Supreme
Court of India
Yumman
Ongbi Lembi Leima vs State Of Manipur & Ors. on 4 January, 2012
Bench:
Altamas Kabir, Surinder Singh Nijjar, J. Chelameswar
IN
THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 26 OF 2012
(Arising
out of SLP(Crl) No.7926 of 2011) YUMMAN ONGBI LEMBI LEIMA ...
APPELLANT Vs.
STATE
OF MANIPUR & ORS. ... RESPONDENT J U D G M E N T
ALTAMAS
KABIR, J.
1.
Leave granted.
2.
Under the Detention Order No.Cril/NSA/No.10 of 2011, Imphal, the 31st
January, 2011, issued by the District Magistrate, Imphal West
District, Manipur, the Appellant's husband, Yumman Somendro @ Somo @
Tiken, was detained under the provisions of the National Security
Act, 1980. The said detention order was approved by the Governor of
Manipur on 7th February, 2011, in exercise of his powers conferred
under Section 3(4) of the aforesaid Act. The order of the Governor of
Manipur dated 18th March, 2011, confirming the detention order passed
against the husband of the Appellant and fixing the period of
detention for 12 months on the subjective satisfaction of the
detaining authority that the detenu was likely to be released on bail
by the normal criminal Courts in the near future, was challenged on
behalf of Yumman Somendro in the Gauhati High Court (Imphal Bench),
but without success. This Appeal is directed against the said order
of the High Court and the order of detention itself. Earlier, the
Appellant's husband had been arrested on 21st March, 1994 in
connection with FIR No.478(3)1994 IPS u/s 13 Unlawful Activities
(Prevention) Act, but was released on bail by the normal criminal
Court. Despite the above, again on 29th June, 1995, the Appellant's
husband was arrested in connection with FIR No.450(6)95 under
Churachandpur P.S. under Sections 386 and 34 IPC. Though he was
released on bail by the normal criminal Court, he was again arrested
under Section 13 UA (P) Act in connection with FIR No.190(5)98 and
was released on bail on 8th July, 1998. After being released on bail
by the normal Criminal Court, Yumman Somendro was again arrested on
16th January, 2011, in connection with FIR No.21(1)11 IPS under
Section 302 IPC for the alleged murder of the then Chairman of the
Board of Secondary Education, Manipur, Dr. N. Kunjabihari Singh. The
Appellant's husband was produced before the Magistrate on 17th
January, 2011, who remanded him to police custody till 31st January,
2011. On the said date, he was further remanded to police custody
till 2nd February, 2011, and when he was produced before the Chief
Judicial Magistrate in connection with the said case, he was served
with a copy of the detention order dated 31st January, 2011, issued
by the District Magistrate, Imphal West, under the National Security
Act, 1980.
3.
On 31st January, 2011, the Appellant's husband was served with the
grounds of detention under the National Security Act, 1980, under the
authority of the District Magistrate, Imphal West. Along with the
said order, copies of the documents on which the detaining authority
had relied on to arrive at the conclusion that the detention of the
Appellant's husband was necessary, was also served on him.
4.
On a perusal of the grounds of detention, it is clear that the
subjective satisfaction of the detaining authority is founded on the
belief that after having availed of bail facility, the Appellant's
husband could indulge in commission of further prejudicial
activities. An alternative preventive measure was, therefore,
immediately needed in the circumstances.
5.
On behalf of the Appellant, Mr. Sanjay Parikh, relied heavily on the
decision of this Court in Rekha Vs. State of Tamil Nadu through Sec.
to Govt. [(2011) 4 SCC 260], in which it had been held that in the
absence of material particulars in similar cases in which bail had
been granted, the subjective satisfaction of the detaining authority
was merely a ruse for issuance of the impugned detention order. After
considering various decisions of this Court and the views of several
jurists and the submissions made on behalf of the parties, the
Division Bench of the High Court was of the view that the subjective
satisfaction of the detaining authority was based on proper material
and the detaining authority was also aware that the detenu was in
custody and was likely to be released on bail. The detaining
authority, therefore, was of the view that the detention of the
detenu was required in order to prevent him from acting in a manner
prejudicial to the maintenance of public order as he was likely to be
released on bail in the near future by the normal criminal Courts. On
the aforesaid reasoning, the Division Bench of the High Court
dismissed the Writ Petition filed by the detenu's wife.
6.
The main contention urged by Mr. Parikh appearing for the Appellant
was that the personal life and liberty of a person was too precious
to be allowed to be interfered with in the manner in which it had
been done. Mr. Parikh submitted that as would be evident, the
detention order was passed on a mere supposition that the Appellant's
husband was likely to be released on bail in the near future in
connection with the case in respect of which he had been arrested and
that in view of such future apprehension, the detention order was
sought to be legitimised. Mr. Parikh submitted that not only had the
Appellant's husband not applied for bail at any stage, nor was there
any indication that he intends to do so, which could give rise to the
supposition that in the future there was every likelihood that he
would be released on bail. Mr. Parikh submitted that supposition
could never take the place of facts which were necessary to establish
a case which warranted the detention of a person without any trial.
7.
Mr. Parikh pointed out that Yumman Somendro had been arrested in
connection with several cases, but had been released on bail in all
the said cases till ultimately an order of detention was passed
against him under the National Security Act, 1980, on the flimsiest
of excuses. Mr. Parikh submitted that if at all the Appellant's
husband was alleged to have committed a crime which was punishable
under the Indian Penal Code, the same could not be equated with the
national security in any way, which warranted the issuance of a
detention order under the National Security Act, 1980.
8.
Referring to the provisions of Section 3 of the aforesaid Act, Mr.
Parikh submitted that the sine qua non for an order of detention
to be passed under the National Security Act, 1980, is that the
Central Government or the State Government would have to be satisfied
that in order to prevent any person from acting in any manner
prejudicial to the security of the State or from acting in any manner
prejudicial to the maintenance of the public order or from acting in
any manner prejudicial to the maintenance of supply of services
essential to the community that it was necessary so to do, make an
order directing that such person be detained. Mr. Parikh
submitted that although the Appellant's husband had been charged with
having committed an offence under Section 302 IPC, Section 386 and
Section 13 Unlawful Activities (Prevention) Act, there was no
material whatsoever to bring the Appellant's husband within the ambit
of the grounds enumerated in Sub-Section (2) of Section 3 of the
aforesaid Act. Mr. Parikh submitted that the order of detention had
been passed not for the reasons enumerated in Sub-Section (2) of
Section 3, but since the police was unable to pin any offence against
the Appellant's husband on account whereof he could be denied bail by
the Courts.
9.
In support of his submissions, Mr. Parikh firstly referred to the
decision of this Court in Union of India Vs. Paul Manickam &
Anr. [(2003) 8 SCC 342], wherein while considering the delay in
disposal of a representation in the matter of preventive detention,
this Court noticed that when the detenu was already in custody, the
anticipated and apprehended acts were practical impossibilities, as
was the case as far as the Appellant's husband is concerned. This
Court further observed that as far as the question relating to the
procedure to be adopted in case the detenu is already in custody is
concerned, the detaining authorities would have to apply their minds
and show their awareness in this regard in the grounds of detention.
The necessity of keeping such person in detention under preventive
detention laws have to be clearly indicated. It was further observed
that the subsisting custody of the detenu by itself does not
invalidate an order of his preventive detention and the decision in
this regard has to depend on the facts of each case.
However,
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, ordinarily it
is not needed when the detenu is already in custody and the detaining
authority must be 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.
10.
Mr. Parikh also referred to another decision of this Court in
Haradhan Saha Vs. The State of West Bengal & Ors. [(1975) 3
SCC 198], wherein in the case of a preventive detention order passed
under the Maintenance of Internal Security Act, 1971, the distinction
between preventive detention and criminal prosecution was sought to
be defined and it was held that the essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done, but to prevent him from doing it. It was
further observed that the basis of detention is the satisfaction of
the Executive of a reasonable probability or the likelihood of the
detenu acting in a manner similar to his past acts and preventing him
by detention from doing the same. The criminal conviction, on the
other hand, is for an act already done which can only be possible by
a trial and legal evidence.
11.
Referring to the Division Bench order dated 31st January, 2011, Mr.
Parikh submitted that the same did not contain any material
whatsoever on which the detaining authority could have arrived at a
satisfaction that Yumman Somendro had acted in any manner which
warranted his detention under the provisions of Section 3(2) of the
National Security Act, 1980. The only reason given for issuing such
order of detention was that Yumman Somendro, who was in police
custody, was likely to be released on bail in the near future by the
normal criminal Courts, as, according to him, bails are granted in
similar cases by the criminal Courts. Mr. Parikh submitted that this
is a case where the detention order passed against the Appellant's
husband was without any basis whatsoever and had been resorted to on
account of the failure of the police to keep him in judicial custody.
12.
On the other hand, appearing for the State of Manipur, Mr. Jaideep
Gupta, learned Senior Advocate, repeated the facts indicated earlier
to the effect that the Appellant's husband had been arrested in
connection with several cases and, in particular, for the murder of
Dr. N. Kunjabihari Singh, the then Chairman of the Board of Secondary
Education, Manipur, in his office room on 11th January, 2011. Mr.
Gupta submitted that it was subsequent to the murder of Dr. N.
Kunjabihari Singh that on 31st January, 2011, the order of detention
was passed under Section 3 of the aforesaid Act and was served on the
Appellant's husband, while he was in judicial custody, on 2nd
February, 2011. It was also submitted that thereafter the grounds of
detention were provided to the Appellant's husband, as required under
Section 8 of the above-mentioned Act to enable him at the earliest
opportunity of making a representation against the order to the
appropriate Government. The detention order was considered by the
State Government which approved the same on 7th February, 2011, and
the representation made by Yumman Somendro to the State Government
was rejected on 10th February, 2011. The matter was, thereafter,
referred to the Advisory Board which came to the conclusion that
since Yumman Somendro was a member of the banned organization,
Kanglei Yaol Kanna Lup, he was a potential danger to society, whose
activities were prejudicial to the maintenance of public order and
there was a likelihood that he would continue such activities the
moment he was released from detention and accordingly he should be
detained for the maximum period of 12 months, as provided under
Section 13 of the Act. Mr. Gupta submitted that since the detention
order was to end on 31st January, 2012, there could be no reason to
interfere with the same prior to its dissolution by efflux of time.
13.
Having carefully considered the submissions made on behalf of
respective parties, we are inclined to hold that the extra-ordinary
powers of detaining an individual in contravention of the provisions
of Article 22(2) of the Constitution was not warranted in the instant
case, where the grounds of detention do not disclose any material
which was before the detaining authority, other than the fact that
there was every likelihood of Yumman Somendro being released on bail
in connection with the cases in respect of which he had been
arrested, to support the order of detention. Article 21 of the
Constitution enjoins that 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 concerned
authorities, 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 Articles 21 and 22(2) of the Constitution.
14.
When the Courts thought it fit to release the Appellant's husband on
bail in connection with the cases in respect of which he had been
arrested, the mere apprehension that he was likely to be released on
bail as a ground of his detention, is not justified. In addition to
the above, the FIRs in respect of which the Appellant's husband had
been arrested relate to the years 1994, 1995 and 1998 respectively,
whereas the order of detention was passed against him on 31st
January, 2011, almost 12 years after the last FIR No.190(5)98 IPS
under Section 13 of the Unlawful Activities (Prevention) Act. There
is no live link between the earlier incidents and the incident in
respect of which the detention order had been passed.
15.
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 Constitution in Part III 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 Indian Penal Code, however heinous, is insufficient to make
out a case for issuance of an order of preventive detention.
16.
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 Article
21 of the Constitution and Article 22(2) thereof, as well as the
provisions of Section 167 of the Code of Criminal Procedure.
17.
The Appeal must, therefore, succeed. The impugned order of detention
dated 31st January, 2011, passed by the District Magistrate, Imphal
West District, Manipur, in regard to the detention of Yumman Somendro
@ Somo @ Tiken son of Y. Roton Singh, is hereby quashed. The Appeal
accordingly succeeds. Let the Appellant's husband, Yumman Somendro,
be released from custody, if he is not required in connection with
any other case.
............................................................J.
(ALTAMAS KABIR)
............................................................J.
(SURINDER SINGH NIJJAR)
............................................................J.
(J. CHELAMESWAR)
New
Delhi
Dated:
04.01.2012
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