Miss Zam Zam v. Special Secretary (Home), Government of Manipur

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON’BLE MR. JUSTICE MV MURALIDARAN BEFORE For the Petitioner : Ng Gunajit, Advocate For Respondent Nos. 1,2 & 4 : Mr. Athouba Khaidem, G.A. For Respondent No. 3 : Mr. BR Sharma, CGC Date of Order : 20.12.2022 ORDER (ORAL) Sanjay Kumar (C.J.): [1] The petitioner was named as an accused in FIR No. 104 (6) 2022 on the file of Thoubal Police Station, registered under Sections 18(b), 21(c), 25, 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). This case was registered in the context of the seizure of 222.85 kg of Heroin (Brown W.P. (Cril.) No. 10 of 2022 Sugar) from the residence of her mother at Moijing Mina Bazar, Thoubal District. The petitioner was arrested in connection with this FIR and remanded to judicial custody. While so, the Special Secretary (Home), Government of Manipur, issued order dated 01.09.2022, whereby the petitioner was subjected to detention in exercise of power conferred by Section 3(1) of Preventive of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988. By way of this writ petition, the petitioner challenges the said order of detention and seeks a writ of habeas corpus to be set at liberty. [2] Heard Mr. Ng. Gunajit, learned counsel for the petitioner; Mr. Athouba Khaidem, learned Government Advocate, appearing for respondents No. 1, 2, & 4; and Mr. BR Sharma, learned CGC, appearing for respondent No. 3. [3] One of the grounds urged by the petitioner to attack the detention order dated 01.09.2022 is that there was no material before the detention authority to support the opinion that she was likely to be released on bail. In this regard, it may be noted that the detaining authority specifically mentioned in the order dated

01.09.2022 that the petitioner had filed a bail application before the learned Special Judge (ND & PS), Thoubal, which was yet to be numbered, in relation to FIR No. 106 (6) 2022 TBL-PS and that: ‘it is highly suspected that the accused on release from Jail on bail will continue her illegal activities including illicit trafficking of drugs even after her release.’ On the same lines, in the grounds of detention dated

05.09.2022, the detaining authority stated as follows: “9. It is reported that you have applied a bail application to the Court of Hon’ble Judge, Special Court (ND&PS), Thoubal and that there is a real possibility of your release from Jail on bail if released on bail you are likely to resort to illicit trafficking of drugs further.” W.P. (Cril.) No. 10 of 2022 [4] In the affidavit-in-opposition filed on behalf of the State authorities, the Deputy Secretary (Home), Government of Manipur, did not elaborate as to the basis on which the aforestated opinion had been formed by the detaining authority. [5] Mr. Athouba Khaidem, learned Government Advocate, placed on record the file of the detaining authority. Perusal thereof reflects that there was no application of mind whatsoever to the fact that the offences registered against the petitioner and others in FIR No. 104 (6) 2022 TBL-PS involved a commercial quantity of the narcotic drug, Heroin and, therefore, Section 37 of the NDPS Act would have application. This statutory provision bars the Court from granting bail routinely, as it requires the Court to be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence charged and is not likely to commit any offence while on bail. Therefore, mere filing of a bail application would not be sufficient in itself to infer a likelihood of the accused being released on bail. [6] Reference in this regard may be made to the law laid down by the Supreme Court in Sayed Abul Ala vs. Union of India and others {(2007) 15 SCC 208}, wherein the Supreme Court noted that Section 37 of the NDPS Act puts a limitation on the jurisdiction of the Court in the matter of grant of bail and proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. It was further observed that in cases where the detenu is in custody, the detaining authority not only should be aware of the said fact, but there should be some material on record to justify that the detenu may be released on bail having regard to the restriction imposed on the power of the Court as it may not arrive at the conclusion that there existed reasonable grounds for believing that the detenu was not guilty of such offence and that the detenu W.P. (Cril.) No. 10 of 2022 would not indulge in similar activities, if set at liberty. Therefore, it was incumbent upon the detaining authority to apply its mind and come to a reasoned conclusion that, notwithstanding the fact that the case involved a commercial quantity of Heroin, attracting the restriction envisaged by Section 37 of the NDPS Act, there was still a high likelihood of the petitioner being released on bail. However, this aspect of the matter was completely overlooked as the file of the detaining authority does not even reflect consideration of this issue. In that view of the matter, the order of the detaining authority, passed routinely, cannot be sustained. [7] Though it is laudable that the Government of Manipur is waging a ‘war on drugs’ and initiating stringent measures to arrest the menace of illicit drug trafficking and marketing in and through the State of Manipur, it is equally its responsibility to ensure that the procedural safeguards provided in preventive detention laws are scrupulously adhered to so as to protect the Constitutional and statutory rights of persons detained thereunder. Despite this Court stating to this effect time and again, scant regard is shown by the authorities concerned to compliance with the prescribed norms. [8] The detention order dated 01.09.2022 passed against the petitioner by the Special Secretary (Home), Government of Manipur, and all the consequential proceedings based thereon are accordingly set aside. The petitioner/detenu, Zam Zam, presently incarcerated in Manipur Central Jail, Imphal, shall be set at liberty forthwith unless her continued incarceration is validly required in connection with any other case. WP (Cril.) No. 10 of 2022 is accordingly allowed. In the circumstances, there shall be no order as to costs. W.P. (Cril.) No. 10 of 2022 A copy of this order shall be sent to the Chief Secretary, Government of Manipur, for information and necessary further action in educating the detaining authorities in the State of Manipur as to what are the procedural norms that they need to adhere to while exercising power under preventive detention laws. Sapana JUDGE CHIEF JUSTICE W.P. (Cril.) No. 10 of 2022