JUDGMENT
T. Nandakumar Singh, J.
1. Justice S. Ratnavel Pandian in Kartar Singh v. State of Punjab (C/B) observed that:
When Law ends, Tyranny begins: Legislation begins where Evils, begins. The function of the judiciary begins when The function of the Legislature ends, Because the law is, when the Judges say it is Since the power to interpret the law vests in The Judges.
When the protector of the law himself became the law breaker by indulging in activities which are prejudicial to the maintenance of the public order, evils begins which cannot be taken lightly not only by law enforcing agency and the Judges but also by the society.
2. The parliament in 31st Year of Republic had enacted the National Security Act, 1980 for detention of a person with a view to prevent him from acting in any manner prejudicial to the defence of India, relation with India with the Foreign Power, with the security of India and acting in any manner prejudicial to the security of the States and from acting in any manner prejudicial to the maintenance of the Public Order. The antisocial and anti-national elements including secessionists, communal, pro-castor elements and also other elements who adversely influence and effect the services essential to the community was a grave challenge to the lawful authorities sometime even whole the society to ransom. The husband of the petitioner/detenu is a member of the Disciplined Security Force. He is a Rifleman of 4th Bn., Indian Battalion, he had been detained under National Security Act, 1980 for preventing him from acting in any manner prejudicial to the maintenance of public orders.
3. Heard Mr. Ch. Ngongo, learned Counsel appearing for the petitioner/detenu, Mr. Jalal Uddin, learned Counsel appearing for the State respondents and also Mr. K. Kumar, learned C.G.S.C. appearing for the Union on India.
4. After filtering the unnecessary detailed facts, the short fact which would be sufficient or deciding the present case is that the petitioner’s husband Sri Thongam Bungbung Singh @ Bung was appointed as Rifleman of 4th Bn. IRB (Indian Reserved Battalion) in the Manipur Police Department in the year, 2005 under Rifleman No. 405288. After completing the training, the petitioner’s husband was posted at the Bn. HQ at Koirengei Thenguching and started to carry out normal duties of being a Rifleman. On the charge that the petitioner’s husband was extracting money in the name of AMADA (All Manipur Anti-Drug Association)/any underground organization operating in Manipur Valley, was arrested by members of AMADA on 6.4.07 and handedover to O/C Imphal RS. and formally arrested in connection with FIR No. 93 (4) 2007 IPC Under Section 386 & 25(I-B)A Act. The Petitioner’s husband was remanded to police custody till 13.4.07.
5. When the petitioner’s husband had been in judicial custody in connection with the said FIR respondent No. 1 issued order being No. Cril/NSA/No. 8 of 2007 dated 12.4.2007 for directing the petitioner’s husband to be detained Under Section 3(2) of the National Security Act, 1980 until further orders. Under the said order dated 12.4.2007 the detaining authority was satisfied that it is considered necessary to detain the petitioner’s husband with a view to prevent him acting in any manner prejudicial to the maintenance of the public orders and also that he is also liable to be released on bail in near future.
6. Under the letter of the District Magistrate, Imphal West District being No. Cril/NSA/No. 8 of 2007 dated 17.4.2007 the grounds of detention were furnished to the petitioner’s husband under Section 8 of N.S.A. 1980. In the said letter of the District Magistrate, Imphal West District dated 17.4.2007 it has been mentioned that the petitioner’s husband, even if he is the member of the Disciplined Security Forces, had indulged in unlawful activities such as extraction of money and other illegal activities which are prejudicial to the maintenance of the public orders and the application of normal Criminal Law against the petitioner’s husband will not or effective to prevent him from the commission of further prejudicial activities. Paras 1, 2, 3 and 4 of the said letter dated 17.4.2007 are quoted hereunder:
Para 1- That, you were appointed as a Rifleman of 4th Bn. IRB in Manipur Police Department in the year 2005 under Rifleman No. 405288. Thereafter, you got basic training since the last week of September, 2005 along with 660 new recruits at the Manipur Police Training School, Pangei. The course of the training were concluded in the 2nd week of July, 2006. During the training you were detained in the E. Coy as a driver in the M.T. Section. After completion of the training, all the Rifleman were posted at the Bn. HQ at Koirengei Thenuching and started to carry out normal sentry and escort duties. In the month of December, 2006, you along with 98 Riflemen were undergoing commando training at the 1st Bn. Manipur Rifles.
Para 2. That, you went to your house from the Bn. HQ. and place of posting with or without leave/permission on the pay day time and other off duty time. When you visited your house, you used to consume S.P. Tablet with your local friends. You were always thinking as to how you should overcome the impending defts for purchasing S.P. Tablets No. 4 drugs etc. with your monthly pay. You were determined to earn money without hectic labour in order to meet your expenditure. Lastly, you were determined to extort money in the name of AMADA/any underground organization operating in Manipur Valley. With this view in mind, you contacted Shri Bung Singh of Heirangoithong, Mr. Kenedy Singh of Heirangoithong Maibam Leikai, Mr. Ph. Sandeep Sharma of Irom Pukhrimapal and Mr. W. James Singh @ Ibungo of Sagolband Nepra Mejor Leikai, all drug addicts in the last part of 2006 and discussed in length to extort money from the drug addicts, drunkard, wine sellers etc in the name of AMADA. You further decided to purchase any country made gun for extortion of money. Accordingly, in the month of February, 2007 you and your associates noted above had purchased one country made 12 bore gun with one round from Md. Tomba of Lilong Turel Ahanbi for Rs. 3,500/- through one Md. Taj of Lilong. After purchasing the gun, you and your associates started to extort money and Mobile Phones from the general public more particularly drug addicts, drunkards, wine sellers on many occasions pretending as the members of AMAD A and KYKL organization. On 2.4.2007 at about 7 p.m. you along with your associates namely Ph. Sandeep Sharma, Tourangbam Manoobi Singh and Mr. W. James Singh @ Ibungo went upto the Thabal Chongba function at Kwakeithel Thounaojam Leikai in order to extort money from the drug addicts holding the country made 12 bore gun, Shri Sandeep Sharma, T. Manaobi Singh and W. James Singh were arrested by the members of AMADA whereas you escaped under the cover of darkness.
Such act of extortion of money carried out by you being an employee of the law enforcing agency gave a terror wave to the general public which is prejudicial to the maintenance of public order.
Para-3. That, on 6.42007 at about 1 p.m. you were arrested by a team of AMADA from your house and recovered one country made 12 bore gun with 1 round and handed over to the OC/Imphal PS with a written report and recovered items. On the strength of the report, OC/lmphal PS registered a regular case under FIR No. 93(4) 2007 Imphal P.S. Under Section 386 IPC & 25(1-B)A Act and investigated into. During the course of the investigation of the case, you were arrested on 6.4.07 and re-seized the 12 bore country made gun with 1 round by observing formality. You were remanded to police custody till 13.4.2007.
Para-4. That, in view of your tendencies and inclinations reflected in the offences committed by you in the proximate past as a hard core member of the armed gang which aim of earning money without hectic labour I am satisfied that after having availed of bail facilities and becoming a free person you being a hard core member of the said armed gang would continue to indulge in the same activities which are prejudicial to the maintenance of the public order. Hence, the application of normal criminal law against you will not at all be effective to prevent you from the commission of further prejudicial activities. An alternative preventive measure is, therefore, immediately called for.
From the above grounds, I am satisfied that with a view to prevent you from acting in any manner prejudicial to the maintenance of public order, I have made this order directing that you be detained under NSA, 1980.
7. The said order of the detaining authority dated 12.4.2007 was also approved by the Govt. of Manipur vide order being No. 17(1)1085/2007-H dated 21st April, 2007. It is stated that the petitioner’s husband filed a representation dated 2.5.2007 to the Chief Secretary to the Govt of Manipur for revocation of the detention order in the interest of justice for the reasons mentioned in the representation. It is also stated that another representation dated 2.5.07 was also filed to the Secretary to the Govt of India, Ministry of Home Affairs (Department of Internal Security), North Block, New Delhi for revocation of the detention order. The said two representations i.e. representation to the Chief Secretary to the Govt of Manipur and representation to the Secretary to the Govt of India, Ministry of Home Affairs are pari-materia.
8. The representation dated 2.5.07 to the Chief Secretary to the Govt of Manipur was rejected and intimated accordingly to the petitioner’s husband under the letter of the Joint Secretary (Home), Govt of Manipur being No. 17( 1) 1085/2007-H dated Imphal, 7th May, 2007. In compliance with the relevant provisions of the National Security Act, the Advisory Board constituted under Section 9 of the N.S.A. 1980 had carefully considered the case of the petitioner’s husband in its sitting held on 29.5.07 and 30.5.07 respectively and unanimously opined that there are sufficient causes for detention and continued detention of the petitioner’s husband and also the Govt of Manipur after consideration of all the past activities of the petitioner’s husband as an extremist and his past activities to the security of the State and maintenance of the public order and also the likelihood of his continuing such activities, the moment he is released from detention was of the further opinion that the petitioner’s husband should be detained for a maximum period of 12 months as provided under Section 13 of the said Act. Accordingly, the Govt of Manipur was pleased to confirm the said detention order and further fixed the period of detention for 12 months from the date of detention vide orders of the Govt of Manipur No. 17(1)1085/2007-11 dated Imphal, the 31st May, 2007. The petitioner by filing the present writ petition is assailing the detention order only on two counts;
1). There is no material before detaining authority for coming to the conclusion that the petitioner’s husband (detenu) is likely to be released on bail and 2. There is delay in disposal of the representations of the detenu by the respondent Nos. 2 and 4. It would be worth to be mentioned that while assailing the detention order for delay in disposal of the representations of the detenu by the respondent Nos. 2 and 4, there is no material pleading in the writ petition regarding the delay in disposal of the representations of the detenu by the respondent Nos. 2 and 4. It appears that in the course of hearing of the present writ petition, the learned Counsel appearing for the petitioner had tried to substantiate the plea for delay in disposal of the representations of the detenu by the respondent No. 4 by relying on the counter affidavit filed by the respondent No.4. the learned Counsel appearing for the petitioner, in the absence of the material pleading in the writ petition, submitted that there was a delay in furnishing the parawise comments to the representations of the detenu by the State Government to the Central Government. As there was no pleading in the writ petition that there is a delay in sending the parawise comments to the said representations of the detenu to the Central Government, the State respondents had no chance to give reasons and explanations for the alleged delay in sending the parawise comments by way of filing affidavit in opposition.
9. It is fairly well settled law that number of days taken in disposal of the representations filed by the detenu against the detention order is not a deciding factor while deciding as to whether detention order is vitiated because of the delay in disposal of the representations, but the factor to be decided is as to whether there is reasonable explanation or justification for the time taken in disposal of the representations of the detenu. We are afraid that in the absence of material pleading regarding the delay in disposal of the representations by the respondent No. 4 and also without giving opportunity to the State respondents to put up their case regarding the time taken in sending the parawise comments to the representations of the petitioner’s husband to the Central Government, it would not be just and proper to give a finding that there was no reasonable explanation or justification for the period taken by the State respondents in sending the parawise comments to the said representations of the detenu to the Central Government. The time taken for disposal of the representations of the petitioner’s husband to the State Government was only 4 days. The State respondents through the affidavit in opposition filed in the present petition had clearly given the jurisdiction and reasons for taking 4 days time in disposing of the representations of the petitioner’s husband.
10. For the reasons given above, we are of the considered view that there is no material for coming to the finding that the delay in disposal of the representations of the detenu was caused on account of supine indifference, slackness or callousness of the respondents in considering the representations.
11. The learned Counsel for the petitioner also submits that there is no material before the detaining authority for coming to satisfaction that the petitioner’s husband is likely to be released on bail and as such there is non-application of mind by the detaining authority in issuing the detention order. In order to substantiate his case, the learned Counsel appearing for the petitioner has relied on the decisions of the Apex Court in:
(1). Ramesh Yadav v. District Magistrate, Etah and Ors. ,
(2) Binod Singh v. District Magistrate, Dhnadbad, Bihar and Ors. ,
(3) Dharmendra Suganchand Chelawat and Anr. v. Union of India and Ors. ,
(4) Kamarunnissa v. Union of India and Anr. .
(5) Amritlal and Ors. v. Union Govt through Secretary, Ministry of Finance and Ors. reported in (2001) 1 SCC 341.
(6) T.V. Sravanan @ S.A.R. Prasanna Venkatachaariar Chaturvedi and
(7) A. Shanthi (Smt.) v. Govt of T.N. and Ors. reported in (2006) 9 SCC 711.
12. For deciding this point, we have carefully perused not only the writ petition and counter affidavit filed by the respondents but also the relevant file of the Govt of Manipur, Home Department and relevant file of the Govt of India, Ministry of Home Affairs which were made available before this court by the learned State Counsel and the learned Central Govt. Standing Counsel for perusal.
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 (A.P. Saravanan v. 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 Gurdev Singh v. Union of India .
15. The Supreme Court in (Chowarpu Raghunandan v. State of Tamil Nadu) has observed that the subjective satisfaction of the detaining authority should be reasonable and it is always open to the court exercising powers of judicial review to see whether there has been due and proper application of mind to relevant and vital materials.
16. We are conscious enough to the observations made by the Hon’ble Supreme Court in Paragraph 7 of Union of India v. Paul Manickam , as follows:
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 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 conform to which alone should lead to detention.
17. The Apex Court in Kamarunnissa v. Union of India and Anr. (supra) held that:
In the case of a person in custody a detention order can validly be 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 materials placed before him, (a) that there is a real possibility of his being released on bail and (b) that on being so released he would in all probability indulge in prejudicial activity.
18. The apex court in Amritlal and Ors. v. Union Government (supra) held that:
In absence of cogent materials before the officer passing the detention order than it is merely an ‘ipse dixit’ of the officer passing the detention order. The Apex Court reiterated in T.V. Sravanan @ S.A.R. Prasanna v. State through Secretary (supra) that “Imminent possibility of being released on bail must be based on cogent material, in absence of such material, detention order based on mere ‘ipse dixit’ of the detaining authority regarding imminent possibility of detenu’s prayer for bail being granted cannot be sustained.
19. As we have discussed above, satisfaction of the detenu 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 on not be effective to prevent him from the commission of further prejudicial activities.
20. After careful perusal of the records made available before this court, we cannot come to the conclusion that there is non-application of mind in coming to the subjective satisfaction of the detaining authority and based on no materials.
Accordingly, we are constrained to come to the finding that this writ petition is devoid of merit and dismissed.
