Meghalaya High Court
Case Details
THE MEGHALAYA HIGH COURT AT SHILLONG. WP(Crl) NO.(SH)5/2013 Sri. Champion R. Sangma, S/o Late Bidonsing N Marak, Village Songsak Bolsalgittim, East Garo Hills District, Meghalaya (presently in judicial custody at Shillong District Jail, Shillong). -Vs- :::: Petitioner 1. 2. 3. The State of Meghalaya, Represented by the Commissioner & Secretary to the Govt. of Meghalaya Political Department, Shillong, Meghalaya. The District Magistrate, West Garo Hills District, Tura, Meghalaya. The Union of India, Represented by the Secretary, Home, New Delhi. :::: Respondents BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioner For the Respondents Date of hearing Date of Judgment & Order : : : : Mr. S Dey, QB Lamare, Advs.
Legal Reasoning
Mr. S Sen Gupta, GA 22.05.2013 22.05.2013 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) Heard Mr. S Dey, learned counsel for the petitioner/detenue and Mr. S Sen Gupta, learned counsel for the respondents No.1-3. 2. By this writ petition, petitioner/detenue is assailing the detention order dated 30.01.2013 passed by the District Magistrate, West Garo Hills, Tura under Section 3 (1) of the Meghalaya Preventive Detention Act, 1995 (for short “the Act of 1995”). WP(Crl) NO.(SH)5/2013 Page 1 of 11 3. Two main grounds for assailing the impugned detention order are:- (i) The impugned detention order dated 30.01.2013 passed under Section 3(1) of the Act of 1995 was not approved by the State Government under Section 3(3) of the Act of 1995 within the stipulated period or as on today there is no approval order of the State Government (ii) The petitioner/detenue has not given an opportunity to file a representation against the order of the State Govt. said to have been passed for approving the detention order dated 30.01.2013. 4. For deciding the above two grounds, it is not required to delve deep into the factual matters leading to the filing of the present writ petition. 5. On 30.07.2012, the petitioner/detenue was arrested by one Shri. K. Shabong, Sub-Inspector Special Cell, East Khasi Hills District, alleging that the petitioner/detenue is a member of a banned organization i.e. G.N.L.A. and it has also been alleged that a criminal case was also registered against the petitioner/detenue i.e. Pynursla Case No.25(7)12 under Section 16, 38(1) and 38(2) of the Unlawful Activities (Prevention) Act and Section 12 of the I.P. Act. After arresting the petitioner/detenue in connection with the said case, he was produced before the concerned Magistrate who remanded the petitioner/detenue to custody. 6. While the petitioner/detenue was in custody in connection with the said case, the Superintendent Jail furnished a copy of the impugned detention order dated 30.01.2013. It is also categorically pleaded in the present writ petition vide Para-16 (b) of the writ petition that the impugned detention order dated 30.01.2013 was not approved by the State Govt. within the time limit under
Decision
Section 3(3) of the Act of 1995. It is also further pleaded in the writ petition that the petitioner/detenue had not been informed of his right to file a representation against the detention order as mandated under Article 22 (5) of the Constitution of India. WP(Crl) NO.(SH)5/2013 Page 2 of 11 7. The respondents filed their affidavit-in-opposition, wherein the respondents are not denying the contents of the Para-16(b) of the writ petition which read as follows:- “16(b). For that the detention order under Section 3(1) of the MPDA 1995, was not approved by the State Government under Section 3(3) of the said Act.” 8. In the course of hearing, learned Govt. Advocate appearing for the respondents made a statement that the Govt. is confused with the many annexures filed by the petitioner/detenue in the writ petition. The prayer sought for in the writ petition is very clear. The prayer sought for in the writ petition reads as follows:- “In the premises aforesaid it is most humbly prayed that Your Lordships would be pleased to issue a rule, call for the records, and after hearing the parties be pleased to issue a Writ of Habeas Corpus quashing the Detention Order 30th January, 2013 vide No.CB 19/13/31 passed by the District Magistrate, West Garo Hills District, Tura and any subsequent order/orders that may have been passed in continuation of the said detention order and direct the respondent to release the Detenue forthwith.” Therefore, there should be no confusion on the part of the Govt. or the learned Govt. Advocate as to what is the prayer sought for in the present writ petition. This Court made this observation, in view of the submission made by the learned Govt. Advocate appearing for the State respondents, that the writ petitioner/detenue also annexed a copy of the detention order dated 29.01.2013 only to show that the petitioner/detenue had already been detained in connection with the said detention order dated 29.01.2013. 9. Mr. S Sen Gupta, learned Govt. Advocate appearing for the State respondents placed the Govt. File relating with the present detention order before this Court for perusal. On careful perusal of the File, it is clear that there is no order of the State Govt. for approving the impugned detention order dated 30.01.2013 within the period of 12 days from the date of issuing the detention order. For easy reference, Section 3(3) of the Act of 1995 is quoted hereunder:- WP(Crl) NO.(SH)5/2013 Page 3 of 11 “3(3).When a detention order is made under this section by a District Magistrate or by the empowered officer such District Magistrate or officer as the case may be, shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved. Provided that where the grounds of detention are communicated under Section 3 to the person detained after five days not later than ten days from the date of detention, this sub- section shall apply subject to the modification that for words “twelve days” the words “fifteen days” shall be substituted.” 10. The impugned detention order dated 30.01.2013 had not yet been approved by the State Govt. as provided under Section 3(3) of the Act of 1995, and accordingly the impugned detention order dated 30.01.2013 is no more valid. Hence, the continued detention of the petitioner/detenue under the impugned order dated 30.01.2013 is illegal. 11. The framers of our constitution accepted the preventive detention as an unavoidable necessity but that necessity should not be aggravated by an interpretation which would drain Article 22 (4) to (7) of its contents, if a reasonable alternative construction was possible, it would avoid that result. The Apex Court in Hem Lal Bhandari Vs. Sikkim: AIR 1978 SC 765 observed that “……… it is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers. In matter where the liberty of the citizen is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of the law.” 12. In Vijay Narayan Singh v. Bihar: (1984) 3 SCC 14, Chinnapa Redy, J observed “our Constitution 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 Constitution itself and incorporated as Fundamental Right ……… WP(Crl) NO.(SH)5/2013 Page 4 of 11 when demanded, where there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. 13. Lod Atkin in a great dissenting judgment (Liversidge v. Sir John Anderson) (1942) A.C. at P.224 declared “…… amid the clash of arms, the laws are not silent…..it has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the Executive, alert to see that any coercive action is justified in law. 14. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. The object of law of Preventive detention is not punitive but only preventive. Prevention 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 constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22; 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 Rattan Singh vs. State of Punjab: (1981) 4 SCC 481 observed that – “…. May be that the detenu is a smuggler whose tribe (and how their numbers increased!) deserves no sympathy since its activities have paralysed the Indian economy. But the loss of preventive detention afford 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 detenus…”(Ref : para 4 of the SCC in Rattan Singh’s case (supra)).” WP(Crl) NO.(SH)5/2013 Page 5 of 11 15. No doubt, the doctrine of preventive power of the Administrative/Executive authority constitutionally validates preventive process for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. The Apex Court in Amir Shad Khan vs. L Hmingliana & Others: (1991) 4 SCC held that – “The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under : “22.(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” (Ref. para 3 of the SCC in Amir Shad Khan’s case (supra)).” 16. The Constitution Bench of the Apex Court in Kamlesh Kumar Ishwardas Patel vs. Union of India & 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 detenu. The history of liberty is the history of procedural safeguards. The safeguards enshrined in clauses (4) and (5) of the Article 22 are required to be jealously watched and enforced by the Court.” 17. It is well settled law that the question of personal liberty of a person is sacrosanct and State authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. It is also equally well settled that the in the case of preventive detention, the procedure prescribed for issuing the detention order should be judiciously guarded and also the procedure prescribed should also be scrupulously followed. The Apex Court in Ayya alias Ayub vs. State of U.P. &Anr: (1989) 1 SCC 374, held that in the case of preventive detention matters, the procedure prescribed WP(Crl) NO.(SH)5/2013 Page 6 of 11 should be scrupulously followed and in other words, preventive detention, the procedure prescribed for issuing the detention order should be judiciously guarded. 18. The Apex Court in Huidrom Konungjao Singh vs. State of Manipur & Others: (2012) 7 SCC 181. In Paras 4, 5, 6, 7 & 8, the Apex Court in Huidrom Konungjao Singh case (Supra) held as follows:- “4. The question of personal liberty of a person is sacrosanct and State authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights under Articles 21 and 22 of the Constitution. In Ayya v. State of U.P.: (1989) 1 SCC 374: 1989 SCC (Cri) 153: AIR 1989 SC 364, this Court held that the law of preventive detention is based and could be described as a “jurisdiction of suspicion” and the compulsion values of freedom of democratic society and of social order sometimes might compel a curtailment of individual’s liberty. 5. In Yumman Ongbi Lembi Leima v. State of Manipur: (2012) 2 SCC 176: (2012) 1 SCC (Cri) 701, this Court held that: (SCC p.182, para 27) “27. …………………… 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 citizen, or seek to disturb public law and order, warranting the issuance of such an order.” the same this Court while considering 6. Whether a person who is in jail can be detained under detention law has been the subject-matter of consideration before this Court time and again. In Dharamendra Suganchand Chelawat v. Union of India: (1990) 1 SCC 746: 1990 SCC (Cri) 249: AIR 1990 SC 1196, issued has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan: AIR 1964 SC 334: (1964) 1 Cri LJ 257, Massod Alam v. Union of India: (1973) 1 SCC 551: 1973 SCC (cri) 435: AIR 1973 SC 897, Dulal Roy v. District Magistrate, Burdwan (1975) 1 SCC 837: 1975 SCC (Cri) 329, Alijan Mian v. District Magistrate, Dhanbad: (1983) 4 SCC 301: 1983 SCC (Cri) 840: AIR 1983 SC 1130, Ramesh Yadav v. District Magistrate, Etah (1985) 4 SCC 232: 1985 SCC (Cri)514: AIR 1986 SC 315, Suraj Pal Sahu v. State of Maharashtra: (1986) 4 SCC 378: 1986 SCC (Cri) 452, Binod Singh v. District Magistrate, Dhanbad: (1986) 4 SCC 416: 1986 SCC (Cri) 490: AIR 1986 SC 2090 and Shashi Agarwal v. State of U.P.:(1988) 1 SCC 436: 1988 SCC (Cri) 178: AIR 1988 SC 596 and came to the WP(Crl) NO.(SH)5/2013 Page 7 of 11