Gauhati High Court
Thanglenmang Hangsing vs District Magistrate And Ors. on 13 February, 2004
Equivalent citations: (2004)2GLR612
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT B. Biswas, J.
1. The petitioner Mr. Thanglenmang Hangsing @ Jhonson @ Mamang was detained under the National Security Act, 1980 with a view to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order by the order dated 12th August, 2003 passed by the District Magistrate, Senapati District, Manipur. The order of detention issued under Sub-section (2) of Section 3 of the National Security Act, 1980 is in challenge in this petition.
2. It would appear from the pleadings on record that the writ petitioner was arrested by the personnel of the 25th Assam Rifles Bn. on 30.7.2003 and was handed over to Lamlai Police Station along with the seized articles. Accordingly, a case was registered against him at Lamlai Police Station. The case was transferred to Saikul Police Station. The petitioner was arrested by Saikul Police Station in a number of cases registered in different police station. The petitioner was allegedly involved in cases of forcible collection of money from members of public. Besides, he was also collecting money from Government Departments for raising funds for the outfit organization (Kukhi Revolutionary Army) and involved in a number of heinous crimes which, according to the detaining authority, were prejudicial to the security of the State and maintenance of public order. This led the District Magistrate, Senapati to pass the order of detention of the petitioner under the National Security Act. The order of detention reads as follows :
"Whereas a police report has been laid before me that Mr. Thanglenmang Hangsing @ Jhonson @ Mamang (32) son of Mr. Thangneikhup Hangsing of Khumunom village, P. S. Litan, District, Ukhrul, at present New Lambulane, P. S. Porompat, District - Imphal East a member of Kuki Revolutionary Army (KRA in short) is acting in a manner prejudicial to the security of the State and maintenance of public order ;
2. And whereas, I Shri T. Pamei, District Magistrate, Senapati District, Manipur, am satisfied, that his activities are prejudicial to the security of the State and maintenance of public order under Sub-section (2) of Section 3 of the National Security Act, 1980 ;
3. And whereas, it is considered necessary to detain Mr. Thanglenmang Hangsing@ Jhonson @ Mamang (32) son of Mr. Thangneikhup Hangsing of Khumunom village, P. S. Litan, District Ukhrul, at present New Lambulane, P. S. Porompat with a view to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public order.
4. Now, therefore, I Shri T. Pamei, District Magistrate, Senapati District, Manipur in exercise of the powers conferred upon me by Sub-section (2) of Section 3 of the National Security Act, 1980 as well as Home Deptt. Govt. of Manipur's order No. 17(1)/49/80-H(Pt)/212 dated 30.5.2003 make this order directing that the above said detenu/person be detained in Manipur Central Jail, Sajiwa till further orders.
Given under my hand and seal of this Court, this 12th August, 2003."
3. It appears that the grounds of detention were furnished, to the petitioner on 16.8.2003 along with copies of seven documents altogether consisting 35 pages which included the history sheet detailing various activities of the detenu, copies of the First Information Report etc. The petitioner submitted representation dated 18th August, 2003 to the State Government through the Superintendent of Manipur Central Jail for revocation of the impugned detention order. On 19.8.2003, the Government of Manipur approved the order of detention passed by the District Magistrate, Senapati and, on 25th August, 2003, rejected the representation submitted by the petitioner.
4. We have heard Mr. Nilamani Singh, learned senior counsel assisted by Mr. A. Bimal, learned counsel for the petitioner and Mr. Jalaluddin, learned Government Advocate, Manipur. Mr. C. Choudhury, learned CGSC also argued on behalf of the Union.
5. Mr. Nilamani Singh, learned senior counsel during the course of argument challenged the legality, validity and propriety of the order of detention on the following grounds :
(i) the detaining authority (District Magistrate) failed to inform the detenu that he had a fundamental right to make a representation to the detaining authority before the State Government approved the order of detention as provided in Article 22(5) of the Constitution ;
(ii) the detenu was not informed of his right to make a representation to the Central Government for revocation of the detention order ; and
(iii) non-application of mind by the detaining authority (District Magistrate) to the fact that the detenu was already in judicial custody and whether there was immediate prospect of his release on bail.
6. Mr. Nilmani, learned senior counsel submitted that the failure on the part of the detaining authority (Respondent No. 1) to inform the detenu of his right to make a representation to the said detaining authority for revocation vitiate the order of detention. Shri Nilmani pointed out that this right to represent flows from Article 22(5) of the Constitution and Section 3(4) and Section 14(1) of the National Security Act, 1980 and, therefore, any omission on the part of the detaining authority in this regard would vitiate the order of detention.
7. The materials on record including the grounds of detention (Annexure-A/2) do not reflect that the detenu was informed of his right to make representation to the detaining authority. In Kamaleshkumar Ishwardas Patel, Appellant v. Union of India and Ors., Respondents (1995) 4 SCC 51, the Hon'ble Supreme Court held that the provisions of Article 22(5) has the same force and sanctity as in other provisions relating to Fundamental Rights. According to Hon'ble Supreme Court, Article 22(5) imposes a duel obligation on the authority making the order of preventive detention to communicate to the person detained the ground on which the order of detention has been made and afford the person detained an earliest opportunity of making a representation against the order of detention. The Supreme Court further held that the authority that has made the order of detention can also revoke it and this right of the detaining authority is inherent in the power to make the order of detention. The decision in Kamaleshkumar (supra) was also relied upon by the Hon'ble Supreme Court in the State of Maharastra and Ors., Appellants v. Santosh Shankar Acharya, Respondent, (2000) 7 SCC 463 while dealing with a prevention order passed under the provisions of the Maharastra Prevention of Dangerous Activities of Slumlords, Bottleggers, Drug-Offenders and Dangerous Persons Act, 1981. A Division Bench of this Court in Writ Petition (Cri.) No. 16 of 2003 also followed the aforesaid decision in Kalameshkumar (supra) while dealing with a case under the National Security Act. This Court, in para 10 of the judgment held as follows :
"10. A bare perusal of the above provisions of law manifestly goes to show that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention to the appropriate Govt. by the detaining authority who has passed the order of detention at the time of communicating the grounds on which such detention has been made and the detaining authority has the power to entertain the representation so received by him till the approval of the order of detention by the State Govt. The language of the Legislature is very clear and unambiguous to the effect that by exercising power under Section 21 of the Clauses Act, the said detaining officer can amend, vary and rescind the order as has been provided under Section 14 of the Act so referred, above. That being so, taking into consideration the above statutory provisions and applying the provisions of law enunciated by the Apex Court in Kamaleshkumar's case (supra) and Santosh Shankar Acharya's case (supra), we are of the firm opinion that the ratio of those two decisions of the Supreme Court is fully applicable in this case. Here, the detaining authority failed to consider and dispose of the detenu's representation dated 31.3.2003 so made to him. The Respondent No. 1 went wrong in not discharging the imperative duty cast on him by the statute and as such the order of detention in the case at hand appears to be illegal and invalid."
8. It is, therefore, clear that the provisions in Article 22(5) cast an obligation oh the detaining authority to inform the detenu detained under any preventive detention law of his right, of making representation to the detaining authority before approval of the order of detention by the State Government. This is the established principle of law. In the case at hand, the detaining authority apparently did not inform the detenu of his right to make a representation before him (detaining authority). There is, therefore, a serious lapse on the part of the detaining authority. This lapse alone vitiates the order of detention.
9. The detention order dated 12.8.2003 was served on the detenu in custody on 13.8.2003. The grounds of detention dated 14.8.2003 were furnished to the detenu on 16.8.2003. On 18.3.2003, the petitioner submitted his representation to the State Government through the Superintendent of Manipur Central Jail. The Government of Manipur approved the order of detention by an order passed 19.8.2003. The representation submitted by the petitioner was rejected on 25.8.2003. There is obviously no delay on the part of the Government of Manipur in dealing with the representation submitted by the writ petitioner. The Advisory Board in its meetings held on 27.9.2003 and 29.9.2003 also affirmed the order of detention. It would appear from above that the representation submitted to the State Government was promptly dealt with and there is no violation of any provision of law in so far the representation to the State Government is concerned.
10. Next point urged was with regard to the right of the petitioner to make representation to the Central Government. The petitioner admittedly did not file any representation to the Central Government for revocation of the detention order. It appears that the petitioner was not informed of his right to make the representation to the Central Government under Section 14 of the National Security Act read with Article 22(5) of the Constitution. The State respondents in their affidavit did not offer any explanation for this omission/lapse on the part of the detaining authority. The grounds of detention (Annexure-A/2) show that the petitioner was informed of his right to make the representation to the Government of Manipur represented by the Chief Secretary through the Superintendent of Manipur Central Jail, Sajiwa within three weeks. There is nothing else in this communication relating to the detenu's right of representation to the Central Government. The order of detention is also completely silent on this. In this connection, we may refer to a Division Bench decision of this Court in Hemanta Nath, Petitioner v. State of Assam and Ors., 1998 (2) GLT 344. Relying upon the decisions in Nutan J. Patel v. S.P. Prasad (1994) 2 SCC 315 and Kamaleshkumar (supra), this Court held as follows :
"5. It is an admitted position that the detenu has not been apprised of his right to make a representation to the Central Government so much so as per detention order and grounds of detention as supplied to the detenu. There is no mention of his right to make a representation to the State Government, although subsequently, just within four days of passing the detention order, he was informed through a letter that he could make such representation to the State Government. But there again there is no information so far as the Central Government is concerned. This denial of opportunity to make a representation to the Central Government vitiates the continued detention of the detenu."
11. On the fact situation of this case, the ratio available in the above judgment would apply meaning thereby that the order of detention cannot be sustained for omission on the part of the detaining authority in informing the detenu of his right to make a representation before the Central Government within the purview of Section 14 of the National Security Act, 1980.
12. The order of detention quoted hereinbefore also does not reflect that the detaining authority had applied his mind before issuing the order to the fact that the petitioner was in judicial custody in connection with criminal cases. Mr. Nilamani, learned senior counsel submitted that the settled position of law requires the detaining authority to record satisfaction that the detenu might indulge in prejudicial activities causing threat to the security of the State, if released on bail and that his release on bail is imminent.
13. It would appear from Surya Prakash Sharma, Petitioner v. State of U. P. and Ors., Respondents, 1995 Crl. L.J. 2657 (SC) that if the detaining authority is aware of the fact that the detenu is in judicial custody at the time of making the order of detention, such authority must bring on record cogent materials in support of the averment made in the grounds of detention that if the detenu is released on bail, he may indulge in serious offences causing threat to the public order. This decision in Surya Prakash Sharma (supra) is based upon the ratio in Dharmendra Suganchand Chelawat and Anr., Appellant v. Union of India and Ors., Respondents, AIR 1990 SC 1196, where the Hon'ble Supreme Court held as follows :
"19. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention ; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
14. From paras 7 and 9 of the grounds of detention (Annexure-A/2), it would appear that the detaining authority was aware that the petitioner was in judicial custody in connection with a number of cases of serious nature. The detaining authority was, therefore, under an obligation to record reasons justifying detention of the detenu already in judicial custody. In this context, the statements made in paragraph 9 of the grounds of detention (Annexure-A/2) are quoted below :
"9. From the points enumerated above, it is clearly seen that you, Mr. Thanglenmang Hangsing @ Johnson @ Mamang (32) is a dangerous hard core member of so-called gang namely - Kuki Revolutionary Army (KRA) who carried out prejudicial activities which disturbed the public order affecting public tranquility. In view of your prejudicial activities in the proximate past, it is reasonably be anticipated that you would continue to act in the manner prejudicial to the maintenance of public order in case you are released on bail. Thus, the application of normal criminal laws against you is not at all effective and some alternative preventive measure is therefore, immediately called for."
15. It would appear that detenu's release or prospect of his imminent release has not been considered by the detaining authority. This amounts to non-application of mind. What is stated by the detaining authority is - "it is reasonably be anticipated that you would continue to act in the manner prejudicial to the maintenance of public order in case you are released on bail". There is no mention that the detenu was likely to be released on bail immediately for which his detention under the preventive law was the only option with the detaining authority in order to prevent him from indulging in pre judicial activities posing threat to the public order. An order of detention, like the one at hand, cannot be justified having been passed in anticipation of prejudicial activities to the maintenance of public order and, that too, without placing the materials on record on the basis of which the satisfaction has been drawn that the detenu was likely to be released from custody. The decision in Binod Singh, Petitioner v. District Magistrate, Dhanbad, Bihar and Ors., Respondents (1986) 4 SCC 416 and Gulab Mehra, Appellant v. State of U. P. and Ors., Respondents, (1987) 4 SCC 302 also lead to the same conclusion.
16. It would, therefore, appear that the impugned order of detention suffers from the following vices :
(i) the detenu was not informed of his right to make representation before the detaining authority before the order of detention was approved by the State Government ;
(ii) the detaining authority did hot inform the detenue of his right to make representation to the Central Government as an authority which can revoke the detention order ; and
(iii) non-application of mind by the detaining authority to the fact that the detenu was in custody and his release on bail was imminent.
17. For the reasons above, the writ petition is allowed and the order of detention dated 12th August, 2003 passed by the District Magistrate, Senapati District, Manipur is hereby quashed. The detenu be released from custody forthwith, if not wanted in connection with any other case.