Gauhati High Court
Thounaojam Lukhoi Singh vs District Magistrate And Ors. on 15 April, 1996
Equivalent citations: 1997CRILJ1574
Author: H.K. Sema
Bench: H.K. Sema, P.K. Sarkar
JUDGMENT H.K. Sema, J.
1. Shri Thounaojam Lukhpi Singh alias Surajkumar alias Ibotomba, son of late Th. Tomba Singh, Singjamei Makha Kakwa Huidrom Leikai, P. S. Singjamei, imphal District, Manipur was detained by an order dated 22nd November, 1995 by the District Magistrate, Imphal, in exercise of the powers conferred by sub-section (3) of Section 3 read with Section 3(2) of the National Security Act, 1980, hereinafter, 'the Act'. Thereafter, the detenu has been furnished with grounds of detention by an order dated 25th November, 1995, The order of detention has been approved by the appropriate Government by an order dated 4-12-1995. The order of detention has been assailed in this writ petition on the following grounds :
(a) Vital documents relied upon by the detaining authority on the basis of which the detaining authority derived satisfaction were not supplied to the detenu in Manipuri rendering;
(b) Copies of police report which formed the basis of grounds of detention were not supplied to the detenu and thereby deprived the detenu of making effective representation;
(c) The detention order has been passed without application of mind inasmuch as the detenu was in jail and there was no cogent materials before the detaining authority that the detenu would be released on bail; and
(d) Delay in disposing of representation filed by the detenu.
2. We have heard Mr. A. Nilamani Singh, learned counsel for the detenu, Mr. A. Jagatehandra, learned government Advocate for the respondents 1 and 2 and Mr. N. Ibotombi, learned Central Government Standing Counsel at length.
3. Ground (a) Non supply of vital documents relied upon by the detaining authority to the detenu in Manipuri rendering.
It is contended by Mr. A. Nilamani that the detenu read up to class X and unless the detenu is furnished the documents in Manipuri rendering, he would be deprived of making effective representation against the order of detention because he is not in a position of understanding legal language contained in grounds of detention. There is no dispute that the detenu read up-to Class X and person reading upto class X would not be in a position to understand the technical legal language contained in, grounds of detention. In this connection, Mr. A. Nilamani particularly referred to the documents annexed in the grounds of detention and relied upon by the detaining authority, in clause (Io), (p) and (q). Clause (o) is the statement of S.I., N. Jotin Singh and S.I. Kh. Sarat Singh recorded under Section 161, Cr. P.C. Clause (p) is the statement of S.I. Kh. Nabachandra Singh of Singjamei P.S. and C/No. 8490020 Achouba Singh of SJM PS recorded under Section 161, Cr. P.C. in connection with FIR No. 203( 10) 95 SJM PS on 12-10-95 Clause (q) is the letter of Home Department, Government of Manipur Order No. 17(1)49/ 80-H (Part) dated 28th September, 1995. We are of the view that the documents at clauses (o) and (p) are the vital documents and non furnishing of such documents to the detenu in Manipuri rendering would deprive the detenu of making effective representation. However, that is not the case. At the time of hearing of this petition, Mr. A. Jagatehandra, learned Govt. Advocate produced the relevant file in original bearing No. Civil/ NSA/24/95, File No. 24. On perusal of the file, It appears that the entire documents including the history sheets and the translated copies of the documents have been furnished to the detenu on 27-11-95 at 2-40 p.m. and it bears the signature of the detenu showing that the documents along with the translated copies have been received by the detenu. Receipt of the history sheets in english appeared at page 455, Manipuri rendering at page 441 showing that the documents have been received on 27-11-95 at 2-40 p.m. bearing the signature of the detenu and counter-signed by the District Magistrate. So also documents referred to in Clause (o), (p) and (q), Manipuri rendering of which have been received by the detenu at pages 250, 246, 244. 245, 240 and 241 of the file as mentioned above. This would show that the detenu have been furnished with all the documents relied upon by the detaining authority in Manipuri rendering, therefore, it cannot be said that the documents relied upon by the detaining authority were not furnished to the detenu with Manipuri rendering.
4. Mr. A. Nilamani also contended that the documents at Annexure-A/1 and Annexure-A/3 of the writ petition have not been furnished to the detenu in Manipuri rendering and as such the detenu has been deprived of making effective representation. We are unable to accept this contention of Mr. A. Nilamani Singh. Annexure-l is the order dated 22-11-95 detaining the detenu under Sub-section (3) of Section 3 read with Section 3(2) of the Act. Annexure-A/3 is the order dated 4th December, 1995 passed by the Governor in exercise of the power conferred under Section 3(4) of the Act approving the detention order. Admittedly, these two documents have not been furnished to the detenu in Manipuri rendering. Now, the question to be determined is as to whether non-furnishing of the documents at Annexures-A/1 and A/3 caused any prejudice to the detenu of making effective representation. We are of the view that no prejudice has been caused to the detenu for non-supply of documents at Annexures-A/1 and A/3 with Manipuri rendering inasmuch as the representation if any, is against the grounds of detention and not the detention order itself because the detention order is passed on the satisfaction arrived at by the detaining authority on the basis of documents mentioned in grounds of detention and which has been supplied to the detenu. The representation is basically against the grounds of detention. In other words, grounds of detention is a condition precedent on the basis of which the detention order has been passed. The purpose of furnishing grounds of detention, therefore, is to provide an opportunity to the detenu to make a representation against his detention. Therefore, non supply of order of detention with Manipuri rendering, no prejudice has been caused to the detenu for making effective representation. For the reasons aforesaid, the contention of Mr. A. Nilamani on ground (a) has failed.
5. It is however, contended by Mr. A. Nilamani that the detenu was in jail and under the control of the detaining authority and as such, there is every possibility of obtaining the signature of the detenu forcibly after thought and after filing of writ petition with back dated. This contention does not appeal us at all because we have no reason to doubt the correctness of the contents of the file which has been produced before us. In view of our finding aforesaid, it is not necessary for us to refer to decisions cited by the learned counsel for the detenu.
Ground (b). Copies of police report which formed the basis of grounds of detention were not supplied to the detenu and thereby deprived the detenu of making effective representation. Copies of police report is actually the history sheets of the detenu supplied by the police. As already held in ground No. (a) that the history sheets has been supplied to the detenu along with the grounds of detention in Manipuri rendering, this ground has already been answered in ground (a). Therefore, this ground does not survive.
Ground (c). The detention order has been passed without application of mind.
The contention of Mr. A. Nilamani on this ground is that the detenu was arrested on 15-7-95 in connection with FIR No. 532(7)/95 under Sections 121/121-A, IPC read with Section 10/13 (UA (P) Act and he was remanded to the judicial custody on 25-7-95 and he was still in jail at the time when detention order was passed, and as such there was no necessity of detaining the detenu further and there was no cogent materials before the detaining authority on the basis of which there can be apprehension in the minds of the detaining authority that the detenu would be released on bail. Therefore, the detention order has been passed without application of mind and on this score alone the detention order vitiates.
6. Before we advert further on this ground, we may at this stage refer to proviso to para 4 of the grounds of detention reads:
"That, in view of the prejudicial activities in the proximate past it can reasonably be anticipated that you would continue to act in any manner prejudicial to the security of the State and maintenance of public order in case you be released on bail. Hence, an effective measure to prevent you from committing further prejudicial activities is, therefore, immediately called for."
7. Referring to the proviso to para 4 of the grounds of detention, it is contended by Mr. A. Nilamani that there was no material before the detaining authority on the basis of which conclusion could be arrived at that there was real possibility of the detenu being released on bail and as such the detention order has been passed without application of mind. In this connection, it is submitted by Mr. A. Nilamani that there was no apprehension in the mind of the detaining authority that the detenu would be released on bail inasmuch as a bail application has been filed on behalf of the detenu and, therefore, there was no material before the detaining authority on the basis of which an opinion can be formed that the detenu would be released on bail necessitating his further detention by resorting to the National Security Act.
8. Before we proceed further at the contention of Mr. A. Nilamani we may refer to few decisions of the Apex Court settling the principle of law on this point.
9. In Vijay Kumar v. Union of India, (1988) 2 SCC 57 : AIR 1988 SC 934 : (1988 Cri LJ 951), it has been held that two facts must appear from the grounds of detention, namely :
(i) awareness of the detaining authority of the fact that the detenu is already in detention, and
(ii) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.
10. In N. Meera Rani v. Govt. of Tamil Nadu, AIR 1989 SC 2027 : (1989 Cri LJ 2190), the legal position has been summed up in paragraph 22 of its judgment as under:
"We may summarise and reiterate the settle principle subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; 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; but, even so. if the detaining authority is reasonably satisfied on cogent material 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 even in anticipation to operate on his release. This appears to us to be the correct legal position"
(Emphasis supplied)
11. In Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 : (1990 Cri LJ 1232) after referring to various decisions of the Apex Court the Court held in para 19 of its judgment as under:
"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."
12. In Kamarunnissa v. Union of India, AIR 1991 SC 1640 : (1991 Cri LJ 2058), it has been held in para 13 of the judgment as under :
"(1) if the authority passing the order is aware of the fact that he is actually in custody;
(2) if he has reason to believe on the basis of reliable material placed before him :-
(a) that there is a real possibility of his being released on bail, and
(b) that on being so released he would in all probability indulge in prejudicial activity, and (3) if it is felt essential to detain him to prevent him from so doing."
The Supreme Court further observed in same paragraph as under:
"It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention."
13. In the back-drop of the decision of the Supreme Court as referred to above, we shall now consider the arguments advanced by Mr. A. Nilamani. The main thrust of the argument of Mr. A. Nilamani are -
(i) that the detaining authority was aware that the detenu was already in custody in connection with FIR case;
(ii) there was no cogent materials before the detaining authority to show that there was a real possibility of his being released on bail.
In this connection, Mr. A. Nilamani has referred to us the observations of the Apex Court in Dhanmendra Suganchand (1990 Cri LJ 1232) (supra) wherein it has been held in para 21 as under:
"We have given our careful consideration to the aforesaid submission of the learned Attorney General. We are, however, unable to agree with the same. In the grounds of detention the detaining authority has only mentioned the fact that the appellants has been remanded to judicial custody till October 13, 1988. The grounds of detention do not show that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13, 1988, and the appellants would be released from custody on October 13, 1988. Nor is there any material in the grounds of detention which may lend support to such an apprehension, On the other hand we find that the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention on October 11, 1988. The grounds of detention disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot, therefore, be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13, 1988 and their being released from custody at the time when the order for preventive detention of that appellant was passed on October 11, 1988. In the circumstances, we are of the view that the order for detention of the appellants cannot be sustained and must be set aside and the appellants should be released forthwith. These are the reasons on the basis of which we passed the order for the release of the appellants on January 11, 1990. It is, however, clarified that in case the appellants are released from custody in the aforesaid criminal proceedings, the question of their preventive detention under the Act on the above material may be reconsidered by the appropriate authority in accordance with law and this decision shall not be construed as an impediment for the purpose."
14. Now on careful consideration of the decision referred to above, we are of the view that the facts of the case referred to in para 21 are not applicable in the facts and circumstances of the case at hand. In the case at hand no bail application had been rejected by the trying Magistrate nor any bail application was pending before the Magistrate, on the other hand the mandatory period was coming to an end. From our past experience such cases are released after mandatory periods are over under Section 167 of the Cr. P.C. It is also from our experience that such investigation would take long time and would not be completed within the mandatory period as in the most of the cases it would be difficult to collect evidence and in such cases the accused are always released on bail by the trying Magistrate after the mandatory periods are over and investigations are not completed. In the instant case, the detenu was arrested on 15-7-95 and remanded to the judicial custody on 25-7-95. Section 167 of the Code of Criminal Procedure was amended by the Code of Criminal Procedure (Manipur Amendment) Bill, 1982 (Bill No. I of 1982). By the aforesaid amendment Sub-section (2) of Section 167 has been amended and for the words "sixty days" has been substituted by the words "one hundred twenty days" and the words "ninety days" has been substituted by the words "one hundred eighty days". As already said from our experience, the investigation of such cases are never completed within mandatory period and in such event the accused are always released on bail. The detaining authority on being seized with such situation has passed an order of detention in anticipation of his being released on bail. Therefore, it cannot be said that the detention order has been passed without application of mind. In this connection, we may also usefully refer to para 4 of the grounds of detention on the basis of which the detaining authority formed its opinion. Para 4 runs as follows:
"That, from the facts enumerated in the above paras, it is seen that you, Thounaojam Lukhoi Singh alias Surajkumar alias Ibotomba S/o Late Th. Tomba Singh of Singjamei Makha Kakwa Huidrom Leikai are a dangerous hard core member of UNLF who with cool calculation and malevolent design attempt to disrupt public order affecting public tranquillity, which is prejudicial to the security of the State and maintenance of law and order. As a result of such prejudicial activities on your part, the public in general are so scared that they could not lead a peaceful life without security and protection and as such the act so created had disturbed the public order."
15. From the activities of the detenu recited in grounds of detention, the detaining authority had bear in mind the nature of prejudicial activities indulged by the detenu and the likelihood of his repeating the same if he would be released on bail, while passing the detention order. We are, therefore of the view that there was compelling reasons for passing the detention order, despite the fact that the detenu was in custody. For the reasons aforestated the contention of the learned counsel for the detenu on this ground also fails.
16. Ground No. (d). The delay in disposing of the representation filed by the detenu.
The detenu has filed representation to the State Government on 13-12-1995 and the same was disposed of on 27-12-1995 rejecting the representation. There has been delay of about 14 days, this has been explained in para 8 of the counter affidavit of the respondent No. 2. It has been averred in para 8 of the counter that on receipt of the representation dated 13-12-1995 it was immediately processed and the request was rejected on 23-12-1995 and time taken in disposing of the representation is only 7 days by excluding the day on which it reached by late hour of the day and the day on which it was rejected and the sunday i.e. 17-12-1995, however due to Christmas holidays it could be informed by a Setter dated 27-12-1995. Under the circumstances explained above we are of the view that delay of 7 days in disposing the representation has been validly explained and we do not think there was any delay which would vitiate the detention order.
17. Counter affidavit on behalf of respondent No. 3 has also been filed. The delay has been explained in paras 3, 4 and 5 of the counter of the respondent No. 3. It is averred in paragraph 3 that the representation dated 13-12-1995 was received by the Government of India, Ministry of Home Affairs on 1-1-1996 and thereafter, the representation was immediately processed for consideration, but certain vital informations required for its further consideration and as such the State Government was requested to send required information through a crash wireless message dated 2-1-1996 and subsequent wireless reminders on 18-1-1996 and 5-2-1996. It is averred in para 4 of the counter that the required information was received by the Central Government in the Ministry of Home Affairs on 5-2-96 and on receiving the said information on 5-2-1996, the case of the detenu was put up before the Deputy Secretary, Ministry of Home Affairs on 6-2-1996 who carefully considered the same and with his comments put up the same before the Joint Secretary, Ministry of Home Affairs on 7-2-1996. Thereafter, the Joint Secretary considered the case and with his comments put up the same before the Special Secretary, Ministry of home affairs on 8-2-1996. Thereafter, the special Secretary considered the matter and after processing the same put it before the Home Minister, Govt. of India on 8-2-1996. The Home Minister duly considered the case of the detenu and rejected the representation of the detenu on ! 3-2-1996. It is further averred in para 5 of the counter that the required information for effective disposal of the representation was available before the Government of India, Ministry of Home Affairs only on 5-2-1996 and the final decision has been taken on 13-2-96 and this would show that there was delay of 7 days excluding 11th and 12th February being holidays. On the facts and circumstances of the case, we are of the view that there was no negligence, callous or inaction in disposing of the representation filed by the detenu which warranted our interference.
18. The law is now well settled that no hard and fast rule as to the measure of reasonable time can be laid down and each case has to be considered from the facts presented therein and that if there is no negligence or callous inaction or avoidable redtapism on the facts in that case, it does not warrant interference. See Abdul Salam alias Thiyyan v. Union of India, AIR 1990 SC 1446 : (1990 Cri LJ 1502).
19. In the instant case there is no negligence or callous in disposing of the representation. On the other hand as explained above the representation of the detenu was disposed of expeditiously with least avoidable delay.
20. Last, it is contended by Mr. A. Nilamani that the detaining authority can also revoke the detention order and as such it was incumbent on the part of the detaining authority to inform the detenu that he can also make a representation before the detaining authority. In this connection, he has referred to the decision of the Constitutional Bench of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51. Relying heavily on the observations of the Supreme Court in paragraphs 6 and 14 of its judgment in which the Apex Court had observed that the authority which made the order of detention can also revoke it and therefore, the representation against the order of detention can also be made to the detaining authority. This submission, in our opinion misconceived because in the case of Kamleshkumar (supra), the Apex court was considering the validity of the detention order under COFEPOSA Act and NDPS Act and the representation thereof. Unlike in COFEPOSA and NDPS Act, in the case of detention under National Security Act, a specific provision has been made in Section 8(1) of the Act that a representation against the order of detention must be made to the appropriate Government. Therefore, the arguments that such representation can also be made to the detaining authority is not well founded.
21. Mr. A. Nilamani Singh also faintly submits that the provision in Sub-section (5) of Section 3 of the Act has not been complied with by the State Government which causes undue delay in disposing of the representation filed by the detenu. We arc also unable to accept this contention. Apart from being this point was not pleaded in the writ petition we have already held that in the facts and circumstances of the case, no delay has been committed in disposing of the representation.
22. For the reasons aforestated, the petitioner has failed to establish the contention on all grounds and the result is that, the petition is dismissed as meritless, however, without costs.
P.K. Sarkar, J.
23. I agree.