Meghalaya High Court
Shri Dipparson G Momin vs The State Of Meghalaya And Ors on 1 June, 2015
Bench: Uma Nath Singh, T Nandakumar Singh
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THE HIGH COURT OF MEGHALAYA
WP(Crl) No. 14 of 2014
Shri. Dipparson G. Momin,
S/o Late Willenedro K. Sangma,
Village Gajingpara Jamgaon Sorokpara,
North Garo Hills District, Mendipathar,
Meghalaya.
....... Petitioner
-Versus-
1. State of Meghalaya,
Represented by the Commissioner
Secretary to the Political Department,
Shillong, Meghalaya.
2. District Magistrate,
West Garo Hills District,
Tura, Meghalaya.
3. The Union of India,
Represented by the Secretary, Home,
New Delhi.
4. Advisory Board,
Gauhati High Court,
Assam.
....... Respondents
BEFORE THE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the petitioner : Mr. S.Dey, Adv.
For the respondents : Mr. S.Sen Gupta, GA
Date of hearing : 27-05-2015
Date of Judgment : 01-06-2015
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JUDGMENT AND ORDER
(Justice T. Nandakumar Singh)
Heard Mr. S. Dey, learned counsel appearing for the petitioner and also Mr. S. Sen Gupta, learned GA, appearing for the respondents No. 1 and 2. None appears for the respondent No.3.
2. The petitioner is the father of the detenu (Shri Rahul Marak). By this writ petition, the petitioner is challenging (i) the impugned detention order dated 22-11-2013 issued by the detaining authority i.e. the District Magistrate, West Garo Hills, Tura in exercise of his powers conferred upon him under Section 3 (1) of the Meghalaya Preventive Detention Act, (for short MPDA), 1995, for detaining the detenu i.e. the petitioner's son, (ii) the impugned order of the Government of Meghalaya dated 29-11-2013 under Sub-section (3) of Section 3 of the MPDA, 1995, for approving the impugned detention order dated 22-11-2013 and (iii) the impugned order of the State Government dated 02-01-2014 for confirming the impugned detention order dated 22-11-2013 and continuing the detention of the detenu for a period of 3(three) years w.e.f. 22-11-2013 to 21-11-2016.
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3. The object of law of preventive detention is not punitive but only preventive. Preventive detention is an anticipatory measure and does not relate to an offence. It is resorted when the Executive is convinced that such detention is necessary in order to prevent the persons detained from acting in a manner prejudicial to certain objects which are specified by the law. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". The Apex Court in Rattan Singh v. State of Punjab: (1981) 4 SCC 481 observed that:
"..... May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralyzed the Indian economy. But the loss of preventive detention affords only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus......." (Ref:- Para 4 of the SCC in Rattan Singh's case (Supra)."
4. In Vijay Narayan Singh v. Bihar : (1984) 3 SCC 14, Chinnapa Redy, J observed "our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter .... Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to 4 detain without trial have been built into the Constitution itself and incorporated as Fundamental Right ..... when demanded, where there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny."
5. It is fairly settled that jurisdiction of preventive detention is "suspicious jurisdiction" based on suspicion and an action is taken with the view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the detention order. Interference by a court of law at that stage must be an exception rather than a rule. The Hon'ble Apex Court in State of Maharastra v. Bhaurao Punjabrao Gawande: (2008) 3 SCC 613 held that the Court must be conscious and mindful of the fact that jurisdiction preventive detention is "suspicious jurisdiction"
based on suspicion and an action is taken with the view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the detention order.
Interference by a court of law at that stage, must be an exception rather than a rule because the exercise can be undertaken by a writ court with extreme care, caution and circumspection. Para 63 of the SCC in Bhaurao Punjabrao Gawande's case (Supra) reads as follows:-
"63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of 5 detention passed by a detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia: 1992 Supp (1) SCC 496: 1992 SCC (Cri) 301. The Court must be conscious and mindful of the fact that this is a "suspicious jurisdiction" i.e. jurisdiction based on suspicion and an action is taken "with a view to preventing"
a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order".
6. The concise fact of the case, sufficient for deciding the present petition, is recapitulated. The petitioner's son (Shri Rahul Marak) was arrested by the Police Personnel of Garo Police Station in connection with Boko Police Station Case No. 313/2013 under Section 121/121(A)/ 122/ 307 IPC R/W Sec. 25 (1-B)-A/ 27 Arms Act R/W Sec. 10/ 13 U.A. (P) Act, on 04- 09-2013, and the detenu was remanded to custody in connection with the said cases. While the detenu was in custody in connection with the said three cases, the District Magistrate, West Garo Hills, Tura in exercise of the powers conferred upon him under Section 3 (1) of the MPDA, 1995 issued the impugned detention order dated 22-11-2013 for detaining the detenu under MPDA, 1995. The impugned detention order dated 22-11-2013 clearly mentioned that the detenu has been in custody in connection with the said three cases and also that in the event of his obtaining bail from 6 judicial custody he would act in the manner prejudicial to the security of the State, maintenance of public order and threat to the life and property of the citizens and it is necessary that he be detained. It will be more profitable for deciding the matter in issue in the present writ petition to reproduce the impugned detention order dated 22-11-2013 which read as follows:
"GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT MAGISTRATE::
WEST GARO HILLS DISTRICT :: TURA NO. CB.39/13/28 Dated Tura, the 22nd November , 2013 ORDER UNDER SECTION 3 (1) OF THE MEGHALAYA PREVENTIVE DETENTION ACT, 1995.
Whereas, it has been brought to my notice that a person known as Shri Rahul Marak, S/o Shri. Deparson G. Momin of village Gajingpara Jamgaon Sorokpara, PS Mendipathar, North Garo Hill District is now in judicial custody;
And whereas, he is an active member of newly formed militant organization named Garo National Liberation Army (GNLA), a dreadful militant outfit of Meghalaya, which has unleashed a reign of terror by causing abductions, targeting innocent civilians, engaging in rampant extortion and wanton killing of police personnel and civilians by pre-meditated attacks and ambushes;
And whereas, the militant organization has generated a sense of insecurity and fear amongst the innocent citizens of Garo Hills in Meghalaya by declaring bandhs, attacking police convoys, ambushing police and paramilitary forces and targeting innocent civilians merely on suspicion of their being police informers;
And whereas, the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) (hereinafter referred to as 7 the said Act) has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and for matters connected therewith;
And whereas, the Garo National Liberation Army (GNLA), a militant outfit of Garo Hills, which came into existence in early 2010 has been consolidating its position in the three Garo Hills Districts both organizationally and in terms of weapons and cadres and to achieve the objective of a separate Garo State, the outfit is resorting to terrorism in the form of killing of innocent civilians and security forces in addition to engaging in other violent activities like physical assault on Government employees, lobbing grenades in Government buildings and other violent activities and extortions.
And whereas, the Central Government believes that the Garo National Liberation Army (GNLA) is involved in terrorism; and as such under clause (a) of sub section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967, the Central Government decided to add the Garo National Liberation Army (GNLA) and all its formations and front organizations as terrorist organization, in the Schedule to the said Act by S.O. 62 (F), dated 12th, January, 2012 (Notification No. F. No. 11011/124/2011-NE-V) published in the Gazette of India Extraordinary.
And whereas, Shri Rahul Marak, who is a member of this banned terrorist organization is involved in various anti-national activities, unlawful activities and crimes like extortion and robbery and with the use of deadly weapons for ransom, disruption of public order etc. for which police have implicated him as borne out in the case registered with Police Stations viz:
1. Complt. ABLNK Drejing M. Momin lodged an FIR at Tura PS that 15/10/2011 at about 10:30 AM while the complt. Along with Hav/William Maiong, ABC/Sambu Dalu and one civilian Shri Pintu Marak went out from Gambegre AD Camp for fishing at Dilne stream and on reaching at Suringgre village some GNLA cadres armed with 8 sophisticated weapons taken them to the house of Shri Nangja Sangma. Later they were badly assaulted and Hav. William Maiong was taken to the outskirt of the village and was shot dead. In course of investigation, it is established that you along with other GNLA cadres were involved in the crime. In this connection a case has been registered at Tura PS vide Tura PS Case No. 258(10)2011 U/S 365/302/34 IPC, R/W sec. 27 Arms Act.
2. Complt. SI J.B.Soner, I/C Selsella OP lodged FIR on 21/11/2011 at Tura PS that on 21/11/2011 at about 9:00 AM a group of five GNLA armed with sophisticated weapons came to Kalchengpara bazaar and forcibly kidnapped Shri Dulal Modok S/o Bahim Modok of Thanapara Hat Singimari and Shri Sofior Rahman S/o Kholimuddin SK of village Hat Singimari and before decamping the bazaar they fired five rounds in the air with a view to panic the general public and fled towards Nonipara side. During investigation, it is established that you along with other GNLA cadres were involved in the crime. In this connection a case has been registered at Tura PS vide Tura PS Case No. 280(11)2011 U/S 365/34 IPC. R/W Sec. 27(I)(2) Arms Act.
3. Complt. SI C.D. Shira lodged FIR on 20/12/2011 at Tura PS that on 20/12/2011 that one Shri Biren Marak, a coal trader of village Damalgre was found missing from the residence since last 7/8 days back and he was strongly suspected to be kidnapped by GNLA cadres for ransom. In course of investigation, it is established that you along with other GNLA cadres were involved in the crime. In this connection a case has been registered at Tura PS vide Tura PS Case No. 297(12)2011 U/S 365/120(B)/ 121/121(A)/ 122/ 34 IPC, R/W Sec. 27 Arms Act.
And whereas, seizure of indiscriminating documents have established corroboration and connivance of the person in the aforementioned crimes;
And whereas, I am satisfied that if Shri Rahul Marak is allowed to remain at large, in the event of his obtaining bail from the judicial court, he 9 would act in the manner prejudicial to security of the State, maintenance of public order and threat to the life and property of the citizens and it is necessary that he be detained and being so satisfied;
NOW, therefore, in exercise of the power conferred upon me under Section 3(1) of the Meghalaya Preventive Detention Act, 1995, I, Shri Pravin Bakshi, IAS, District Magistrate, West Garo Hills District, Tura, do hereby direct that Shri Rahul Marak be detained with immediate effect and until further orders at the District Jail, West Garo Hills, Tura under provisions of the aforementioned Act; Further, Shri Rahul Marak 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 detaining authority i.e. the District Magistrate, West Garo Hills, Tura, which right is in addition to and independent of his right to make representation before the State Govt. i.e. to the Principal Secretary /Commissioner & Secretary, Political Department, Govt. of Meghalaya, Meghalaya Secretariat, Shillong, to Advisory Board, Guwahati and also to the Central Government (Government of India) i.e. to the Secretary (Home), Ministry of Home Affairs, Government of India, North Block, New Delhi-1. Given under my hand and seal of the court this 22nd day of November, 2013.
(Pravin Bakshi) District Magistrate, West Garo Hills, Tura."
7. The impugned detention order dated 22-11-2013 was later on approved by the Government of Meghalaya on 29-11- 2013 in exercise of the powers conferred by Sub-section (3) of Section 3 of the MPDA, 1995. Ultimately, the Government of Meghalaya confirmed the detention order dated 22-11-2013 10 by issuing the order dated 02-01-2014 and fixed the period of detention for 3(three) years w.e.f. 22-11-2013 to 21-11-2016.
8. The petitioner filed the writ petition assailing the (i) the impugned detention order dated 22-11-2013 (ii) the approval order dated 29-11-2013 and (iii) the confirmation order dated 02-01-2014 only on two grounds: (1) there is non-application of mind on the part of the detaining authority and (2) subjective satisfaction of the detaining authority that "in the event of the detenu obtaining bail from judicial custody" he would act in the manner prejudicial to the security of the State, maintenance of public order and threat to the life and property of the citizens is only ipse dixit of the detaining authority. Paragraphs 7 and 14 of the present writ petition read as follows:
"7. That the detenu was also served with an Office order No. CB. 39/13/28, issued by the District Magistrate, West Garo Hills District, Tura, (Respondent No. 2), dated 22nd November 2013, wherein the detenu was informed of his detention and also the rights available to him, although the said order was vague in nature, since no bail application of the detenu was pending before any Court for his release from judicial custody. The subject satisfaction of the Respondent No. 2 that if the detenu is allowed to remain at large, in the events of his obtaining bail from the judicial court, he would act in a manner prejudicial to the security of the State, maintenance of public order and threat to the life and property of the citizens and it is necessary that he (detenu) be detained and being so satisfied.......", the said Order of detention was vague and there was no material for coming to the satisfaction that the detenu is likely to be released on bail.
It is pertinent to mention herein that the detenu was already in the judicial 11 custody and no bail application was pending for the release of the detenu. It is further to mention that the detaining authority has failed to show in the said ground of detention that the real possibility of detenu's release on bail and necessity of preventing him from indulging in activities prejudicial to security of State and maintenance of public order upon his release on bail.
14. That the Petitioner submits that while passing the said impugned Detention Order, the Detaining Authority had no objective material before it to arrive at a subjective satisfaction requiring the detenu to be detained under Meghalaya Prevention Detention Act, 1995 whereas the detaining was aware of the fact that the detenu is actually in judicial custody for an offence and in the detention order, it is recorded that "if Shri Rahul Marak is allowed to remain at large, in the event of his obtaining bail from the judicial court".
It is to mention herein that the question of obtaining bail does not arise since no bail application was pending before any Court for the release of the detenu, moreover there were no material placed before the detaining authority which could have satisfied him that the detenu would be released on bail in near future."
9. In the said paragraphs i.e. paragraphs 7 and 14 of the present writ petition, it is mentioned very clearly that the detenu did not file any application for releasing the detenu on bail in connection with the cases mentioned above.
10. The respondent No.2 had filed the affidavit-in- opposition in the present writ petition; in the affidavit-in- opposition, the respondent No. 2 did not deny that no bail application had been filed for releasing the detenu on bail in connection with the cases mentioned above. Para No. 11 of the affidavit-in-opposition read as follows: 12
"11. That with regard to the averments made at paragraphs 6, 7 and 8 of the writ petition, the answering deponent states that the same are matters of record. The answering respondent had issued Order dated 22.11.2013 invoking the provisions of MPDA (Meghalaya Preventive Detention Act) against the detenue elaborating the charges against the detenue and there was no vagueness in the Order which clearly availed the detenue the right to make a representation against the same.
When the detenue maintains that he is a member of a proscribed organization like the GNLA, the answering respondent invoked the provisions of MPDA taking into consideration the disturbance of law and order situation in Garo Hills caused by the GNLA. The subjective satisfaction of the District Magistrate is based on the ground reality epitomized by the number of cases involving the present detenue. The various grounds of detention as enumerated in the Memo dated 22.11.2013 prepared and served on the detenue by the answering respondent, comes under the maxim "res ipsa loqitur".
11. The Constitution Bench of the Apex Court in Kamlesh Kumar Ishwardas Patel Vs. Union of India & Ors : (1995) 4 SCC 51 observed that while discharging constitutional obligation to protect fundamental right of the people, more specifically right to personal liberty, the court would not be influenced by the nature of the activity of the detenu. The history of liberty is the history of procedural safeguards. The safeguards enshrined in clauses (4) and (5) of the Article 22 are required to be jealousy watched and enforced by the Court.
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12. The Apex Court through Hon'ble Justice H.L. Dattu in Pebam Ningol Mikol Mikoi Devi vs. State of Manipur and Others: (2010) 9 SCC 618 observed that :-
"3. Individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by the Constitution to the citizens of this country. On "liberty", William Shakespeare, the great play writer, has observed that "a man is master of his liberty." Benjamin Franklin goes even further and says that "any society that would give up a little liberty to gain a little security will deserve neither and lose both". The importance of protecting liberty and freedom is explained by the famous lawyer Clarence Darrow as "you can protect your liberties in this world only by protecting the other man's freedom; you can be free only if I am free." In India, the utmost importance is given to life and personal liberty of an individual, since we believe personal liberty is the paramount essential to human dignity and human happiness.
4. The Constitution of India protects the liberty of an individual. Article 21 provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. In matters of preventive detention such as this, as there is deprivation of liberty without trial, and subsequent safeguards are provided in Article 22 of the Constitution. They are, when any person is detained pursuant to an order made under any law providing for preventive detention, the authority making the order is required to communicate the grounds on the basis of which, the order has been made and give him an opportunity to make a representation against the order as soon as possible. It thus, cannot be doubted that the constitutional framework envisages protection of liberty as essential, and makes the circumstances under which it can be deprived."
13. The Apex Court in Union of India vs. Paul Manickam and Another (2003) 8 SCC 342 held that even in the case of a person in custody, detention order can validly be 14 passed subject to 3 (three) principles. Para 14 of the SCC in Paul Manickam's case (supra) read as follows:
"14. .... 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. (See N. Meera Rani v. Govt. of T.N. :
(1989) 4 SCC 418 : 1989 SCC (Cri) 732 : AIR 1989 SC 2027 and Dharmendra Suganchand Chelawat v. Union of India : (1990) 1 SCC 746 : 1990 SCC (Cri) 249 : AIR 1990 SC 1196 . The point was gone into detail in Kamarunnissa vs. Union of India : (1991) 1 SCC 128 : 1991 SCC (Cri) 88 : AIR 1991 SC 1640). 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."
14. For detaining a detenu already in custody under preventive detention law, the detaining authority shall have the subjective satisfaction that there is every possibility of releasing the detenu on bail and on being released, the detenu would in all probably indulge in prejudicial activities. 15
15. The Apex Court in Sunila Jain vs. Union of India and Another (2006) 3 SCC 321 held that detaining authority on the basis of the materials placed before him, shall come to the satisfaction that a detenu is likely to be released on bail and there cannot be such satisfaction by the detaining authority without taking into consideration of the bail application and also order passed in the bail application. The Apex Court further held that the detaining authority could come to the satisfaction, even if the detenu does not file the bail application that the detenu is likely to be released on bail in case the competent authority granted the bail in similar cases i.e. case similar with the case for which the detenu is in custody.
16. The Apex Court in Senthamilselvi vs. State of T.N. and Others (2006) 5 SCC 676 held that:
"10. ...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. 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. 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 has not disputed correctness of this statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi : (2002) 7 SCC 120 :
2002 SCC (Cri) 1627. The factual scenario in that 16 case was entirely different. In fact, five bail applications filed had been already rejected. In the background this Court observed that it was not a "normal" case. The High Court was justified in rejecting the stand of the appellant."
17. The Apex Court in Rekha Devi vs. State of Tamil Nadu (2011) 5 SCC 244 clearly held that in the absence of bail application, detaining authority without any materials cannot come to the conclusion that the detenu is likely to be released on bail. However, in similar cases if the accused had been granted bail, the detaining authority for the sufficient reasons still could come to the conclusion that the detenu is likely to be released on bail.
18. In the present case, the detenu did not file the application for bail nor had the co-accused been released on bail nor the order for granting bail to the accused in the similar cases. Paras 7, 10, 11, 12, 25 of the SCC in Rekha's case (supra) read as follows:-
"7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, the co-accused on the same case, nor whether the bail orders were passed in respect of other, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be 17 relied upon. In our opinion, this itself is sufficient to vitiate the detention order.
10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number whether the bail order was passed in respects of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.
12. Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non- existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated, etc.
25. In this connection, it may be noted that there is nothing on the record to indicate whether the 18 detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 8-4- 2010. On the other hand, in para 4 of the grounds of detention it is mentioned that "Thiru. Ramakrishnan is in remand in Crime No. 132 of 2010 and he has not moved any bail application so far". Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases have been given. Hence, the detention order in question cannot be sustained."
19. The Apex Court in Yumman Ongbi Lembi Leima vs. State of Manipur: (2012) 2 SCC 176 held that:
"24. Article 21 of the Constitution enjoins that:
"21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law."
In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22 (2) of the Constitution.
27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under 19 the Penal code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention.
28. In our view, the detaining authority acted rather casually in the matter in issuing the order of detention and the High Court also appears to have missed the right to liberty as contained in Article 21 of the Constitution and Article 22 (2) thereof, as well as the provisions of Section 167 of the Code of Criminal Procedure."
20. For the foregoing reasons, this Court is of the considered view that there is non-application of mind on the part of detaining authority in passing the impugned detention order and also that the satisfaction of the detaining authority that "in the event of the detenu obtaining his bail" for passing the impugned order under MPDA, 1995 is nothing but ipse dixit of the detaining authority.
21. Accordingly, the impugned detention order dated 22-11- 2013, the approval order dated 29-11-2013 and the confirmation order dated 02-01-2014 are hereby quashed and set aside. Thus, WP(Crl) No. 14/2014 is allowed. The detenu, Shri Rahul Marak, is thus set at liberty forthwith if he is, otherwise, not required in connection with any other case(s).
JUDGE CHIEF JUSTICE S.Rynjah