 5-A of NSA by the Hon''ble Supreme Court in State of U.P. v. Sanjai Pratap Gupta (AIR 2004 SC 4703 : 2004 Cri LJ 4600) (supra). In Sanjai Pratap Gupta, (supra) it was held that:
"18. In Attorney General for India v. AmratlalPrajivandas14 it was observed that where the detention order is based on more than one ground, by a legal fiction it would be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent one. In that case the Constitution Bench was considering scope of Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short "the COFEPOSA Act") which is in parimateria with Section 5-A of the Act. In view of the factual position analysed, the inevitable conclusion is that Section 5-A is applicable to the case and the High Court was not justified in holding to the contrary. The High Court''s judgment is therefore clearly indefensible."
The High Court in Smt. Laishram Shama Devi (supra) noted that the aforesaid decision in Amratlal Prajivandas (supra) was not considered by the Supreme Court in Chhagan Bhagwan (supra) and other subsequent decisions of the Supreme Court referred to above; and therefore, the contention that the grounds are separable and the subsequent detention order can still be sustained under the new and fresh grounds mentioned in the subsequent detention order by ignoring the old grounds which had been referred in the subsequent detention order, was also not considered by the Hon''ble Supreme Court in Chhagan Bhagwan (supra).
In Smt. Laishram Shama Devi, the State Government had submitted that the decision of the Chhagan Bhagwan (supra) can be distinguished and explained on the basis of the Amratlal Prajivandas (supra) and Sanjai Pratap Gupta, (supra). It was submitted that otherwise, it would not be possible for the detaining authority to come to the subjective satisfaction without referring to his past activities, that a habitual law breaker may be required to be detained under preventive detention if he continues with illegal activities. It was submitted that the past illegal activities of the detenue would indicate, in view of continuing activities after being released, the tendencies to further indulge in illegal activities which may call for his preventive detention to prevent further illegal activities.
Another aspect which came up for consideration in the said case of Smt. Laishram Shama Devi (supra) was whether, the decision of the Hon''ble Supreme Court in Chhagan Bhagwan (supra) can be applicable only when the High Court sets aside the earlier detention order on merit and not on technical ground. When any detention order is set aside on technical grounds without touching upon the merit of the grounds, there is no decision by the Court on the legality or validity of the grounds of detention, as to whether they were vague, non-existent, irrelevant or not, connected or not proximately connected with such person, or invalid for any reason whatsoever. "Grounds of detention" relates to the facts and activities of the detenue preceding the detention order, which form the basis or reasons for detaining a person, which may not have any relevance to the challenge of a detention order on the ground of delay in consideration of the representation of the detenu which is a post detention consideration. Therefore, setting aside a detention order on the ground of delay of consideration of the representation would fall in a different situation from a case where the Court sets aside the detention order by deciding the validity/legality of the grounds of detention by entering into the merit of the case by holding that such grounds are vague, non-existent, irrelevant or not, connected or not proximately connected with such person etc.
In the said case of Smt. Laishram Shama Devi (supra), the High Court considered the following issues: Firstly, whether the decision in Chhagan Bhagwan (supra), which was rendered by two Judges Bench, had correctly followed the decision by three Judges Bench in Ibrahim Bachu(supra) to the extent that interference in the subsequent detention ought to be allowed only when the grounds in the subsequent detention order is based on the same grounds used in the previous detention order as in the case of Ibrahim Bachu (supra). In Ibrahim Bachu (supra), the Hon''ble Supreme Court had set aside the subsequent detention order as it was found that it was based on the same grounds used in the previous detention order.
Secondly, whether Chhagan Bhagwan (supra) could be ignored on the ground that though it was rendered on the basis of Ibrahim Bachu (supra), which was of a larger Bench, its decision was beyond the scope of the ratio of the Ibrahim Bachu (supra).
Thirdly, what is the "ratio decidendi" of the Ibrahim Bachu (supra) and in Chhagan Bhagwan (supra).
Ibrahim Bachu (supra) decision was based on the fact that the grounds of detention in the previous and subsequent detention orders were the same. The "ratio decidendi" of the Ibrahim Bachu Bafan (supra) as can be culled out from the facts and discussions is that where the subsequent detention order is based on the same grounds of detention in the previous detention order, which had been set aside by the Court exercising jurisdiction under Article 226 of the Constitution, the second detention order will be illegal.
What is important to note is that in Chhagan Bhagwan (supra), the Gujarat High Court had set aside the previous detention order by nullifying the ground. The Hon''ble Supreme Court in Chhagan Bhagwan (supra) case noted in para No.13 of the judgment that "detaining authority has taken into consideration the earlier grounds of detention which had been nullified by the High Court", which clearly indicates that the High Court had quashed the previous detention order by setting aside the "grounds of detention", thus by deciding on the legality of the "grounds of detention".
Therefore, if the correct "ratio decidendi" of the Chhagan Bhagwan (supra) case is that once the ground/grounds of the previous detention order had been considered on merit by the High Court and set aside in a writ proceeding, the same grounds, cannot not be used in the subsequent detention order. If that be the correct "ratio decidendi" of the Chhagan Bhagwan (supra), what would be the precedential value of the subsequent decisions in Jahangirkhan Fazalkhan(supra) and Ramesh (supra)? Or, can it be said that the decision in Chhagan Bhagwan (supra) was rendered per incuriam as it did not consider Sanjai Pratap Gupta (supra) and does not constitute binding precedent in the light of the judgment in Ibrahim Bachu (supra) as the State Respondents contended in the said case of Smt. Laishram Shama Devi (supra)? It may be noted that in V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513 : (2010 AIR SCW 4252), the Hon''ble Supreme Court held that:
"54. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered per incuriam. This concept of per incuriam has been explained in many decisions of this Court. Sabyasachi Mukharji, J. (as his Lordship then was) speaking for the majority in A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531 : 1988 Cri LJ 1661) explained the concept in the following words: (SCC p. 652, para 42) : (Para 44 of AIR, Cri LJ)
"42. ... ''Per incuriam'' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
Fourthly, even if it is held on the basis of Chhagan Bhagwan (supra) that such reliance on previous grounds of detention is not permissible, can the remaining grounds which are fresh and new be saved by Section 5-A of the National Security Act, 1980 which provides that grounds are severable and it would be deemed that there would be as many detention orders as the grounds. Thus, even if the old grounds are not permissible to be considered, there would be several other detention orders on the basis of the remaining new grounds, and as such, the detention order could be sustained in view of Section 5-A of the NSA which was also not considered by the Hon''ble Supreme Court in Chhagan Bhagwan (supra).
Fifthly, if setting aside of the first detention order is based only on technical ground or on the ground of procedural lapses on the part of the authorities which is subsequent to the formation of the subjective satisfaction by the detaining authorities based on some grounds, and not on merit by referring to the grounds of detention, whether such setting aside of the detention order would place an absolute bar on the detaining authority even to make any reference to it in the subsequent detention order?
Or, in the alternative, would the legal consequence be same, irrespective of whether the previous order is set aside on mere technical ground or on merit by considering the validity of the grounds of detention, which are used in the subsequent detention order?
These are some of the questions and issues of grave consequences which could affect the personal liberty of the citizen and the security of the State and maintenance of public order, which arose at the time of consideration of the said case of Smt. Laishram Shama Devi (supra). The State Government in the said case had contended that Chhagan Bhagwan (supra) had not been correctly decided, being not in conformity with the decision of the larger Bench in Ibrahim Bachu (supra), and also that the provisions of Section 5-A of the National Security Act, 1980 in the light of the decision in Sanjai Pratap Gupta (supra) was not considered. The High Court in the said case of Smt Laishram Shama Devi (supra) held that how convincing the arguments of the State Respondents may sound, it may not be appropriate for the Court to agree with the contentions of the State Respondents in view of the judicial decorum and discipline Courts are expected to observe while dealing with the decisions of the Supreme Court and of a cognate and larger Bench of the same Court, which apparently had decided against the State.
The High Court in the said case of Smt. Laishram Shama Devi (supra) took the view that it would be for the Hon''ble Supreme Court to clarify those issues, which had been raised by the State Government, in appropriate cases and till, such clarifications are made, the Court had no other alternative but to follow the decision in Chhagan Bhagwan (supra) which held that if the subsequent detention order refers to some grounds of detention of a previous detention order which was set aside by the Court, such subsequent detention order cannot be sustained. In holding so, the High Court was mindful of the note of caution recorded in Lala Shri Bhagwan and Anr. v. Ram Chand and Anr. AIR 1965 SC 1767 wherein it was held: "18.... It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself."
Accordingly, the petition in the said case of Smt. Laishram Shama Devi (supra) was allowed by setting aside the detention order which referred to some grounds taken in earlier detention order, in terms of the decision in Chhagan Bhagwan (supra).
In spite of the aforesaid observations made by the High Court in the said case of Smt. Laishram Shama Devi (supra), the State did not avail any opportunity to get the issues clarified from the Hon''ble Supreme Court and yet continued to repeat the defects prohibited in law vide Chhagan Bhagwan (supra). In the present case, the detaining authority again referred to the grounds of detention relied in the first detention order which was set aside by the High Court by issuing high prerogative writ, which according to Chhagan Bhagwan (supra) is impermissible.
The next question which arises is, whether this Court should merely close this petition by setting aside the second detention order? Perhaps, in the context of the situation obtaining here, where the State authorities have portrayed a very disturbing picture of the continued activities in the State of outlawed armed underground outfits whose aim is to establish a sovereign and independent State of Manipur by waging a war against the lawfully established Government of India and Manipur by using firearms, and the State is invoking the provisions of the National Security Act, 1980, on the ground that such persons, like the petitioner, who after being released on bail will continue to indulge in such criminal activities like extortion of money, attempts on the lives of innocent people, etc., it may be appropriate for this Court to remind the State authorities of the responsibility to ensure that the detaining authorities do not commit such avoidable errors which have been already pointed by the Court in Smt. Laishram Shama Devi (supra)
In this case, if the detaining authority/State feel that some of the grounds relied in the first detention order are required to be relied in the second detention order for the purpose of indicating the criminal background of the detenue, nothing prevented the State Government from getting the matter clarified from the Hon''ble Supreme Court as indicated in the aforesaid case of Smt. Laishram Shama Devi (supra). Instead, the State Government/detaining authority continues to repeat the the same error unmindful of the decision in Chhagan Bhagwan (supra) and observations made in Smt. Laishram Shama Devi (supra). In such an event, there is no other alternative but to draw the inference that the State Government/detaining Authority is suffering from inertia, or lack of interest, or casualness with such serious matters which affect the rights of citizens and equally weighty considerations of the security of state, and maintenance of law and order in which event, this Court would have no other alternative but to impose an exemplary fine of Rs. 50,000/- to the State respondents within a period of 3 (three) months. This fine is to be paid to the account of the Manipur State Legal Services Authority to be utilised for the welfare of the jail inmates in Manipur.
Accordingly, under the facts and circumstances and for the reasons discussed above, we allow this petition by setting aside the impugned detention order dated 17.8.2017 and other consequential orders. In the result, the detenue namely, Shri Sougrakpam Surjit Singh @ Manglem @ Ibungo @ Piba (45 yrs) S/o (L) S. Yaima Singh of Singjamei Sougrakpam Leikai, P.S. - Singjamei, District - Imphal West, Manipur is directed to be released immediately unless required to be detained in connection with any other case.
Petition is allowed with the above observations and directions. A copy of this order be furnished to the Member Secretary of the Manipur State Legal Services Authority for doing the needful.