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Judgment
This application has been filed for quashing of the order dated 22.08.2016 passed by the District Magistrate Thoubal (respondent No.2) whereby and whereunder the respondent No.2 in exercise of power conferred under sub-section 3 of Section 3 of the National Security Act, 1980 passed the order of detention in Cril. NSA Case No.3 of 2016 against the detenue Mrs. Thangkhumi Mizo @ Thangi after recording that in order to prevent the detenue from acting in any manner prejudicial to the security of the State and maintenance of public order, it has become necessary to do so.
The grounds on which order of detention was passed are that the detenue, hailing from Mizoram, after the death of her husband shifted to Moreh and settled there by opening a pan shop. There she came in contact with one Mr.Pula Mizo and Mrs. Bawlte Mizo who had engaged themselves in the activities relating to human trafficking. The detenue also joined their companies whereupon the detenue used to procure girls particularly, from the area falling within the District of Churachandpur and used to hand over them to said Pula Mizo and Mrs. Bawlte Mizo for taking to Singapore for immoral purposes. For the said act the detenue was being paid commission.
On 09.08.2016, while the detenue was taking three girls from Churachandpur to Moreh for trafficking to them to Singapore for the purpose of prostitution in a vehicle it was intercepted by the Police who apprehended the detenue. Thereupon a case was registered as FIR No.20(08) 2016 Women Police Station, Thoubal under Section 370(3)(5)/373/34 of the IPC and 5(a)(d)(i) of the Immoral Trafficking (P) Act, 1956.
On such ground, the respondent no.2 after recording that detenue would continue to act in the manner prejudicial to the maintenance of public order, passed order of detention on 22.08.2016 which was approved on 02.09.2016. The aforesaid order of detention and its approval have been challenged on several grounds.
However, Mr. Th. Babloo, learned counsel for the petitioner did confine his argument with respect to only one ground which is with regard to materials being absent for recording the satisfaction by the detaining authority that there is every possibility of the detenue being released on bail. In this regard, it was submitted that the detaining authority has passed order that there has been likelihood of detenue being released on bail but for recording such satisfaction there was no material at all and thereby order of detention being bad is fit to be quashed.
As against this, Mr. Y. Ashang, learned G.A appearing for the respondents submitted that from the order of detention it would appear that the detaining authority after taking notice of the fact, recorded in the grounds of detention, did satisfy himself that the detenue after being released on bail would indulge in the same activities which are prejudicial to the maintenance of public order and only after recording such satisfaction, the order of detention has been passed which never warrants to be interfered with by this Court.
It be stated that the Detaining Authority while passing order of detention in case of detenue being in custody needs to observe following safeguards: i) If the authority passing the order is aware of the fact that he is actually in custody;
(ii) If there is reason to believe on the basis of available materials placed before him -
(a) that there is every possibility of being released; and
(b) that on being so released he would be in all probability to indulge in prejudicial activities;
(iii) If it is felt essential to detain him to prevent him from doing so.
Such proposition has been laid down by the Hon''ble Supreme Court in the case of Union of India -Vs- Paul Manickam, (2003) 8 SCC 342, to be adhered to by the detaining authority passing order of detention while the detenue is in custody which reads as follows:
"14........Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. Ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated..... The point was gone into detail in Kamarunnissa v. Union of India: (1991) 1 SCC 128: 1991 SCC (Cri.) 88. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail."
The said principle was reiterated in the case of Huidrom Konungjao -Vs- State of Manipur & Ors (2012) 7 SCC 181 wherein it has been held that if such detention order is challenged, detaining authority ought to satisfy the Court following facts:
(i) the authority was fully aware of the fact that detenu was actually in custody;
(ii) there was reliable materials before the said authority on the basis of which it could have reasons to believe that there is reliable possibility of release on bail and further on being released, he would probably indulge in activities which are prejudicial to the public order.
In the light of the decision, if we examine the legality of the detention order, we would find that the detaining authority has recorded its satisfaction that there is likelihood of detenu being released on bail but while recording such satisfaction no material was there in arriving at to such satisfaction and thereby order of detention being bad is fit to be set aside. Accordingly, it is set aside.
Thus, we do find that the subjective satisfaction of the detaining authority of likelihood of the accused being released on bail is not based on any factual material and thereby the order of detention and its approval being bad are hereby quashed. Consequently, detenu namely, Mrs. Thangkhumi Mizo @ Thangi (55 yrs.) W/o (L) Sanga Mizo of Moreh Ward No.3 P.S, Moreh District- Chandel, Manipur is directed to be released forthwith if not wanted in any other case. Thus, this writ petition stands allowed.