Shri Mukunda Singh vs The State of Manipur and Others

K. Lahiri, J.—In this Habeas Corpus application under Article 226 of the Constitution, the Petitioner has questioned the validity of his detention under the National Security Act, 1980. The Petitioner claims that he was in Jail in connection with some criminal cases for about 4 months and while so incarcerated, he was served with the order of detention on 6.12.1982 u/s 3 of the National Security Act by Shri B.K. Singh, District Magistrate (C), Manipur. The order of detention was rendered on the 6th December, 1982, and it showed that the Petitioner''s detention was called for to prevent him from acting in a manner prejudicial to the security of the State and maintenance of public order.

We find that the order states inter alia, that the District Magistrate was satisfied that the activities of the Petitioner were prejudicial to the security of the State and maintenance of public order and there was possibility of the detenu continuing with the acts "if he is let out on bail by any Court of law". It was, therefore, considered necessary to detain him u/s 3(2) of the National Security Act, 1980. A copy of the order was sent to the Superintendent of Central Jail, Imphal, where the Petitioner was lodged, for necessary action, meaning thereby, for serving the order to the detenu. Thereafter, on 10.12.82 the Petitioner was served with the grounds of detention in which, it was, inter alia, stated that he was a member of the outlawed organisation known as the Peoples Revolutionary Party of Kangleipak for short ''PREPAK'' and as a member thereof, he had committed various acts from 31.8.80 to 7.8.82. It was stated that he had committed several armed dacoities and robberies at several places, looted property and ultimately he was apprehended from his ''hide out'' where a copy of the Manifesto of ''PREPAK'' in Manipuri was seized from his possession. It was stated in the order that he was a "hard-core" member of an outlawed organisation, there was every likelihood that he would continue to indulge in similar subversive and anti-national activities and as such he had to be detained u/s 3(2) of "the Act".

We have perused the grounds of detention and there cords produced and find that the grounds of detention were sufficient to satisfy the mind of any detaining authority to prevent the detenu from acting in any manner prejudicial to the maintenance of public order and security of the State. There were sufficient materials to form the subjective satisfaction reached by the detaining authority. The Petitioner made representation which was duly considered by the Advisory Board who confirmed the order of detention. The State Govt. accepted the recommendation of the Advisory Board and continued to detain the Petitioner for a period of 12 months from the date of detention i.e. from 6.12.1982.

The only point that has been raised before us is that service of the order of detention on 6.12 82 while the detenu was admittedly in jail custody, was illegal, void as he could not have continued to commit the activities alleged against him, while being in jail. Mr. B.K. Goswami, learned Counsel for the Petitioner submits that the order of detention showed casualness and non-application of mind of the detaining authority to the relevant facts, and, as such, the impugned order of detention is vitiated and the detention is illegal. In support thereof, learned Counsel has relied on Vijay Kamar v. State of J and K AIR I982 SC 1023 and Merugu Satyanarayana Vs. State of Andhra Pradesh and Others,

The expression "preventive detention" postulates taking of preventive actions, which if not taken, the persons sought to be prevented might indulge in activities prejudicial to the maintenance of public order, the security of the State and so forth. It means, that preventive detention is essential to interdict the activities of the detenu in which he had indulged himself and he was likely to repeat them in future. The main purpose of detention is to interdict or prevent future prejudicial activities. Now, if a person is dead or is undergoing death penalty or suffering imprisonment for life or if the man sought to be detained is already secured in jail and there is no possibility of his being enlarged on bail or granted liberty, the exercise of power u/s 3(2) of "the Act" would imply that one who is already incarcerated and unable to indulge himself in the prejudicial activities is sought to be further prevented which is not the mandate of Section 3(2) of "the Act". However, in a line of decision, the Supreme Court has held that service of this order of detention while the person sought to be detained is in jail or in detention, may be made under certain exigencies or compelling or impelling circumstances, Where such a preventive order is sought to be made it must be present in the mind of the detaining authority that though the person is already in jail, a preventive detention is still necessary. The detaining authority must be aware that the person sought to be detained under "the Act" is in jail or under detention. This awareness must be reflected in the detention order or it may be justified in the affidavit of the detaining authority. The absence of this awareness may permit the Court to draw an inference that detaining authority was not aware of certain vital factors about the detenu and acted mechanically while making the order of detention. It may reflect non-application of mind of the detaining authority to the crucial facts. The making of a detention order by the detaining authority without the awareness is serious and this omission has far-reaching consequences resulting in conceiving the liberty of a citizen if the power is exercised mechanically without application of mind. Such an order is liable to be set aside as invalid. It is thus seen, that the detaining authority must be aware and fully conscious as to the where about of the detenu at the time of making the detention order, otherwise, the making of the order might be treated as mechanical exercise of the power. Further absence of the awareness may vitiate the subjective satisfaction of the detaining authority on the ground of non-application of the mind to the relevant facts and in that case the order is liable to be set aside. These are the principles of law enunciated by their Lordships in Vijay Kumar (supra) and Merugu Satyanarayana (supra).

Now, let us turn to the present case to find out whether the impugned order of detention was passed mechanically or casually or that the subjective satisfaction was reached by the detaining authority without application of mind to the relevant facts about the detention of the Petitioner in jail. The order of detention itself clearly shows that the detaining authority was fully aware that the detenu was in jail in connection with some criminal cases and he was likely to be let out on bail by the Court of law, this is the admitted position. Therefore, the detaining authority was fully aware that the detenu was in jail custody and yet his detention was necessary because he was likely to be set at liberty by the Court in the criminal cases. Further, the copy of the detention order was sent to the Superintendent of Central Jail, Imphal, for serving a copy of the order on the detenu. As alluded, the Supreme Court has ruled that the awareness as to the detention of the detenu in jail custody at the time of making the order must be manifested in the order of detention or in the affidavit filed by the detaining authority. We have already referred that in the order of detention it was clearly stated that the detenu was in jail and the fact was known to the detaining authority. It is found in the order that the order had to be passed because there was likelihood of his release on bail. We are, therefore, of the opinion that this is not a case in which non-application of mind to the relevant fact by the detaining authority can be inferred in any manner whatsoever. There is no casualness or mechanical exercise of the power by the detaining authority. Be that as it may, the detaining authority himself has filed an affidavit wherein he has categorically suited that he was fully aware that the Petitioner was in jail and that the order of detention was made after considering the relevant facts. The dependent of the affidavit was the District Magistrate and detaining authority, at all relevant time. But at the time when he affirmed the affidavit, he was Secretary, Home, Government of Manipur. In paragraph 6 as well as paragraph 21 of his affidavit, the dependent has clearly stated that he was aware of the fact that the detenu was arrested on 7.8.82 and he was at the relevant time, in judicial custody and that there was indication that the detenu might be released on bail by the Court. He stated that he was satisfied that on his being released on bail, the detenu would continue to act in the manner prejudicial to the security of the State and maintenance of public order. The detaining authority has, therefore, satisfied that he was fully aware of the relevant facts with which we are concerned. Therefore, on the authority of the decisions cited by the learned Counsel for the Petitioner we hold that there is no flaw whatsoever in the order of detention. No other contention has been made.

In the result, the application is dismissed.