Thgokchom Sambi Singh vs District Magistrate, Thoubal and Others

Heard Mr. O. Kiranjit Singh, learned counsel appearing for the petitioner, Mr. R.S. Reisang, learned Sr. State Counsel appearing for the State respondents as well as Mr. Amarjit Naorem, learned CGSC appearing for the respondent Union of India. In the present writ petition, the petitioner/detenu has challenged the detention order passed on 6.11.2012 (Annexure-A/1) detaining him u/S. 3(2) of the National Security Act, 1980.

The main contention of the petitioner/detenu is that the said detention order is vitiated on the ground that there was no legally permissible material before the detaining authority for corning to the conclusion at the time of passing the detention order that the petitioner was likely to be released on bail and that the petitioner was likely to continue to act in the manner prejudicial to the security of the State and maintenance of public and it was merely the ipse dixit of the detaining authority, in terms of the decisions of the Hon''ble Supreme Court in

Rekha v. State of Tamil Nadu through Secretary to Government and another reported in (2011) 5 SCC 244 (AIR 2011 SC (Supp) 856)

as well as in

Huidrom Konungjao Singh v. State of Manipur & Ors. reported in : AIR 2012 SC 2002

.

The learned counsel for the petitioner submits that the petitioner was arrested in connection with FIR No. 342(9) 2012 TBL-PS as well as u/S. 364(10), 2012 TBL-PS but he never moved any bail application for releasing him before any Court and as such the question of the petitioner being released on bail did not arise. The petitioner while under judicial custody in connection with the above cases was served with the detention order passed under National Security Act, 1980. However, in the detention order it has been stated that the detaining authority is satisfied from the police report that the petitioner who is in judicial custody, is likely to be released on bail and since he is likely to continue to act in the manner prejudicial to the security of the State and maintenance of public order, the detention of the petitioner under the National Security Act would be necessary.

Considering the above submission, it may not be necessary to advert to the other factual aspects of the case which led to the detention of the petitioner under the National Security Act, 1980. It will be sufficient to note that the petitioner was detained under the National Security Act, 1980 under order dated 6.11.2012 while he was under judicial custody in connection with FIR No. 364(10)2012 TBL-PS and FIR No. 342(9)2012 TBL-PS cases. Thus, the impugned detention order was passed while the petitioner was in judicial custody. However, he had not filed any application for bail as has been specifically pleaded in the writ petition at para-12 thereof stating that the petitioner did not file any bail application before any Court of law, which is not denied by the respondents in their affidavits-in-opposition filed. The respondent authorities also have not shown any material on which basis the detaining authority had come to the conclusion that the petitioner was likely to be released on bail. The contention of the State respondents as can be seen from the affidavit-in-opposition filed before this Court is that there was a possibility of likelihood of the detenu being released on bail if bail application is filed before the statutory period is expired and that there is every possibility of the detenu continuing his prejudicial activities as a member of PLA if he is released on bail. It has been also stated that the detenu was earlier arrested on 10.02.2002 in connection with FIR No. 13(2) TBL-PS u/S. 10 /13 (P) A. Act, but he was released on bail by the court in the month of April, 2002. Accordingly, it has been contended that since the petitioner was earlier released on bail, in the present case also there is every likelihood of being released him on bail. However, the aforesaid contention does not hold water in view of the fact that the petitioner has not filed any application for bail in connection with any of the cases under which he was already in judicial custody at the time when he was arrested under the National Security Act and the earlier instance of enlargement of bail occurring in a remote past is too state a matter to be referred to.

In view of the above, this Court has no other option but to release the petitioner by relying on decision of the Hon''ble Supreme Court in Rekha''s case (AIR 2011 SC (Supp) 856) (supra), in which it was held, inter alia, that:-

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 pending, since most courts normally grant bail on this ground. However, details of such alleged similar case must be given, otherwise the bald statement of the authority cannot be believed.

As observed by the Hon''ble Supreme Court in Rekha''s (AIR 2011 SC (Supp) 856) case (supra), there would have been a real possibility of release of the petitioner who was already in custody if he had moved a bail application which was pending. As a corollary, if no bail application was filed by the petitioner, there was no likelihood of the petitioner, who was already in custody, of being released on bail.

As stated above, in the present case, since no bail application was filed by the petitioner/detenu at the time of passing the impugned order, the release of the detenu on bail did not arise. Considering the above, we are of the view that irrespective of seriousness of the charges levelled against the detenu, which may justify detention of the detenu under National Security Act, 1980, in view of the fact that the detaining authority has failed to provide the necessary legally tenable materials for arriving at the subjective satisfaction that the petitioner/detenu is likely to be released on bail, in the light of the judgment of the Supreme Court as referred to above, impugned detention order dated 6.11.2012 cannot be sustained. In the result, the detention order dated 06.11.2012 (Annexure-A/1), approval order dated 09.11.2012 (Annexure-A/3) and confirmation order dated 18.12.2012 (Annexure-A/4) are set aside and detenu namely, Thokchom Sambi Singh alias Khamba alias Jack alias Jackson, S/o Th. Senjai Singh of Heirok Part-II Thokchom Leikai, P.S. Thoubal shall be released forthwith unless wanted in any other case(s).

The petition stands allowed.