TMI Blog2010 (9) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... lear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and `grounds' as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid. In so far as the documents on which reliance is placed, in our opinion, none of these documents provide any reasonable basis for passing the detention order. The primary reliance has been on the accused's own statement made to an Investigating Officer. This cannot be said to be sufficient to form the subjective satisfaction of the detaining Authority. Statements u/s 161, of the Cr.P.C. cannot be taken as sufficient grounds in the absence of any supportive or corroborating grounds. Section 161 statements are not considered substantive evidence, but can only be used to contradict the witness in the course of a trial. The same is clear from the wording of Section 162(1) of the Cr.P.C and has been so held time and again by this Court. In Rajendra Singh v. State of Uttar Pradesh,[ 2007 (8) TMI 752 - SUPREME COURT] . Furthermore, none of the other documents substantiate the involvement of the detenu in unlawful activities as alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive detention such as this, as there is deprivation of liberty without trial, and subsequent safeguards are provided in Article 22 of the Constitution. They are, when any person is detained pursuant to an order made under any law providing for preventive detention, the authority making the order is required to communicate the grounds on the basis of which, the order has been made and give him an opportunity to make a representation against the order as soon as possible. It thus, cannot be doubted that the Constitutional framework envisages protection of liberty as essential, and makes the circumstances under which it can be deprived. 5) The appellant is the wife of Mr. Ranjit Oinamcha @ Oinam Ranjit Singh, who is the detenu under the National Security Act. She is questioning the detention order dated 24/09/2009 passed by the District Magistrate, Imphal West District, Manipur, against which, a challenge was made in the form of a habeas corpus petition in the Gauhati High Court (Imphal Bench) in Writ Petition (Crl.) No. 111/2009. By an order dated 18/02/2010, the High Court dismissed the writ petition. Aggrieved by the same, the appellant has filed this appeal. 6) The facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Unlawful Activities (Prevention) Act, 1967, and the detenu was arrested on 18/09/2009 and remanded into police custody till 24/09/2009. On 24/09/2009, he was presented before the Magistrate for judicial remand, and the detention order passed by the District Magistrate, Imphal West, was served on him. The Grounds of Detention were served on him on 28/09/2009, as required under Section 8 of the National Security Act. 8) The version of the detenu, on the contrary, as emerges from his Representation made to the Secretary, Ministry of Home Affairs, Government of India, as well as to the Chief Secretary, Manipur State, and the District Magistrate, Imphal West on 09/10/2009, is that he was indeed the editor of `Paojel', an evening daily, which was established on 08/04/2006. On 17/09/2009 at about 4:30 PM, Mr. Irom Priyobarta Singh @ Naocha, who was a `locality brother', brought to his residence a sum of ₹ 10,04,000/- for safe keeping, which he claimed was received for contract work, and which the detenu bona fide believed, and kept the money with him. The detenu then claims that at around 8:30 PM on the same day, police personnel of CDO, Imphal West, along with Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/2009 and it was forwarded to the Central Government on 16/10/2009 by the State Government and received only on 28/10/2009, before being finally rejected by the Central Government on 03/11/2009. 10) The detention order was questioned before the Gauhati High Court in W.P. (Crl.) No.111/2009. The Court in the course of its order has noticed the main contention of the petitioner (who is the appellant in this appeal). They are: (1) the allegations made in the detention order are vague and irrelevant and not sufficient to deprive the detenu of his fundamental rights guaranteed under Art. 22(5); (2) there are no cogent materials upon which the subjective satisfaction of the detaining Authority that the detenu was likely to be released on bail was arrived at; (3) there was a delay of 6 days in forwarding representation to the Central government. (4) All the procedural requirements of Article 22 are mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendered illegal. 11) The High Court has responded to each of these, by holding that the allegations projected in the grounds of detention have been corroborated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no adequate reasons for the same had been given by the respondents in either the affidavit or in the pleadings before the Court. 14) Per contra, the learned counsel for the State of Manipur Mr.Khwairakpam Nobin Singh urged the factual background on the basis of which the decision to detain had been taken, and the difficulty faced due to the special conditions prevailing in Manipur in getting the evidence to prove the illegal activities of people such as the detenu and further the prosecution would not be in a position to procure any evidence to sustain conviction. It is also urged that with the documents available, the detaining authority could form an opinion that the person to be detained is likely to act in a manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order etc. He did not, however, provide any explanation regarding the reason for delay in forwarding the representation. The learned counsel appearing for the Union of India Ms. Charu Wali Khanna, when questioned by this Court, also did not shed any further light on this issue. 15) To decide the correctness or otherwise of the detention orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detaining such person, are subject to judicial review. (emphasis supplied) (Para 5). 18) In State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, this Court held: ...the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in. (emphasis supplied) (Para 9). 19) In State of Rajasthan v. Talib Khan, (1996) 11 SCC 393, this Court observed that: ...what is material and mandatory is the communication of the grounds of detention to the detenu together with documents in support of subjective satisfaction reached by the detaining authority. (emphasis supplied) (Para 8). 20) What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be two fold. The detaining authority must be satisfied that the person to be detaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Jammu Kashmir and Ors. (AIR 1979 SC 1925) has observed that under Article 22(5), a detenu has two rights (1) to be informed, as soon as may be, of the grounds on which his detention is based and (2) to be afforded the earliest opportunity of making a representation against his detention. The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and `grounds' as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid. In so far as the documents on which reliance is placed, in our opinion, none of these documents provide any reasonable basis for passing the detention order. The primary reliance has been on the accused's own statement made to an Investigating Officer. This cannot be said to be sufficient to form the subjective satisfaction of the detaining Authority. Statements under Section 161, Code of Criminal Procedure, 1973, (hereinafter Cr.P.C.) cannot be taken as suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indifference or avoidable delay on the part of the authority, the detention becomes vulnerable. (emphasis supplied) (Para 6). 26) On the specific ground of delay in forwarding the representation under the National Security Act, it has been observed by this Court in Haji Mohd. Akhlaq v. District Magistrate, 1988 Supp (1) SCC 538, that: There can be no doubt whatever that there was unexplained delay on the part of the State Government in forwarding the representation to the Central Government with the result that the said representation was not considered by the Central Government till October 16, 1987 i.e. for a period of more than two months. Section 14(1) of the Act confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply a right in a detenu to make representation to the Central Government against the order of detention. Thus, the failure of the State Government to comply with the request of the detenu for the onward transmission of the representation to the Central Government has deprived the detenu of his valuable right to have his det ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
