The High Court
Case Details
THE HIGH COURT OF MEGHALAYA WP(Crl.)(SH) No. 1 of 2013 Smti. Tamina G Momin, Sister of Namsing B Marak alias Namsing G Momin, Resident of Village, Chibonga, P.O. Kharkutta, P.S. Mendipathar, West Garo Hills, Meghalaya. -Versus- … Petitioner 1. The State of Meghalaya, represented by the Commissioner & Secretary to the Govt. of Meghalaya, Political Department, Meghalaya. 2. The Principal Secretary to the Govt. of Meghalaya Political Department, Govt. of Meghalaya, Shillong. 3. The Under Secretary to the Govt. of Meghalaya, Political Department, Meghalaya. 4. The District Magistrate, West Garo Hills, Tura, Meghalaya. 5. The Union of India (Central Government) Represented by the Secretary, Ministry of Home Affairs, North Block, New Delhi-110001 ….. Respondents WP(Crl.)(SH) No. 3 of 2013 Smti. Tamina G Momin, Sister of Namsing B Marak alias Namsing G Momin, Resident of Village, Chibonga, P.O. Kharkutta, P.S. Mendipathar, West Garo Hills, Meghalaya. -Versus- … Petitioner 1. The State of Meghalaya, represented by the Commissioner & Secretary to the Govt. of Meghalaya, Political Department, Meghalaya. 2. The Principal Secretary to the Govt. of Meghalaya Political Department, Govt. of Meghalaya, Shillong. 3. The Under Secretary to the Govt. of Meghalaya, Political Department, Meghalaya. WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 1 of 9 4. The District Magistrate, West Garo Hills, Tura, Meghalaya. 5. The Union of India (Central Government) Represented by the Secretary, Ministry of Home Affairs, North Block, New Delhi-110001 ….. Respondents
Legal Reasoning
B E F O R E THE HON’BLE MR.JUSTICE S.R. SEN Advocate for petitioner For the respondent :- :- Mr. HR Nath Mr. S Sen Gupta, Addl. PP. Date of hearing :- 10.07.2013 Date of Judgment &Order :- 15.07.2013 J U D G M E N T A N D O R D E R Both WP (Crl.) No.1 of 2013 and WP (Crl.) No.3 of 2013 came up for hearing together as the same arose under a common detention order dated 27.02.12, accordingly both these cases are taken up for disposal by this common judgment and order. 2. The brief facts of the cases are that the detenu namely; Shri. Sengran G Momin and Shri. Namsing B Marak were detained in connection with i) Tura P.S. Case No. 193(7)2011 U/s 386/511 IPC, (ii) Tura P.S. Case No. 194(7) 2011 U/s 386/511 IPC and (iii) Tura P.S. Case No. 265(10) 2011 U/s 384/506/511 IPC respectively. Thereafter, the learned District Magistrate West Garo Hills Tura vide orders dated 27.02.12 bearing No. CB-22/12/31 and No. CB-23/12/31 detained the detainees under section 3 (1) of the Meghalaya Prevention Detention Act 1995, the detention order and ground of detention and other copies were furnished to the detainees. 3. From the detention order, it appears that the detainees were informed that, they have got their rights to make representations in WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 2 of 9 accordance with the Article-22 of the Constitution of India read with Section -8 (1) Meghalaya Prevention Detention Act 1995 to the District Magistrate as well as to the State Government. But it appears that no representations were made by the detainees to the concern authorities and approached this Court by way of this instant writ petition. 4. Mr HR Nath, the learned council appearing on behalf of the detainees argued that, the detainees were not given a chance to make representations to the Central Government, as such, their rights under Article-22 of the Constitution of India have been violated and also admitted that the detainees have not made any representation to the state Government. The learned Council further argued that, if the detention order is approved by the State Government, then it amounts to detention by the State Government, so representation to be made to the Central Government. Since they have not been informed about their rights to make representations to the Central Government, the entire detention order is illegal. Moreover detention order does not speak of the position of the learned District Magistrate pertaining to the detention, so such order may be quashed. In support of his submission he relied on the following books (i) 2011 (Vol. 5) SCC 244 (ii) 2011 (Vol. 3) GLT 797 (iii) 2006 (Vol.1) GLT 375 (FB) and 2005 (Vol. 1) GLT 173. 6. On the other hand, Mr. S Sen Gupta the learned Addl. PP appearing on behalf of the state submits that, the detainees were detained on 27.02.12, detention order was approved on 9.03.12 and confirmed on 19.04.12. Besides that no representations against the detention were made by the detenu to the State Government, so there was nothing wrong in the detention order. 7. After hearing the submissions advanced by the learned counsel for the parties referred to above, the crux issues found involved in this instant case are: (i) whether the detainees were WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 3 of 9 informed about their rights to make representations to the State or to the Central Government (ii) whether the detention order speaks about the reasons for detention. 8. I have perused the detention order dated 27.02.2013 at
Decision
Annexure-II of both the writ petitions i.e. WP (Crl) No. 1 of 2013 and WP (Crl) No. 3 of 2013 which are reproduced herein under: “GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT MAGISTRATE: WEST GARO HILLS DISTRICT: TURA No. CB.22/12/31, Dated Tura, the 27th February, 2012. ORDER UNDER SECTION 3 (1) OF THE MEGHALAYA PREVENTIVE DETENTION ACT, 1995 Whereas, it has been brought to my notice that a person known as Shri Sengran G. Momin, alias Benga S/o Shri Kensing Marak of village Chibongga, PO Kharkutta under Mendipathar PS, East Garo Hills District is now in Judicial custody; Whereas, he is an active member of newly formed militant organization named Garo National Leberation Army (GNLA) and a dreadful militant outfit of Meghalaya. Whereas, he is involved in various anti-national activities, unlawful activities and crimes like extortion and robbery and with use of deadly weapons of ransom, disruption of public order etc. for which police have implicated him as borne out in the case registered with Police Station viz: 1. Tura P.S. Case No. 193 (7) 2011 U/S 386/511 IPC. 2. Tura P.S. Case No. 194 (7) 2011 U/S 386/511 IPC. 3. Tura P.S. Case No. 265 (10) 2011 U/S 384/506/511 IPC. Whereas, I am satisfied that if Shri Sengran G. Momin is allowed to remain at large, in the event of him obtaining bail from the judicial court, he would act in the manner prejudicial to security of the State, maintenance of public order and threat to the life and property of the citizens and it is necessary that he be detained and being so satisfied; Now, therefore, in exercise of the power conferred upon me under section 3 (1) of the Meghalaya Preventive Detention Act 1995. I, Shri Pravin Bakshi, IAS, District Magistrate, West Garo Hills District, Tura do hereby direct that Shri Sengran G. Momin be detained with immediate effect and until further orders at the District Jail, West Garo Hills District, Tura. Further, Shri Sengran G. Momin shall, in accordance with article 22 (5) of the Constitution of India read with section 8 (1) of MPDA, 1995 have every right to make a representation against the order of detention to the WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 4 of 9 detaining authority i.e. the District Magistrate, West Garo Hills, Tura, which right is in addition to and independent of his right to make representation before the State Govt. i.e. to the Principal Secretary/Commissioner & Secretary, Political Department, Govt. of Meghalaya, Meghalaya Secretariat, Shillong and to the Advisory Board at Gauhati High Court, Assam. Given under my Hand and Seal of the Court this 27th day of February, 2012. Sd/- (Pravin Bakshi) District Magistrate West Garo Hills, Tura” “GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT MAGISTRATE: WEST GARO HILLS DISTRICT: TURA No. CB.22/12/31, Dated Tura, the 27th February, 2012. ORDER UNDER SECTION 3 (1) OF THE MEGHALAYA PREVENTIVE DETENTION ACT, 1995 Whereas, it has been brought to my notice that a person known as Shri Namsing B. Marak, alias Namsing G. Momin S/o Late Bandolai M. Marak of village Rongdenggre, PO Jengjal under Tura P.S, West Garo Hills District is now in Judicial custody; Whereas, he is an active member of newly formed militant organization named Garo National Leberation Army (GNLA) and a dreadful militant outfit of Meghalaya. Whereas, he is involved in various anti-national activities, unlawful activities and crimes like extortion and robbery and with use of deadly weapons of ransom, disruption of public order etc. for which police have implicated him as borne out in the case registered with Police Station viz: 4. Tura P.S. Case No. 193 (7) 2011 U/S 386/511 IPC. 5. Tura P.S. Case No. 194 (7) 2011 U/S 386/511 IPC. 6. Tura P.S. Case No. 265 (10) 2011 U/S 384/506/511 IPC. Whereas, I am satisfied that if Shri Sengran G. Momin is allowed to remain at large, in the event of him obtaining bail from the judicial court, he would act in the manner prejudicial to security of the State, maintenance of public order and threat to the life and property of the citizens and it is necessary that he be detained and being so satisfied; Now, therefore, in exercise of the power conferred upon me under section 3 (1) of the Meghalaya Preventive Detention Act 1995. I, Shri Pravin Bakshi, IAS, District Magistrate, West Garo Hills District, Tura do hereby direct that Shri Sengran G. Momin be detained with immediate effect and until further orders at the District Jail, West Garo Hills District, Tura. Further, Shri Namsing B. Marak shall, in accordance with article 22 (5) of the Constitution of India read with section WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 5 of 9 8 (1) of MPDA, 1995 have every right to make a representation against the order of detention to the detaining authority i.e. the District Magistrate, West Garo Hills, Tura, which right is in addition to and independent of his right to make representation before the State Govt. i.e. to the Principal Secretary/Commissioner & Secretary, Political Department, Govt. of Meghalaya, Meghalaya Secretariat, Shillong and to the Advisory Board at Gauhati High Court, Assam. Given under my Hand and Seal of the Court this 27th day of February, 2012. Sd/- (Pravin Bakshi) District Magistrate West Garo Hills, Tura” 9. I have also perused the grounds of detention at Annexures-II referred above. On perusal of both the detention order and grounds of detention, I find that the detention orders are speaking one. The detention order and grounds of detention cannot be considered in isolation, but they are part and parcel of each other, therefore, we require to consider and read both, i.e. detention order and grounds of detention. 10. From the last Paragraph of the ground of detention, it is found mentioned that, detainees have already been informed about their rights to make representation to the District Magistrate as well as to the Principal Secretary to the Government of Meghalaya. Therefore, I cannot say that they have not been informed about their rights to make representation to the concerned authorities. If the detenu did not make their representation, then it is their faults for which the authorities cannot be held responsible. 11. Now, the question comes, whether the detainees have their rights to make representation to the State or Central Government under Meghalaya Prevention Detention Act 1995. The answer is available under section 15 of the said Act and the same is reproduced herein below: (1) Without “15. Revocation of detention order- prejudice to the provisions of Section-35 of the Meghalaya Interpretation and General Clauses Act, WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 6 of 9 1972 a detention order made by a District Magistrate or by the empowered officer may, at any time, be revoked or modified by the State Government and, in case of a detention order made by the State Government or by the Central Government.” 12. Meghalaya Prevention Detention Act has been notified on 12.05.1995 in gazette of Meghalaya and Section-15 (1) speaks as follows: “Without prejudice to the provisions of Section 35 of the Meghalaya interpretation and General Clauses Act, 1972 a detention order made by a District Magistrate or by the empowered officer may, at any time, be revoked or modified by the State Government and in case of a detention order made by the State Government, by the Central Government”. 13. So on bare perusal of the said Section, it appears that, detention order issued by the District Magistrate or empowered authority may be revoked by the State Government. In case detention order is by the State Government, then it is to be modified or revoked by the Central Government. Therefore, it is clear that, it has got 2 (two) segments, if the order is passed by the District Magistrate, revoking or modifying authority is the State Government, in case if the order is passed by the State Government, then the revoking or modifying authority is the Central Government. 14. However, on careful perusal, it is found that there is some typographical mistake in Section-15 in the book called “Collection of Meghalaya Act and Ordinances of the year 1995” where the word “OR” has been incorporated. The Secretary, Law Department, Government of Meghalaya is directed to look into the matter and to place the same in the correct position. 15. However, my humble understanding is that, once the detention order is issued by the District Magistrate, representation made by the detainees and rejected by the State Government, then there is no further scope to make representation to the Central Government as per Section-15 of the Meghalaya Prevention Detention Act, 1995. This gets further support from the letter dated 20.01.2011 WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 7 of 9 issued by the U/S Government of India addressed to the Principal Secretary to the Government of Meghalaya and the said letter is reproduced herein below: “No. II/15050/01/2011- NSA Government of India Ministry of Home Affairs New Delhi, dated the 20th January, 2011 To The Principal Secretary/ Commissioner & Secretary, Political Department, Government of Meghalaya, Meghalaya Secretariat, Shillong. Subject-: Representation from Shri Albin Ch. Momin under Meghalaya Preventive Detention Act. Sir, Jail, Jowai I am directed to refer to letter No. DJJ- 08/2004/Pt.IV/94, dated 21st December, 2010 from the Superintendent District forwarding representation of the detenue Shri Albin Ch. Momin under Meghalaya Preventive Detention Act and to convey that on examination it is found that in the detention order it has been mentioned that the detenue can submit his representation to Government of India, Ministry of Home Affairs, whereas the Meghalaya Preventive Detention Act, 1995 does not provide for the same when the detention order has been issued by the District Magistrate under Section 3(1) of the Act Section 15(1) of the Meghalaya Preventive Detention Act, 1995 provides that in case the detention order has been issued by the District Magistrate, it is for the State the Government representation. Therefore, the representation received from Shri Albin Ch. Momin is being returned herewith for appropriate action. of Meghalaya consider to 2. I am further directed to say that all District Magistrate in the State of Meghalaya may be suitably advised of the above provisions of the MPDA Act, 1995. 3. Kindly acknowledge receipt of the letter. Yours faithfully, Sd/- (Smt. L. P. Srivastava) Under Secretary to the Government of India Tel. No. 2461 0467” WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 8 of 9 16. From the contents of the said letter, it is further clear that the Central Government is of the view that under Meghalaya Prevention Detention Act, 1995, when a person is detained, it is the State Government to have a final say. 17. Therefore, after going through the records as well as the submissions advanced by the learned counsel for the parties and laws referred to above, I do not find any error in the detention order and its subsequent proceedings. Further judgments relied by the learned counsel for the petitioner, to my humble understanding these judgments are not matching or applicable in the present facts and circumstances in hand. 18. For these reasons discussed above, I find no scope to interfere with the impugned order dated 27.02.2012, hence, this instant writ petition is rejected and stands disposed of. 19. Registry is directed to send a copy of this letter to the Chief Secretary, Government of Meghalaya for perusal. JUDGE V. Lyndem WP(Crl.)(SH) 1 of 2013 WP(Crl.)(SH) 3 of 2013 Page 9 of 9