REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1849 OF 2010
(Arising out of S.L.P. (Crl.) No. 2555 of 2010)
Smt. Pebam Ningol Mikoi Devi ...............Appellant
Versus
State of Manipur and Ors. ...........Respondents
JUDGMENT
H.L. Dattu, J.
1) Leave granted. 2) By our order dated 14.09.2010, after hearing the learned
counsel for the parties to the lis, we had directed the release of
the detenu, since we were satisfied that the appellant prima-
facie had made out a case for release of the detenu. Now we
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give our reasons for allowing this appeal in support of our
pre-emptory order.
3) Here is an unfortunate case involving a person who ought
not to have been detained under preventive detention and have
his liberty curtailed by virtue of his incarceration under
Section 3(2) of the National Security Act, 1980 (hereinafter
“NS Act”).
4) Individual liberty is a cherished right, one of the most
valuable Fundamental Rights guaranteed by the Constitution to
the citizens of this Country. On “liberty”, William
Shakespeare, the great play writer, has observed that “a man is
master of his liberty”. Benjamin Franklin goes even further and
says that “any society that would give up a little liberty to gain
a little security will deserve neither and lose both”. The
importance of protecting liberty and freedom is explained by
the famous lawyer Clarence Darrow as “you can protect your
liberties in this world only by protecting the other man’s
freedom; you can be free only if I am free.” In India, the
utmost importance is given to life and personal liberty of an
individual, since we believe personal liberty is the paramount
essential to human dignity and human happiness. The
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Constitution of India protects the liberty of an individual.
Article 21 provides that no person shall be deprived of his life
and personal liberty except according to procedure established
by law. In matters of preventive detention such as this, as there
is deprivation of liberty without trial, and subsequent
safeguards are provided in Article 22 of the Constitution. They
are, when any person is detained pursuant to an order made
under any law providing for preventive detention, the authority
making the order is required to communicate the grounds on the
basis of which, the order has been made and give him an
opportunity to make a representation against the order as soon
as possible. It thus, cannot be doubted that the Constitutional
framework envisages protection of liberty as essential, and
makes the circumstances under which it can be deprived.
5) The appellant is the wife of Mr. Ranjit Oinamcha @ Oinam
Ranjit Singh, who is the detenu under the National Security
Act. She is questioning the detention order dated 24/09/2009
passed by the District Magistrate, Imphal West District,
Manipur, against which, a challenge was made in the form of a
habeas corpus petition in the Gauhati High Court (Imphal
Bench) in Writ Petition (Crl.) No. 111/2009. By an order dated
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18/02/2010, the High Court dismissed the writ petition.
Aggrieved by the same, the appellant has filed this appeal.
6) The facts of this case, in a nutshell, are that the detenu was the
Editor of a Manipuri Daily evening paper named `Paojel’,
having its printing press at Keisamthing Top Leirak, Manipur.
The assertions and allegations leading to his detention, as stated
in the Grounds of Detention order passed by the District
Magistrate dated 28/09/2009, are that the detenu could not get
enough money from his press to maintain it or support his
family, particularly due to the high rates of essential
commodities in Manipur. Therefore, in 2003, he contacted Mr.
Irom Priyobarta Singh @ Naocha with the intention of earning
money without labour. From July 2003, he was in touch with
Mr. Ratan @ Inao @ N. Ibochouba Singh, who was the Finance
in-Charge of the United National Liberation Front (UNLF),
Imphal West, after discussion with whom he decided to get
involved in extorting money from contractors and engineers of
Public Health Engineering Department (“PHED” for short) and
Forest Department of Manipur Government by delivering
demand letters which he printed in his own press. He and Mr.
Irom Priyobarta Singh were to receive a 10% share of the
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extortion money. They accordingly started carrying out such
extortion by printing these demand letters in his press and
delivering them to the aforementioned contractors and
engineers, and even issued threats to them not to report the
matter to the Security Forces. This extortion resulted in a terror
wave in the general public which is prejudicial to the
maintenance of public order. The Grounds also pointed out that
the UNLF is an unlawful association (declared so vide Gazette
of India Notification, under No. S.O. 1992(E), dated
13/11/2007) which looks to create an independent, sovereign
State of Manipur by seceding from the Union of India, and that
the said organization has involved itself in procuring arms and
ammunitions from foreign countries, recruiting youngsters, and
committing heinous crimes such as murder, dacoity, extortion,
kidnapping for ransom etc.
7) Further, it is pointed out that on 17/09/2009 at 8 PM, a team of
CDO/IW led by S.I. T. Khogen Singh came to the detenu’s
house as disclosed by Mr. Irom Priyobarta Singh, arrested him,
and seized after observing due formality `10,04,000/- from him,
as well as one Nokia handset from Mr. Irom Priyobarta Singh.
An F.I.R. No. 183(9)09 SJM-P.S. was registered under Section
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17/20 of the Unlawful Activities (Prevention) Act, 1967, and
the detenu was arrested on 18/09/2009 and remanded into
police custody till 24/09/2009. On 24/09/2009, he was
presented before the Magistrate for judicial remand, and the
detention order passed by the District Magistrate, Imphal West,
was served on him. The Grounds of Detention were served on
him on 28/09/2009, as required under Section 8 of the National
Security Act.
8) The version of the detenu, on the contrary, as emerges from his
Representation made to the Secretary, Ministry of Home
Affairs, Government of India, as well as to the Chief Secretary,
Manipur State, and the District Magistrate, Imphal West on
09/10/2009, is that he was indeed the editor of `Paojel’, an
evening daily, which was established on 08/04/2006. On
17/09/2009 at about 4:30 PM, Mr. Irom Priyobarta Singh @
Naocha, who was a `locality brother’, brought to his residence a
sum of `10,04,000/- for safe keeping, which he claimed was
received for contract work, and which the detenu bona fide
believed, and kept the money with him. The detenu then claims
that at around 8:30 PM on the same day, police personnel of
CDO, Imphal West, along with Mr. Irom Priyobarta Singh,
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came to his residence and asked him to hand over the money,
which he did. On 18/09/2009, i.e. the next day, he was told to
report to the Officer in-Charge of the CDO, Imphal West,
where he asserts he was interrogated regarding the money and
forced to sign on a back dated Seizure Memo for 17/09/2009, as
well as a back dated Arrest Memo. He was then detained and
handed over to the Singjamei Police Station, where he was told
that he was made a co-accused with Mr. Irom Priyobarta Singh,
and a police case F.I.R. No. 183(9)09 SJM-P.S. was registered
under Section 17/20 of the Unlawful Activities (Prevention)
Act, 1967. Then, on 19/09/2009, he was remanded to police
custody till 24/09/2009, when he was produced before the
Magistrate for judicial remand, and the detention order passed
by the District Magistrate, Imphal West, was served on him,
which was followed by the Grounds of Detention given to him
on 28/09/2009 at his cell at Manipur Central Jail, Sajiwa. He
denies all the allegations made against him in the Grounds for
Detention, claiming that he was not in any way involved with
the UNLF or any of its associated cadres, that he started the
press only in 2006 and could not have been involved in printing
demand letters since 2003, that he did not even know Mr. Ratan
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@ Inao @ N. Ibochouba Singh, that the arrest and seizure was
not done on 17/09/2008, but actually on 18/09/2009, and that
he has not committed any acts so as to disturb the maintenance
of public order and cause prejudice to the security of the State
in any manner so as to have the NS Act invoked against him.
9) The Representation made by the detenu was rejected by State of
Manipur on 03.10.2009. The Advisory Board constituted under
Section 9 of the Act opined that there was sufficient cause for
detention of the husband of the appellant under the National
Security Act. The Governor of Manipur, in exercise of the
power conferred under Section 12(1) of the Act, has approved
the opinion expressed by the Advisory Board and has ordered
that the detention of the husband of the appellant made by the
District Magistrate, Imphal West District, dated 24.09.2009,and
fixed the period of the detention for 12(twelve) months from
the date of detention by his order dated 07.11.2009. There was
delay in forwarding the Representation of the detenu to the
Government of India. It was filed on 09/10/2009 and it was
forwarded to the Central Government on 16/10/2009 by the
State Government and received only on 28/10/2009, before
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being finally rejected by the Central Government on
03/11/2009.
10) The detention order was questioned before the Gauhati High
Court in W.P. (Crl.) No.111/2009. The Court in the course of
its order has noticed the main contention of the petitioner (who
is the appellant in this appeal). They are: (1) the allegations
made in the detention order are vague and irrelevant and not
sufficient to deprive the detenu of his fundamental rights
guaranteed under Art. 22(5); (2) there are no cogent materials
upon which the subjective satisfaction of the detaining
Authority that the detenu was likely to be released on bail was
arrived at; (3) there was a delay of 6 days in forwarding
representation to the Central government. (4) All the
procedural requirements of Article 22 are mandatory in
character and even if one of the procedural requirements is not
complied with, the order of detention would be rendered illegal.
11) The High Court has responded to each of these, by holding that
the allegations projected in the grounds of detention have been
corroborated in material particulars. Further, the allegations
were not vague or ambiguous, and the material was sufficient
for the detaining Authority to arrive at the subjective
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satisfaction that the detenu was acting in a manner prejudicial
to the maintenance of the public order. The High Court has
also pointed out that the statement incriminating himself under
Section 161 was prepared by a public servant, and there is a
presumption of regularity, which the appellant has a burden to
disprove in order to prove them false and fabricated, which was
not done in this case. It highlighted that the exercise of
discretionary power involved objective and subjective elements,
and the subjective elements if derived from objective elements
cannot be questioned on grounds of adequacy of subjective
satisfaction by a judicial review.
12) On the second ground, the Court held that the likelihood of
detenu being released on bail can be determined by objective
criteria, such as the conditions prevailing in Manipur, the fact
that he was charged with heinous offences, and that he was
remanded to judicial custody; it refused to interfere with the
determination as it said it was not irrational, and the Court in
such circumstances could not substitute its view for that of the
detaining Authority. On the issue of delay, it pointed out that
even though no explanation has been given by the State on
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delay, it is not inordinate enough to quash the order, and that
delay per se cannot be a ground to quash the order.
13) At the time of hearing, learned Counsel for the appellant
Mr.Dolen Phurailatpam argued, that though a few days have
remained for the detention period to expire, the appeal need not
be disposed of as having become infructuous, since the
reputation of the detenu is sacrosanct and the right of reputation
is a facet of right to life under Article 21. He took considerable
time explaining the factual background of the case. He pointed
out that the printing press of the detenu was established only in
2006, and therefore, there could be no question of him having
been involved in printing demand letters from 2003 or 2004.
He further explained that there was no supportive material to
sustain the detention order, and that the same had also been
mentioned in the writ petition filed before the High Court. He
also stressed the point of delay of forwarding the representation
of the detenu, and that no adequate reasons for the same had
been given by the respondents in either the affidavit or in the
pleadings before the Court.
14) Per contra, the learned counsel for the State of Manipur
Mr.Khwairakpam Nobin Singh urged the factual background on
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the basis of which the decision to detain had been taken, and the
difficulty faced due to the special conditions prevailing in
Manipur in getting the evidence to prove the illegal activities of
people such as the detenu and further the prosecution would not
be in a position to procure any evidence to sustain conviction.
It is also urged that with the documents available, the detaining
authority could form an opinion that the person to be detained is
likely to act in a manner prejudicial to the security of the State
or from acting in any manner prejudicial to the maintenance of
the public order etc. He did not, however, provide any
explanation regarding the reason for delay in forwarding the
representation. The learned counsel appearing for the Union of
India Ms. Charu Wali Khanna, when questioned by this Court,
also did not shed any further light on this issue.
15) To decide the correctness or otherwise of the detention order,
two issues of importance arise before this Court. The first is,
regarding the documents and material on which reliance was
placed by the detaining Authority in passing the detention
order. Secondly, with those materials, the detaining authority
was justified in arriving at a finding that the detenu should be
detained under the National Security Act without any trial. In
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matters of this nature, this Court normally will not go into the
correctness of the decision as such but will only look into
decision making process. Judicial review, it may be noted, is
not an appeal from a decision but review of the manner in
which the decision was made. The purpose of review is to
ensure that the individual receives a fair treatment.
16) Some of the decisions of this Court may be of relevance in
determining in what manner such subjective satisfaction of the
Authority must be arrived at, in particular on Section 3(2) of the
National Security Act. In Fazal Ghosi v. State of Uttar
Pradesh, (1987) 3 SCC 502, this Court observed that:
“The District Magistrate, it is true, has stated that the
detention of the detenus was effected because he was
satisfied that it was necessary to prevent them from
acting prejudicially to the maintenance of public
order, but there is no reference to any material in
support of that satisfaction. We are aware that the
satisfaction of the District Magistrate is subjective in
nature, but even subjective satisfaction must be based
upon some pertinent material. We are concerned here
not with the sufficiency of that material but with the
existence of any relevant material at all.” (emphasis
supplied) (Para 3).
17) In Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC
556, this Court opined :-
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“Preventive detention is a serious inroad into the
freedom of individuals. Reasons, purposes and the
manner of such detention must, therefore, be subject
to closest scrutiny and examination by the courts.”
(emphasis supplied) (Para 5).
This Court further added:
“…there must be conduct relevant to the formation of
the satisfaction having reasonable nexus with the
action of the petitioner which are prejudicial to the
maintenance of public order. Existence of materials
relevant to the formation of the satisfaction and
having rational nexus to the formation of the
satisfaction that because of certain conduct “it is
necessary” to make an order “detaining” such person,
are subject to judicial review.” (emphasis supplied)
(Para 5).
18) In State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, this
Court held:
“…the grounds supplied operate as an objective test
for determining the question whether a nexus
reasonably exists between grounds of detention and
the detention order or whether some infirmities had
crept in.” (emphasis supplied) (Para 9).
19) In State of Rajasthan v. Talib Khan, (1996) 11 SCC 393, this
Court observed that:
“…what is material and mandatory is the
communication of the grounds of detention to the
detenu together with documents in support of
subjective satisfaction reached by the detaining
authority.” (emphasis supplied) (Para 8).
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20) 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 scrutinize
the material relied upon by the Authority in coming to its
conclusion, and accordingly determine if there is an objective
basis for the subjective satisfaction. The subjective satisfaction
must be two fold. 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.
21) In light of these decisions, to determine the validity of the
detention order, it is necessary to go into the materials relied on
by the detaining Authority in passing the detention order. The
documents relied upon by the District Magistrate, West Imphal,
as mentioned in the Grounds for Detention dated 28/09/2009
are:
a) The statement of the detenu given before the I.O. on
18/09/2009.
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b) Statement of S.I. T. Khogen Singh of CDO/I.W.
recorded under S. 161 Cr.P.C. in connection with
F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the
Unlawful Activities (Prevention) Act, 1967.
c) Statement of Rfm. No. 15007038 L. Rajen Singh of
CDO/I.W. recorded under S. 161 Cr.P.C. in
connection with F.I.R. No. 183 (9) 09 SJM-P.S. under
S. 17/20 of the Unlawful Activities (Prevention) Act,
1967.
d) Statement of C/No. 0601193 S. Khomei Singh
recorded under S. 161 Cr.P.C. in connection with
F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the
Unlawful Activities (Prevention) Act, 1967.
e) Copy of arrest memo dated 17/09/2009.
f) Copy of seizure memo dated 17/09/2009.
g) Copy of Manipur Local daily “the Poknapham” dated
08/03/1999.
h) Copy of Notification under No. S.O. 1922 (E) dated
13/11/2007.
22) We are conscious of the fact that the grounds stated in the order
of detention are sufficient or not, is not within the ambit of the
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discretion of the court and it is the subjective satisfaction of the
detaining authority which is implied. However, if one of the
grounds or reasons which lead to the subjective satisfaction of
the detaining authority under NS Act, is non-existent or
misconceived or irrelevant, the order of detention would be
invalid.
23) Keeping in view these well settled legal principles, we have
perused the grounds of detention and the documents relied on
by the detaining authority while passing the order of detention.
In our considered view, the grounds on which detention order is
passed has no probative value and were extraneous to the scope,
purpose and the object of the National Security Act. This Court
in the case of Mohd. Yousuf Rather Vs. State of Jammu &
Kashmir and Ors. (AIR 1979 SC 1925) has observed that under
Article 22(5), a detenu has two rights (1) to be informed, as
soon as may be, of the grounds on which his detention is based
and (2) to be afforded the earliest opportunity of making a
representation against his detention. The inclusion of an
irrelevant or non-existent ground among other relevant grounds
is an infringement of the first right and the inclusion of an
obscure or vague ground among other clear and definite
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grounds is an infringement of the second right. No distinction
can be made between introductory facts, background facts and
`grounds’ as such; if the actual allegations were vague and
irrelevant, detention would be rendered invalid. In so far as the
documents on which reliance is placed, in our opinion, none of
these documents provide any reasonable basis for passing the
detention order. The primary reliance has been on the accused’s
own statement made to an Investigating Officer. This cannot be
said to be sufficient to form the subjective satisfaction of the
detaining Authority. Statements under Section 161, Code of
Criminal Procedure, 1973, (hereinafter Cr.P.C.) cannot be taken
as sufficient grounds in the absence of any supportive or
corroborating grounds. Section 161 statements are not
considered substantive evidence, but can only be used to
contradict the witness in the course of a trial. The same is clear
from the wording of Section 162(1) of the Cr.P.C and has been
so held time and again by this Court. In Rajendra Singh v.
State of Uttar Pradesh, (2007) 7 SCC 378, this Court laid down
that:
“A statement under Section 161 Cr.P.C. is not a
substantive piece of evidence. In view of the proviso
to Sub-section (1) of Section 162 Cr.P.C., the
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statement can be used only for the limited purpose of
contradicting the maker thereof in the manner laid
down in the said proviso. Therefore, the High Court
committed a manifest error of law in relying upon
wholly inadmissible evidence…” (emphasis supplied)
(Para 6).
23) Furthermore, none of the other documents substantiate the
involvement of the detenu in unlawful activities as alleged in
the detention order. Thus, it is clear that there was no pertinent
or relevant material on the basis of which, the detention order
could be passed.
24) The second issue is that of delay. There has been a delay of 7
days, i.e. from 09/10/2009 to 16/10/2009, in forwarding the
representation of the detenu to the Central Government. There
has been no explanation of the reasons for this delay given by
the respondents.
25) Article 22(5) of the Constitution of India mandates in
preventive detention matters. The detenu should be afforded
the earliest possible opportunity to make a representation
against the order. With regard to the importance of delay in
preventive detention matters under the National Security Act, it
has been held by this Court in Union of India v. Laishram
Lincola Singh @ Nicolai, (2008) 5 SCC 490, that:
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“There can be no hard and fast rule as to the measure
of reasonable time and each case has to be considered
from the facts of the case and if there is no negligence
or callous inaction or avoidable red-tapism on the
facts of a case, the Court would not interfere. It needs
no reiteration that it is the duty of the Court to see that
the efficacy of the limited, yet crucial, safeguards
provided in the law of preventive detention is not lost
in mechanical routine, dull casualness and chill
indifference, on the part of the authorities entrusted
with their application. When there is remissness,
indifference or avoidable delay on the part of the
authority, the detention becomes vulnerable.”
(emphasis supplied) (Para 6).
26) On the specific ground of delay in forwarding the
representation under the National Security Act, it has been
observed by this Court in Haji Mohd. Akhlaq v. District
Magistrate, 1988 Supp (1) SCC 538, that:
“There can be no doubt whatever that there was
unexplained delay on the part of the State
Government in forwarding the representation to the
Central Government with the result that the said
representation was not considered by the Central
Government till October 16, 1987 i.e. for a period of
more than two months. Section 14(1) of the Act
confers upon the Central Government the power to
revoke an order of detention even if it is made by the
State Government or its officer. That power, in order
to be real and effective, must imply a right in a detenu
to make representation to the Central Government
against the order of detention. Thus, the failure of the
State Government to comply with the request of the
detenu for the onward transmission of the
representation to the Central Government has
deprived the detenu of his valuable right to have his
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detention revoked by that Government.” (emphasis
supplied) (Para 3).
27) In the matter before us, a delay of 7 days has occurred in the
forwarding of the representation. This may not be inordinate;
however, at no stage has there been an explanation given for
this delay. The State Government or Central Government has
not clarified the same and thus the delay remains unexplained.
28) In light of the fact that none of the documents relied on by the
detaining Authority in passing the detention order can be
deemed to be pertinent, and the fact that the delay has remained
unexplained, there is sufficient ground made out in order to
quash the order of preventive detention made against the
detenu.
29) Before parting with the case, we wish to add that in a criminal
case, if it is initiated against the detenu, the prosecution would
not be in a position to procure evidence to sustain conviction
cannot be a ground to pass an order of preventive detention
under National Security Act. Therefore, we cannot agree with
the submission made by the learned counsel for the State of
Manipur.
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30) As a result of our above discussion, we cannot sustain the
impugned judgment and order of the High Court and the order
of detention passed by the detaining authority. Accordingly,
the appeal is allowed. The impugned order of the High Court
and the order of detention passed by the detaining authority are
set aside. Ordered accordingly.
…………………………………J.
[ D.K. JAIN ]
…………………………………J.
[ H.L. DATTU ]
New Delhi,
September 27, 2010.
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