Tongnram Sanjit Singh@ Pari @ Boy vs The District Magistrate, Imphal East Manipur, & Ors.

This application has been filed for quashing the order dated 28.7i.2016 passed by the District Magistrate, Imphal East, respondent No.1, whereby and whereunder the respondent No.1, in exercise of power conferred under sub section (3) of section 3 of the National Security Act, 1980, passed the order of detention in Cril/NSA/ No. 9 of 2016 against the detenu namely Tongbram Sanjit Singh after recording 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 did join an armed underground organization namely United National Liberation Front (UNLF) as member in December, 1992. Thereupon the detenu as well as 14 other members were imparted training in Bangladesh. Even on completion of the training programme, the detenu stayed at Bangladesh doing routine work for the camp. While he was there, he joined a new underground organization named as KYKL and started doing work for it. The detenu came to Manipur in July 1994 and started discharging mobile duty. Subsequently combined team of KYKL and NSCN(I/M) to which the detenu was also a party had had encounter with UNLF (M) at Umathel for which a case was registered as FIR No.52(8)94 WKG PS u/s 121/121-A/302 of the IPC and also u/s 25/(I-B) of the A.Act as well as u/s 3(2) (ii) of TDA(P) Act. That apart, the detenu along with and his associates extorted money more than 7 lakhs from the shop-keepers and others from August, 1994 to December, 1996. In January,1997 the detenu left for Gauhati where he was arrested in connection with a case. Thereupon, Imphal police got him remanded in connection with a case registered as FIR case No.353(5)95 instituted u/s 400 of the IPC and also u/s 25(I-B) A. Act and also u/s 3 of the Expls. Subs. Act as well as u/s 4(1)TDA(P) Act. However, petitioner was released on bail. Thereupon, petitioner again participated in an encounter took place in between the combined team of KYKL and NSCN(I/M) at one hand and UNLF as well as NSCN(K) on the other hand for which a case was registered as FIR No.3(12)99 Khoupum PS u/s 307 of the IPC, 25(I-C) (IA) A.Act & 13 UA(P)Act. In the month of April, 1998 the detenu was promoted to the rank of self styled seargent. Thereupon, he extorted huge money from different persons. On 24.7.2002 the detenu was arrested by Imphal West police in connection with the case registered as FIR Case No.86(7) 02 and was remanded in judicial custody. However, he was released on bail later on. Even after release on bail, the detenu continued to work for KYKL and again extorted money. Subsequently, he left the organization and started working for another organization, KCP-KK Nganba faction and continued to extort money from different persons and also Government organization. However, in course of time, he along with his other associates of the said organization and also other organization surrendered and were kept at designated camp. In spite of that the detenu continued to indulge himself in the activities which were prejudicial to the security of the State. In course of time, he chalked out a plan to assassinate one N. Nabachandra Singh on the charge of misusing of party fund of PREPAK and for that purpose collected money in lakhs. The detenu succeeded in its plan to assassinate said Nabachandra Singh and his driver. For such occurrence, a case was registered as FIR Case No.108(6)16 HNG PS u/s 302/448/34 of the IPC and also u/s 25(I-C) A. Act. On 28.6.2016 the detenu was arrested in connection with the aforesaid case and was remanded to judicial custody.

On such ground, the respondent No.1, 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 28.7.2016 which was approved on 8.8.2016 and was confirmed on 28.9.2016. The aforesaid orders of detention, approval and its confirmation have been challenged on several grounds.

However, Mr. Ngongo, learned counsel appearing for the petitioner did confine his argument with respect to only one ground which is with regard to complete absence of satisfaction of the detaining authority that there is every possibility of detenu being released on bail and thereby order of detention suffers from illegality and is fit to be set aside.

As against this Mr. Yangya, learned Addl. GA appearing for the State 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 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."

In the light of the decisions, if we examine legality of the detention order, we find that the detaining authority without recording its satisfaction that there is likelihood of detenu being released on bail , has passed the order of detention when the detenu was in custody and thereby it suffers from illegality and as such the order of detention, its approval and confirmation are hereby set aside.

Consequently, detenu namely Tongbram Sanjit Singh @ Pari @ Boy, s/o T. Nityai Singh of Keirenphabi Mamang Leikai, PS Moirag, is directed to be released forthwith if not wanted in any other case. This writ petition stands disposed of.