Yumman Ongbi Lembi Leima vs State Of Manipur & Ors

of the Governor of Manipur dated 18th March, 2011,

confirming the detention order passed against the

husband of the Appellant and fixing the period of

detention for 12 months on the subjective

satisfaction of the detaining authority that the

detenu was likely to be released on bail by the

normal criminal Courts in the near future, was

challenged on behalf of Yumman Somendro in the

Gauhati High Court (Imphal Bench), but without

success. This Appeal is directed against the said

order of the High Court and the order of detention

itself. Earlier, the Appellant's husband had been

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arrested on 21st March, 1994 in connection with FIR

No.478(3)1994 IPS u/s 13 Unlawful Activities

(Prevention) Act, but was released on bail by the

normal criminal Court. Despite the above, again on

29th June, 1995, the Appellant's husband was

arrested in connection with FIR No.450(6)95 under

Churachandpur P.S. under Sections 386 and 34 IPC.

Though he was released on bail by the normal

criminal Court, he was again arrested under Section

13 UA (P) Act in connection with FIR No.190(5)98

and was released on bail on 8th July, 1998. After

being released on bail by the normal Criminal

Court, Yumman Somendro was again arrested on 16th

January, 2011, in connection with FIR No.21(1)11

IPS under Section 302 IPC for the alleged murder of

the then Chairman of the Board of Secondary

Education, Manipur, Dr. N. Kunjabihari Singh. The

Appellant's husband was produced before the

Magistrate on 17th January, 2011, who remanded him

4

to police custody till 31st January, 2011. On the

said date, he was further remanded to police

custody till 2nd February, 2011, and when he was

produced before the Chief Judicial Magistrate in

connection with the said case, he was served with a

copy of the detention order dated 31st January,

2011, issued by the District Magistrate, Imphal

West, under the National Security Act, 1980.

3. On 31st January, 2011, the Appellant's husband

was served with the grounds of detention under the

National Security Act, 1980, under the authority of

the District Magistrate, Imphal West. Along with

the said order, copies of the documents on which

the detaining authority had relied on to arrive at

the conclusion that the detention of the

Appellant's husband was necessary, was also served

on him.

5 4. On a perusal of the grounds of detention, it is

clear that the subjective satisfaction of the

detaining authority is founded on the belief that

after having availed of bail facility, the

Appellant's husband could indulge in commission of

further prejudicial activities. An alternative

preventive measure was, therefore, immediately

needed in the circumstances.

5. On behalf of the Appellant, Mr. Sanjay Parikh,

relied heavily on the decision of this Court in

Rekha Vs. State of Tamil Nadu through Sec. to Govt.

[(2011) 4 SCC 260], in which it had been held that

in the absence of material particulars in similar

cases in which bail had been granted, the

subjective satisfaction of the detaining authority

was merely a ruse for issuance of the impugned

detention order. After considering various

decisions of this Court and the views of several

jurists and the submissions made on behalf of the

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parties, the Division Bench of the High Court was

of the view that the subjective satisfaction of the

detaining authority was based on proper material

and the detaining authority was also aware that the

detenu was in custody and was likely to be released

on bail. The detaining authority, therefore, was

of the view that the detention of the detenu was

required in order to prevent him from acting in a

manner prejudicial to the maintenance of public

order as he was likely to be released on bail in

the near future by the normal criminal Courts. On

the aforesaid reasoning, the Division Bench of the

High Court dismissed the Writ Petition filed by the

detenu's wife.

6. The main contention urged by Mr. Parikh

appearing for the Appellant was that the personal

life and liberty of a person was too precious to be

allowed to be interfered with in the manner in

which it had been done. Mr. Parikh submitted that

7

as would be evident, the detention order was passed

on a mere supposition that the Appellant's husband

was likely to be released on bail in the near

future in connection with the case in respect of

which he had been arrested and that in view of such

future apprehension, the detention order was sought

to be legitimised. Mr. Parikh submitted that not

only had the Appellant's husband not applied for

bail at any stage, nor was there any indication

that he intends to do so, which could give rise to

the supposition that in the future there was every

likelihood that he would be released on bail. Mr.

Parikh submitted that supposition could never take

the place of facts which were necessary to

establish a case which warranted the detention of a

person without any trial.

7. Mr. Parikh pointed out that Yumman Somendro had

been arrested in connection with several cases, but

had been released on bail in all the said cases

8

till ultimately an order of detention was passed

against him under the National Security Act, 1980,

on the flimsiest of excuses. Mr. Parikh submitted

that if at all the Appellant's husband was alleged

to have committed a crime which was punishable

under the Indian Penal Code, the same could not be

equated with the national security in any way,

which warranted the issuance of a detention order

under the National Security Act, 1980.

8. Referring to the provisions of Section 3 of the

aforesaid Act, Mr. Parikh submitted that the sine

qua non for an order of detention to be passed

under the National Security Act, 1980, is that the

Central Government or the State Government would

have to be satisfied that in order to prevent any

person from acting in any manner prejudicial to the

security of the State or from acting in any manner

prejudicial to the maintenance of the public order

or from acting in any manner prejudicial to the

9

maintenance of supply of services essential to the

community that it was necessary so to do, make an

order directing that such person be detained. Mr.

Parikh submitted that although the Appellant's

husband had been charged with having committed an

offence under Section 302 IPC, Section 386 and

Section 13 Unlawful Activities (Prevention) Act,

there was no material whatsoever to bring the

Appellant's husband within the ambit of the grounds

enumerated in Sub-Section (2) of Section 3 of the

aforesaid Act. Mr. Parikh submitted that the order

of detention had been passed not for the reasons

enumerated in Sub-Section (2) of Section 3, but

since the police was unable to pin any offence

against the Appellant's husband on account whereof

he could be denied bail by the Courts.

9. In support of his submissions, Mr. Parikh

firstly referred to the decision of this Court in

Union of India Vs. Paul Manickam & Anr. [(2003) 8

10

SCC 342], wherein while considering the delay in

disposal of a representation in the matter of

preventive detention, this Court noticed that when

the detenu was already in custody, the anticipated

and apprehended acts were practical

impossibilities, as was the case as far as the

Appellant's husband is concerned. This Court

further observed that as far as the question

relating to the procedure to be adopted in case the

detenu is already in custody is concerned, the

detaining authorities would have to apply their

minds and show their awareness in this regard in

the grounds of detention. The necessity of keeping

such person in detention under preventive detention

laws have to be clearly indicated. It was further

observed that the subsisting custody of the detenu

by itself does not invalidate an order of his

preventive detention and the decision in this

regard has to depend on the facts of each case.

11 However, 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 or economic stability,

ordinarily it is not needed when the detenu is

already in custody and the detaining authority must

be reasonably satisfied with cogent materials that

there is likelihood of his release and in view of

his antecedent activities which are proximate in

point of time, he must be detained in order to

prevent him from indulging in such prejudicial

activities.

10. Mr. Parikh also referred to another decision of

this Court in Haradhan Saha Vs. The State of West

Bengal & Ors. [(1975) 3 SCC 198], wherein in the

case of a preventive detention order passed under

the Maintenance of Internal Security Act, 1971, the

distinction between preventive detention and

criminal prosecution was sought to be defined and

12

it was held that the essential concept of

preventive detention is that the detention of a

person is not to punish him for something he has

done, but to prevent him from doing it. It was

further observed that the basis of detention is the

satisfaction of the Executive of a reasonable

probability or the likelihood of the detenu acting

in a manner similar to his past acts and preventing

him by detention from doing the same. The criminal

conviction, on the other hand, is for an act

already done which can only be possible by a trial

and legal evidence.

11. Referring to the Division Bench order dated 31st

January, 2011, Mr. Parikh submitted that the same did

not contain any material whatsoever on which the

detaining authority could have arrived at a

satisfaction that Yumman Somendro had acted in any

manner which warranted his detention under the

provisions of Section 3(2) of the National Security

13

Act, 1980. The only reason given for issuing such order

of detention was that Yumman Somendro, who was in

police custody, was likely to be released on bail in

the near future by the normal criminal Courts, as,

according to him, bails are granted in similar cases by

the criminal Courts. Mr. Parikh submitted that this is

a case where the detention order passed against the

Appellant's husband was without any basis whatsoever

and had been resorted to on account of the failure of

the police to keep him in judicial custody.

12. On the other hand, appearing for the State of

Manipur, Mr. Jaideep Gupta, learned Senior Advocate,

repeated the facts indicated earlier to the effect that

the Appellant's husband had been arrested in

connection with several cases and, in particular, for

the murder of Dr. N. Kunjabihari Singh, the then

Chairman of the Board of Secondary Education,

Manipur, in his office room on 11th January, 2011.

Mr. Gupta submitted that it was subsequent to the

14

murder of Dr. N. Kunjabihari Singh that on 31st

January, 2011, the order of detention was passed

under Section 3 of the aforesaid Act and was served

on the Appellant's husband, while he was in

judicial custody, on 2nd February, 2011. It was

also submitted that thereafter the grounds of

detention were provided to the Appellant's husband,

as required under Section 8 of the above-mentioned

Act to enable him at the earliest opportunity of

making a representation against the order to the

appropriate Government. The detention order was

considered by the State Government which approved

the same on 7th February, 2011, and the

representation made by Yumman Somendro to the State

Government was rejected on 10th February, 2011. The

matter was, thereafter, referred to the Advisory

Board which came to the conclusion that since

Yumman Somendro was a member of the banned

organization, Kanglei Yaol Kanna Lup, he was a

15

potential danger to society, whose activities were

prejudicial to the maintenance of public order and

there was a likelihood that he would continue such

activities the moment he was released from

detention and accordingly he should be detained for

the maximum period of 12 months, as provided under

Section 13 of the Act. Mr. Gupta submitted that

since the detention order was to end on 31st

January, 2012, there could be no reason to

interfere with the same prior to its dissolution by

efflux of time.

13. Having carefully considered the submissions

made on behalf of respective parties, we are

inclined to hold that the extra-ordinary powers of

detaining an individual in contravention of the

provisions of Article 22(2) of the Constitution was

not warranted in the instant case, where the

grounds of detention do not disclose any material

which was before the detaining authority, other

16

than the fact that there was every likelihood of

Yumman Somendro being released on bail in

connection with the cases in respect of which he

had been arrested, to support the order of

detention. Article 21 of the Constitution enjoins

that no person shall be deprived of his life or

personal liberty except, according to procedure

established by law. In the instant case, although

the power is vested with the concerned authorities,

unless the same are invoked and implemented in a

justifiable manner, such action of the detaining

authority cannot be sustained, inasmuch as, such a

detention order is an exception to the provisions

of Articles 21 and 22(2) of the Constitution.

14. When the Courts thought it fit to release the

Appellant's husband on bail in connection with the

cases in respect of which he had been arrested, the

mere apprehension that he was likely to be released

on bail as a ground of his detention, is not

17

justified. In addition to the above, the FIRs in

respect of which the Appellant's husband had been

arrested relate to the years 1994, 1995 and 1998

respectively, whereas the order of detention was

passed against him on 31st January, 2011, almost 12

years after the last FIR No.190(5)98 IPS under

Section 13 of the Unlawful Activities (Prevention)

Act. There is no live link between the earlier

incidents and the incident in respect of which the

detention order had been passed.

15. As has been observed in various cases of

similar nature by this Court, the personal liberty

of an individual is the most precious and prized

right guaranteed under the Constitution in Part III

thereof. The State has been granted the power to

curb such rights under criminal laws as also under

the laws of preventive detention, which, therefore,

are required to be exercised with due caution as

well as upon a proper appreciation of the facts as

18

to whether such acts are in any way prejudicial to

the interest and the security of the State and its

citizens, or seek to disturb public law and order,

warranting the issuance of such an order. An

individual incident of an offence under the Indian

Penal Code, however heinous, is insufficient to

make out a case for issuance of an order of

preventive detention.

16. In our view, the detaining authority acted

rather casually in the matter in issuing the order

of detention and the High Court also appears to

have missed the right to liberty as contained in

Article 21 of the Constitution and Article 22(2)

thereof, as well as the provisions of Section 167

of the Code of Criminal Procedure.

17. The Appeal must, therefore, succeed. The

impugned order of detention dated 31st January,

2011, passed by the District Magistrate, Imphal

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West District, Manipur, in regard to the detention

of Yumman Somendro @ Somo @ Tiken son of Y. Roton

Singh, is hereby quashed. The Appeal accordingly

succeeds. Let the Appellant's husband, Yumman

Somendro, be released from custody, if he is not

required in connection with any other case.

............................................................J.

(ALTAMAS KABIR)

............................................................J.

(SURINDER SINGH NIJJAR)

............................................................J.

(J. CHELAMESWAR)

New Delhi

Dated: 04.01.2012