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Judgment
This application has been filed for quashing the order dated 3.11.2016 passed by the District Magistrate, Thoubal, respondent No.2, who in exercise of power conferred under sub section 3 of Section 3 of the National Security Act,1980 passed the order of detention in case bearing Cril.NSA Case No.5 of 2016 against the detenu, Tangtonga Kansawa Moses, while he was in police remand.
The grounds on which order of detention was passed are that the detenu joined an armed underground organization National Socialist Council of Nagalim-Isak/Muivah faction (NSCN-I/M) as a member in March, 2009. Thereupon, he was imparted with basic training along with others. After training, the detenu left the camp in January, 2010 and went to Chakpikarong where the detenu and other members of NSCN-I/M carried out prejudicial activities and went on doing so at different places. In August, 2015, the detenu was promoted to the rank of self styled Area Collector. Thereupon, the detenu along with other members started extorting money from general public, shop keepers, businessmen, contractors, vehicle owners etc. and thereby they used to collect money 1-3 lakhs per month and all these acts were being done to achieve the objective of NSCN to establish a sovereign State in the name of Nagalim by unifying all the Nagas inhabited areas in the northeast of India and northern Burma.
On 27.10.2016 detenu was arrested by the police team of CDO Thoubal and recovered certain articles which were handed over to OC Kakching P.S. along with written report, on the basis of which a case was registered as FIR Case No.89(10)16 KCG PS u/s 17/20 of UA(P) Act. Subsequently, the detenu was remanded to police custody till 3.11.2016 on which date order of detention was passed after recording that the detenu, who is in police custody, is likely to continue to do acts prejudicial to the security of the State and maintenance of public order. The said order of detention dated 3.11.2016 was approved on 14.11.2016 and was confirmed on 16.12.2016.
The aforesaid order of detention, approval and its confirmation have been challenged on several grounds.
However, Mr. Pradeep, learned counsel did confine his argument with respect to only one ground that the order of detention was passed against the detenu while he was in police custody and therefore there was no likelihood of he being released on bail and thereby order of detention and subsequent orders suffer from illegality and are fit to be set aside.
As against this, Mr. Yangya, learned Addl.GA appearing for the State submits that from the order of detention it would appear that the detaining authority after having taken notice of the facts recorded in the grounds of detention did satisfy himself that the detenu would go on continuing to act which is prejudicial to the maintenance of public order and thereby the detaining authority is absolutely justified in passing order of detention.
It be stated that Hon''ble Supreme Court has been pleased to lay down the proposition 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 wherein it has been observed 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 was reiterated subsequently by the Hon''ble Supreme Court 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."
Regard being had to the decisions referred to above, one can find that the proposition has been laid down by the Hon''ble Supreme Court that even if detenu is in custody then order can be passed provided material available on the record gives reason to believe that there is likelihood of detenu being released on bail but here in this case, the detenu on the date of passing of the detention order was never in judicial custody rather he was under the police custody and thereby there was no likelihood of detenu being released by the police and thereby order of detention suffers from illegality and as such the order of detention, its approval and confirmation are hereby set aside.
Consequently, the detenu, Shri Tangtonga Kansawa Moses, s/o T.K.Kodou of Khukandang village PS Machi, is directed to be released forthwith if not wanted in any other case. This petition stands allowed.