Thangjam Romen Singh vs District Magistrate and Others

Laxmi Kanta Mohapatra, C.J—This writ application has been filed by the detenu challenging the order passed by the District Magistrate, Thoubal dated 24.11.2014 directing his detention under Sub-section 3 of Section 3 of the National Security Act, 1980 (hereinafter refers to as the Act). In the grounds of detention, it is alleged that the petitioner joined a banned organisation namely Peoples'' Liberation Army as an active member thereof sometime in March, 2013 and was involved in the acts of extortion of money from general public by creating an atmosphere of terror. He was arrested on 13.11.2014 by a police team and there was recovery of one mobile hand-set with sim cards. On the strength of a report, FIR No. 118(11)2014 Yairipok PS was registered for commission of offence u/s. 20 UA(P) Act read with Section 384 IPC. He was remanded to police custody till 20.11.2014 and such remand was extended upto 24.11.2014. The day the period of police remand expired, the order of detention was passed by the learned District Magistrate, Thoubal. The detention of the petitioner was placed before the Advisory Board which forms the order of detention and accordingly under Annexure A/7 the Govt. of Manipur confirmed the order of detention for a period of 12 months from the date of detention. Challenging the initial order of detention passed by the learned District Magistrate and the order of confirmation passed by the State under Annexure-A/7, this writ application has been filed.

Shri A. Romenkumar, learned counsel appearing for the petitioner did not assail the order of detention passed by the learned District Magistrate but challenged the validity of the order of confirmation passed by the State on 16.1.2015 under Annexure-A/7 under which the period of detention has been made for 12 months from the date of detention. It is contended by the learned counsel for the petitioner that the said order of confirmation passed by the State Government is in contravention of the proviso to Sub-section 3 of section 3 of the Act.

A counter affidavit has been filed on behalf of the State authorities. Mr. A. Vashum, learned counsel appearing for the State submitted that under Sections 12 and 13 of the Act, the State Government has the authority to pass an order of detention for a period of 12 months and therefore there is no illegality in the order of confirmation passed by the State Government under Annexure-A/7.

Since the question raised by the learned counsel for the petitioner is a question of law, we need not go into the facts of the case. Section 3 of the Act empowers the Central Government or the State Government to pass an order of detention in terms of the said provision. Sub section 3 of Section 3 provides that if, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate, if satisfied as provided in Sub-section (2), exercise the powers conferred by the said sub-section. However, proviso to the said sub-section provides that the period specified in an order made by the State Government under Sub-section 3 shall not in the first instance exceed three months, but the State Government may, if satisfied that it is necessary to do so, amend such order to extend such period from time to time by any period not exceeding three months at one time. The relevant provision, for convenience, is quoted below:

"(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section.

Provided that the period specified in an order made by the State Government under this subsection shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time."

Relying on the above provisions, it was contended by the learned counsel for the petitioner that even if an order of detention is passed by the District Magistrate, the State Government while confirming the same, cannot pass an order of detention exceeding three months at a time and in the present case the order in Annexure-A/7 shows that after receipt of the report of the Advisory Board, the State Government confirmed the order of detention for a period of 12 months from the date of detention in contravention of the proviso to Sub-section 3 of Section 3 of the Act.

On perusal of the proviso to Sub-section 3 of Section 3, it appears that the State Government shall not, in the first instance, pass an order of detention exceeding three months, but the said order of detention can be extended from time to time but not exceeding three months at any one time.

Section 13 only provides for a maximum period of detention which shall not be more than 12 months. Therefore, on reading of the proviso to sub -section 3 of section 3 and section 13 of the Act, we find that though the order of detention could be for a period of 12 months, at no point of time, it should exceed three months at a time. The first order of detention, at the first instance, can only be for the period of three months, but such detention depending on circumstances could be extended from time to time for a maximum period of 12 months and such extension shall not be for more than 3 months at one time. The submission of the learned counsel for the petitioner which, prima facie, appears to be acceptable, get support from a decision of the apex Court in the case of Cherukuri Mani Vs. The Chief Secretary, Government of Andhra Pradesh and Others, AIR 2014 SC 2090 : (2014) AIRSCW 2811 : (2014) CriLJ 2748 : (2014) 2 RCR(Criminal) 921 : (2014) 6 SCALE 524 . In the reported case, the order of detention has been passed under the provisions of Andhra Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. In the said Act, pari materia provision has been made as that of the National Security Act, 1980.

Considering those provisions, the Apex Court held that in view of what has been provided in the proviso to Sub-section 2 of section 3 of the said Act, no order of detention could be passed for a period more than 3 months at a time though the maximum periods is fixed for a period of 12 months.

In view of the above decision of the Supreme Court, we have no other option except to set aside the order of the State Government in Annexure-A/7 directing detention of the petitioner for a period of 12 months at one time while confirming the order of detention which is in contravention of proviso to Sub-section 3 of Section 3 of the Act We accordingly, allow the writ petition and quash the Annexure-A/7. Since the petitioner has already stayed under the order of detention for more than 3 months from the date of detention, in absence of any extension of such detention in terms of the proviso to sub-section 3 of section 3 of the Act, he be set at liberty forthwith unless his detention is required in any other case.