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Judgment
This application has been filed for quashing the order dated 31.8.2016 passed by the District Magistrate, Imphal East, respondent No.2, 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 in No. Cril/NSA/11/2016 against the detenu namely Kshetrimayum Arunkumar Singh @ Thoiba after being satisfied that, in order to prevent the detenu from acting in any manner prejudicial to the security of the State and maintenance of public order, it has become necessary to do so.
The grounds on which order of detention was passed are that the detenu in mid 2016 joined armed underground organization namely Kangleipak Communist Party- Military Joint Committee (KCP-MJC) as a member at the instance of one Sapam Sanjit Singh, a very important leader of the said organization. After joining, the detenu started working for the said organization under the command of said Sapam Sanjit Singh and thereby he was being used as a courier transporting arms and ammunitions from one place to another. That apart, the detenu under the supervision of said Sapam Sanjit Singh was instigating general public particularly youngsters to wage war against the lawfully established Government. The detenu''s house was being used as meeting place and also for shelter purpose for the outfit. On 24.8.2016 said Sapam Sanjit Singh sent one hand-grenade and detonator to the detenu so that the detenu may hand over it to one person of the cadre. On 25.8.2016 while the detenu was taking hand grenade along with one detonator in his bicycle, he was apprehended by a team of CDO-IE and on search being made hand-grenade, detonator and other materials were recovered which were seized. The detenu along with the seized articles were handed over to OC Porompat P.S. with a written report on the basis of which a case was registered as FIR No.237(08)16 Porompat PS u/s 20 UA(P)A Act and 5 Expl. Subs Act.
On such ground, the respondent No.2, after recording that the detenu will go on indulging himself in the activities prejudicial to the maintenance of public order, passed order of detention on 31.8.2016 which was confirmed on 26.10.2016. The aforesaid orders have been challenged on several grounds.
However, Mr. Munindro, learned counsel for the petitioner did confine his argument with respect to only one ground which is with regard to absence of satisfaction that detenu is likely to be released on bail. In this regard, it was pointed out that the detenu was admittedly in custody, still the order of detention was passed without recording satisfaction that for certain reason the detenu is likely to be released on bail and thereby order passed by the detaining authority being bad, is fit to be quashed.
As against this Mr. Sh. Yangya, learned counsel appearing for the respondents submitted that from the order of detention it would appear that the detaining authority after having taken notice of the fact recorded in the grounds of detention, did satisfy himself that detenu after being released on bail would indulge 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 warrant to be interfered with by this Court.
It be stated that Hon''ble Supreme Court has been pleased to lay down the law that detaining authority while passing order of detention in a case of detenu being in custody needs to observe following safeguard 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 released he would be in all probability to indulge I prejudicial activities;
(iii) If it is felt essential to detain him to prevent him from doing so.
The said proposition has been laid down by the Hon''ble Supreme Court in a case of Union of India vs. Paul Manickam :(2003)8 SCC 342. Their lordships recorded requirements to be made 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."
Subsequently, the said principle has been reiterated in case of Huidrom Konungjao Vs. State of Manipur & Ors (2012) 7 SCC 181 wherein it was held that if such detention order is challenged, 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 exist, the detention order would stand vitiated."
In the light of the decisions, if we examine legality of the detentjion order, we would find that the detaining authority while passing detention order has even not recorded his satisfaction that there is likelihood of detenu being released on bail. On this ground alone the order of detention is liable to be set aside being bad in law. Accordingly it is set aside.
Thus, we do find that even the subjective satisfaction of the detaining authority of likelihood of the detenu being released on bail is not there and thereby order of detention and its approval being bad, are hereby quashed. Consequently, detenu Kshetrimayum Arunkumar Singh @ Thoiba, s/o Late Ksh. Manaobi Singh of Singjamei Kshetri Leikai, PS Singjamei, is directed to be released forthwith if not wanted in any other case. This writ petition stands disposed of.