04-01-2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 26 OF 2012
(Arising out of SLP(Crl) No.7926 of 2011)
YUMMAN ONGBI LEMBI LEIMA … APPELLANT
Vs.
STATE OF MANIPUR & ORS. … RESPONDENT
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. Under the Detention Order No.Cril/NSA/No.10 of
2011, Imphal, the 31st January, 2011, issued by the
District Magistrate, Imphal West District, Manipur,
the Appellant’s husband, Yumman Somendro @ Somo @
Tiken, was detained under the provisions of the
National Security Act, 1980. The said detention
order was approved by the Governor of Manipur on 7th
February, 2011, in exercise of his powers conferred
under Section 3(4) of the aforesaid Act. The order
of the Governor of Manipur dated 18th March, 2011,
confirming the detention order passed against the
husband of the Appellant and fixing the period of
detention for 12 months on the subjective
satisfaction of the detaining authority that the
detenu was likely to be released on bail by the
normal criminal Courts in the near future, was
challenged on behalf of Yumman Somendro in the
Gauhati High Court (Imphal Bench), but without
success. This Appeal is directed against the said
order of the High Court and the order of detention
itself. Earlier, the Appellant’s husband had been
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arrested on 21st March, 1994 in connection with FIR
No.478(3)1994 IPS u/s 13 Unlawful Activities
(Prevention) Act, but was released on bail by the
normal criminal Court. Despite the above, again on
29th June, 1995, the Appellant’s husband was
arrested in connection with FIR No.450(6)95 under
Churachandpur P.S. under Sections 386 and 34 IPC.
Though he was released on bail by the normal
criminal Court, he was again arrested under Section
13 UA (P) Act in connection with FIR No.190(5)98
and was released on bail on 8th July, 1998. After
being released on bail by the normal Criminal
Court, Yumman Somendro was again arrested on 16th
January, 2011, in connection with FIR No.21(1)11
IPS under Section 302 IPC for the alleged murder of
the then Chairman of the Board of Secondary
Education, Manipur, Dr. N. Kunjabihari Singh. The
Appellant’s husband was produced before the
Magistrate on 17th January, 2011, who remanded him
3
to police custody till 31st January, 2011. On the
said date, he was further remanded to police
custody till 2nd February, 2011, and when he was
produced before the Chief Judicial Magistrate in
connection with the said case, he was served with a
copy of the detention order dated 31st January,
2011, issued by the District Magistrate, Imphal
West, under the National Security Act, 1980.
3. On 31st January, 2011, the Appellant’s husband
was served with the grounds of detention under the
National Security Act, 1980, under the authority of
the District Magistrate, Imphal West. Along with
the said order, copies of the documents on which
the detaining authority had relied on to arrive at
the conclusion that the detention of the
Appellant’s husband was necessary, was also served
on him.
4
4. On a perusal of the grounds of detention, it is
clear that the subjective satisfaction of the
detaining authority is founded on the belief that
after having availed of bail facility, the
Appellant’s husband could indulge in commission of
further prejudicial activities. An alternative
preventive measure was, therefore, immediately
needed in the circumstances.
5. On behalf of the Appellant, Mr. Sanjay Parikh,
relied heavily on the decision of this Court in
Rekha Vs. State of Tamil Nadu through Sec. to Govt.
[(2011) 4 SCC 260], in which it had been held that
in the absence of material particulars in similar
cases in which bail had been granted, the
subjective satisfaction of the detaining authority
was merely a ruse for issuance of the impugned
detention order. After considering various
decisions of this Court and the views of several
jurists and the submissions made on behalf of the
5
parties, the Division Bench of the High Court was
of the view that the subjective satisfaction of the
detaining authority was based on proper material
and the detaining authority was also aware that the
detenu was in custody and was likely to be released
on bail. The detaining authority, therefore, was
of the view that the detention of the detenu was
required in order to prevent him from acting in a
manner prejudicial to the maintenance of public
order as he was likely to be released on bail in
the near future by the normal criminal Courts. On
the aforesaid reasoning, the Division Bench of the
High Court dismissed the Writ Petition filed by the
detenu’s wife.
6. The main contention urged by Mr. Parikh
appearing for the Appellant was that the personal
life and liberty of a person was too precious to be
allowed to be interfered with in the manner in
which it had been done. Mr. Parikh submitted that
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as would be evident, the detention order was passed
on a mere supposition that the Appellant’s husband
was likely to be released on bail in the near
future in connection with the case in respect of
which he had been arrested and that in view of such
future apprehension, the detention order was sought
to be legitimised. Mr. Parikh submitted that not
only had the Appellant’s husband not applied for
bail at any stage, nor was there any indication
that he intends to do so, which could give rise to
the supposition that in the future there was every
likelihood that he would be released on bail. Mr.
Parikh submitted that supposition could never take
the place of facts which were necessary to
establish a case which warranted the detention of a
person without any trial.
7. Mr. Parikh pointed out that Yumman Somendro had
been arrested in connection with several cases, but
had been released on bail in all the said cases
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till ultimately an order of detention was passed
against him under the National Security Act, 1980,
on the flimsiest of excuses. Mr. Parikh submitted
that if at all the Appellant’s husband was alleged
to have committed a crime which was punishable
under the Indian Penal Code, the same could not be
equated with the national security in any way,
which warranted the issuance of a detention order
under the National Security Act, 1980.
8. Referring to the provisions of Section 3 of the
aforesaid Act, Mr. Parikh submitted that the sine
qua non for an order of detention to be passed
under the National Security Act, 1980, is that the
Central Government or the State Government would
have to be satisfied that in order to prevent any
person from acting in any manner prejudicial to the
security of the State or from acting in any manner
prejudicial to the maintenance of the public order
or from acting in any manner prejudicial to the
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maintenance of supply of services essential to the
community that it was necessary so to do, make an
order directing that such person be detained. Mr.
Parikh submitted that although the Appellant’s
husband had been charged with having committed an
offence under Section 302 IPC, Section 386 and
Section 13 Unlawful Activities (Prevention) Act,
there was no material whatsoever to bring the
Appellant’s husband within the ambit of the grounds
enumerated in Sub-Section (2) of Section 3 of the
aforesaid Act. Mr. Parikh submitted that the order
of detention had been passed not for the reasons
enumerated in Sub-Section (2) of Section 3, but
since the police was unable to pin any offence
against the Appellant’s husband on account whereof
he could be denied bail by the Courts.
9. In support of his submissions, Mr. Parikh
firstly referred to the decision of this Court in
Union of India Vs. Paul Manickam & Anr. [(2003) 8
9
SCC 342], wherein while considering the delay in
disposal of a representation in the matter of
preventive detention, this Court noticed that when
the detenu was already in custody, the anticipated
and apprehended acts were practical
impossibilities, as was the case as far as the
Appellant’s husband is concerned. This Court
further observed that as far as the question
relating to the procedure to be adopted in case the
detenu is already in custody is concerned, the
detaining authorities would have to apply their
minds and show their awareness in this regard in
the grounds of detention. The necessity of keeping
such person in detention under preventive detention
laws have to be clearly indicated. It was further
observed that the subsisting custody of the detenu
by itself does not invalidate an order of his
preventive detention and the decision in this
regard has to depend on the facts of each case.
10
However, preventive detention being necessary to
prevent the detenu from acting in any manner
prejudicial to the security of the State or to the
maintenance of public order or economic stability,
ordinarily it is not needed when the detenu is
already in custody and the detaining authority must
be reasonably satisfied with cogent materials that
there is likelihood of his release and in view of
his antecedent activities which are proximate in
point of time, he must be detained in order to
prevent him from indulging in such prejudicial
activities.
10. Mr. Parikh also referred to another decision of
this Court in Haradhan Saha Vs. The State of West
Bengal & Ors. [(1975) 3 SCC 198], wherein in the
case of a preventive detention order passed under
the Maintenance of Internal Security Act, 1971, the
distinction between preventive detention and
criminal prosecution was sought to be defined and
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it was held that the essential concept of
preventive detention is that the detention of a
person is not to punish him for something he has
done, but to prevent him from doing it. It was
further observed that the basis of detention is the
satisfaction of the Executive of a reasonable
probability or the likelihood of the detenu acting
in a manner similar to his past acts and preventing
him by detention from doing the same. The criminal
conviction, on the other hand, is for an act
already done which can only be possible by a trial
and legal evidence.
11. Referring to the Division Bench order dated 31st
January, 2011, Mr. Parikh submitted that the same did
not contain any material whatsoever on which the
detaining authority could have arrived at a
satisfaction that Yumman Somendro had acted in any
manner which warranted his detention under the
provisions of Section 3(2) of the National Security
12
Act, 1980. The only reason given for issuing such order
of detention was that Yumman Somendro, who was in
police custody, was likely to be released on bail in
the near future by the normal criminal Courts, as,
according to him, bails are granted in similar cases by
the criminal Courts. Mr. Parikh submitted that this is
a case where the detention order passed against the
Appellant’s husband was without any basis whatsoever
and had been resorted to on account of the failure of
the police to keep him in judicial custody.
12. On the other hand, appearing for the State of
Manipur, Mr. Jaideep Gupta, learned Senior Advocate,
repeated the facts indicated earlier to the effect that
the Appellant’s husband had been arrested in
connection with several cases and, in particular, for
the murder of Dr. N. Kunjabihari Singh, the then
Chairman of the Board of Secondary Education,
Manipur, in his office room on 11th January, 2011.
Mr. Gupta submitted that it was subsequent to the
13
murder of Dr. N. Kunjabihari Singh that on 31st
January, 2011, the order of detention was passed
under Section 3 of the aforesaid Act and was served
on the Appellant’s husband, while he was in
judicial custody, on 2nd February, 2011. It was
also submitted that thereafter the grounds of
detention were provided to the Appellant’s husband,
as required under Section 8 of the above-mentioned
Act to enable him at the earliest opportunity of
making a representation against the order to the
appropriate Government. The detention order was
considered by the State Government which approved
the same on 7th February, 2011, and the
representation made by Yumman Somendro to the State
Government was rejected on 10th February, 2011. The
matter was, thereafter, referred to the Advisory
Board which came to the conclusion that since
Yumman Somendro was a member of the banned
organization, Kanglei Yaol Kanna Lup, he was a
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potential danger to society, whose activities were
prejudicial to the maintenance of public order and
there was a likelihood that he would continue such
activities the moment he was released from
detention and accordingly he should be detained for
the maximum period of 12 months, as provided under
Section 13 of the Act. Mr. Gupta submitted that
since the detention order was to end on 31st
January, 2012, there could be no reason to
interfere with the same prior to its dissolution by
efflux of time.
13. Having carefully considered the submissions
made on behalf of respective parties, we are
inclined to hold that the extra-ordinary powers of
detaining an individual in contravention of the
provisions of Article 22(2) of the Constitution was
not warranted in the instant case, where the
grounds of detention do not disclose any material
which was before the detaining authority, other
15
than the fact that there was every likelihood of
Yumman Somendro being released on bail in
connection with the cases in respect of which he
had been arrested, to support the order of
detention. Article 21 of the Constitution enjoins
that no person shall be deprived of his life or
personal liberty except, according to procedure
established by law. In the instant case, although
the power is vested with the concerned authorities,
unless the same are invoked and implemented in a
justifiable manner, such action of the detaining
authority cannot be sustained, inasmuch as, such a
detention order is an exception to the provisions
of Articles 21 and 22(2) of the Constitution.
14. When the Courts thought it fit to release the
Appellant’s husband on bail in connection with the
cases in respect of which he had been arrested, the
mere apprehension that he was likely to be released
on bail as a ground of his detention, is not
16
justified. In addition to the above, the FIRs in
respect of which the Appellant’s husband had been
arrested relate to the years 1994, 1995 and 1998
respectively, whereas the order of detention was
passed against him on 31st January, 2011, almost 12
years after the last FIR No.190(5)98 IPS under
Section 13 of the Unlawful Activities (Prevention)
Act. There is no live link between the earlier
incidents and the incident in respect of which the
detention order had been passed.
15. As has been observed in various cases of
similar nature by this Court, the 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
17
to whether such acts are in any way prejudicial to
the interest and the security of the State and its
citizens, or seek to disturb public law and order,
warranting the issuance of such an order. An
individual incident of an offence under the Indian
Penal Code, however heinous, is insufficient to
make out a case for issuance of an order of
preventive detention.
16. In our view, the detaining authority acted
rather casually in the matter in issuing the order
of detention and the High Court also appears to
have missed the right to liberty as contained in
Article 21 of the Constitution and Article 22(2)
thereof, as well as the provisions of Section 167
of the Code of Criminal Procedure.
17. The Appeal must, therefore, succeed. The
impugned order of detention dated 31st January,
2011, passed by the District Magistrate, Imphal
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West District, Manipur, in regard to the detention
of Yumman Somendro @ Somo @ Tiken son of Y. Roton
Singh, is hereby quashed. The Appeal accordingly
succeeds. Let the Appellant’s husband, Yumman
Somendro, be released from custody, if he is not
required in connection with any other case.
……………………………………………………J.
(ALTAMAS KABIR)
……………………………………………………J.
(SURINDER SINGH NIJJAR)
……………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated: 04.01.2012
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