Smt.Irengbam Kelen Devi vs State of Manipur & Anr.

Heard Mr. Ph.Sanajaoba, learned counsel appearing for the petitioner and Mr. Y.Ashang, learned Addl.Govt.Advocate appearing for the State respondents .

In this petition, the petitioner is challenging the detention order dated 24 August, 2017 by which the petitioner''s husband has been detained under section 3 (2) of the National Security Act, 1980. As usual, one of the usual grounds of challenge of the detention order is that the subjective satisfaction arrived at by the detaining authority that the petitioner''s husband, who was already in jail at the time of detention under the National Security Act is likely to be released on bail in the near future unless provision under section 3(2) of the National Security Act, 1980 is applied, is not based on any cogent material in terms of the decision of the Hon''ble Supreme Court rendered in the case of Huidrom Konungjao Singh vs. State of Manipur reported in (2012) 7 SCC 181 based on the case of Rekha vs. State of T.N., (2011) 5 SCC 244. The Hon''ble Supreme Court held in Huidrom Konungjao Singh (supra)at para No.15 as below:- "15. In the instant case, admittedly, the said bail orders do not relate to the coaccused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other coaccused, if any, had been enlarged on bail, resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eyes of law."

It has been submitted by Mr.Sanajaoba, learned counsel for the petitioner that since the petitioner''s husband had not filed any application for bail, the question of release on bail in connection with FIR Case No.62(8)2017 Nambol PS u /s 17 /20 UA (P) A.Act & 5 Expl. Subs. Act in connection with which he was already detained at the time of passing the preventive detention order does not arise.

The State respondents had been granted time to file affidavitin- opposition and it was observed by this Court on 10.11.2017 that last opportunity was given to the State respondents to file their affidavit failing which the petition will be decided on the basis of the available materials. Today also, the State respondents have not filed their affidavit-in-opposition. Accordingly, the matter is taken up for hearing and disposal on the basis of the available materials.

We have also noted that nothing is mentioned in the grounds of detention furnished to the petitioner''s husband that the petitioner''s husband who was already detained under the National Security Act in connection with FIR Case No.62(8)2017 Nambol PS u /s 17 /20 UA (P) A.Act & 5 Expl. Subs. Act had filed any application for release on bail and as such, we are of the view that in absence of any such materials indicating that the petitioner''s husband had filed any application for being released on bail in connection with the aforesaid FIR case, the subjective satisfaction arrived at by the detaining authority that the petitioner''s husband is likely to be released on bail suffers from the vice of non-application of mind as held by the Hon''ble Supreme Court in the case of Huidrom Konungjao Singh (supra). Hence, the petition is allowed.

Accordingly, for the reasons discussed above, we are of the opinion that the impugned detention order dated 26.11.2013 cannot be sustained and accordingly, the same is set aside. The subsequent approval order dated 31.08.2017 is also quashed. In the result, the writ petition is allowed and the detenue, namely, Shri Khwairakpam Goba Singh (50 yrs.) s/o Kh.Mangijao of Irengbam Mayai Leikai, P.S. Nambol, District-Bishnupur, shall be released forthwith unless his detention is required in connection with any other case.