Meghalaya High Court
Lasting G Momin vs The Union Of India And Ors on 22 September, 2014
Author: Uma Nath Singh
Bench: Uma Nath Singh
THE HIGH COURT OF MEGHALAYA
WP(Crl) No. 11 of 2014
Shri Lasting G Momin (the Detenue), represented by his
Mother, Smti Majila Momin, R/O Rongjeng Village, PO & PS
Rongjeng, District : East Garo Hills District, Meghalaya
....... Petitioner
-Versus-
1. The Union of India, through the Secretary to the
Government of India, Ministry of Home Affairs, New Delhi.
2. The Secretary to the government of Meghalaya, Political
Department, Meghalaya, Shillong.
3. The Under Secretary to the Government of Meghalaya,
Political Department, Meghalaya, Shillong.
4. The district Magistrate, West Khasi Hills District,
Nongstoin, Meghalaya.
5. The Superintendent, District Jail, Nongstoin, West Khasi
Hills District, Meghalaya.
....... Respondents
BEFORE HON'BLE MR JUSTICE UMA NATH SINGH, CHIEF JUSTICE (ACTING) Shri SP Mahanta, Sr. Advocate, assisted by Mr PT Sangma and Mr H Abraham, Advocates, present for petitioner. Shri S Sen Gupta, Govt. Advocate, present for respondents. Date of hearing 22.09.2014 Date of Judgment and Order 22nd September, 2014 2 JUDGMENT AND ORDER (Oral) I have heard learned counsel for parties and perused the petition.
2. This writ petition has been filed for issuance of writ of habeas corpus by Smt Majila G Momin, mother of detenue Shri Lasting G Momin who has been detained by the order dated 25.03.2014 passed under provisions of the Meghalaya Preventive Detention Act, 1995 (for short "MPDA") by respondent Deputy Commissioner/ District Magistrate. The main grounds of challenge to the impugned detention order, inter alia, are that there is a non application of mind in passing it; there was non-supply of necessary documents and materials, and despite the fact that there was no criminal case pending against the detenue, he was detained on the omnibus grounds which may relate to the cases of other detenues travelling in one car wherein the petitioner had innocently asked for and given a lift to travel from Shallang to his native place. The detention orders passed on 25.03.2014 are reproduced herein below :
"Annexure-1 CONFIDENTIAL GOVERNMENT OF MEGHALAYA, OFFICE OF THE DEPUTY COMMISSIONER:
WEST KHASI HILLS DISTRICT, NONGSTOIN.3
No.NDC.1/2014/10Dated Nongstoin, the 25th March, 2014.
To, Shri Lasting G. Momin, S/o Rosber Marak, Of Rongjeng village, East Garo Hills District, Williamnagar.
In pursuance of the provision of Sec. 8(1) of the Meghalaya Preventive Act, 1995 read with order No. NDC.1/2014/7 dt. 25.03.2014. I am to inform you that you have been detained under the provisions of the section 3(1) of the said Act on the grounds.
(a) That on 29th January, 2014 at about 11.00 am, while S.I.R.B. Swer along with SWAT team and E/186 CRPF Personnel from Shallang were conducting Counter Insurgancy Operations duty in Dongrangre area, suddenly a Bolero Camper bearing Regn No. ML-06-6451 approached towards the operation team on being stopped, 5 (five) GNLA cadres namely (1) Shri Lasting G. Momin, S/o Rosber Marak, of Rongjeng, East Garo Hills (2) Shri Arnesh G. Momin, S/o Robert R. Sangma of Chockpot, South Garo Hills, (3) Shri Bosco Momin (27 yrs), S/o Shri Martin T. Sangma of Dorangre, West Khasi Hills (4) Shri Fedrick Rongrin (22 yrs) S/o Shri Lewin Gare of Dorangre, West Khasi Hills (5) Shri Joro Sangma (25yrs), S/o Shri Ransom Sangma of Nengchigre, West Khasi Hills were detected while they were planning to extort money from the coal laden trucks and from the possession 2(two) Nos. of .32 Pistol with 2 (two) Nos Magazine, 7 (seven) rounds live ammunitions, 3 (three) Nos Mobile Phones and 21 (twenty one) Nos dry cell batteries were recovered and seized, hence Shallang PS C/ No. 01(01)2014 U/S 384/506/120 (B) IPC R/W Sec. 27 Arms Act and Sec.
13/17/18/39/40 UAP Act was registered and investigated into.
Such act of yours along with other associates were committed by you with criminal intention for your personal gains and for your organization thereby posing serious threat to the security of the State 4 and disrupting public order by creating a sense of fear and panic in the mind of the people and the society at large.
I am therefore, satisfied that if you are allowed to remain at large you will continue to indulge in such activities as mentioned above, which are prejudicial to maintenance of the public order in West Khasi Hills District and also pose a threat to the security of the State. For prevention of such activities, I consider your detention necessary.
I am also to inform you that you have a right to make representation to the District Magistrate, West Khasi Hills District and the Commissioner & Secretary, Political Department Government of Meghalaya against the order of detention as envisaged by Article 22(5) of the Constitution of India read with Section 8(1) of the Meghalaya Preventive Detention Act.
Sd/-
(S. Kharlyngdoh) District Magistrate, West Khasi Hills District, Nongstoin".
"Annexure-2 GOVERNMENT OF MEGHALAYA OFFICE OF THE DEPUTY COMMISSIONER WEST KHASI HILLS DISTRICT, NONGSTOIN No.NDC.1/2014/7 Dated Nongstoin the 25th March 2014 ORDERS UNDER SECTION 3(1) OF THE MEGHALAYA PREVENTIVE DETENTION ACT, 1995 Whereas, I am satisfied that in respect of the person known as Shri Lasting G Momin son of Shri Rosber Marak of Rongjeng Village of East Garo Hills District who is now in judicial custody.
Whereas, he has been arrested by the Police for his involvement in various unlawful activities and crimes like criminal trespass, house trespass, mischief by fire or explosive substances with intent to destroy a house, criminal disruption of public order etc. for 5 which the police have implicated conspiracy to commit an offence etc., In C/W Shallang PS Case No. 01(01)2014 U/S 384/506/120(B) IPC R/W Sec. 27 Arms Act and Sec. 13/17/18/39/40 UAP Act.
Whereas, the likelihood of the said Shri Lasting G Momin in obtaining bail cannot be rules out.
Whereas, I am satisfied that if the said Shri Lasting G Momin is allowed to remain at large, he would act in a manner prejudicial to the security of the State and maintenance of public order in the District.
Now, therefore, in exercise of the power conferred upon me under Section 3(1) of the Meghalaya Preventive Detention Act, 1995, I Shri S Kharlyngdoh, IAS, District Magistrate, do hereby direct forthwith that the person Shri Lasting G Momin shall be taken into preventive detention with immediate effect and that the detention shall be at District Jail, Tura until further orders.
Further, the said Shri Lasting G Momin, shall, in accordance with article 22(5) of the Constitution of India read with Section 8(1) of MPDA, 1995 have every right to make a representation against the order of detention to the Government addressed to the District Magistrate, West Khasi Hills District, Nongstoin and the Principal Secretary in Political Department, Govt. of Meghalaya.
Given under my hand and seal this 25th March, 2014.
(Sd/-) District Magistrate, West Khasi Hills District, Nongstoin".
The said detention order was approved by the Governor of Meghalaya, vide the order dated 01.04.2014 (Annexure 3) as:
"Annexure-3 "GOVERNMENT OF MEGHALAYA POLITICAL DEPARTMENT ORDERS BY THE GOVERNOR Dated Shillong the 1st April, 2014 NO.POL.79/2014/20- In exercise of the powers conferred by sub-section (3) of Section 3 of the 6 Meghalaya Preventive Detention Act, 1995 (MEGHALAYA ACT NO. 5 OF 1995), the Governor of Meghalaya is pleased to approve the Order No. NDC.1/2014/7, Dated 25.03.2014 made, under sub-section (1) of Section 3 of the aforesaid Act by the District Magistrate, West Khasi Hills District, Nongstoin directing that Shri Lasting G Momin be detained under sub - section (1) of Section 3 of the aforesaid Act.
By order of the Governor of Meghalaya Sd/-
Commissioner & Secretary to the Govt. of Meghalaya, Political Department."
The detention order was confirmed by Governor of Meghalaya, on the recommendation of the Advisory Board vide the order dated 22.05.2014, which reads as follows :
"GOVERNMENT OF MEGHALAYA POLITICAL DEPARTMENT ORDERS BY THE GOVERNOR Dated Shillong the 22nd May, 2014 NO.POL.79/2014/27- In exercise of the powers conferred by sub-section (1) of Section 13 of the Meghalaya Preventive Detention Act, 1995 (MEGHALAYA CT NO. 5 OF 1995), Read with THE MEGHALAYA PREVENTIVE DETENTION (AMENDMENT) ACT, 2003 (Amendment of Section 14 of the aforesaid Act), vide Notification No.POL.58/95/58, Dated 1st November, 2004, the Governor of Meghalaya, acting on the recommendation of the Advisory Board, is pleased to confirm the detention order No. NDC.1/2014/7 Dated 25.03.2014 made by the District Magistrate, West Khasi Hills District, Nongstoin and approved by the Government vide order No.POL.79/2014/20 Dated 1.04.2014 detaining Shri Lasting G Momin and to continue his detention for a period of 3 years with effect from 25.3.2014 to 24.3.2017.
By order of the Governor of Meghalaya.
Sd/ Commissioner & Secretary to Govt. of Meghalaya, Political Department."7
3. As per averments made in the writ petition, detenue Shri Lasting G Momin was arrested on 29.01.2014 by SIRB Swer along with SWAT team and E/186 CRPF personnel from Shallang when they were conducting counter operations duty in Doranggre area and an FIR was registered against the detenue vide Shallang PS Case No.
01.(01) 2014 under Sections 384/506/120(B) IPC read with Section 27 of Arms Act and Sections 13/17/18/39/40 of the Unlawful Activities (Prevention) Act, 1967. He was given to police custody for fourteen days, and thereafter, sent to judicial custody. When he was still in judicial custody in District Jail, East Khasi Hills, Shillong, he was served with the impugned detention order vide letter No. NDC.1/2014/10 dated 25.03.2014 along with the grounds of detention under Section 3(1) of MPDA 1995. The detention order was passed in order to prevent the detenue from acting in a manner pre-judicial to security of the State and maintenance of public order. Subsequently, the detenue was served with the order vide Memo No. POL.79/2014/20-A, dated 01.04.2014, whereby the detention order was approved.
4. Learned senior counsel Mr SP Mahanta submitted that the grounds of detention and supporting documents like FIR etc. were never served upon the 8 detenue. Thus, there was a gross violation of fundamental rights of the detenue because he was deprived of his rights to make effective representation and assert his rights as guaranteed under Article 22(5) of the Constitution of India read with Section 8(1) of MPDA 1995. Moreover, the grounds shown to have been furnished in detention order are totally irrelevant and that also goes to suggest that there was a total non-application of mind. The detenue has not acted in any manner which can be said to be prejudicial to the security of the State or to the maintenance of public order or of supplies and services essential to the community. There was no proximity or reasonable nexus between the order of detention and the grounds furnished to the detenue which rather appear to be totally extraneous. The detenue is a student of Class X, and he is ignorant about his rights guaranteed under the Constitution and the MPD Act. He was not provided any legal assistance soon before the arrest and also thereafter, which he was entitled to, before served with the detention order in jail. Even the requirements of Section 207 CrPC were not complied. It is also a submission that other occupants of the car who, perhaps, might have been indulging in anti national activities were not served with any detention order, whereas the petitioner who only took a lift in the car to travel from 9 Shallang market to his native place was apprehended by police team. He is not a member of the Garo National Liberation Army (for short "GNLA") nor has he any knowledge about any activity of the Organization. The allegations regarding recovery of illegal arms etc. may be true in respect of other accused but not in the case of the detenue. The petitioner could not even submit a representation to the authority in the absence of knowledge because he was not informed about his rights to do so. Failure on the part of detaining authority to inform the detenue about his rights upon detention has caused a serious infraction of his fundamental rights under Articles 21 and 22(5) of the Constitution of India.
5. Learned senior counsel for the petitioner in his arguments also submitted that when there was no material, whatsoever, to detain the son of the petitioner along with other persons, the District Magistrate in passing an ambiguous and omnibus detention order in respect of all the detenues, who were travelling in the same car, has acted with total non-application of mind. The detenue was also not made aware of his right to make representation nor was he supplied necessary materials which formed the grounds of detention. It is precisely for this reason that the Government of Meghalaya has issued a detailed guidelines 10 vide the letter dated 21.04.2014 directing all the detaining authorities in the State to furnish the connected and relevant documents to the detenues. The said letter is reproduced herein below for ready reference :
"GOVERNMENT OF MEGHALAYA POLITICAL DEPARTMENT No.POL.122/2008/Pt-I/1 Dated Shillong, the 21st April, 2014 From : Shri B Khongwir Under Secretary to the Govt. of Meghalaya To The District Magistrate, Shillong / Nongstoin / Nongpoh/Mawkyrwat/Jowai/Khliehriat/Ampati /Resubelpara/Tura/Baghmara/Williamnagar.
Subject: Forwarding of documents to MPDA detenue(s) Sir, I am directed to refer to the subject above and to say that the Hon'ble MPDA Advisory Board has observed that in most cases pertaining to detention of persons under MPDA, important documents linking the persons to the case culminating in their arrest and subsequent booking under MPDA were not supplied. The Advisory Board in its review meeting held recently had instructed the undersigned to alert all District Magistrates in this regard and to impress upon all that the detenues have every right of access to documents indicated below (besides Detention Order containing elaborate grounds) to enable the detenues to make effective representation. These are :-
1. copy of FIR
2. Copy of Seizure List
3. Copy of Statement of detenue before the Police.
4. Copy of confessional Statement before the Magistrate (if any).
The detaining authority should mention clearly that Documents above have been furnished to the detenue(s) at the time of issuance of Detention Order.
Yours faithfully, Sd/ Under Secretary to the Govt. of Meghalaya Political Department."
11
6. That apart, though it is asserted on the affidavit that the detention order was served upon the detenue but the letter dated 31.03.2014 does not bear the signature of the detenue to show that the detention order was ever served upon him.
7. On the other hand, in the affidavit-in-opposition filed by the District Magistrate/detaining authority, Nongstoin, West Khasi Hills, it is set out that upon the report of Superintendent of Police, the District Magistrate, West Khasi Hills, in exercise of powers conferred under Section 3(1) of the MPDA 1995 vide the order dated 25.03.2014 passed the detention order against the detenue. The detention order itself, provided that in terms of Article 22(5) of the Constitution of India read with Section 8(1) of MPDA 1995, the detenue has every right to make a representation against the detention order. It is also submitted that the respondents-State have necessary input regarding alliance of detenue with the armed insurgent group whose existence and functioning are viewed as prejudicial to the security of State or maintenance of public order and of supplies and services essential to the community. Ignorance of law is not an excuse for a citizen.
8. Learned State counsel submits that since some vital inputs were available with the State police, upon the 12 recommendation of Superintendent of Police, the District Magistrate of West Khasi Hills, passed the detention order. The documents as pointed out in the writ petition, which were alleged to have not been supplied to the detenue and which are said to have been necessary for making effective representation, were infact not very relevant for that purpose.
9. On due consideration of rival submissions, for a proper adjudication of the matter it would be necessary first to peruse the objects of the MPDA 1995 vide Section 3 thereof. The said provision is reproduced herein below as:
"3. Power to make detention order- (1) The State Government or a District Magistrate may, if he is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or to the maintenance of public order or of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
(2) The powers under sub-section (1) may also be exercised by such officer of the State Government not below the rank of a Secretary (hereinafter referred to as empowered officer) as may be specially empowered by it in this behalf.
(3) When a detention order is made under this section by a District Magistrate or by the empowered offricer such District Magistrate or officer, as the case may be, shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless the meantime it has been approved by the State Government :
Provided that where the grounds of detention are communicated under section 8 to the person detained after five days not later than ten days from the date of detention, this sub-13
section shall apply subject to the modification that for words "twelve days" the words "fifteen days" shall be substituted."
10. There is a categorical statement on affidavit that the petitioner had not indulged in any criminal activity in the past or at the time of travelling in the Bolero Camper car ML-06-6451 from Shallang market to his native place having taken lift innocently from the owner and driver of the car, nor is there any incriminating material to support the detention order. Thus, only on the ground that he was found to be travelling with other people in the car from Nongstoin to his native place as a passenger, he could not have been branded as a member of the GNLA.
11. It is also to be noted that as per the FIR names of five persons viz., (1) Shri Lasting G. Momin son of Rosber Marak from Rongjeng East Garo Hills District Meghalaya (2) Shri Arnesh G. Momin son of Shri. Robert R. Sangma from Chockpot South Garo Hills District Meghalaya (3) Shri Bosco Momin 27 years son of Martin T. Sangma village Darongre South West Garo Hills District Meghalaya (4) Shri Fedrik Rongrin 22 years son of Shri Lewin Gare village Dorangre South West Khasi Hills District Meghalaya and (5) Shri Joro Sangma 25 years Son of village Nengchigre Village had come in picture. Out of these five accused persons who were arrested, two accused persons namely 14 Shri Bosco Momin 27 years son of Martin T. Sangma village darongre South west Garo Hills District Meghalaya and Shri Bosco Momin 27 years son of Martin T. Sangma village darongre South west Garo Hills District Meghalaya were released on bail after sometime, but, they were also detained under the provision MPDA. Shri. Bosco Momin is the owner of the Bolero Camper bearing registration No. ML06-6451 and Shri. Fredik Rongrin, 22 years, is a person who had been working with the owner and had been present with him in the car. Thus they are the main accused. However, they were released on bail, and, thereafter, were not detained under the MPDA. It has been alleged in the petition that the relatives of Shri. Bosco Momin and Fedrick Rongrin who are influential, having good relationship with the bureaucrats, had met some top police officers, and that is why, they were released on bail.
12. Shri. Lasting /detenue was not even aware as to who are the real members of the GNLA. As per the averments made in the writ petition, though in the impugned Ground of Detention order No. NDC. 1 /2014/7 dated 25.03.2014 it is mentioned as, "accused is arrested by the Police for his involvement in various unlawful activities and crime like Criminal trespass, house trespass, mischief by fire 15 or explosive substances with intent to destroy a house, criminal disruption of public order etc, for which the police have implicated conspiracy to commit an offence etc." but it is no where reflected in the police records that the Detenue had ever been arrested in any other case or cases, apart from the one case that is referred in the Grounds of Detention i.e. Shallang P.S case No.01(01)2014 U/S 384/506/120 (B) IPC R/W Sec. 27 Arms Act and Sec. 13/17/18/39/40 UAP Act. Further, this was the first time when the detenue was arrested by the police and implicated. Never ever was any recovery of deadly weapon or any other offensive material from him. The accused is a student of Class 10 (X), hence, the charge of his committing repeated crimes appears to be a false allegation. The allegation has been made by the respondent District Magistrate without any supporting evidence just in order to justify the detention of petitioner's son under the MPDA. It is also specifically stated that the Detenue is not a member of insurgent organization like the GNLA etc, and the respondents have not submitted any document or evidence to show otherwise.
13. That apart, the detaining authority before reaching his subjective satisfaction should have inquired, verified and satisfied himself regarding the existence of incriminating 16 materials, if any, against the detenue which was rather conspicuous by absence. There was no past criminal history which may give rise to grounds for attracting the provision of Section 3 of the MPDA or to reach a reasonable conclusion that the detenue possesses propensity or potentiality to indulge in illegal activities which may be cognizable for detention under Section 3 of the MPDA. A detention order has to satisfy the requirements of law as discussed in the judgment of Hon'ble the Apex Court, reported in (2011) 5 SCC 244 (Rekha vs. State of Tamil Nadu). The relevant paragraphs being 30 to 35 are reproduced hereinbelow :
" 30.Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
31. In this connection, it may be noted that it is true that the decision of the 2 Judge Bench of this Court in Biram Chand Vs. State of Uttar Pradesh & Anr, (1974) 4 SCC 573, was overruled by the Constitution Bench decision in Haradhan Saha's case (supra) (vide para 34). However, we should carefully analyse these decisions to correctly understand the legal position.
32. In Biram Chand's case (supra) this Court held that the authorities cannot take recourse to criminal proceedings as well as pass a preventive detention order on the same facts (vide para 15 of the said decision). It is this view which was reversed by the Constitution Bench decision in Haradhan Saha's case 17 (supra). This does not mean that the Constitution Bench laid down that in all cases the authorities can take recourse to both criminal proceedings as well as a preventive detention order even though in the view of the Court the former is sufficient to deal with the situation. This point which we are emphasizing is of extreme importance, but seems to have been overlooked in the decisions of this Court.
33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha's case (supra) that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Articles 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (Indian Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.
34. Hence, the observation in para 34 in Haradhan Saha's case (supra) cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law.
35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', (Vide State of Maharashtra Vs. Bhaurao Punjabrao Gawande, (supra) - para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural 18 safeguards, however, technical, is, in our opinion, mandatory and vital".
14. Since the petitioner had no criminal past nor was he involved in any offence on the date of his detention, and moreover, if there was any suspicion about his activities and movements in that case, it could have been dealt with under the ordinary law of the land, therefore, there was no justification for the detaining authority to pass the impugned detention order against the detenue. That apart, in the absence of necessary materials to make timely and effective representation, the fundamental rights of the petitioner as contained in and guaranteed by Articles 21 and 22(5) of the Constitution of India have been seriously infringed. In another judgment reported in (2009) 11 SCC 438 (Thahira Haris and Ors vs. Government of Karnataka & Ors), vide paragraphs 13 and 27, the aforesaid observations have been reiterated while referring to the judgment in Shalini Soni vs. Union of India, reported in (1980) 4 SCC 544. As the said paragraphs also contain detailed discussions, it would be appropriate to reproduce them as under:
"13. In Shalini Soni v. Union of India, this Court aptly observed that the accused must have proper opportunity of making an effective representation. The Court observed thus : (SCC 0. 549, para 7) "7........Communication of the grounds pre- supposes the formulation of the grounds and 19 formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second fact of Art. 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self- sufficient and self- explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'.
27. This Court in Sophia Gulam Mohd. Bham v. State of Maharashtra & Others (1999) 6 SCC 593 para 11 20 observed that effective representation by the detenu can be made only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion were supplied to him".
15. Learned counsel for the respondents-State placed reliance on the judgment in Pooja Batra vs Union of India & Ors, reported in (2009) 5 SCC 296 to argue that for a detention order what is important is the subjective satisfaction of detaining authority and that satisfaction was formed in this case on the basis of recommendation of Superintendent of Police. However, in the absence of supporting materials being supplied to the detenue to make effective representation, after finding out as to whether the recommendation of Superintendent of Police was based on definite incriminating grounds, it cannot be said the detaining authority had fully satisfied himself to reach a reasonable and valid conclusion before passing the impugned detention order. This fact is well evident from the averments made in the petition. The petitioner has also alleged that the documents required to be supplied under Section 207 Cr.P.C., were not supplied. Section 207 provides for furnishing of the following documents; (i) The Police Report, (ii) The First Information Report recorded under Section. 154, (iii) The statements recorded under sub-section (3) of Section 161 of all persons whom the 21 prosecution proposes to examine as its witnesses, exclusion therefrom any part in regard to which a request for such exclusion has been made by police officer under sub-section (6) of section 173, (iv) The confession and statements, if any, recorded under Section 164 (v) Any other documents or relevant extract thereof forwarded to the Magistrate with the Police report under sub-section (5) of Section 173. These documents which were to be mandatorily served upon the detenue were never served and thereby a gross violation of his valuable rights has been committed. The petitioner could not make an effective and meaningful representation to the Advisory Board or the Government of Meghalaya and the Central Government, (Ministry of Home Affairs), Thus, the detenue was kept in the dark about his right to make an effective representation against the impugned detention order which, as noted above, appears to suffer from serious vices of being in conflict with the detention law.
16. The detenue was arrested on 29-1-2014, whereas the detention order was passed on 25-3-2014, after a gap of about 1month 25 days. From the averments as made in the writ petition, it appears that the detenue was unaware of the reasons of his arrest till he was served with a copy of the detention order without any supporting evidence/ 22 materials. Between the date of arrest and the date of passing of detention order, the petitioner was entitled to seek the enforcement of his fundamental rights under Article 21 and 22(5) of the Constitution also in terms of guidelines laid down in the case of D.K.Basu -vs- State of West Bengal (1997) 1 SCC 419 as under:
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as 23 soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend or the person who has been informed of the arrest and the name and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter".
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17. In view of the aforesaid discussion, the impugned orders of preventive detention dated 25-03-2014 and the orders of approval dated 01-04-2014 and confirmation dated 22-04-2014 cannot be sustained in law. Hence, these orders are hereby quashed. Resultantly, the detenue, namely, Shri Lasting G Momin shall be released and set free upon issuance and service of a copy of this judgment.
This writ petition, thus, stands allowed in terms of the aforesaid order and directions.
CHIEF JUSTICE (ACTING) dev