Meghalaya High Court
Shri Dalbin N Marak vs The State Of Meghalaya And Ors on 9 April, 2015
Bench: Uma Nath Singh, T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(Crl) No. 6/2014
1. Shri. Dalbin N. Marak
S/o Late Itnalson Arengh
Village Nikwatgre, Tura
West Garo Hills District,
Meghalaya (Presently in District Jail, Jowai) ::: PETITIONER
Vs
1. State of Meghalaya,
Represented by the Commissioner
Secretary to the Political Department,
Shillong, Meghalaya.
2. District Magistrate,
East Garo Hills District,
Tura, Meghalaya.
3. The Union of Inida,
Represented by the Secretary,
Home, New Delhi.
4. Advisory Board,
Gauhati High Court,
Assam.
5. Superintendent of District Jail,
Jowai, West Jaintia Hills District,
Meghalaya. ::: 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.P. Mahanta, Sr.Adv Mr. S. Dey, Adv For the Respondents : Mr. N.D. Chullai, Sr. Govt. Adv Date of hearing : 01.04.2015 Date of Judgment & Order : 09.04.2015 1 JUDGMENT AND ORDER (Justice T. Nandakumar Singh) Heard Mr. S.P. Mahanta, learned senior counsel assisted by Mr. S. Dey, learned counsel appearing for the petitioner and also Mr. N.D. Chullai, learned senior GA appearing for the respondents.
2. By this writ petition, the petitioner is assailing (i) the impugned detention order dated 14.01.2014 issued by the detaining authority in exercise of the powers conferred upon him under Section 3 (1) of the Meghalaya Preventive Detention Act, 1995 for detaining the petitioner-detenu with immediate effect until further orders, (ii) Order of the State Government dated 24.01.2014 for approving the detention order dated 14.01.2014 and
(iii) Order of the State Government dated 04.03.2014 for confirming and to continue the detention order for a period of 3 (three) years w.e.f. 14.01.2014 i.e. 14.01.2014 to 31.11.2017.
3. The framers of our constitution accepted the preventive detention as an unavoidable necessity but that necessity should not be aggravated by an interpretation which would drain Article 22 (4) to (7) of its contents, if a reasonable alternative construction was possible, it would avoid that result.
4. The Apex Court in Hem Lal Bhandari Vs Sikkim : AIR 1978 SC 765 observed that "...it is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers. In matter where the liberty of the citizen is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of the law." 2
5. 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 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."
6. The concise fact sufficient for deciding the present petition is noted. The petitioner-detenu was arrested by the Police Personnel of the Williamnagar Police on 24.11.2013 from Kusimkolgre Forest Gate. One Shri. G.T. Sangma, Sub-Inspector of Williamnagar Police Station, East Garo Hills District, lodged an Ejahar on 25.11.2013 with the Officer-In-Charge, Williamnagar Police Station inter alia that he received one source information to the effect that the General Secretary of GNLA was proceeding towards Williamnagar town by one motorbike bearing registration No. ML 08 A 6650. Accordingly, he along with some police personnel left the Police Station and approached towards Kusimkolgre Forest Gate for interception. At about 3:15 P.M. of the same day, the police personnel noticed a person driving a motorbike approaching towards Williamnagar town and instantly the rider was apprehended and brought to the Police Station for inquiry, the rider himself revealed his name and identity as one Shri. Dalbin N. Marak, General Secretary of the GNLA (petitioner-detenu) and a criminal case being Williamnagar P.S. Case No. 97 (11) 2013 under Section 120B/121A /123 / 34 IPC r/w 16/18/20 of the Unlawful Activities (Prevention) Act was registered 3 against the petitioner-detenu. In connection with the said criminal case, the petitioner-detenu was remanded for 14 (fourteen) days police custody by the learned Additional District Magistrate, Williamnagar on the prayer of the investigating officer. After the expiry of the police custody, the petitioner- detenu was remanded to judicial custody by the learned Additional District Magistrate. The bail application filed by the wife of the petitioner-detenu was moved in the Court of the Additional District Magistrate, Williamnagar, East Garo Hills District on 08.01.2014. However, the said bail application was rejected by the order dated 08.01.2014.
7. While the petitioner-detenu was in judicial custody, he was served with a copy of the impugned order dated 14.01.2014 informing that the detention order had been issued by the District Magistrate, East Garo Hills District, Williamnagar (respondent No. 2) under Section 3 (1) of the Meghalaya Preventive Detention Act, 1995. The petitioner-detenu was also served with the grounds of detention under letter dated 14.01.2014. Since the learned senior counsel by referring to the impugned detention order dated 14.01.2014 contented that there was absolutely non-application of mind on the part of detaining authority in issuing the impugned order and also the grounds of detention did not disclose the materials to show that the detention order is based on materials fact, it would be more profitable to quote the impugned detention order dated 14.01.2014 and the grounds of detention hereunder:-
" GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT MAGISTRATE:
EAST GARO HILLS DISTRICT: WILLIAMNAGAR __________________________________________________ th NO.EGH/CON.200(MPDA)/2014/3, Dated Williamnagar, the 14 January, 2014 ORDER UNDER SECTION 3(1) OF THE MEGHALAYA PREVENTIVE DETENTION ACT, 1995 4 Whereas, a new militant outfit by the name of Garo National Liberation Army (GNLA) has come into being in Garo Hills in Meghalaya of which Shri. Champion R. Sangma and Shri Sohan D. Shira are the originators, mentors and founders;
Whereas this militant organization has unleashed a reign of terror on the peace loving citizenry by executing criminal activities like extortion, kidnapping for ransom, ruthless murders of businessmen and traders, criminal intimidation to create a fear psychosis to suit their nefarious designs;
Whereas, this organization GNLA has been formed with the intention of waging war against the constitutionally formed and elected sovereign government of the day for creation of a Garo national entity and for which they are training gullible and susceptible poor, unemployed, rural youth;
Whereas, it is circumstance wise proved that Shri. Dalbin N. Marak @ Amika, S/o Late Itnalson D. Arengh, Village Nikwatgre, P.S. Tura, District West Garo Hills who is now in judicial custody is an active member of GNLA who has contributed in his might in the furtherance of the devious designs of the militant organization GNLA and is of dangerous and desperate character who is an active threat to public order and public security;
Whereas, his repeated commission of crimes at the instance of his superiors in the militant organization reflect his incorrigible intent to foment terror and points towards his indifference and total disregard to life, liberty of innocent citizens and their peace and security;
Whereas, he has been arrested by police for his involvement in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery etc. with deadly weapons for ransom, disruption of public order etc. for which police have implicated him in:
1. Williamnagar PS Case No. 97(11) 2013 U/S 120B/121A/123/34 IPC and R/W Sec.16/18/20 U.A(P) Act.
Whereas, I am satisfied that if Shri Dalbin N. MArak @ Amika 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 and would contribute in consolidation of the militant organization which shall be a constant threat to the peace, prosperity and security of the law abiding and peace loving citizenry of the district and the state and unleash mayhem and unspeakable atrocities on the people by indulging in murder, criminal intimidation, extortion, kidnapping for ransom in furtherance of their treacherous designs;
NOW, therefore, in exercise of the power conferred upon me under section 3 (1) of the Meghalaya Preventive Detention Act, 1995, I. Shri. Vijay Kumar Mantri, IAS, District Magistrate, East Garo Hills District, Williamnagar do hereby direct forthwith 5 that the person of Shri. Dalbin N. Marak @ Amika shall be taken into preventive detention with immediate effect and that the detention shall be at District Jail, Jowai, Jaintia Hills until further orders.
Further, Shri. Dalbin N. MArak @ Amika 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 Govt. addressed to the District Magistrate, East Garo Hills, Williamnagar, the Principal Secretary in Political Department, Govt. of Meghalaya and the Under Secretary to the Government of India, Ministry of Home Affairs.
Given under my hand and Seal of the Court this 14th day of January, 2014.
Sd/-
(Vijay Kumar Mantri) District Magistrate East Garo Hills District Williamnagar.
Memo No. EGH/CON.200 (MPDA)/2014/3-A, Dated Williamnagar, the 14th January, 2014 Copy to:-
1. The Chief Secretary, Govt. of Meghalaya, Shillong.
2. The Principal Secretary to the Govt. of Meghalaya, Political Deptt. Shillong along with the grounds of detention.
3. The Commissioner of Division, Garo Hills Division, Shillong.
4. The District Magistrate, Jaintia Hills, Jowai, for information.
5. The Superintendent of Police, East Garo Hills, Williamnagar.
He is directed to execute this order forthwith and report compliance.
6. The Superintendent of Police, Jaintia Hills, Jowai, for information and necessary action.
7. The Superintendent, District Jail, Jaintia Hills, Jowai, for information and necessary action.
8. The Superintendent, District Jail, Williamnagar, for information and necessary action.
9. Shri. Dalbin N. Marak @ Amika, Camp: District Jail, Williamnagar.
Sd/-
(Vijay Kumar Mantri) District Magistrate East Garo Hills District Williamnagar.
GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT MAGISTRATE:
EAST GARO HILLS DISTRICT: WILLIAMNAGAR _____________________________________________ 6 In the matter relating to Case No. EGH/CON.200(MPDA)/2014/1, dated 14th January, 2014:
Detention of Shri. Dalbin N. Marak @ Amika U/S 3(1) of the Meghalaya Preventive Detention Act, 1995.
Memo No. EGH/CON.200(MPDA)/2014/1, Dated Williamnagar, the 14th January, 2014.
GROUNDS OF DETENTION The principal grounds of detention of Shri. Dalbin N. Marak @ Amika are as follows:
That a new militant outfit has come into being with one Champion R. Sangma self styled Chaiman and another Sohan D. Shira as its originators, mentors and founders and this militant outfit is styled and called Garo National Liberation Army;
That the members of this outfit are unleashing a reign of terror upon the peace loving general citizenry of the society through such criminal activities like kidnapping for ransom, demanding money by extortion, criminal intimidation throughout the length and breadth of the state of Meghalaya in general and district of East Garo Hills in particular;
That it is conclusively established and proven that Shri Dalbin N. Marak @ Amika is an active and dangerous member of GNLA seriously disrupting public order, peace and tranquility through wanton acts of terror, extortion and kidnapping for ransom and further that he is implicated in the following police cases which suggest that he is threat to public peace, tranquility and public order;
1. Williamnagar PS Case No. 97(11) 2013 U/S 120B/121A/123/34 IPC and R/W Sec.16/18/20 U.A(P) Act As such, there is a need to take the person into preventive detention under Section 3 (1) of Meghalaya Preventive Detention Act, 1995.
Further, Shri. Dalbin N. Marak @ Amika 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 Govt. addressed to the District Magistrate, East Garo Hills, Williamnagar, the Principal Secretary in Political Department Govt. of Meghalaya and the Under Secretary to the Government of India, Ministry of Home Affairs.
Issued under my hand and seal of the Court today the 14th January, 2014.
7
By order etc. Sd/-
(Vijay Kumar Mantri) District Magistrate East Garo Hills District Williamnagar."
8. The impugned detention order dated 14.01.2014 had been approved vide order dated 24.01.2014 and confirmed vide order dated 04.03.2014 by the State Government and fixing the period of detention for 3 (three) years w.e.f. 14.01.2014. It is clear in the present case that the bail application filed by the petitioner-detenu's wife in connection with the said criminal case i.e. Williamnagar Case No. 97 (11) 2013 had already been rejected by the learned Additional District Magistrate, Williamnagar vide order dated 08.01.2014 (Annexure - 2 to the writ petition). This fact is not denied by the respondents in their affidavit-in-opposition. It is also the admitted fact of the parties that after the said bail application had been rejected by the learned Additional District Magistrate, Williamnagar by an order dated 08.01.2014, the petitioner-detenu never filed any application for bail. In this factual context, the petitioner-detenu is assailing the impugned detention order mainly on two grounds: (i) that there is non-application of mind on the part of detaining authority in issuing the impugned detention order inasmuch as there is not even a whisper that the petitioner-detenu who is already in custody is likely to be released on bail in connection with the said case and the petitioner-detenu cannot be dealt with normal criminal law unless and until the petitioner-detenu is detained under the Meghalaya Preventive Detention Act, 1995 for maintenance of public order in the district and also for preventing him from acting in a manner prejudicial to the security of the State and; (ii) satisfaction of the detaining authority for detaining the petitioner-detenu under the preventive detention law is only ipse dixit of the detaining authority.
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9. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. 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.s 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 paralysed the Indian economy. But the loss of preventive detention afford 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 safeguard are not denied to the detenus...." (Ref:
para 4 of the SCC in Rattan Singh's case (supra))."
10. No doubt, the doctrine of preventive power of the Administrative/Executive authority constitutionally validates preventive process for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. The Apex Court in Amir Shad Khan vs. L. Himingliana & Others: (1991) 4 SCC 39 held that -
"The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly 9 construed. Article 22 (3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under:
"22. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." (Ref. para 3 of the SCC in Amir Shad Khan's case (supra)).
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.
12. The Apex Court in G. Reddeiah vs. Govt. of Andhra Pradesh and Another (2012) 2 SCC 389 held therein that the purpose of preventive detention law is not to punish the detenu for something he has done but to prevent him from doing it. Para 11 of the SCC in G. Reddeiah's case (supra) read as follows:
"11. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. Even, as early as in 1975, a Constitution Bench of this Court considered the procedures to be followed in view of Articles 19 and 21 of the Constitution. In Haradhan Saha v. State of W.B. : 2 (1975) 3 SCC 198 : 1974 SCC (Cri) 816 a Constitution Bench of this Court, on going through the order of preventive detention under 10 the Maintenance of Internal Security Act, 1971 laid down various principles which are as follows: (SCC p. 209, para 34) "34....First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate [sic] the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."
13. 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 11 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."
14. The order for detention of the detenu under the preventive detention law cannot be invalid only on the ground that the detenu is already in custody when issuing the detention order but for detaining the detenu already in custody under preventive detention law, certain conditions, which are illustrated in the forthcoming paras, are to be fulfilled and also that there shall be subjective satisfaction of the detaining authority on the materials for further detaining the detenu already in custody under the preventive detention law.
15. No doubt, in a case of preventive detention no offence is proved, nor is any charge formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a man's greatest of human freedoms i.e. personal liberty is deprived. Therefore, laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. Jurisdiction in the preventive detention law had been described as "jurisdiction of suspicion", and the compulsions to preserve the values of freedom of a democratic society and the social order sometimes merit the curtailment of the individual liberty.
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16. 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 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."
17. 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 indulged in prejudicial activities.
18. 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 13 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.
19. The Apex Court in A.Geetha vs. State of T. N. and Others (2006) 7 SCC 603 held that:
" 10. It has to be noted that 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. 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 the 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 the 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 129 : 2002 SCC (Cri) 1627. The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not a "normal" case. The High Court was justified in rejecting the stand of the appellant. (See Ibrahim Nazeer v. State of T.N. :
(2006) 6 SCC 64 : (2006) 3 SCC (Cri) 17 : JT (2006) 6 SC 228 and Senthamilselvi vs. State of T.N. and Another (2006) 5 SCC 676 : (2006) 3 SCC (Cri) 50."
20. 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 14 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 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."
21. The Apex Court in Pebam Ningol Mikoi Devi vs. State of Manipur and Others (2010) 9 SCC 618, held that the scope of judicial review of the subjective satisfaction of the detaining authority is confined to, if there is an objective basis for subjective satisfaction. Paras 26, 28, 29 of Pebam Ningol Mikoi Devi's case (supra);
"26. What emerges from these ruling is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be twofold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.
28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under the NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid.
29. Keeping in view these well-settled legal principles, we have perused the grounds of detention and the documents relied on by the detaining authority while passing the order of detention. In our considered view, the grounds on which the 15 detention order is passed has no probative value and were extraneous to the scope, purpose and the object of the National Security Act. This Court in Mohd. Yousuf Rather v. State of J&K : (1979) 4 SCC 370 : 1979 SCC (Cri) 999 : AIR 1979 SC 1925 has observed that under Article 22(5), a detenu has two rights (1) to be informed, as soon as may be, of the grounds on which his detention is based and (2) to be afforded the earliest opportunity of making a representation against his detention.
The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and "grounds" as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid."
22. 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.
23. In the present case, the petitioner-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 16 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 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 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 17 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."
24. 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 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."
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25. 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 in passing the impugned order under preventive detention law is nothing but ipse dixit of the said authority. Accordingly, the impugned detention order dated 14.01.2014, the approval order dated 24.01.2014 and the confirmation order dated 08.03.2014 are hereby quashed and set aside. Accordingly, this Writ Petition (Crl) No.6 of 2014 is allowed. The petitioner- detenue, Shri. Dalbin N. Marak, is thus set at liberty forthwith if he is, otherwise, not required in connection with any other case(s).
26. The Registry is directed to furnish the copy of this judgment and order to all the District Magistrates of the State of Meghalaya and the Principal Secretary (Home), Govt. of Meghalaya for information so as to avoid repetition of the same mistake in future.
JUDGE CHIEF JUSTICE
Sylvana
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