1 THE HIGH COURT OF MEGHALAYA WP(Crl) No. 12 of 2014 Shri. [ENTITY], Son of (L) Helinath R Sangma Of Village Rewak Songmong, P.O: Balkal, PS: Baghmara, South Garo Hills District, Meghalaya. Petitioner -Versus- 1. The [ENTITY], Represented by Commissioner and Secretary, Political Department, Shillong. 2. The [ENTITY]. 3. The [ENTITY], Represented by the Secretary, Home, New Delhi. Respondents
BEFORE THE HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH For the petitioner : Ms. [ENTITY], Adv.
For the respondents : Mr. [ENTITY], Sr. GA Mr. [ENTITY], GA Date of hearing : 10-06-2015 Date of Judgment : 16-06-2015 JUDGMENT AND ORDER (Justice [ENTITY])
Heard Ms. [ENTITY], learned counsel appearing for the petitioner and also Mr. [ENTITY], learned Sr. GA, assisted by Mr. [ENTITY], learned GA, appearing for the respondents No. 1 and 2. Mr. [ENTITY], learned CGC appears for the respondent No.3.
2. By this writ petition, the petitioner/[ENTITY] is challenging (i) the impugned detention order dated 28-04- 2014 issued by the detaining authority i.e. the [ENTITY] in exercise of his powers conferred upon him under [SECTION] of the [ACT], (for short MPDA), 1995, for detaining the [ENTITY].
3. The object of law of preventive detention is not punitive but only preventive. Preventive detention is an anticipatory measure and does not relate to an offence. It is resorted when the Executive is convinced that such detention is necessary in order to prevent the persons detained from acting in a manner prejudicial to certain objects which are specified by the law. The framers of the [ACT], being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in [SECTION], certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". The Apex Court in [ENTITY] v. State of Punjab: (1981) 4 SCC 481 observed that:
" May be that the [ENTITY] is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralyzed the Indian economy. But the loss of preventive detention affords only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the [ENTITY]s " (Ref:- Para 4 of the SCC in [ENTITY]'s case (Supra)."
4. In [PRECEDENT], [ENTITY], J observed "our [ACT] does not give a carte blanche to any organ of the State to be the sole arbiter Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the [ACT] itself and incorporated as Fundamental Right when demanded, where there has been any excessive detention, that is, whether the limits set by the [ACT] and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny."
5. It is fairly settled that jurisdiction of preventive detention is "suspicious jurisdiction" based on suspicion and an action is taken with the view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the detention order. Interference by a court of law at that stage must be an exception rather than a rule. The Hon'ble Apex Court in State of Maharastra v. [ENTITY]: (2008) 3 SCC 613 held that the Court must be conscious and mindful of the fact that jurisdiction preventive detention is "suspicious jurisdiction"
based on suspicion and an action is taken with the view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the detention order.
Interference by a court of law at that stage, must be an exception rather than a rule because the exercise can be undertaken by a writ court with extreme care, caution and circumspection. Para 63 of the SCC in [ENTITY]'s case (Supra) reads as follows:-
"63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in [PRECEDENT]. The Court must be conscious and mindful of the fact that this is a "suspicious jurisdiction" i.e. jurisdiction based on suspicion and an action is taken "with a view to preventing"
a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A [ENTITY] cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order".
6. The concise fact of the case, sufficient for deciding the present petition, is recapitulated. The petitioner/[ENTITY] (Shri [ENTITY]) was arrested in connection with [CASE NUMBER], Under [SECTION], [SECTION], [SECTION], [ACT], R/w [SECTION] [ACT] and [CASE NUMBER], Under [SECTION] [ACT], R/w [SECTION] and [SECTION] [ACT],and the petitioner/[ENTITY] was remanded to custody in connection with the said cases. While the petitioner/[ENTITY] was in custody in connection with the said two cases, the [ENTITY] in exercise of the powers conferred upon him under [SECTION] of the [ACT] issued the impugned detention order dated 28-04-2014 for detaining the [ENTITY] under [ACT]. The impugned detention order dated 28-04-2014 clearly mentioned that the petitioner/[ENTITY] has been in custody in connection with the said two cases and that if Shri [ENTITY] is allowed to remain at large, he would act in the manner prejudicial to the security of the State, maintenance of public order in the district and would contribute in consolidation of the militant organization and it is necessary that he be detained. It will be more profitable for deciding the matter in issue in the present writ petition to reproduce the impugned detention order dated 28-04-2014 which read as follows:
GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT MAGISTRATE WEST GARO HILLS DISTRICT : TURA No. CB.20/14/21 Dated Tura, the 28th April, 2014 "ORDER UNDER [SECTION] OF THE [ACT], Whereas, a new militant outfit by the name of [ENTITY] (ASAK) has come into being in early 2014 in Meghalaya of which [ENTITY], Chairman and Reding T. Sangma Commander-in-Chief are the originators, mentors and founder.
Whereas, this militant organization has unleashed a reign of terror on the peace loving citizenry by executing criminal activities like extortion, kidnapping for ransom, ruthless murders of businessmen and traders, criminal intimidation to create a fear psychosis to suit their nefarious designs;
Whereas, this organization [ENTITY] (ASAK) has been formed with the intention of waging war against the constitutionally formed and elected sovereign government of the day for creation of a separate Garo State national entity and for which they are training gullible and susceptible poor, unemployed, rural youth;
Whereas, it is circumstance wise proved that Shri. [ENTITY] S/o Lt. [ENTITY] of village Rewak Songmong, PO Balkal, PS Baghmara, South Garo Hills District who is now in judicial custody is the Joint Secretary of [ENTITY] (ASAK) who has contributed in his might in the furtherance of the devious designs of the militant organization [ENTITY] (ASAK) and is of dangerous and desperate character who is an active threat to public order and public security;
Whereas, his repeated commission of crimes at the instance of his superiors in the militant organization reflect his incorrigible intent to forment terror and points towards his indifference and total disregard to life, liberty of innocent citizens and their peace and security;
Whereas, he has been arrested by police for his involvement in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery etc. with deadly weapons for ransom, disruption of public order etc. for which police have implicated him in;
1. Complt. [ENTITY] ([ENTITY]) S/o [ENTITY] of village Pipulbari, PS Mankachar, Dhubri, Assam lodged an FIR that 13/2/2014 at about 10:00 AM while the complt. was on the way to his coal quarry at Dilnapara 6 (six) militant cadres robbed Rs.8,000/- including other belongings from him at gun point and was kidnapped. However, on 16/2/14 midnight he managed to escape from their captivity. In course of investigation, it was revealed that the subject along with other cadres of ASAK were involved in the crime. In this connection a case has been registered at Tura PS vide Tura PS C/No. 65(2) 2014 U/[SECTION] [ACT] R/W [SECTION] [ACT].
2. Complt. Shri. [ENTITY], MPS Addl.
SP(HQ), Tura, submitted an FIR based on secret source information that some cadres from newly formed militants group "ASAK" with sophisticated weapons were travelling in a bus No.ML-08-6128 towards Chokpot, immediately launched search operation and during operation the police team intercepted the bus at Rongkagre, 12th Mile and during search [ENTITY], a self styled Joint Secretary of ASAK, [ENTITY], [ENTITY] and [ENTITY] all of ASAK (a newly formed militant outfit) were apprehended and 1 (one) mm pistol with 2 (two) live ammunitions, 1 (one) 7.65 mm pistol with 3 live ammunitions, demand notes of GNLA and ASAK, Seals of ASAK, Mobile Phones and SIM cards and other articles were recovered from their possession and accordingly seized. In this connection a case has been registered at Tura PS vide Tura PS C/No.54(2)2014 U/S [SECTION]/W [SECTION] [ACT].
Whereas, I am satisfied that if Shri [ENTITY] is allowed to remain at large, he would act in a manner prejudicial to the security of the state and maintenance of public order in the district and would contribute in consolidation of the militant organization which shall be a constant threat to the peace, prosperity and security of the law abiding and peace loving citizenry of the district and the state and unleash mayhem and unspeakable atrocities on the public by indulging in murder, criminal intimidation, extortion, kidnapping for ransom in furtherance of their treacherous designs;
NOW, therefore, in exercise of the power conferred upon me under [SECTION] of the [ACT], I, Shri [ENTITY], IAS, District Magistrate, do hereby direct forthwith that the person of Shri [ENTITY] shall be taken into preventive detention with immediate effect and that the detention shall be at District Jail, Tura, until further orders.
Further, Shri [ENTITY] shall, in accordance with [SECTION] of the [ACT] read with [SECTION] of [ACT] have every right to make a representation against the order of detention to the Government addressed to the [ENTITY], the Principal Secretary/Commissioner & Secretary, Political Department, Govt. of Meghalaya, Meghalaya Secretariat, Shillong Advisory Board, Guwahati and also to the Central Government (Government of India) i.e. to the Secretary (Home), Ministry of Home Affairs, Government of India, North Block, New Delhi-1 Given under my Hand and Seal of the Court this 28th day of April, 2014.
([ENTITY]) District Magistrate West Garo Hills, Tura"
7. The petitioner/[ENTITY] filed the writ petition assailing the (i) the impugned detention order dated 28-04-2014 only on two grounds: (1) there is non-application of mind on the part of the detaining authority and (2) subjective satisfaction of the detaining authority that "if Shri [ENTITY] is allowed to remain at large" he would act in the manner prejudicial to the security of the State and maintenance of public order in the district and would contribute in consolidation of the militant organisation is only ipse dixit of the detaining authority. Para 10(c) of the present writ petition read as follows:
"10(c) For that the Detenue/Petitioner was detained in connection with [CASE NUMBER], Under [SECTION], [SECTION], [SECTION] [ACT], R/w Section 25(1A) [ACT] and Tura P.S. case No. 54(2) of 2014, under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT], R/w [SECTION] and [SECTION] [ACT] and there was no chance of his likelihood to be released on bail as no bail application was ever moved on behalf of the Detenue/Petitioner and as such there was no question of Detenue's remaining at large, therefore, the finding of the Detaining Authority that chance of Petitioner/Detenue remaining at large is prejudicial to the security of the State etc is based on subjective satisfaction and not based on objective datas. The Petitiner/Detenue thereby submits that detention order thus passed on 28-04-2014 is vitiated."
8. In the said para i.e. para 10(c) of the present writ petition, it is mentioned very clearly that the [ENTITY] did not file any application for releasing the [ENTITY] on bail in connection with the cases mentioned above.
9. The respondent No.2 had filed the affidavit-in- opposition in the present writ petition; in the affidavit-in- opposition, the respondent No. 2 did not deny that no bail application had been filed for releasing the [ENTITY] on bail in connection with the cases mentioned above.
10. The [ACT] Bench of the Apex Court in Kamlesh Kumar Ishwardas Patel Vs. [ENTITY] & Ors : (1995) 4 SCC 51 observed that while discharging constitutional obligation to protect fundamental right of the people, more specifically right to personal liberty, the court would not be influenced by the nature of the activity of the [ENTITY]. The history of liberty is the history of procedural safeguards. The safeguards enshrined in [SECTION] are required to be jealousy watched and enforced by the Court.
11. The Apex Court through Hon'ble Justice [ENTITY] in [PRECEDENT] observed that :-
"3. Individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by the [ACT] to the citizens of this country. On "liberty", [ENTITY], the great play writer, has observed that "a man is master of his liberty." [ENTITY] goes even further and says that "any society that would give up a little liberty to gain a little security will deserve neither and lose both". The importance of protecting liberty and freedom is explained by the famous lawyer [ENTITY] as "you can protect your liberties in this world only by protecting the other man's freedom; you can be free only if I am free." In India, the utmost importance is given to life and personal liberty of an individual, since we believe personal liberty is the paramount essential to human dignity and human happiness.
4. The [ACT] protects the liberty of an individual. [SECTION] provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. In matters of preventive detention such as this, as there is deprivation of liberty without trial, and subsequent safeguards are provided in [SECTION] of the [ACT]. They are, when any person is detained pursuant to an order made under any law providing for preventive detention, the authority making the order is required to communicate the grounds on the basis of which, the order has been made and give him an opportunity to make a representation against the order as soon as possible. It thus, cannot be doubted that the constitutional framework envisages protection of liberty as essential, and makes the circumstances under which it can be deprived."
12. The Apex Court in [ENTITY] vs. [PRECEDENT] and Another (2003) 8 SCC 342 held that even in the case of a person in custody, detention order can validly be passed subject to 3 (three) principles. Para 14 of the SCC in [PRECEDENT]'s case (supra) read as follows:
"14. The detaining authority must show its awareness to the fact of subsisting custody of the [ENTITY] 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 [ENTITY] was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. :
(1989) 4 SCC 418 : 1989 SCC (Cri) 732 : AIR 1989 SC 2027 and Dharmendra Suganchand Chelawat v. [ENTITY] : (1990) 1 SCC 746 : 1990 SCC (Cri) 249 : AIR 1990 SC 1196 . The point was gone into detail in Kamarunnissa vs. [ENTITY] : (1991) 1 SCC 128 : 1991 SCC (Cri) 88 : AIR 1991 SC 1640). 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."
13. For detaining a [ENTITY] already in custody under [ACT], the detaining authority shall have the subjective satisfaction that there is every possibility of releasing the [ENTITY] on bail and on being released, the [ENTITY] would in all probably indulge in prejudicial activities.
14. The Apex Court in Sunila Jain vs. [ENTITY] and Another (2006) 3 SCC 321 held that detaining authority on the basis of the materials placed before him, shall come to the satisfaction that a [ENTITY] is likely to be released on bail and there cannot be such satisfaction by the detaining authority without taking into consideration of the bail application and also order passed in the bail application. The Apex Court further held that the detaining authority could come to the satisfaction, even if the [ENTITY] does not file the bail application that the [ENTITY] is likely to be released on bail in case the competent authority granted the bail in similar cases i.e. case similar with the case for which the [ENTITY] is in custody.
15. The Apex Court in [PRECEDENT] held that:
"10. The only requirement is that the detaining authority should be aware that the [ENTITY] is already in custody and is likely to be released on bail. The conclusion that the [ENTITY] may be released on bail cannot be ipse dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of the [ENTITY] being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of [ENTITY] being released on bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. The appellant has not disputed correctness of this statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi : (2002) 7 SCC 120 :
2002 SCC (Cri) 1627. The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In the background this Court observed that it was not a "normal" case. The High Court was justified in rejecting the stand of the appellant."
16. The Apex Court in [PRECEDENT] clearly held that in the absence of bail application, detaining authority without any materials cannot come to the conclusion that the [ENTITY] is likely to be released on bail. However, in similar cases if the accused had been granted bail, the detaining authority for the sufficient reasons still could come to the conclusion that the [ENTITY] is likely to be released on bail.
17. In the present case, the [ENTITY] did not file the application for bail nor had the co-accused been released on bail nor the order for granting bail to the accused in the similar cases. Paras 7, 10, 11, 12, 25 of the SCC in [PRECEDENT]'s case (supra) read as follows:-
"7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, the co-accused on the same case, nor whether the bail orders were passed in respect of other, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order.
10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number whether the bail order was passed in respects of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.
12. Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non- existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the [ENTITY], that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated, etc.
25. In this connection, it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 8-4- 2010. On the other hand, in para 4 of the grounds of detention it is mentioned that "[ENTITY] is in remand in [CASE NUMBER] and he has not moved any bail application so far". Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases have been given. Hence, the detention order in question cannot be sustained."
18. The Apex Court in [PRECEDENT] held that:
"24. [SECTION] of the [ACT] enjoins that:
"21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law."
In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of [SECTION] and [SECTION] of the [ACT].
27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the [ACT] in [SECTION] thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the [ACT], however heinous, is insufficient to make out a case for issuance of an order of preventive detention.
28. In our view, the detaining authority acted rather casually in the matter in issuing the order of detention and the High Court also appears to have missed the right to liberty as contained in [SECTION] of the [ACT] and [SECTION] thereof, as well as the provisions of [SECTION] of the [ACT]."
19. For the foregoing reasons, this Court is of the considered view that there is non-application of mind on the part of detaining authority in passing the impugned detention order and also that the satisfaction of the detaining authority that "if Shri [ENTITY] is allowed to remain at large" for passing the impugned order under [ACT] is nothing but ipse dixit of the detaining authority.
20. Accordingly, the impugned detention order dated 28-04- 2014, and subsequent orders for approval and confirmation are hereby quashed and set aside. Thus, [CASE NUMBER] is allowed. The [ENTITY], Shri [ENTITY], is accordingly set at liberty forthwith if he is, otherwise, not required in connection with any other case(s).
JUDGE CHIEF JUSTICE [ENTITY]