T. Nandakumar Singh, J.@mdashHeard Mr. S. Rajeetchandra, learned Counsel appearing for the Petitioner and also Mr. Th. Ibohal, learned Sr. G A. appearing for the Respondents-1,2 and 3 as well as Mr. C. Komal, learned CGSC appearing for the Respondent No. 4, Union of India.
2. By this writ petition, the Petitioner-detenue is assailing the impugned detention order, approval order of the State Government only on the sole ground that because of the failure on the part of the appropriate Government to furnish all the copies of the documents which form the basis of the grounds of detention to the Petitioner-detenue, her rights under Article 22(5) of the Constitution of India has been infringed, as a result the continued detention of the Petitioner-detenue is illegal.
FACTUAL BACKGROUND
3. On 30.01.2010 at about 9.30 pm the Petitioner-detenue was picked up from Hatta Golapati where she usually stayed on a rent in connection with her business. It is stated that on registration of a regular FIR, i.e. FIR Case No. 24(1)2010 PRT PS u/s 420/372/34 IPC by the Officer in-charge of Porompat P.S., the Petitioner detenue along with others were arrested on charges of trafficking children outside the State for engagement as domestic helpers. On the next day, i.e. 31.1.2010 she was produced before the Duty Magistrate, who remanded her (Petitioner detenue) till 16.2.10 on the prayer of the I.O. of the said FIR. It is stated that while the Petitioner-detenue was injudicial custody in connection with the said FIR, on suo moto another FIR being No. 326(10) 2009 PRT PS u/s 307/427/34 IPC and 3 ExpL Subs. Act was registered and on the prayer of the I.O. concerned, she (Petitioner-detenue) was allowed to be arrested formally vide order dated 11.2.10 of the learned Magistrate in connection with the newly registered FIR case, i.e. FIR No. 326( 10)2009 PRT PS; and for the said two FIR cases the Petitioner-detenue was remanded into police custody till 11.2.10, thereafter, she was remanded into judicial custody.
4. While the Petitioner-detenue was in custody, on 19.2.10 the Petitioner-detenue was served with a copy of the impugned detention order dated 19.2.10 passed by the District Magistrate, Imphal East District directing the Petitioner-detenue to be detained u/s 3(2) of the National Security Act, 1980 (''NSA'' for short).
5. Under letter being No. Cril./NSA/ No. 15 of 2010 Porompat dated the 23.2.10 the District Magistrate (detaining authority) in accordance with the provisions of Section 8 of the NSA, furnished the grounds of detention along with copies of the documents which form the basis of the grounds of detention to the Petitioner-detenue. The documents which form the basis of the grounds of detention of the Petitioner-detenue are mentioned in para 6 of the said letter of the detaining authority (District Magistrate) dated 23.2.2010. Para 6 of the said letter of the detaining authority dated 23.2.10 read as follows:
6. Copies of the following documents which forms the basis of the grounds of your detention are enclosed herewith for your reference:
(i) Your statement given before the Investigating Officer on 13.2.2010.
(ii) Statement of SI.N. Shyam Singh of PRT PS. recorded u/s 161 Code of Criminal Procedure in c/w FIR No. 326Y10)2009 PRT PS u/s 307/427/34 IPC & 3 Expl. Subs Act,
(iii) Copy of arrest Memo dtd. 12.2.2010
(iv) Notification No. S. Order 2883 (E) dtd. 13.11.2009.
(v) Copy of order dtd. 11.2.2010 of CJM, Imphal.
(vi) Copy of FIR No. 269(8)09 PRT PS u/s 17/20 UA (P) A Act.
(vii) Copy of FIR No. 24(1)2010 PRT PS u/s 420/332/34 IPC.
(viii) Copy of Home Department, Govt, of Manipur Order No. 17(l)49/80-H (Pt.-I) dated 11.2.2010.
6. It is the case of the Petitioner-detenue that even if the said FIR, i.e. FIR No. 326 (10)2009 PRT PS was registered on suo moto, the concerned police officer of the Porompat PS, who registered the said FIR on suo moto should have recorded the substance of the reasons or information basing on which FIR case was registered on suo moto while registering the FIR.
7. It is the further case of the Petitioner-detenue that on conjoint reading of Sections 154, 155, 156 and 157 of the Code of Criminal Procedure, 1973 it is the bounden duty of the Police Officer concerned who registered the said FIR on suo moto to record the reasons and information basing on which the concerned police officer registered the said FIR on suo moto and copy of it should be sent forthwith to the Magistrate (Elaka Magistrate) who has been empowered to take cognizance of such offence upon a police report. The said reason or information for registration of the said FIR on suo moto is to be treated as the report of the said FIR. The said report is also to be copied on the back side of the duly filled up FIR form.
8. While furnishing the copy of the FIR No. 326(10)2009 PRT PS u/s 307/427/34 IPC and 3 E Xpl. Subs. Act which forms the basis of the ground of detention to the Petitioner-detenue, the said report of the FIR, which was to be copied on the back side of the FIR form was not furnished to the Petitioner-detenue. Accordingly, the application dated 16.3.10 was filed by the Petitioner-detenue to the District Magistrate, Imphal East (detaining authority) requesting to supply the said report of the FIR case No. 326(10)2009 PRT PS which was not supplied as only the incompletely filled up printed form of the said FIR was supplied to the Petitioner-detenue.
9. Vide letter dated 233.2010 the District Magistrate Imphal East District informed the Superintendent, Manipur Central Jail Imphal that the O.E. (report) of the said FIR case No. 326 (10) 2009 PRT P.S; had already been supplied at the time of service of grounds of detention to the Petitioner-detenu and it is also stated that a copy of the O.E. was also enclosed with the said letter for reference.
10. In para 8 of the present writ petition, the Petitioner-detenu categorically states that the copy of the O.E. (report) of the FIR case No. 326 (10) 2009 PRT PS was not enclosed with the said letter of the District Magistrate dated 23.3.2010 and as such the O.E. (report) of the said FIR, i.e. FIR No. 326 (10) 2010 PRT PS was never furnished to the Petitioner-detenu. The District Magistrate (Respondent No. 1) in his affidavit in-opposition filed in the present writ petition has not denied the content of the said para No. 8 of the writ petition.
11. As there is a disputed question of fact as to whether or not the report of the FIR case No. 326 (10) 09 PRT PS was really furnished to the Petitioner-detenue while furnishing the copies of the documents which form the basis of the grounds of detention under the said letter of the District Magistrate (detaining authority) dated 23.2.2010 as stated by the District Magistrate, Imphal East in his letter dated 23.3.10 and 23.2.2010, this Court had directed the learned Counsel appearing for the Petitioner-detenue and also the learned Sr. Government Advocate appearing for the Respondents to produce the said letter of the District Magistrate dated 23.2.10 and also 23.3.2010 served to the Petitioner-detenue along with the relevant Government file before this Court for perusal.
12. On careful perusal of the Government file and also the said letters of the District Magistrate dated 23.2.10 and 23.3.2010, it is crystal clear that the District Magistrate, while serving the grounds of detention along with the copies of the documents which form the basis of the grounds of detention under his letter dated 23.2.10 to the Petitioner-detenue, had not furnished the correct copies of the duly filled up printed FIR form of the FIR case No. 326 (10) 2009 PRT PS to the Petitioner-detenue; in such situation it is clear that the coverleaf or/back side of the duly printed FIR form of FIR case No. 326(10) 2009 PRT PS furnished to the Petitioner-detenu was not correct. In the copies of the duly filled up printed FIR form of FIR Case No. 326(10) 2009 PRT PS furnished to the Petitioner, the report of the FIR which was copied on the overleaf of the duly filled up printed FIR form was missing.
13. The framers of our constitution accepted the preventive detention as an unavoidable necessity but that necessity should not be aggravated by an interpretation which would drain Article 22(4) to (7) of its contents, if a reasonable alternative construction was possible, it would avoid that result
14. The Apex Court in
...It is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers. In matter where the liberty of the citizen is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of the law.
15. In
16. Lord Atkin in a great dissenting judgment Liversidge v. Sir John Anderson (1942) A.C. 244 declared "...amid the clash of arms, the laws are not silent....it has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the Executive, alert to see that any coercive action is justified in law.
17. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. The object of law of preventive detention is not punitive but only preventive. Prevention detention is an anticipatory measure and doesnot relate to an offence. It is resorted when the Executive is convinced that such detention is necessary in order to prevent the persons detained from acting in a manner prejudicial to certain objects which are specified by the law. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22; certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court." The Apex Court in
...May be that the detenue is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the loss of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus..." (Ref: Para 4 of the SCC in Rattan Singh''s case (supra)).
18. No doubt, the doctrine of preventive power of the Administrative/Executive authority constitutionally validates preventive process for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. The Apex Court in
The law preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of Clauses (1) and (2) of the said article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under:
22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." (Ref . para 3 of the SCC in Amir Shad Khan''s case (supra).
19. The Constitution Bench of the Apex Court in
20. More than half a century ago, the Constitution Bench in
...We think that the position will be clarified if it is appreciated in the first instance what are the rights given by Article 22(5). The first part of Article 22, Clause (5) gives a right to the detained person to be furnished with "the grounds on which the order has been made" and that has to be done "as soon as may be." The second right given to such person is of being afforded "the earliest opportunity of making a representation against the order". It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds, therefore, must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detained recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspended activities of the particular person is considered to fall. These conclusions are the "grounds" and they must be supplied. No part of such "grounds" can be held back nor can any more "grounds" be added thereto. What must be supplied are the "grounds on which the order has been made" and nothing less. The second right of being afforded "earliest opportunity of making a representation against the order" is not confined to only a physical opportunity by supplying paper and pen only. In order that a representation can be made the person detained must first have knowledge of the grounds on which the authorities conveyed that they were satisfied about the necessity of making the detention order. It is. therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to be detained person must be sufficient to attain that object. Ordinarily, the "grounds" in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenu is suspended of being engaged in and that will be sufficient to enable him to make a representation setting out this innocent activities to dispel the suspicion against him. Of course if the detenue is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same. It is significant that the clause does not say that the "grounds" as well as details of facts on which they are based must be furnished or furnished at one time. The law does not prescribe within what time after the grounds are furnished the representation could be made. The time in each case appears deliberately unprovided for expressly, because circumstances vary in each case and make it impossible to fix a particular time for the exercise of each of these two rights.
21. The Apex Court (Constitution Bench) in
13. The contention raised before the High Court has been repeated before us, that the grounds contained in para 4. are vague and indefinite, to enabling, the person detained to make his representation. It will appear from the paragraph aforesaid that the Petitioner intended to proceed to Delhi on October 9, 1958, with a view to instigating plans against the personal security of the Prime Minister. It is clear that the place, date and purpose of the planned nefarious activity, have all been stated as clearly as could be expected. But it was argued that it was also necessary to state that details of the plan to be hatched in Delhi. There are several answers to this contention. Paragraph 4 has reference to something which was apprehended but lay in the womb of the future. From the nature of the fact that it was not an event which had already happened but what was apprehended to be in the contemplation of the detenue and his associates, if any, no further details of the plan could possibly be disclosed. As was observed in the decision of this Court in
22. Keeping in view the ratio laid down by the Apex Court in the cases discussed above and also rights of the Petitioner-detenue guaranteed under Article 22(5) of the Constitution of India, we have considered the oral contentions of the parties and are of the view that the said report of the FIR No. 326( 10) 2009 PRT PS which form the basis of the grounds of detention should have been furnished to the Petitioner-detenue for filing effective representation inasmuch as it is the mandate of the Constitution of India to the detaining authority to furnish the same to the Petitioner-detenue.
23. It is fairly well settled that the procedural safeguards for protection of the Petitioner-detenue either under the Constitution or the NSA should be jealously guarded, and in case of failure to do so the continued detention of the Petitioner-detenue even if detained under the valid detention order, shall become illegal because of the subsequent failure on the part of the detaining authority to follow scrupulously the procedural safeguards.
24. The very purpose of constitutional powers under Article 226 being conferred on the High Courts is that no one should be subjected to injustice by violation of law. The Constitution of India is the supreme law of the land under which the sovereign power is distributed amongst legislature, executive and judiciary with checks and balances but to in water tight rigid mode.
25. The Apex Court (Constitution Bench) is
The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. It is with these considerations in mind that we approach the facts of this case.
26. The Apex Court in
...Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it (vide
(emphasis supplied)
27. The Apex Court in
The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour u/s 10(1), the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by a catena of decisions of this Court starting from
(emphasis supplied)
28. The Apex Court in
16. In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortage their own discretion, volition and deeision-making authority and be prepared to give way or being pushed back or present ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or irytne exercise of power conferred on him, act other wise than in his best judgment except when he is acting under the direction of his official superior. In
(emphasis supplied)
29. The Apex Court in
The manner in which the State has conducted itself in this case was unwarranted-It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavit enabling the Court to discharge its constitutional duties. The State and other authorities are bound to produce the/ complete records relating to the case once Rule is issued by the Court. It is needless to remind the Governments that they do to enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy ay unlimited discretion in this regard. No one needs to remind the State that they represent the collective will of the society. The State in the present case instead of filing its affidavit through higher officers of fee Government utilised the lower ones to make oral statements and that too through its AGP in the High Court. This malady requires immediate remedy. The Government should conduct itself in a responsible manner and assist the High Court by placing the true and relevant facts by filing a proper affidavit and documents that may be available with it. The legal advisor of Government should display greater trust, competence and attention in drafting affidavits.
30. The Apex Court in catena of cases-held that the Constitution has devised permanent bureaucracy as part of the political executive. The bureaucracy is also accountable for the act done in accordance with the rules when the judicial review is called to be exercised by the Court The hierarchical responsibility for the decisions is their inbuilt discipline. The bureaucrats/officers, whose decisions is subject to judicial review in a judicial proceedings under Article 226 of the Constitution of India, had submitted false affidavit in order to misguide the Courts is subject to imposition of cost personally for submitting false affidavit. The Apex Court in
The Constitution of Indians the supreme law of the land, having flown from "We, the people of India i.e. Bharat, having solemnly resolved to constitute India into a sovereign, socialist, secular democratic Republic. The sovereign power is distributed among the Legislature, the Executive and the Judiciary with checks and balances but not in waten tight rigid mould. In our democracy governed by the rule of law, the Judiciary has expressly been entrusted with the power of judicial review as sentinel on the qui vive. Basically judicial review of administrative actions as also of legislation is exercised against the action of the State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review.
31. For the foregoing discussion and the decisions of the Apex Court regarding the responsibility of the bureaucrats or/State Government to place the true and relevant facts by filing proper affidavit so as enable the Court to decide its constitutional duty, we are sorry in the given case to observe that the concerned authority of the State Government is not placing the true facts as to the furnishing of the report of the said FIR No. 326 (10) 2009 PRT PS to the Petitioner-detenue. We also reiterate that the fact the District Magistrate (detaining authority) has failed to furnish copies of the documents which form the grounds of detention inasmuch as only the incompletely duly filled up printed FIR form of the FIR case No. 326(10) 2009 PRT PS was furnished to the Petitioner-detenue.
32. Situated thus we are left with the unavoidable conclusion that the rights of the Petitioner-detenue guaranteed under Article 22(5) of the Constitution of India has been infringed; as a result the continued detention of the Petitioner-detenue, even if detained under a valid detention order, becomes illegal for failure of the detaining authority to follow scrupulously the procedural safeguards provided to the Petitioner-detenue both under the Constitution of India and the NSA.
33. For the reasons discussed above, the impugned detention order dated 19.02.2010, the approval order dated 02.03.2010 and the confirmation order dated 07.04.2010 are hereby quashed. The Petitioner-detenue, Mrs. Alisha Maram @ Thabalei, is set at liberty forthwith if she is, otherwise, not required in connection with any other cases.
34. The Registry of this Bench shall furnish copy of this judgment and order to the District Magistrate, Imphal East District for information and necessary action so as to avoid repetition of mistake in furnishing true facts to this Court.
