Laishram (Ongbi) Hemabati vs State Of Manipur

Kh.Nobin Singh, J

[1] Heard Shri N. Mahendra, learned Advocate appearing for the petitioner and Shri Th. Vashum, learned Government Advocate appearing for the

State respondents.

[2] The validity and correctness of the order dated 03-09-2020 passed by the District Magistrate, Imphal-East District under Section 3(2) of the

National Security Act, 1980 is under challenge in this writ petition which has been filed by the petitioner who is the wife of Shri Laishram Mangoljao

@ Lamyanba Khuman @ Hirachandra @ Pibarel @ Jagadish Koirela @ L.K. @ Shamu, the detenu herein.

[3.1] The allegations as narrated in the grounds of detention are, in short, that the detenu joined the banned and outlawed organization called

Kangleipak Communist Party-Leibakmacha faction as an over-ground member in the early part of 2000 through Shri Yumnam Nilachandra Singh and

worked under his command as a courier. On 28-07-2000, he was arrested from Uripok Thokchom Leikai by a police team in connection with a case

under FIR No. 263(7)2000 Imphal PS u/s 10/13 UA(P) Act but was released on bail. After the detenu having been released from the jail, he resumed

his work. On 21-01-2001, the detenu was again arrested by a team of CDO-Imphal West from his residence in connection with a case under FIR No.

5(1)2001 Patsoi PS u/s 10/13 UA (P) Act but was released on bail by the Court. After his being released on bail, he resumed the work under the

command of Shri Laishram Tomba Singh as a courier and started supplying arms and ammunitions. Over and above, he carried out prejudicial

activities like extortion of money from the general public, Government offices, etc. till sometime in the first week of July, 2007 when he went to

Shillong and attended the election of the new office bearers of the organization. He was elected as the Chairman and thereafter, he along with his

family members, took asylum at different places like Shillong, Guwahati, Delhi, etc. in order to evade arrest by the security forces. On 23-07-2007, he

was arrested from a place near Azadpur Fruit Mandi, New Delhi by the Delhi Police and was brought back to Manipur on 01-08-2007 by a team of

Manipur Police. Although he was remanded into judicial custody, on 09-08-2017 he was released on bail by the Court.

[3.2] After he being released from the jail, he could not stay a longer with the family members. He resumed his work and took shelter at different

places including Tamenglong, Ukhrul and Lakhipur (Assam). On 04-05-2008, the detenu formed a new faction of KCP called Kangleipak Communist

Party (Military Council-Lamyanba Khuman) under his Chairmanship. Thereafter, he took shelter at different places outside the State of Manipur like

Tamil Nadu, Nepal, etc. and directed his subordinates to carry out extortion from the general public, Government offices, schools, etc. for which his

cadres carried out about 10 (ten) crimes detailed in the grounds of detention. In connection with the said cases, many of his colleagues and close

associates as mentioned in the grounds of detention were arrested. The detenu while he was at Litang Kalipokhri, Nepal, contacted the General

Secretary of KCP (PWG) and joined his organization, for which he was assigned the post of the Chairman.

[3.3] The avowed aim and object of the organization is to secede the State of Manipur from the Union of India and to create an independent,

sovereign, socialist State of Manipur for which the organization started procuring arms and ammunition from various countries. In the pursuit of their

objectives, the members of the organization committed series of heinous crimes such as murder, dacoit, robbery, extortion, kidnapping for ransom etc.

from different parts of Manipur. The ring leaders sought foreign assistance and established links with countries like Bangladesh, Mayanmar, etc. In

consideration of the large scale prejudicial activities indulged by the organization, it was declared as an unlawful Association by the Government of

India.

[3.4] After taking the post of the Chairman, KCP (PWG), he directed his colleagues to carry out prejudicial activities like extortion of money from the

general public by threatening/ warning the students to shift from missionary schools to non-missionary schools etc. and some of his cadres were

arrested. Over and above, he recruited new members in the year, 2018 and in the first part of the year, 2019, he started acquiring arms and

ammunitions from various sources and carried out activities through his subordinates by taking asylum at different places of India.

[3.5] In the meantime, the Superintendent of Police, Imphal West District released a Press Note dated 15-02-2020 regarding a cash reward of

Rs.1,00,000/- (Rupees one lakh) for any individual who provides information leading to his arrest. On 22-01-2020, Shri N. Suraj Singh, MPS, SDPO-

Porompat obtained the arrest warrant from the Hon’ble CJM, Imphal East District in respect of his arrest and accordingly, he was arrested on 02-

03-2020 by the Delhi police in connection with a case under FIR No. 47(7)2019 Irilbung PS u/s 17/20 UA(P) Act & 25(1-C) A. Act and was brought

back to Manipur on 04-03-2020 with the transit remand/order passed by the Chief Metropolitan Magistrate, Patiala House Court, Delhi. On 05-03-

2020, he was produced before the Court and remanded to police custody till 17-03-2020 on which he was produced before the Court again for judicial

remand but he was formally arrested in connection with a large number of cases as detailed in the grounds of detention on the basis of various

documents as mentioned in the grounds of detention.

[3.6] The detenu was detained by the impugned order issued by the District Magistrate, Imphal East on the ground that he was likely to be released on

bail in the near future or otherwise by the competent Court at the end of the period of judicial custody because there had been instances of similar

release by the competent Courts in such cases. In view of his prejudicial activities in the immediate past, it was very likely that the detenu would

continue to act in the manner prejudicial to the maintenance of public order as in the proximate past. As is evident from the facts mentioned above,

normal criminal laws would not be sufficient to prevent the detenu from the commission of prejudicial activities and accordingly, he was detained

under Section 3(2) of the National Security Act, 1980. With the furnishing of the grounds of detention, the detenu was informed that he had right to

make representation to the Government of Manipur as well as the Central Government against the order passed by the District Magistrate, Imphal

East, Manipur.

[4] Being aggrieved by the order of detention, the instant writ petition has been filed by the petitioner questioning it on the inter-alia grounds that the

order which is irrational, was passed by the District Magistrate without application of mind. There was no material before the District Magistrate for

her satisfaction that the detenu was likely to be released on bail for the reason that no bail application filed by the detenu was pending at that point of

time. The respondents failed to make out exceptional circumstances so as to attract the provisions of the National Security Act, 1980. The details of

the similar cases on the basis of which the order of detention is alleged to have been passed by the District Magistrate, were not furnished to the

detenu along with the grounds of detention.

[5] The District Magistrate, respondent No.1, in her affidavit, has stated that the detenu applied for bail in three occasions with respect to the cases

registered under FIR Nos. 263(7)2000; 5(1)2001 and 27(5)2007 which were granted and the detenu was, accordingly, released by the competent court

and as such, she had reasonable apprehension that the detenu would be released on bail by the competent court and would continue to indulge in

similar prejudicial activities towards the maintenance of public order and the security of the State. An affidavit has been filed on behalf of the State

Government reiterating the narrative of the grounds of detention which are not referred to herein for the sake of brevity. It has further been stated

that the order of detention was passed by the District Magistrate after due application of her judicious mind. The representations dated 12-09-2020

were received by the State Government, one of which was forwarded to the Central Government. The said representation was considered carefully

by the State Government which came to the conclusion that the detenu’s rejquest for revocation of the order of detention was not acceded, as the

same was found to be devoid of any merit and accordingly, the order of detention was confirmed by it.

[6] The short issue that rises for consideration by this Court is as to whether there were sufficient materials before the District Magistrate for her

satisfaction that the detenu was likely to be released on bail. In Md. Kyaw Kyaw Naing @ Abdul Rahim Vs. District Magistrate, WP(Cril) No.3 of

2020 decided on 07-12-2020, this was confronted with a similar issue wherein this Court held:

“[6] In exercise of power conferred under the provisions of the National Security Act, 1980, the order of detention was passed by the District

Magistrate, Thoubal/ detaining authority on the basis of her subjective satisfaction. It is well settled that the Court cannot go into the correctness of the

decision of the detaining authority but can look into the decision-making process. In other words, the Court can scrutinize the materials relied upon by

the detaining authority in coming to his/her conclusion. While examining the correctness of the decision-making process, two issues are required to be

considered by the Court- one, whether there are materials on which reliance was placed by the detaining authority in passing the detention order and

two, the detaining authority was justified in arriving at a finding based on the said materials that the detenu be detained without any trial. Since a

person can be detained on suspicion, the procedural safeguards are to be strictly observed in order to prevent misuse of the law of preventive

detention. It is also well settled that a person who is in custody, can also be detained under the provisions of the National Security Act, 1980 after

having followed the principles laid down by the Hon’ble Supreme Court in Union of India Vs. Paul Manickam, (2003) 8 SCC 342 and the

principles which have been laid down therein are found in para 14 which is reproduced herein below:-

“14. So far as this question relating to the procedure to be adopted in case the detenu 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 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.

(See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.) The point was gone into detail in Kamarunnissa v.

Union of India. 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.â€​

The aforesaid principles were followed in Rekha Vs. State of Tamil Nadu & Ors., (2011) 4 SCC 260, in which the Hon’ble Supreme Court held

that,

“26. It was held in Union of India V. Paula Manickam that if the detaining authority is aware of the fact that the detenu is in custody and the

detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be

detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made.

In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is

pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence

the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing

had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even

though no bail application of his is ending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be

given, otherwise the bald statement of the authority cannot be believed.â€​

The said principles were also followed in the decision rendered in 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 the following facts:

(i) the detaining 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

released on bail and further on being released, he would probably indulge in activities which are prejudicial to the public order.

The aforesaid principles have been reiterated and followed in many subsequent decisions of the Hon’ble Supreme Court and the High Courts

including the judgment and order dated 04-06-2013 passed by this Court in Elangbam Mangijao Singh Vs. State of Manipur & anr., W.P. (Cril.) No.10

of 2013.â€​

[7] Keeping in mind the aforesaid principles, this Court proposes to examine the case on merit. Since the detenu was admittedly detained while in

police custody, the other issue is as to whether the procedural safeguards have been observed by the District Magistrate while passing the order of

detention. On perusal of the order of detention, it is clearly seen that it is nowhere mentioned therein that the District Magistrate was satisfied that the

detenu was likely to be released on bail and only in the grounds of detention, it was mentioned about it. However, there are no materials on record to

show that at the time when the order of detention was passed by the District Magistrate, a bail application moved by the detenu pertaining to the

present case, was pending before the appropriate Court and that a copy thereof was placed before her by the sponsoring authority nor has any co-

accused been released on bail. The grant of bail would have been possible only when a bail application had been filed by or on behalf of the detenu. It

is not so in the present case. The District Magistrate, in her affidavit filed before this Court, did not say anything about the materials on the basis of

which she was satisfied that the detenu was likely to be released on bail and therefore, it is absolutely clear that the principles laid down by the

Hon’ble Supreme Court in Union of India Vs. Paul Manickam (supra) have not been followed by the District Magistrate. The District Magistrate

appears to have not applied her judicious mind while passing the order of detention which is violative of Article 21 of the Constitution of India.

Considering the materials on record and having heard the learned counsels appearing for the parties, we are of the view that the order of detention is

bad in law and is liable to be quashed and set aside.

[8] In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the order of detention dated 03-

09-2020 passed by the District Magistrate, Imphal-East District, Manipur; the approval order dated 11-09-2020 issued by the Deputy Secretary

(Home), Government of Manipur and the confirmation order dated 29-09-2020 issued by the Deputy Secretary (Home), Government of Manipur are

quashed and set aside with the direction that Shri

Laishram Mangoljao @ Lamyanba Khuman @ LK @ Shamu @ Chingkheinganba @ Pabarel @ Jagdish Koirela @ shamu (43) years S/O Shri L.

Mono Singh of Awang Khunou Mayai Leikai, PS Patsoi, District Imphal West, Manipur shall be released forthwith, if he is not required for any other

case. There shall be no order as to costs.