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Judgment
This application has been filed for quashing the order dated 06.09.2016, passed by the District Magistrate, Imphal East, respondent No. 2 in CRIL/NSA/No.13 of 2016, whereby and whereunder the respondent No. 2, in exercise of power conferred under Sub-Section (3) of Section 3 of the National Security Act, 1980, passed the order of detention against the detenu, namely, Mr. Haobam Ahead @ Lemba Singh.
The grounds, on which the order of detention was passed, are that the detenu joined an armed underground Organization, namely, People''s Revolutionary Party of Kangleipak (PREPAK in short) as a member in the year 1993. Initially his services were utilized as a courier. Subsequently, he was imparted with training in the year 1994, after completion of training, the detenu stayed at training camp for doing routine works. In 1997, when the detenu was promoted to the rank of S/S/ Corpl, he started working in the 1st Fighting Mobile, at Churachandpur. The detenu was promoted to S/S Sgt in the year 1988 and S/S Lieutenant in the year 2003. During that course, the detenu along with his associates indulged themselves in various illegal activities such as snatching of arms and ammunitions from the police personnel, to lay ambush on CRPF, resorting to firing upon Indian Army personnel. The detenu went on working for 1st Fighting Mobile till 2006. Thereafter, the detenu joined the new underground organization, known as United Peoples Party of Kangleipak (UPPK in short). However, in May, 2008, the detenu, along with others surrendered with sophisticated arms and ammunitions and were kept in a designated camp. Though, he remained lodged at the jail, still he continued to indulge in the activities prejudicial to the public order and that while he was in the camp, Secretary of KCP-KK contacted the detenu and informed about the plan to assassinate N. Nabachandra Singh, ex- Chairman of PREPAK, after getting Rs. 1.5 lacs from one Mr. Poirei. At the same time, he also requested the detenu to help him out in collecting arms and ammunitions. The detenu agreed to do that and thereupon, the detenu contacted the said Mr. Poirei, and collect 2 (two) 9mm pistols with ammunitions and also money in cash. Thereafter, the detenu handed over the said arms and ammunitions to one Mr. Th. Gouri Singh, who along with other, shot dead the said Nabachandra Singh and his driver in the night of 21.06.2016/22.06.2016. For the said offence, a case was registered as FIR No. 108(6)2016 HNG PS u/s 302/448/34 of the IPC and u/s 25(I-C) of the Arms Act. On 02.07.2016, the detenu was arrested in connection with the said murder case, and then he was remanded to police custody in number of cases, and then to judicial custody.
On such grounds, the respondent No. 2, after recording that the detenu is acting in the manner prejudicial to maintenance of public order, passed the order of detention on 06.09.2016 which was approved on 15.09.2016, and was confirmed on 26.10.2016. The aforesaid order of detention, its approval and its confirmation have been challenged on several grounds.
However, Mr. M. Munindro, learned counsel appearing for the petitioner did confine his argument with respect to only one ground which is with regard to complete absence of the satisfaction of the detaining authority that there is every possibility of the detenu being released on bail. In this regard, it was pointed out that admittedly the detenu was in custody but the detaining authority without recording its satisfaction that there is every possibilities of detenu being released, has passed the order, and thereby, it stands vitiated and hence order of detention is fit to be quashed.
As against this, Mr. A. Vashum, learned G.A. appearing for the respondents submitted that from the order of detention, it does appear that the detaining authority, after having taken notice of the fact recorded in the ground of detention did satisfy himself that the detenu after being released on bail would indulge himself in the same activities which are prejudicial to the maintenance of public order and only after recording such satisfaction, the order of detention has been passed which never warrants to be interfered with by this Court.
It be stated that detaining authority, while passing order of detention in a case of detenu being in custody needs to observe following safeguards meticulously: (i) If the authority passing the order is aware of the fact that he is actually in custody:
(ii) If there is reason to believe on the basis of available materials placed before him -
(a) that there is every possibility of being released; and
(b) that on being so released he would be in all probability to indulge in prejudicial activities.
(iii) If it is felt essential to detain him to prevent him from doing so.
In this regard, we may refer to a decision rendered in case of Union of India -Vs- Paul Manickam, (2003) 8 SCC 342 laying down the requirements to be observed by the detaining authority passing the order of detention when the detenu is in custody which reads as follows:
"14.......Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities 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 of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. Ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is 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, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated... The point was gone into detail in Kamarunnissa v. Union of India: (1991) 1 SCC 128: 1991 SCC(Cri.) 88. 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 a 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 an awareness of custody and/or a possibility of release on bail."
The same principle has been reiterated in a case of Huidrom Konungjao vs. State of Manipur & Ors (2012) 7 SCC 181 wherein it has been held that if such detention order is challenged, the detaining authority ought to satisfy the Court following facts: (i) the authority was fully aware of the fact that detenu was actually in custody.
(ii) there was reliable materials before the said authority on the basis of which it could have reasons to believe that there is reliable possibility of release on bail and further on being released, he would probably indulge in activities which are prejudicial to the public order.
Further, it has been observed that in cases where this fact does not exists, the detention order would stand vitiated.
In the light of decision, if we examine legality of the detention order, we would find that the detaining authority knowing fully well that the detenu is in custody, still passed order of detention without recording its satisfaction that there is every possibilities of detenu being released on bail and thereby the order of detention stands vitiated and as such it is not sustainable in law in view of the decision referred to above, and hence it is set aside.
Thus, we do find that the detaining authority has passed the order of detention without recording its satisfaction that there is every possibilities of detenu being released on bail and thereby, the order of detention, its approval and confirmation being bad, are hereby quashed. Consequently, the detenu namely, Mr. Haobam Ahead @ Lemba Singh, s/o Late H. Danikumar Singh of Kwakeithel Akham Leikai, P.S. - Singjamei, District, Imphal West, is directed to be released forthwith if not wanted in any case. This writ petition stands disposed of.