Yumman Ongbi Lembi
Leima Vs. State of Manipur & Ors.
Jurisdiction Criminal Appeal No. 26 of 2012 (Arising out of SLP (CRL) No.7926 of
J U D G M E N T
ALTAMAS KABIR, J.
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
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.
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.
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.
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 6parties, 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.
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 7as 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.
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.
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.
support of his submissions, Mr. Parikh firstly referred to the decision of this
Court in Union of India Vs. Paul Manickam & Anr. [(2003) 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
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.
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 12it 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.
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
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 15potential
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
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.
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.
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 18to 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
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.
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
(SURINDER SINGH NIJJAR)