Meghalaya High Court
Shri. Champion R. Sangma vs State Of Meghalaya on 15 December, 2014
Bench: Uma Nath Singh, T. Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WA No.28/2013
In WP(Crl) No.4/2013
Shri. Champion R. Sangma :::: Appellant
-Vs-
1. State of Meghalaya, represented by the
Commissioner Secretary, Political Department,
Shillong, Meghalaya.
2. District Magistrate,
East Garo Hills District,
Williamnagar, Meghalaya.
3. The Union of India represented by the
Secretary, Home, New Delhi. :::: Respondents
BEFORE
HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH
For the Appellant : Mr. VK Jindal, Sr. Adv
Mr. S Dey, Adv
For the Respondents : Mr. KS Kynjing, Advocate General,
Mr. S Sen Gupta, GA
Date of hearing : 01.12.2014
Date of Judgment & Order : 15.12.2014
JUDGMENT AND ORDER
(Justice T. Nandakumar Singh)
This intra-court appeal is directed against the judgment and
order of the learned Single Judge dated 13.06.2013 dismissing the W.P. (Crl)
No.4/2013 filed by the appellant/writ petitioner assailing the detention order
dated 29.01.2013, order of the State Govt. dated 05.02.2013 for approving
the detention order and also the order of the State Govt. dated 15.03.2013
for conforming the detention order and also for fixing the period of detention
for three years w.e.f. 29.01.2013.
Page 1 of 41
2. Heard Mr. VK Jindal, learned senior counsel assisted by Mr. S
Dey, learned counsel for the appellant/writ petitioner and Mr. KS Kynjing,
learned Advocate General assisted by Mr. S Sen Gupta, learned GA
appearing for the respondents No.1 & 2.
3. The fact, sufficient for deciding the present appeal, is that the
appellant/writ petitioner Shri. Champion R. Sangma is not an ordinary citizen
and he was a senior Police officer of the rank of Deputy Superintendent of
Police in the Police (Home) Department in the State of Meghalaya. The
appellant/writ petitioner being the senior Police officer is not ignorant of the
criminal law and other laws more particularly, the provisions under the
Meghalaya Preventive Detention Act, 1995 (for short „MPDA, 1995‟). No
doubt, the appellant/writ petitioner is entitled to all the rights, privileges and
protections guaranteed under the Constitution of India and other laws framed
there-under. On 30.07.2012, one Shri. K Shabong, Sub-Inspector Special
Cell, East Khasi Hills District lodged an ejahar with the Officer-in-Charge,
Pynursla Police Station that he was deputed on 29.07.2012 to conduct Naka
with the Special Cell Team at Umkrem "Pyrdiwah Axis" and at about 6:00
AM, one person who was seen suspiciously moving in the forested area was
apprehended. After apprehension, he identified as Champion R. Sangma,
Chairman of a dreadful terrorist organization called "Garo National Liberation
Army" (GNLA) and that terrorist organization is also a banned organization
under the Unlawful Activities (Prevention) Act, 1967 (for short "U.A.(P) Act,
1967"). Based on the said ejahar, FIR i.e. Pynursla PS Case No.25 (7) 2012
under Sections16, 38(1) and 38(2) of the U.A.(P) Act, 1967 and Section 12 of
the I.P. Act was registered. The appellant/writ petitioner was also arrested in
connection with (i) Nongstoin Police Station Case No.9(2) of 2012 under
Sections 121A/353/307/34 IPC r/w Section 10/13 of the U.A. (P) Act 1967
Page 2 of 41
and Section 27(2) of the Arms Act and (ii) Nongstoin Police Station Case
No.10(2) of 2012 under Sections 121 A/302/34 IPC r/w Section 10/12 of the
U.A.(P) Act, 1967 and 27 of the Arms Act on 03.09.2012 and thereafter, the
appellant/writ petitioner is facing the session trial.
4. On 30.08.2012, the Investigating officer of the said Pynursla PS
Case submitted charge sheet before the court of the Deputy Commissioner
(Judicial), East Khasi Hills District, Shillong. The appellant/writ petitioner also
filed bail applications for the criminal cases (FIRs) against him. On
11.01.2013, in respect of two cases of Nongstoin Police Station, the bail was
granted to the appellant/writ petitioner by the erstwhile Hon‟ble Gauhati High
Court, Shillong Bench in Bail Application No.100(SH)2012 and Bail
Application No.101(SH)2012, which were published widely in all leading
newspapers. While the appellant/writ petitioner is in judicial custody, the
District Magistrate in exercise of his power under Section 3(1) of the MPDA,
1995 passed the detention order dated 29.01.2013 on being satisfied that if
the appellant/writ petitioner Shri. Champion R. Sangma (Ex DSP) 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.
For easy reference, the said detention order dated 29.01.2013 is quoted
hereunder:-
Page 3 of 41
GOVERNMENT OF MEGHALAYA
OFFICE OF THE DISTRICT MAGISTRATE
EAST GARO HILLS DISTRICT : WILLIAMNAGAR
_________________________________________
th
No. EGH/CON.189(MPDA)/2013/3, Dated Williamnagar, the 29 January, 2013
"ORDER UNDER SECTION 3(1) OF THE
MEGHALAYA PREVENTIVE DETENTION ACT, 1995
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 govt. 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
Champion R. Sangma, S/O Late Bidonsing N. Marak of
Songsak Bolsalgittim, East Garo Hills who is now in judicial
custody is Chairman 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 P. S Case. 21 (05) 10 U/S 353/
307/ 34 IPC R/W Sec 27 Arms Act and Sec 5
ES Act.
2. Williamnagar P. S Case No. 43(09) 10 U/S
120(B)/121/ 121 (A)/122/364 (A)/ 384/ 353/ 307
IPC R/W Sec.27 Arms & Sec 5 ES Act.
3. Williamnagar P. S Case No. 09(01)11 U/S
121/ 121 (A)/ 121(B)/122/ 364(A)/353/ 307 IPC
R/W Sec 27 Arms Act & Sec 5 ES Act.
Page 4 of 41
4. Williamnagar PS Case No. 90(12)11 U/S 120
(B)/121/121 (A)/122/353/307/34 IPC
5. Williamnagar PS Case No. 13(4)10 U/S
365/34 IPC.
6. Mendipathar PS Case No. 25(4)10 U/S 395
IPC R/W Sec 25(1-a)(1-b) Arms Act.
7. Williamnagar PS Case No. 18(4) 10 U/S
384/511 IPC.
8. Rongjeng PS Case No. 28(11)11 U/S
120(B)/121/121(A)/122/353/326/307/302/427
IPC R/W Sec 25(1A) (1B) Arms Act.
Whereas, I am satisfied that if Shri Champion R.
Sangma 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 that the person of Shri Champion R. Sangma
shall be taken into preventive detention with immediate effect
and that the detention shall be at District Jail, Shillong, East
Khasi Hills until further orders.
Further, Shri Champion R. Sangma 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 and the Principal Secretary in Political
Department, Govt. of Meghalaya.
Given under my Hand and Seal of the Court this 29th
day of January, 2013.
Sd/-
(Vijay Kumar Mantri)
District Magistrate
East Garo Hills District
Williamnagar‖
Page 5 of 41
5. In compliance with Section 8 of the MPDA, 1995, the grounds
of detention were furnished to the appellant/writ petitioner in order to enable
him to file representation against the order of detention on the very day of
issuing the detention order dated 29.01.2013. Under the grounds of
detention/order dated 29.01.2013, the appellant/writ petitioner had been
informed of his right under Article 22(5) of the Constitution of India r/w
Section 8 (1) of the MPDA to make representation against the detention
order to the Govt. addressed to the District Magistrate, East Garo Hills,
Williamnagar and the Principal Secretary in Political Department, Govt. of
Meghalaya. The said grounds of detention/order dated 29.01.2013 read as
follows:-
GOVERNMENT OF MEGHALAYA
OFFICE OF THE DISTRICT MAGISTRATE
EAST GARO HILLS DISTRICT : WILLIAMNAGAR
_________________________________________
In the matter relating to Case No. EGH/CON 189
(MPDA)/2013/1, dated 29th January 2013: Detention of Shri
Champion R. Sangma U/S 3 (1) of the Meghalaya Preventive
Detention Act, 1995.
Memo No. EGH/CON.189(MPDA)/2013/1, Dated Williamnagar, the 29th January, 2013
GROUNDS OF DETENTION
The principal grounds of detention of Shri Champion R.
Sangma are as follows:
That a new militant outfit has come into being with one
Champion R. Sangma self Styled Chairman 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
Champion R Sangma is an active and dangerous Chairman 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
Page 6 of 41
cases which suggest that he is threat to public peace,
tranquility and public order;
1. Williamnagar P.S. Case No. 21(05)10 U/S 353/307/34
IPC R/W Sec 27 Arms Act and Sec 5 ES Act: On
19.5.2010 a training camp of GNLA at Meminram along
the Dura Hill Range was busted by the East Garo Hills
Police and in the process one Machine Gun with 244
Live Amunitions, 1 (one) Chinese Uzzi Gun with 2 (two)
Magazines and 30 (Thirty) Rounds live Ammunitions, 13
(Thirteen) Galatin sticks, 3 (three) Crude bombs, 1 (one)
Canon Printer, 1 (One) Solar Plate, 2 (Two) Ammunition
Box and incriminating documents of GNLA were
recovered from the camp site.
2. Williamnagar P.S. Case No. 43(09)10 U/S 120
(B)/121/121(A)/122/364(A)/384/353/307 IPC R/W Sec.
27 Arms & Sec 5 ES Act: On 26.09.2010, acting on
source information East Garo Hills Police led by Shri.
B.D. Marak, MPS, SDPO, Resubelpara conducted
search operation over Adugre village and busted two
camps established at Adugre and Sabok Achu and
recovered one Chinese hand grenade and flags of
GNLA from the camp side.
3. Williamnagar P.S. Case No. 09(01)11 U/S 121/121
(A)/121(B)/122/364(A)/353/307 IPC R/W Sec 27 Arms
Act & Sec 5 ES Act: On 26.01.2011 at about 4:10 A.M.
based on specific information that GNLA had established
camp at Rongrekgre wherein Shri Champion R.
Sangma, Chairman and Sohan D. Shira, C-in-C were
present. Police team conducted operation over the area.
During operation an encounter took place with GNLA
militants and in the cross fire on GNLA cadre namely
Washington Marak died on the spot while four others
namely Shri Lathing R. Marak, Shri Patil C. Marak, Shri
Milly C. Marak and Shri Paper R. Marak were arrested.
Police recovered on AK rifle with four rounds of
ammunitions fourteen empty cases of AK, one LMG
magazine box, one pistol magazine with five rounds of
ammunitions, ten gelatin sticks, one BP jacket, 45
detonators and incriminating documents from the PO.
4. Williamnagar PS Case No. 90(12)11 U/S
120(B)/121/121(A)122/353/307/34 IPC: Based on
source information on 17/12/2011 East Garo Hills Police
(SWAT) launched operation at Darimgre village and
during operation an encounter took place between police
team and GNLA militants. As a result, two GNLA
militants died on the spot and police team recovered two
36 HE hand grenades, one pistol GNLA identity cards
and other incriminating documents from the encounter
site.
5. Williamnagar PS Case No. 13(4)10 U/S 365/34 IPC:
On 9/4/2010 at about 10:30 A.M. one Md. Sanwar
Hussain S/O Md Abdul Sattar, a resident of Karbal;
Page 7 of 41
District Goalpara, Assam was abducted by the cadre
from Songmagre near Mahari Gate on the direction of
Shri Champion R Sangma, Chairman of GNLA.
6. Mendipathar PS Case No. 25(4)10 U/S 395 IPC R/W
Sec 25(1-a) (1-b) Arms Act: On 12.4.2010, Shri
Champion R. Sangma along with 6/7 cadres travelling in
a Maruti Car bearing R/No. ML-05-A-6363 (Green
Colour) and forcibly collected Rs. 5,000/- each from
various check gates at Rongkaminchi and Soenang area
on Mendipathar-Songsak PWD road.
7. Williamnagar PS Case No. 18(4)10 U/S 384/511 IPC:
On 16.4.2010 Shri Mahamsing M. Sangma, Ex-MDC of
Williamnagar received a demand note of Rs. 50,00,000/-
(Fifty lakhs) from GNLA.
8. Rongjeng PS Case No. 28(11)11 U/S
120(B)/121/121(A)/122/353/326/307/302/427 IPC R/W
Sec 25(1A) (1B) Arms Act: On 31.10.2011 at about
4:30 P.M. while Dobu Police along with Bn personnel
were on highway duty in a requisitioned Tata Sumo,
about 8-12 militants ambushed their vehicle at
Nengpatchi. As a result four police personnel namely
UBC/164 N.R. Marak, Hav Probinson Sangma, Hav.
Victor Marak, BNC/652 E. Sangma and one civil driver
Lenush P. Marak died on the spot. The militants took
away two AK rifles with six loaded magazines, one
carbine with two loaded magazines, two SLR with three
loaded magazines.
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 Champion R. Sangma 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 and the Principal Secretary in Political
Department Govt. of Meghalaya.
Issued under my hand and seal of the Court today, the
29th January, 2013.
By Order etc.
Sd/-
(Vijay Kumar Mantri)
District Magistrate,
East Garo Hills District,
Williamnagar‖
Page 8 of 41
6. The appellant/writ petitioner further had been informed under
the letter of the District Magistrate, East Garo Hills, Willimanagar dated
29.01.2013 that (i) the appellant/writ petitioner has every right to claim a
personal appearance before the Advisory Board, which is going to decide the
validity of the detention order and (ii) that the appellant/writ petitioner has
every right under Article 22(5) of the Constitution of India r/w Section 8(1) of
the MPDA, 1995 to send a representation to the Govt. to question his
detention and his representation should be addressed to the Principal
Secretary, Political Department, Govt. of Meghalaya and also the
appellant/writ petitioner being provided an opportunity of filing representation
before the District Magistrate, East Garo Hills, Williamnagar. The
appellant/writ petitioner, who was a senior Police officer filed one joint
representation dated 14.02.2013 addressed to the two authorities i.e. The
District Magistrate, East Garo Hills, Williamnagar and the Principal Secretary,
Political Department, Govt. of Meghalaya, Shillong. In the said representation
dated 14.02.2013, the appellant/writ petitioner simply stated that he had not
been furnished material documents which had been relied upon by the
District Magistrate while setting out the grounds of his detention and also
further stated that the Police had failed to produce even iota of evidence,
hence, the Hon‟ble erstwhile Gauhati High Court, Shillong Bench was
pleased to grant bail to the appellant/writ petitioner in the two cases i.e.
Nongstoin PS Case No.9(2) 2012 and Nongstoin PS Case No.10(2) 2012. In
his representation, the appellant/writ petitioner also stated that all the three
objects (which necessitates detention) viz. "security of the State", "the
maintenance of public order" and "of supplies and services essential to the
community" are disjunctive and not conjunctive. The Detaining authority is
under constitutional and legal obligation to read the provisions disjunctively in
order to exercise the drastic power of detaining a citizen preventively without
trail. In nowhere of the representation filed by the appellant/writ petitioner
Page 9 of 41
mentioned that what are the material documents to be furnished to him and
because of non-furnishing of the material particulars, he could not file the
effective representation. The representation filed by the appellant/writ
petitioner dated 14.02.2013 consists of six pages and had taken all the points
what he desired to take against the detention order dated 29.01.2013. The
said representation dated 14.02.2013 is quoted hereunder:-
"To,
1. The District Magistrate
East Garo Hills District, Williamnagar
Meghalaya
2. The Principal Secretary/ Commissioner and Secretary
Political Department, Government of Meghalaya,
Meghalaya Secretariat, Shillong
Through: The Superintendent of District Jail
East Khasi Hills District, Jail Road, Shillong
Subject: Representation regarding my detention under
Meghalaya Preventive Detention Act 1995
Sir,
I beg to state that as per order dated 29 th January 2013
vide memo No. EGH/CON. 189 (MPDA)/ 2013 /2 of the District
Magistrate, East Garo Hills District , Williamnagar, I have been
ordered to be detained at District jail, East Khasi Hills, Shillong
Under Section 3 (1) of the Meghalaya Preventive Detention Act
1995, hereinafter to be referred to as the Act for the sake of
brevity.
At page 2 of the said order, the District Magistrate, East
Garo Hills District, Williamnagar has enclosed copies of the
order to 9 (nine) officer/ members including me.
The concept of the preventive detention contemplates
"Subjective" satisfaction of the District Magistrate for detuning
a person under the said Act, it is a settled principle of Law that
such subject satisfaction cannot be arrived at arbitrarily or
whimsically. I submit that there is nothing in the order of my
detention, which can satisfy a person of reasonable prudence
about the imperative necessity of my detention. The order of
my detention does not contain any ground to justify my
detention under the said Act.
Apart from the documents furnished along with the
grounds for my detention, I have not been furnished with any
materials/ documents which have been relied upon by the
District Magistrate while setting out the grounds for my
detention. The documents itself is a vague and do not disclose
Page 10 of 41
any grounds to satisfy the District Magistrate to order my
detention under the Act, moreover the documents supplied to
me are not readable due to poor printing.
The District Magistrate has shown my involvement in 8 (eight)
cases, viz;
1. Williamnagar P.S Case No. 21 (05) 10 U/s 353/307/34
IPC R/W Sec 27 Arms Act and Sec 5 ES Act
2. Williamnagar P.S Case No. 43 (09) 10 U/S 120 (B)
/121 /121 (A) /122/364 (A)/ 384/ 353/ 307 IPC R/W Sec
27 Arms Act and Sec 5 ES Act.
3. Williamnagar P.S Case No. 09 (01) 11 U/S 121/121(A)/
121(B)/ 122/ 364 (A)/ 353/ 307 IPC R/W Sec 27 Arms
Act and Sec 5 ES Act.
4. Williamnagar P.S Case No. 90 (12) 11 U/S 120 (B) /
121 /121(A)/122/353/ 307/ 34 IPC.
5. Williamnagar P.S Case No. 13 (4) 10 U/S 365/ 34
IPC.
6. Mendipathar P.S Case No. 25 (4) 10 U/S 395 IPC R/W
Sec 25 (1-a)(1-b) Arms Act.
7. Williamnagar P.S Case No. 18 (4) 10 384/511 IPC
8. Rongjeng P.S Case No. 28 (11) 11 U/S 120 (B) / 121/
121 (A)/ 122/ 353/ 326/ 307/ 302/ 427 IPC R/W Sec 25
(1A) (1B) Arms Act.
The District Magistrate reach the satisfaction that my
detention is necessary for the peace and tranquility and this
conclusion has been reached on the bases of registration of
cases mention above, surprisingly the District Magistrate did
not reach the satisfaction on the bases of the Nongstoin Police
Station Case No. 9 (2) of 2012, and Nongstoin Police Station
Case No. 10 (2) of 2012. I would like to humbly mention that as
the Police have failed to produce even iota of evidence, hence
the Hon'ble High Court was pleased to grant me bail, and these
are the (2) two cases where I would conceded that I had been
arrested in those case as per the provision of Law.
That the District Magistrate reached the satisfaction on
the bases of those cases in which I was never arrested, even
though the Police are very much aware of the fact that I am
detained in judicial custody at Shillong District Jail, but till date I
was not arrested in the above mentioned cases, since all the
cases are factious and malifide.
That the Police has shown my arrest in Pynursla Police
Station Case No. 25 (7) of 2012, but I was detained elsewhere
in some other manner, the details of which will be available to
Border Security Force (BSF) and Local authorities, from the
record it will revealed that no arms or ammunition was seized
from my possession, where as in the above mention cases I am
charged with various section of Arms Act and Explosive
Substance Act.
As it is well known, our legal system, which is more or
less based on English jurisprudence, lays down that every man
is presumed to be innocent until his guilt is established in a
Page 11 of 41
Court of Law. In the above cases, I had not been arrested or
produced before any Magistrate as per law nor any charge
sheet were filed before any Court in the above mention cases,
whereas I am in judicial custody in Shillong District Jail,
Shillong and I am already in detention from last six to seven
months, the District Magistrate cannot validly draw the
conclusion that I am ―involved in the various ant-national
activities, unlawful activities and crimes like extortion,
kidnapping, etc and use deadly weapons for ransom,
disruption of public orders, etc." Hence, his satisfaction for
the necessity of my detention under the Act is not based on any
cogent and legally valid reasons. As such, it deserves to be set
aside.
Section 3 (1) of the Act reads as follows:-
"The State government or the District Magistrate may, if he
is satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to
the security of the State or the maintenance of Public order
or of supplies and service essential to the community, it is
necessary so as to do, make an order directing such
person be detained."
A plain perusal of the provisions contained in this section
makes it amply clear that all the three objects (which
necessitates detention) viz ―security of the State‖, ―the
maintenance of Public Order‖ and ―of supplies and services
essential to the community‖ are disjunctive and not conjunctive.
In my detention order dated 29th January 2013 the District
Magistrate has clubbed together ―Security of the State‖ and ―the
maintenance of Public order‖ to enable him to generate his
satisfaction for my detention. I beg to submit that the District
Magistrate has committed gross error of Law by reading the
provisions of section 3 (1) of the said Act conjunctively. The
Detaining authority is under Constitutional and legal obligation
to read the provisions disjunctively in order to exercise the
drastic power of detaining a citizen preventively without trial.
His orders stands tainted with illegality and deserved to be set
aside.
I further beg to states that the detention order dated 29 th
January, 2013 is not only vague but also made on the grounds
which are irrelevant and non-existent. Even if the 8 (eight)
cases referred to in the detention order are taken on their face
value, they cannot, by any stretch of imagination constitute a
threat to security of the State or Public order, specially when
the District Magistrate has unambiguously admitted that the
detainee is already in Judicial Custody.
Furthermore, the District Magistrate has allowed his
judicial mind to be influenced or swayed by materials which are
not contemplated in section 3 (1) of the Act. Thus in the order
the District Magistrate has taken into consideration that ―he (the
detainee) is a founder members of the Garo National Liberation
Army (GNLA) a dreadful militant outfit of Meghalaya‖ (this is
based on no material at all, that ―he is involved in various anti-
Page 12 of 41
national, unlawful activities and crimes like extortion,
kidnapping, etc and with use of deadly weapons for ransom,
disruption of public order etc‖ and ―that if he (Shri Champion R.
Sangma, detainee) 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 atrocities on the furtherance of their treacherous
designs.‖ Threat to the security of state and maintenance of
public order in the district is not a ground for detention under
the Act. But the District magistrate has taken his extraneous
factor into consideration and therefore his satisfaction for
necessity of detaining me under the Act stands vitiated.
Similarly, while enumerating the grounds in the order No.
EGH/CON 189 (MPDA)/ 2013/2, dated 29th January 2013 (copy
enclosed) which reads like a story (based on no material) the
District Magistrate has observed that I has unleashed a reign of
terror on the peace loving citizenry by executing criminal
activities like extortion kidnapping for ransom, ruthless
murderers of businessmen and traders, criminal intimidation to
create a fear psychosis to the peace loving people. However,
paragraph 5 (five) of the order dated 29th January 2013, it was
also observed by the District Magistrate that „whereas, his
repeated commission of crimes at the instance of his
superiors in the militant organization reflect his
incorrigible intent to foment terror and point toward his
indifference and total disregard to life, liberty of innocent
citizens and their peace and security."
It is very much clear from the above paragraph that the
District Magistrate was satisfied that under the instruction of my
superiors in the militant organization, the detenue is trying to
create fear in the mind of peace loving people, whereas on the
other hand the District Magistrate is alleging the detenue to be
the Chairman of the GNLA, henceforth the satisfaction of the
District Magistrate is based on so other extraneous materials,
and the detention order is liable to be set aside.
The above factors are the primary factors which
generated subjective satisfaction in the mind of the District
Magistrate for necessity of detaining me. But these are not
grounds contemplated U/s 3 (1) of the Act. Hence taking the
extraneous materials and those too based only on his
conjectures, into consideration for passing the detention order
amounts to an abuse of the process of Law. The Detention
order is thus tainted with illegality and deserved to be set aside.
I submit that the District Magistrate did not apply his
judicial mind to the totality of the circumstances attending my
case. If one set of acts/omissions constitute a threat to the
security of the State, the same set of acts cannot be, at one
and the same time, prejudicial to the upkeep of the public order.
The District Magistrate has clubbed both the grounds together
which is not permissible in law and which consequently has
rendered my order of detention legally void.
Page 13 of 41
That I have never involved in any unlawful activities and
crime like extortion, dacoity, kidnapping, murder and robbery
etc, with deadly weapons for ransom, disruption of public order
etc., hence forth I denied all the allegation leveled against of
me by the District Magistrate.
In view of the matter, my detention order may kindly be
carefully examined in the light of the Law point's outlines
above, I humble pray that my detention order may be set aside.
Dated, Shillong
14th February 2013
Yours sincerey
Sd/-
Shri Champion R. Sangma"
7. The said representation dated 14.02.2013 was filed by the
appellant/writ petitioner after the impugned detention order dated 29.01.2013
had already been approved by the State Govt. in exercise of the power
conferred by Sub-Section (3) of Section 3 of the MPDA, 1995 vide order
being No.POL.17/2013/106 dated Shillong, the 5th February, 2013. The State
Govt. acting on the recommendation of the Advisory Board and also after
consideration of the materials available as well as the approval order dated
05.02.2013 and the representation dated 14.02.2013 by exercising the power
conferred by Sub-Section (1) of Section 13 and also Section 14 of the MPDA,
1995 confirmed the detention order i.e. the impugned detention order dated
29.01.2013 and fixed the period of detention for three years w.e.f.
29.01.2013 vide order No.POL.17/2013/205, dated, Shillong, the 15th March,
2013. Being aggrieved by the impugned order dated 29.01.2013, approval
order dated 05.02.2013 and the confirmation order dated 15.03.2013, filed
the writ petition being WP(Crl)No.4/2013.
8. The respondents also filed affidavit-in-opposition categorically
denying the allegations and assertions of the appellant/writ petitioner in the
writ petition. It is an admitted case of the parties that the Detaining authority
Page 14 of 41
(District Magistrate), on receipt of the representation of the appellant/writ
petitioner which was filed after the impugned detention order dated
29.01.2013 had been approved by the State Govt. vide order dated
05.02.2013, had taken the decision that it is the State Govt. who is to revoke
the detention order. Accordingly, the appellant/writ petitioner had been
informed. This would be the disposal of the representation of the
appellant/writ petitioner by the Detaining authority.
9. The contentions of learned counsel for the appellant/writ
petitioner before the learned Single Judge were that:
(i) the detention order stating that "I am satisfied that if Shri.
Champion R Sangma 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 ..........." had
been arrived at without being guided by any materials on record
and without recording any reason with reference to any material
on record as how the appellant already in judicial custody
facing trial in connection with session case No.23 of 2012
before the Deputy Commissioner (J), East Khasi Hills District,
Shillong would be at large.
(ii) the appellant has never moved any bail application on those
cases and no bail application was pending before any court,
which would give rise to an apprehension in the mind of the
Detaining Authority (respondent No.2) that the appellant would
be enlarged and would be a security hazard to the society or
would act in a manner prejudicial to the security of the State or
to the maintenance of public order.
Page 15 of 41
(iii) the appellant was not informed about his right under Article
22(5) of the Constitution of India i.e. about his right to submit
his representation against his detention order to the Central
Govt. which has infringed his fundamental rights under the
Constitution of India.
(iv) the relevant materials which had been purportedly relied
upon for subjective satisfaction of the Detaining Authority
(respondent No.2) were not supplied to the appellant thereby
preventing him from exercising his right to submit an effective
representation against the Detention Order.
(v) the appellant though submitted representation against his
detention before the detaining authority (respondent No.2) but
the same was not considered and disposed.
(vi) the detention order is arbitrary mechanical is not based on
established procedure of law.
10. The learned Single Judge after due consideration of the
respective case of the parties and also on perusal of the record passed the
impugned judgment and order dated 13.06.2013; against the impugned
judgment and order dated 13.06.2013 filed the present writ appeal. On
perusal of the grounds taken in the present writ appeal and also hearing the
submissions of the learned senior counsel appearing for the parties, it is
clear that the submissions of the learned senior counsel before us are only
the reiteration of the submissions made before the learned Single Judge.
Page 16 of 41
11. Before entering into the merit of the submission of the learned
senior counsel appearing for the appellant/writ petitioner as well as the
grounds taken in the memo of appeal, this Court required to see the
jurisdiction of the authorities to pass the detention order and for what
purpose the detention order could be passed and also if the detention order,
is an order for punishment. 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 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
Page 17 of 41
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".
12. The Hon‟ble Apex Court (3 Judges) in Rekha v. State of T.N.:
2011 4 Scale 387 also reiterated that the preventive detention is often
described as jurisdiction of suspicion. Para 40 of the SCC in Rekha‟s case
(Supra) reads as follows:-
"40. It must be remembered that in case of preventive detention
no offence is proved and the justification of such detention is
suspicion or reasonable probability, and there is no conviction
which can only be warranted by legal evidence. Preventive
detention is often described as a ‗jurisdiction of suspicion',
(Vide State of Maharastra v. Bhaurao Punjabrao Gawande:
(Supra) - Para 63). The detaining authority passes the order of
detention on subjective satisfaction. Since clause (3) of Article
22 specifically excludes the applicability of Clauses (1) and (2),
the detenu is not entitled to a lawyer or the right to be produced
before a Magistrate within 24 hours of arrest."
13. From the ratio laid down by the Hon‟ble Apex Court in Bhaurao
Punjabrao Gawande‟s case (Supra) and Rekha Devi‟s case (Supra), it is
clear that jurisdiction to order preventive detention 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. The interference of Court of law at
that stage must be an exception rather than a rule. It is equally well settled
that the suspicion should be based on materials.
14. The object of law of preventive detention is not punitive but only
preventive. Preventive detention is an anticipatory measure and does not
Page 18 of 41
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)."
15. No doubt, the doctrine of preventive power of the
Administrative/Executive authority, is the constitutionally validate 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 v. L Hmingliana & Ors: (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 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 there-under. Clause
(5) of Article 22 reads as under:
Page 19 of 41
"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)."
16. The learned senior counsel appearing for the appellant/writ
petitioner by relying on several decisions of the Apex Court in the cases for
National Security Act, 1980 and the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 more particularly (i)
Kamleshkumar Ishwardas Patel v. Union of India & Ors: (1995) 4 SCC 51
(CB) and (ii) Union of India & Anr. v. Sneha Khemka & Anr: (2004) 2 SCC
570 (Paras 14 & 16), strenuously contended that the appellant/writ petitioner
had not been provided with the opportunity to file representation to the
Central Govt. against the impugned detention order dated 29.01.2013 under
the MPDA, 1995 and accordingly, the impugned detention order dated
29.01.2013 and its approval and confirmation orders are liable to be
quashed. For deciding this point, raised by the learned senior counsel
appearing for the appellant/writ petitioner, it would be more profitable to
quote the provision for revocation of the detention order in the National
Security Act, 1980, the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 and the MPDA, 1995. Section 14 of the
National Security Act, 1980, Section 11 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 and Section 15
of the MPDA, 1995 read as follows:-
"National Security Act, 1980
14. Revocation of detention orders.-- (1) Without prejudice
to the provisions of section 21 of the General Clauses Act,
Page 20 of 41
1897 (10 of 1897), a detention order may, at any time, be
revoked or modified,--
(a) notwithstanding that the order has been made by an
officer mentioned in sub-section (3) of section 3, by the
State Government to which that officer is subordinate or
by the Central Government;
(b) notwithstanding that the order has been made by a
State Government, by the Central Government.
[(2) The expiry or revocation of a detention order (hereafter in
this sub-section referred to as the earlier detention order) shall
not [whether such earlier detention order has been made
before or after the commencement of the National Security
(Second Amendment) Act, 1984] bar the making of another
detention order (hereafter in this sub-section referred to as the
subsequent detention order) under section 3 against the same
person:
Provided that in a case where no fresh facts have arisen after
the expiry or revocation of the earlier detention order made
against such person, the maximum period for which such
person may be detained in pursuance of the subsequent
detention order shall, in no case, extend beyond the expiry of a
period of twelve months from the date of detention under the
earlier detention order.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974
11. Revocation of detention orders. - (1) Without prejudice to
provisions of section 21 of the General Clauses Act, 1897 (10
of 1897), a detention order may, at any time, be revoked or
modified-
(a) notwithstanding that the order has been made by an
officer of a State Government, by that State Government
or by the Central Government;
(b) notwithstanding that the order has been made by an
officer of the Central Government or by a State
Government, by the Central Government;
(2) The revocation of a detention order shall not bar the making
of another detention order under section 3 against the same
person.
Meghalaya Preventive Detention Act, 1995
15. Revocation of detention order. - (1) Without prejudice to
the provisions of Section 35 of the Meghalaya Interpretation
and General Clauses Act, 1972, a detention order made by a
District Magistrate or by the empowered officer, may, at any
Page 21 of 41
time, be revoked or modified by the State Government and, in
case of a detention order made by the State Government (or)
by the Central Government.
(2) The revocation or expiry of a detention order shall not bar
making of a fresh detention order against same person in any
case where fresh facts have arisen after the date of such
revocation or expiry and on which the State Government, a
District Magistrate or empowered officer, as the case may be, is
satisfied that such an order should be made."
17. It is the basic principle of construction of statute that the same
should be read as a whole, then chapter by chapter, section by section and
word by word. Recourse to construction or interpretation of statute is
necessary when there is ambiguity, obscurity, or inconsistency therein and
not otherwise. An effort must be made to give effect to all parts of the statute
and unless absolutely necessary, no part thereof shall be rendered
surplusage or redundant. True meaning of a provision of law has to be
determined on the basis of what it provides by its clear language, with due
regard to the scheme of law. Scope of the legislation on the intention of the
legislature cannot be enlarged when the language of the provision is plain
and unambiguous. In other words, statutory enactments must ordinarily be
construed according to their plain meaning and no words shall be added,
altered or modified unless it is plainly necessary to do so to prevent a
provision from being unintelligible, absurd, unreasonable, unworkable or
totally irreconcilable with the rest of the statute. It is also well settled that a
beneficent provision of legislation must be liberally construed so as to fulfill
the statutory purpose and not to frustrate it. The Apex Court in Bhavnagar
University v. Palitana Sugar Mills (P) Ltd. (2003) 2 SCC 111 held that:
"23. It is the basic principle of construction of statute that the
same should be read as a whole, then chapter by chapter,
section by section and words by words. Recourse to
construction or interpretation of statute is necessary when there
is ambiguity, obscurity, or inconsistency therein and not
otherwise. An effort must be made to give effect to all parts of
Page 22 of 41
statute and unless absolutely necessary, no part thereof shall
be rendered surplusage or redundant.
24. True meaning of a provision of law has to be determined on
the basis of what it provides by its clear language, with due
regard to the scheme of law.
25. Scope of the legislation on the intention of the legislature
cannot be enlarged when the language of the provision is plain
and unambiguous. In other words statutory enactments must
ordinarily be construed according to its plain meaning and no
words shall be added, altered or modified unless it is plainly
necessary to do so to prevent a provision from being
unintelligible, absurd, unreasonable, unworkable or totally
irreconcilable with the rest of the statute."
18. Under the doctrine of "Noscitur a sociis" in the interpretation
of statute, the meaning of a doubtful word may be ascertained by reference
to the meaning of words associated with it. The Apex Court in State of
Bombay v. Hospital Mazdoor Sabha: AIR 1960 SC 610, had considered
the doctrine of "Noscitur a sociis" in the interpretation of statute and held
that "associated words take their meaning from one another under the
doctrine of Noscitur a sociis, the philosophy of which is that the meaning of a
doubtful word may be ascertained by reference to the meaning of words
associated with such doctrine is broader than maxim ejusdem generis". The
ratio laid down in Hospital Mazdoor Sabha‟s case (Supra) is followed by the
Apex Court in Rohit Pulp and Paper Mills Ltd. v. Collector of Central
Excise, Baroda: (1990) 3 SCC 447. Para 12 of the SCC in Rohit Pulp and
Paper Mills Ltd case (Supra) reads as follows:-
"12. The principle of statutory interpretation by which a generic
word receives a limited interpretation by reason of its context is
well established. In the context with which we are concerned,
we can legitimately draw upon the ―noscitur a sociis‖ principle.
This expression simply means that ―the meaning of a word is to
be judged by the company it keeps‖ Gajendragadkar, J.
explained the scope of the rule in State of Bombay v. Hospital Mazdoor Sabha: (1960) 2 SCR 866: AIR 1960 SC 610: (1960) 1 LLJ 251 in the following words: (SCR pp.873-74) Page 23 of 41 "This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in ―Words and Phrases‖ (Vol.XIV, p.207): ―Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim ejusdem generis‖. In fact the latter maxim ―is only an illustration or specific application of the broader maxim noscitur a sociis‖. The argument is that certain features of attributes are invariably associated with the words ―business and trade‖ as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service."
This principle has been applied in a number of contexts in judicial decisions where the court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. The cases are too numerous to need discussion here. It should be sufficient to refer to one of them by way of illustration. In Rainbow Steels Ltd. v. CST: (1981) 2 SCC 141: 1981 SCC (Tax) 90 this Court had to understand the meaning of the word ‗old' in the context of an entry in a taxing traffic which read thus:
"Old, discarded, unserviceable or obsolete machinery, stores or vehicle including waste products......."
Though the tariff item started with the use of the wide word ‗old', the court came to the conclusion that ―in order to fall within the expression ‗old machinery' occurring in the entry, the machinery must be old machinery in the sense that it has become non-functional or non-usable‖. In other words, not the mere age of the machinery, which would be relevant in the Page 24 of 41 wider sense, but the condition of the machinery analogous to that indicated by the words following it, was considered relevant for the purposes of the statute."
19. The doctrine of purposive interpretation, in our opinion, would be helpful interpretation of Sub-Section (1) of Section 15 of the MPDA, 1995. Lord Smith in R(Haw) v. Secy. of State for the Home Deptt. (2006) 3 All ER 428 stated that the purposive construction of an enactment is one which gives effect to the legislative purpose by - (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose. The construction of purposive interpretation is also followed by the Apex Court in Dilip S. Dahanukar v. Kotak Mahindra Co.Ltd. & Anr: (2007) 6 SCC 528 in interpreting Clause (d) of Sub-Section (1) of Section 357 and Sub-Section (2) and Sub-Section (3) of Section 357 of the Cr.P.C. Paras 52, 53, 54 & 55 of the SCC in Dilip S. Dahanukar‟s case (Supra) read as follows:-
"52. If realization of an amount of compensation payable to a victim as envisaged under Clause (d) of sub-Section (1) of Section 357 is to be stayed under sub-Section (2) thereof, there is no reason why the amount of compensation payable in terms of sub-Section (3) shall not receive the same treatment.
53. Doctrine of Purposive Interpretation in a situation of this nature, in our opinion, shall be applied.
54. In R (Haw) vs. Secretary of State for the Home Department: (2006) 3 All ER 428 Lord Smith stated:-(All ER pp.438-39,paras 42 and 44-45) ―42. .......a passage from Bennion Statutory Interpretation (4th edn, 2002, p.810 Section 304) entitled, `Nature of purposive construction'. That begins with the following words:
‗A purposive construction of an enactment is one which gives effect to the legislative purpose by-
(a) following the literal meaning of the enactment where the meaning is in accordance with the Page 25 of 41 legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).' ***** ***** ***** *****
44. The passage from Bennion continues:
‗.... ....‖I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. [Kammins Ballroom Co. Ltd. v. Zenith Investments (Torquay) Ltd.: 1971 AC 850: (1970) 3 WLR 287: (1970) 2 All ER 871(HL)], provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.'‖
45. The passage from Bennion continues:
‗Lord Diplock's third point is, with respect, erroneous. The argument that in Jones v. Wrotham Park Settled Estates: 1980 AC 74: (1979) 2 WLR 132: (1979) 1 All ER 286 (HL) Lord Diplock was mistaken in saying that for a rectifying construction to be effected it must be possible to state with certainty what the missing words are, has been endorsed by the House of Lords. Lord Nicholls of Birkenhead said that the court must be sure of "the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used. [See Inco Europe Ltd. v. First Choice Distribution (a firm): (2000) 1 WLR 586: (2000) 2 All ER 109 (HL)]‖ Page 26 of 41 (See also K.L. Gupte vs. Municipal Corpn. of Greater Bombay: AIR 1968 SC 303: (1968) 1 SCR 274, Maruti Udyog Ltd. vs. Ram Lal: (2005) 2 SCC 638: 2005 SCC (L&S) 308, Reserve Bank of India vs. Peerless General Finance & Investment Co. Ltd.:(1987) 1 SCC 424, Punjab Land Development and Reclamation Corpn. Ltd. vs. Presiding Officer: (1990) 3 SCC 682: 1991 SCC (L&S) 71, Balram Kumawat vs. Union of India: (2003) 7 SCC 628 and Pratap Singh vs. State of Jharkhand: (2005) 3 SCC 551: 2005 SCC (Cri) 742)."
20. Sub-Section (1) of Section 15 of the MPDA, 1995 consists of two parts, first part of Sub-Section (1) of Section 15 deals with the detention order passed by the District Magistrate or by the empowered officer, which may be revoked or modified by the State Govt. at any time and the second part of Sub-Section (1) of Section 15 deals with the detention order made by the State Govt., which may be revoked or modified by the Central Govt. For interpreting the word "or" appearing in second part of Sub-Section (1) of Section 15, the principle of "noscitur a sociis‖ shall be applied and also "doctrine of purposive construction" shall also be applied in interpreting the Sub-Section (1) of Section 15, more particularly the second part of Sub- Section (1) of Section 15 of the MPDA, 1995, and accordingly, the meaning of the word „or‟ is to be judged by the company it keeps; and Sub-Section (1) of Section 15 should also be interpreted in such a manner that the second part of Sub-Section (1) of Section 15 is prevented from being unintelligible, absurd and unworkable. After such consideration, we are of the considered view that the second part of Sub-Section (1) of Section 15 of the MPDA, 1995 is to be interpreted in such a manner that in the case of detention order made by the State Govt., may be revoked by the Central Govt. In other words, the detention order made by the State Govt. may be at any time revoked or modified by the Central Govt.
Page 27 of 41
21. The Central Govt. under the order dated 20.01.2011, had informed the Govt. of Meghalaya that the Govt. of India, Ministry of Home Affairs had decided that the MPDA, 1995 does not provide right to the detenu to file representation to the Govt. of India against the detention order issued by the District Magistrate under Section 3(1) of the MPDA, 1995 as Section 15 (1) of the MPDA, 1995 provides that in the case of detention order has been issued by the District Magistrate, it is for the State Govt. to consider the representation. The said letter of the Ministry of Home Affairs, New Delhi dated 20.01.2011 reads as follows:-
―No. II/15050/01/2011- NSA Government of India Ministry of Home Affairs New Delhi, dated the 20th January, 2011 To The Principal Secretary/ Commissioner & Secretary, Political Department, Government of Meghalaya, Meghalaya Secretariat, Shillong.
Subject-: Representation from Shri Albin Ch. Momin under Meghalaya Preventive Detention Act.
Sir, I am directed to refer to letter No. DJJ-
08/2004/Pt.IV/94, dated 21st December, 2010 from the Superintendent District Jail, Jowai forwarding representation of the detenue Shri Albin Ch. Momin under Meghalaya Preventive Detention Act and to convey that on examination it is found that in the detention order it has been mentioned that the detenue can submit his representation to Government of India, Ministry of Home Affairs, whereas the Meghalaya Preventive Detention Act, 1995 does not provide for the same when the detention order has been issued by the District Magistrate under Section 3(1) of the Act Section 15(1) of the Meghalaya Preventive Detention Act, 1995 provides that in case the detention order has been issued by the District Magistrate, it is for the State Government of Meghalaya to consider the representation. Therefore, the representation received from Shri Albin Ch. Momin is being returned herewith for appropriate action.Page 28 of 41
2. I am further directed to say that all District Magistrate in the State of Meghalaya may be suitably advised of the above provisions of the MPDA Act, 1995.
3. Kindly acknowledge receipt of the letter.
Yours faithfully, Sd/-
(Smt. L. P. Srivastava) Under Secretary to the Government of India Tel. No. 2461 0467‖
22. It is also fairly settled law that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [Ref:- See Ram Rakhi v. Union of India: AIR 2002 Del 458 (FB), Delhi Admn. (NCT of Delhi) v. Manohar Lal: (2002) 7 SCC 222: 2002 SCC (Cri) 1670: AIR 2002 SC 3088, Haryana Financial Corpn. V. Jagdamba Oil Mills: (2002) 3 SCC 496: JT (2002) 1 SC 482 and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation): (2002) 257 ITR 123 (Del) and also Bhavnagar University case (Supra)]. It is also equally well settled that the ratio of any decision must be understood in the background of the facts of that case. The Apex Court in Ambica Quarry Works v. State of Gujarat:
(1987) 1 SCC 213 (vide SCC p.221, para 18) this Court observed:-
"18. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
23. In Bhavnagar University case (Supra) (vide SCC p.130, para
59), this Court observed:-
―59. ..... It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision‖. (emphasis supplied) Page 29 of 41
24. As held in Bharat Petroleum Corporation Ltd. v. N.R.Vairamani: (2004) 8 SCC 579: AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same Judgment this Court also observed:- (SCC pp.584-85, paras 9-12) "9. Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of a statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton: 1951 AC 737:
(1951) 2 All ER 1 (HL) (AC at p. 761), Lord Mac Dermot observed: (All ER p.14 C-D) ―The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge, ...."
In Home Office vs. Dorset Yacht Co. Ltd.: 1970 AC 1004:
(1970) 2 WLR 1140: (1970) 2 All ER 294 (HL) (All ER p.297 g-
h) Lord Reid said, Lord Atkin`s speech ..... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry, J. in Shepherd Home Ltd., v.
Sandham (No2): (1971)1 WLR 1062: (1971) 2 All ER 1267 observed: (All ER p.1274d) ‗One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament.' And, in Herrington v. British Railways Board: 1972 AC 877:
(1972) 2 WLR 537: (1972) 1 All ER 749 [(HL (E)] Lord Morris said: (All ER p.761c) ‗There is always peril in treating the words of a speech or judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.Page 30 of 41
Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
*** *** *** *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it."
(emphasis supplied)
25. Keeping in view of the settled principle of construction of statute and also the settled principle as to how the ratio of the judgment and order must be understood, we have given our anxious consideration to the said submission made by the learned senior counsel appearing for the appellant/writ petitioner that "the Central Govt. is the authority having the power for revocation of the detention order passed by the District Magistrate under Section 15 of the MPDA, 1995" and are of the view that the State Govt. is the authority for revocation of the detention order passed by the District Magistrate under the MPDA, 1995 whereas, the Central Govt. is the competent authority for revocation of the detention order passed by the Detaining authority or by the empowered officer or by the State Govt. in the cases under the National Security Act, 1980 and also in the cases under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. We reiterated that in the case of detention order passed by the District Magistrate, the State Govt. has the power to revoke under first part of Page 31 of 41 Sub-Section (1) of Section 15 and under second part of Sub-Section (1) of Section 15 of the MPDA, 1995, the Central Govt. is the competent authority to revoke the detention order passed by the State Govt. and the Central Govt. has nothing to do with the detention order passed by the District Magistrate or by the empowered officer under the MPDA, 1995.
26. In the present case in hand, the Detaining authority was fully aware of the fact that the appellant/writ petitioner was in custody at the time of passing the detention order and bail had been granted to the appellant/writ petitioner for the said two criminal cases of Nongstoin Police Station by the erstwhile Hon‟ble Gauhati High Court and applied bails for other cases, and passed the detention order on being satisfied that if the appellant/writ petitioner is allowed to remain at large, he would act in a manner prejudicial to the activities of the State and maintenance of public order in the district.
The Apex Court in Union of India v. Paul Manickam & Anr: AIR 2003 SC 6422 laid down three conditions which are to be satisfied for detaining a detenu already in custody under the detention order. Para 12 of AIR in Paul Manickam‟s case (Supra) reads as follows:-
"12. So far as this question relating to procedure to be adopted in case the detenue is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in Jail under some other laws, the detaining authority should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody the detenue by itself does not invalidate an order of his preventive detention, and decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. ordinarily, it is not needed when detenue is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order. If the detaining authority is reasonably satisfied on cogent materials that there is likelihood Page 32 of 41 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 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 detenue was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu: (AIR 1989 SC 2027); Dharmendra Suganchand v. Union of India:
AIR 1990 SC 1196). The point was gone into detail in Kamarunnissa v. Union of India: (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 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 awareness of custody and/or possibility of release on bail.‖
27. Learned senior counsel appearing for the appellant/writ petitioner asserted that there is no cogent reason for passing the impugned detention order dated 29.01.2013 for detaining the appellant/writ petitioner under the MPDA, 1995. It is fairly settled law that for issuing the detention order by invoking jurisdiction of suspicious jurisdiction, which we have discussed in the aforesaid paras, there should only be a subjective satisfaction. The subjective satisfaction is a cumulative effect of all the materials placed before the Detaining authority. It is also equally well settled that it is not within the ambit of the discretion of the writ court to determine if the grounds of detention are sufficient or not. The Apex Court in Pebam Ningol Mikoi Devi Vs. State of Manipur & Ors.: (2010) 9 SCC 618 held that there must be a reasonable basis for the detention order. There must be material to support the same and Court is entitled to scrutinize the material relied upon by the authority in coming to its conclusion only to see if there is any objective basis for the subjective satisfaction. The Hon‟ble Apex Court further held that the grounds stated in the order of detention and the grounds Page 33 of 41 of detention are sufficient or not is not within the ambit of the discretion of the Court. It is the subjective satisfaction of the detaining authority which is implied. Para 26 of the SCC in Mikoi‟s case (Supra) reads as follows:-
"26. What emerges from these rulings 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 scrutinized 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. In Lourembam Sana Singh vs. State of Manipur & Ors.:
2008 (2) GLT 813, (one of us is the party) held that:
―13. It is well settled law that subjective satisfaction of the detaining authority arrived at for detaining the detenu as a preventive measure under the preventive law is invalid if such satisfaction is based on non-existent or irrelevant ground only. Reference in Dwarika Prasad Sahu vs. State of Bihar & Ors. reported in AIR 1975 SC 134. The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention and the involvement of the detenu in different activities. Reference may be made in A.P. Saravanan vs. State of Tamil Nadu reported in (2001) 10 SCC 212. There is no set standards laid down by the NSA for arriving at subjective satisfaction of the detaining authority on the basis of all the materials placed before it by the police.
In the present case as stated above, the detaining authority had arrived at, on subjective satisfaction, for detaining the detenu under the NSA on the basis of the materials and the information placed by the Superintendent of Police, Imphal West. Therefore, the detention order cannot be said to be illegal on the ground of non application of mind. Reference in Gurudayal Singh vs. Union of India reported in (2002) 1 SCC 545. The Apex Court in Union of India vs. Paul Manikham reported in (2003) 8 SCC 342 held that:
―Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced on the materials available and placed before it Page 34 of 41 that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of the executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authorities. It is not practicable to lay down objective rules of conduct, the failure to confirm to which alone should lead to detention.‖
29. In Thongam (Ongbi) Sanatombi Devi vs. District Magistrate, Imphal West & Ors.: 2007 (4) GLT 931 also held:
―13. It is a settled position of law that the nature of satisfaction of the detaining authority in issuing the detention order under National Security Act for preventing a detenu from indulging in such activities which are prejudicial to the maintenance of the public order and the security of the State is only a subjective satisfaction but subjective satisfaction should not be on no material.
14. The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention in view of the decision of the Supreme Court in (2001) 10 SCC 212 (A.P. Saravanan Vs. State of Tamil Nadu).
According to the learned counsel for the respondents no set standards have been laid down by the Act for arriving at subjective satisfaction of the detaining authority. The subjective satisfaction in the present case had been arrived at by the detaining authority on the basis of all the materials placed before him. Therefore, the detention order cannot be said to be illegal on the grounds of non- application of mind in view of the principles laid down in Gurdew Singh Vs. Union of India (2002) 1 SCC 545.
19. As we have discussed above, the satisfaction of the (sic) authority for issuing the detention order is only a subjective satisfaction. We, within the four corners of law laid down by the Apex Court in the cases discussed above, perused the materials available on record to see as to whether the relevant materials were placed before the detaining authority at the time of passing the detention order or not be effective to prevent him from the commission of further prejudicial activities.‖
30. We again recall the decision of the Constitution Bench of the Apex Court passed more than half a century ago in State of Bombay Vs Atma Ram Shridhar Vaidya: AIR (38) 1951 SC 157 that subjective satisfaction of the detaining authority must be based on some grounds. The Page 35 of 41 question whether such grounds can give rise to the subjective satisfaction required for making the order is outside the scope of the inquiry of the court.
31. The learned senior counsel appearing for the appellant/writ petitioner also urged that the material documents are not supplied to the appellant/writ petitioner for filing representation against the detention order. We have also carefully perused the writ petition as well as the representation dated 14.02.2013 filed by the appellant/writ petitioner and on such perusal, we do not know what are the material documents inasmuch as, neither in the writ petition nor in the representation dated 14.02.2013 mentioned the particulars of material documents to be supplied with and also in nowhere of the representation dated 14.02.2013, which is appeared to be drafted by the appellant/writ petitioner in consultation with the lawyer did not mention that the appellant/writ petitioner cannot file the effective representation because of non-furnishing of the material documents. In fact, the appellant/writ petitioner had filed the representation dated 14.02.2013 consisting of six pages.
32. It is clear from the maxim "Expressum Facit Cessare Tacitum"
that "when there is express mention of certain things, then anything not mentioned is excluded. More than half a century ago, the Constitution Bench in State of Bombay v. Atma Ram Shirdhar Vaidya: AIR (38) 1951 SC 157, in the context of Article 22 (5) and preventive detention Act (Act No.4 of 1950) clearly held that "what must be supplied are the grounds on which the order has been made and nothing else. And also further held that vagueness of the grounds of detention is a relative term and it is to be decided on the basis of the fact of case. In other words, as to whether there is vagueness in the grounds of detention is to be decided on the basis of the fact of that case.Page 36 of 41
What is guaranteed under Article 22 (5) of the Constitution of India to a detenu is that the petitioner-detenu should be informed the conclusion of facts which form the grounds of detention and documents which form the grounds of detention. The Apex Court (Constitution Bench) in Atma Ram Shirdhar Vaidya‟s case (Supra) reads as follows:-
― ..... We think that the position will be clarified if it is appreciated in the first instance what are the rights given by article 22 (5). 'The first part of article 22, clause (5), gives a right to the detained person to be furnished with "the grounds on which the order has been made" and that has to be done "as soon as may be." The second right given to such persons is of being afforded "the earliest opportunity of making a representation against the order." It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspended activity of the particular person is considered to fall. These conclusions are the "grounds" and they must be supplied. No part of such "grounds" can be held back nor can any more "grounds" be added thereto. What must be supplied are the "grounds on which the order has been made" and nothing less. The second right of being afforded the "earliest opportunity of making a representation against the order" is not confined to only a physical opportunity by supplying paper and pen only. In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is therefore clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to be detained person must be sufficient to attain that object. Ordinarily, the "grounds" in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenue is suspended of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him. Of course if the detenue is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same. It is significant that the clause does not say that the "grounds" as well as details of facts on which they are based must be furnished or furnished at one time. The law does not prescribe within what time after the grounds are furnished the representation could be made. The time in each case appears deliberately un-provided for expressly, because circumstances vary in each case and make it impossible to fix a particular time for the exercise of each of these two rights."Page 37 of 41
33. The Apex Court (Constitution Bench) in Naresh Chandra Ganguli for Shri Ram Prasad Das v. The State of West Bengal & Ors:
AIR 1959 SC 1335 (V 46 C 188) had considered in threadbare the rights of the detenu under Article 22 (5) of the Constitution of India and what are to be informed to the detenu for enabling him to file effective representations, and held that what must be supplied are the grounds on which the order has been made and nothing less.
34. From the foregoing decisions of the Constitution Benches of the Apex Court, it is clear that what is to be furnished or communicated to the detneu in compliance of the mandates of Article 22 (5) of the Constitution of India is only the grounds of detention and nothing else and also furnishing of grounds of detention is only for enabling the detenu to file effective representation and as to whether or not the grounds of detention furnished to the detenu are sufficient for filing the effective representations. We may also recall the decision of the Apex Court in Khudi Ram Das v. State of West Bengal: (1975) 2 SCR 832: AIR 1975 SC 550 that the constitutional right of life and personal liberty is placed on such a high pedestal by the Apex Court that it is always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with law. This is an area where the court has been most strict and scrupulous in ensuring observance with the requirement of law, and even where a slightest measure, the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. (See: decision of the Constitution Bench of the Apex Court in AK Roy v. Union of India: (1982) SCR 272: AIR 1982 SC 710). We also reiterate that the Apex Court in a catena of cases including the decisions of Page 38 of 41 the Constitution Benches in the above referred cases held that what is required to see by the Court is that if the grounds of detention furnished to the detenu will be sufficient for filing effective representation and in the given case, the grounds of detention furnished to the appellant/writ petitioner are sufficient for filing the effective representation and in fact the appellant/writ petitioner had filed the representation dated 14.02.2013 which consists of more than six pages by putting up all his points and reasons for revocation of the detention order.
35. As a last chance, learned senior counsel appearing for the appellant/writ petitioner submitted that as the Police had failed to produce iota of evidence, the erstwhile Hon‟ble Gauhati High Court was pleased to grant bail to the appellant/writ petitioner and also that every person is presumed to be innocent only till his guilt is established in a court of law and further argued as if the detention order is the judgment and order for conviction of the accused of an offence and the detention order is only an order relating with the law and order problem. He further argued that as the learned District Magistrate issued the detention order on the satisfaction that the appellant/writ petitioner would act in (i) a manner prejudicial to the security of the State and (ii) maintenance of public order, the Detaining authority has to prove that the said two satisfactions are valid. For deciding this point, it would be profitable to quote Section 9 of the MPDA, 1995:-
"9.Ground of detention severable - where a person is detained in pursuance of detention order which has been made on two or more grounds such detention order shall be deemed to have been made separately on such grounds and accordingly -
(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds are -Page 39 of 41
(i) vague;
(ii) non-existent;
(iii) not relevant;
(iv) not connected or non proximately connected with such person; or
(v) invalid for any other reason whatsoever, and it is not therefore, possible to hold that the authority making the order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds for making the detention order; and
(b) the authority making the order shall be deemed to have been made the detention order after being satisfied as provided in sub-section (1) of section 3, with reference to the remaining ground or grounds."
In the aforementioned paras, we had clearly held that the object of law of preventive detention is not punitive but only preventive and detention order is not an order for convicting the appellant/writ petitioner for an offence and also that under the law of preventive detention, it is not required to prove beyond reasonable doubt the satisfaction of the Detaining authority for passing the detention order.
36. The Apex Court had considered the meaning and import of the expressions - „law and order‟ and „public order‟ in a catena of cases. The Apex Court in Dr. Ram Manohar Lohia v. State of Bihar: 1966 SC 740 through Justice Hidayatullah (as he then was), observed that one has to imagine three concentric circles, in order to understand the meaning and import of the expression „law and order‟, „public interest‟ and „security of State‟. „Law and order‟ represents the largest circle within which is the next circle representing „public order‟ and the smallest circle represents „security of State‟.
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37. The Apex Court in State of U.P.& Anr. v. Sanjai Pratap Gupta @ Pappu & Ors.: 2004 (7) Supreme 24, held that the crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression „law and order‟ is wider scope inasmuch as contravention of law always affects order. „Public order‟ has a narrower ambit, and public order could be affected by only „such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of „law and order‟ and „public order‟ is one of the degree and extent of the reach of the act in question on society. It is the potentiality of act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting „public order‟ from that concerning „law and order‟. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affects merely an individual leaving the tranquility of the society undisturbed"? This question has to be faced in every case on its facts.
38. For the foregoing reasons, we are of the considered view that the present writ appeal is devoid of merit and accordingly it is dismissed.
JUDGE CHIEF JUSTICE (ACTING)
Lam
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