Mrs. Taslima v. State of Manipur & Ors

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH BEFORE Respondents For the Petitioner : Md. Ajmal Hussain, Advocate For Respondent Nos. 1, 2 & 4 : Mr. Athouba Khaidem, Government Advocate For Respondent No. 3 : Mr. Vijayanand Sharma, Sr. PCCG Date of Order : 16.12.2022 ORDER (ORAL) Sanjay Kumar (C.J.): [1] Challenge in this writ petition is to the order of detention dated

21.09.2022 of the Special Secretary (Home), Government of Manipur, passed W.P. (Cril.) No. 12 of 2022 against the petitioner in exercise of power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. [2] Heard Mr. Md. Ajmal Hussain, learned counsel for the petitioner; Mr. Athouba Khaidem, learned Government Advocate, appearing for respondents No. 1, 2 & 4; and Mr. Vijayanand Sharma, learned Sr. PCCG, appearing for respondent No. 3. [3] FIR No. 88(8)2022 on the file of Irilbung Police Station, Imphal East District, was registered under Sections 21(b), 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 489 A IPC. Therein, the petitioner and others were arrayed as the accused and the case involved seizure of a commercial quantity of Methamphetamine (WY tablets). The petitioner was arrested in connection therewith, but apprehending that she would secure bail in relation to the subject FIR, the order of detention dated 21.09.2022 was issued. [4] The petitioner submitted representation dated 10.10.2022 against her detention to the State and Central Government authorities, through the Superintendent, Central Jail, Imphal. This representation was received by the State authorities on 12.10.2022 and was rejected on 31.10.2022. The same was communicated to the petitioner on the same day. [5] However, perusal of the file of the detaining authority, produced before the Court, reflects that para-wise comments were called for upon the said representation from the Director General of Police, Manipur, under letter dated

14.10.2022 of the Deputy Secretary (Home), Government of Manipur, but there is no evidence of any para-wise remarks being furnished by the police authorities in response to this letter. Upon institution of this writ petition, Mr. Athouba Khaidem, W.P. (Cril.) No. 12 of 2022 learned Government Advocate, addressed letter dated 21.10.2022 to the State authorities, asking for instructions along with relevant documents on or before

28.10.2022. Thereupon, the Deputy Secretary (Home), Government of Manipur, addressed letter dated 26.10.2022 to the Director General of Police, Manipur, requesting that para-wise comments along with relevant documents be furnished on or before 28.10.2022. Para-wise comments in relation to this writ petition were submitted by the Superintendent of Police, Imphal East District, Manipur, to the Deputy Secretary (Home), Government of Manipur, on 02.11.2022. In effect, no para-wise comments were received from the police authorities in the context of the petitioner’s representation for consideration by the State Government, before it rejected the said representation on 31.10.2022. Consideration of a detenu’s representation by the State Government is to decide whether or not the detention should be continued and it constitutes valuable protection to the detenu under the statute. It is not open to the State authorities to belittle this protection by undertaking the exercise in this casual manner. As the very rejection of the petitioner’s representation is clearly without application of mind, this Court is left with no alternative but to set aside the order of detention dated 23.09.2022. [6] 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 W.P. (Cril.) No. 12 of 2022 effect time and again, scant regard is shown by the authorities concerned to compliance with the prescribed norms. [7] Another aspect also needs to be taken note of. As already stated supra, the case against the petitioner and others involved a commercial quantity of a narcotic drug. Therefore, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 would have application and grant of bail would be subject to the stringent conditions thereof. In such a situation, the law laid down in Rekha Vs. State of Tamil Nadu through Secretary to Government and another [(2011) 5 SCC 244], to the effect that mere filing of a bail application would be sufficient to infer a possibility of the accused being released, would not apply and it would be the law laid down by the Supreme Court in Sayed Abul Ala Vs. Union of India and others [(2007) 15 SCC 208] that would have application. The Supreme Court observed therein that Section 37 of the Act of 1985 puts a limitation on the jurisdiction of the Court in the matter of grant of bail and in cases where the detenu is in custody, the detaining authority not only should be aware of the said fact but there should be material on record to justify that he 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 there exists a reasonable ground for believing that he was not guilty of such offence ant that the detenu would not indulge in similar activity, if set at liberty. [8] In the case on hand, the detaining authority merely referred to the fact that a bail application had been filed, without deciding whether there was a likelihood of the petitioner being released on bail, notwithstanding the applicability of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. W.P. (Cril.) No. 12 of 2022 [9] Thus, on both the above grounds, the order of detention dated

21.09.2022 of the Special Secretary (Home), Government of Manipur, is set aside. All consequential proceedings based thereon shall also stand set aside. Mrs. Taslima, 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. 12 of 2022 is accordingly allowed. In the circumstances, there shall be no order as to costs. 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. Sandeep JUDGE CHIEF JUSTICE W.P. (Cril.) No. 12 of 2022