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Case Number

W.P No. 51 of 2007

Attorney(S)

Ph.Sanajaoba
N.Ibotombi Singh
R.S.Reisang

Judges

T. Vaiphei
T. Nk. Singh, JJ.

Acts

60(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.(I) Demanded Rs. 20
61(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(A) A. Act.(I) Demanded Rs. 15
62(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(A) A. Act.(I) Demanded Rs. 10
63(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.(I) Demanded Rs. 10
64(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.(I) Demanded Rs. 10
SECTION 3 NATIONAL SECURITY ACT 1980
SECTION 8 NATIONAL SECURITY ACT 1980
65(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.(I)
240(8) 2007 IPC under Section 16/17/20 UA(P) A Act
Section 3(2) of the National Security Act

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Smart Summary

Judgment Summary — T. Nk. Singh, J.

Factual and Procedural Background

The writ petition challenges the detention of Shri Lourembam Sana Singh (alias Nilachandra) under an order dated 11-9-2007 passed by the District Magistrate, Imphal West, under Section 3(2) read with Subsection (3) of Section 3 of the National Security Act, 1980 (NSA). The detention order was approved by the Government of Manipur (order dated 22-9-2007) and confirmed (order dated 25-9-2007). The detenu had been arrested on 17-8-2007 by Imphal West Police/Commando personnel from the quarter of an MLA and was in judicial custody (Manipur Central Jail, Sajiwa). Multiple FIRs were registered against him alleging membership of the banned organisation KYKL and involvement in extortion, threats and related offences; weapons and related articles were also said to have been seized during searches. Grounds of detention (with supporting documents) were served to the detenu within the period prescribed by Section 8 of the NSA. The detenu filed a joint representation dated 22-9-2007 to the Chief Secretary, Government of Manipur and to the Secretary, Government of India, Ministry of Home Affairs (Department of Internal Security). The present writ petition attacked the detention order on two grounds (non-application of mind and delay in disposing the representation). The Court heard counsel for the petitioner and for the State and Central respondents and, after analysis, dismissed the writ petition.

Legal Issues Presented

Whether the detention order dated 11-9-2007 is invalid for non-application of mind by the detaining authority, in particular because there was purportedly no material showing (a) that the detenu was likely to be released on bail and (b) that ordinary criminal law would be ineffective to prevent further prejudicial activities.
Whether there was an inordinate or unexplained delay in disposal of the detenu's representation dated 22-9-2007 (made to the State and Central authorities) such that the delay rendered the continued detention impermissible and illegal.

Arguments of the Parties

Petitioner's Arguments (Mr. Ph. Sanajaoba)

Challenged the detention order on the ground of non-application of mind by the detaining authority, asserting that there was no material to show probability of release on bail or that ordinary criminal processes would be ineffective to prevent further prejudicial acts.
Contended there was inordinate delay in disposal of the joint representation dated 22-9-2007 to the Central Government (which, the petition asserts, was rejected by the Union Home Ministry only on 8-11-2007).
Contended that the State respondents' explanations for delay were not specifically pleaded in their counter-affidavit.

Respondents' Arguments (Mr. R.S. Reishang and State respondents; Mr. N. Ibotombi for Central respondent)

For the State respondents: the detaining authority applied its mind, and there was material (documentary and information) supporting subjective satisfaction that the detenu, if released, would likely indulge in prejudicial activities and that ordinary criminal law would be ineffective.
Regarding the representation: the 22-9-2007 document was a joint representation addressed to both the State and Central authorities. The State respondents took a bona fide view that if the joint representation was considered and rejected by the State, forwarding to the Central Government might not be necessary. The State processed the joint representation promptly; there were short delays attributable to holidays and file processing; the joint representation was forwarded to the Central Government after the State's rejection. The State argued there were reasonable explanations for the short delay (described as 7 days in forwarding) and that the representation was otherwise processed expeditiously.
The Central respondent's specific submissions are recorded as having been heard, but the opinion contains no granular detail of separate arguments advanced by the Central Government counsel beyond the fact of appearance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kartar Singh v. State of Punjab, (1994) 3 SCC 569	Observation on the proper role of judiciary and interpretation of law (quoted at the start of the opinion).	Quoted in the opinion's introductory discussion to underline the judiciary's role in reviewing executive action under preventive detention laws.
Dwarika Prasad Sahu v. State of Bihar, (1975) 3 SCC 722 : AIR 1975 SC 134	Subjective satisfaction of detaining authority is invalid if based on non-existent or irrelevant grounds.	Applied to emphasize that the court must test whether the detaining authority's subjective satisfaction was grounded in relevant materials; the court found the satisfaction here was supported by materials and therefore valid.
A.P. Saravanan v. State of Tamil Nadu, (2001) 10 SCC 212	There are no fixed standards under the NSA for arriving at subjective satisfaction; such satisfaction may be cumulative from all materials placed before the authority.	Relied upon to affirm that the detaining authority's subjective satisfaction based on the cumulative materials supplied by the police was permissible and that absence of a statutory checklist did not invalidate the detention.
Gurudayal Singh v. Union of India, (2002) 1 SCC 545 : AIR 2002 SC 10	Support for validity of preventive detention where detaining authority has formed subjective satisfaction on relevant material.	Invoked to support the conclusion that the detention order could not be struck down on the ground of non-application of mind when materials justified the subjective satisfaction.
Union of India v. Paul Manickam, (2003) 8 SCC 342	Preventive detention is an anticipatory, not punitive, measure; it rests on executive satisfaction and discretion, and objective rules cannot be exhaustively laid down.	Used to explain the nature of preventive detention and to justify deference to executive satisfaction where supported by materials.
Kamarunnissa v. Union of India, (1991) 1 SCC 128	Where a person is in custody, a detention order is valid if: (1) authority is aware the person is in custody, (2) there is reliable material that release on bail is a real possibility and that release would likely lead to prejudicial activity, and (3) detention is essential to prevent such activity.	The Court applied this three-part test and found that the detaining authority was aware of custody, had material to believe release on bail was possible and would lead to prejudicial activity, and therefore the detention met the Kamarunnissa criteria.
Ramesh Yadav (as referred)	Authority should not pass detention orders merely to pre-empt bail; ordinarily detention should not be used to circumvent criminal process.	Cited by the Court to note the established caution against using preventive detention merely to pre-empt bail, while observing that where facts demand, preventive detention may nonetheless be valid; applied to distinguish the present case from impermissible pre-emption.
K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India, (1991) 1 SCC 476	Representation under Article 22(5) concerns life and liberty (Article 21); the Government is obligated to consider such representations "as early as may be" and without unavoidable delay.	Applied in assessing the constitutional mandate to deal with the detenu's representation with expedition; the Court required an explanation of any delay and examined the State's account against this requirement.
Lama Dhondu Borade v. V.K. Saraf, (1989) 3 SCC 173	The detenu has an independent constitutional right to make representation under Article 22(5); authorities must deal with it with reasonable dispatch.	Relied on to reinforce the duty of prompt consideration of representations and to frame the standard for assessing the explanation of delay in the present case.
Rajammal v. State of T.N., (1999) 1 SCC 417	The test for delay in disposing of a representation is the explanation offered by the authority, not merely the length of delay.	Applied to assess whether the State's explanation for the handling and timing of the joint representation was adequate; the Court accepted the State's explanation as sufficient.
Senthamil Selvi v. State of T.N., (2006) 5 SCC 676	Court's duty is to ensure there was no negligence, callous inaction or avoidable red tape in disposing of a representation; if there is remissness, detention becomes vulnerable.	Used as a framework to scrutinize the State's conduct; the Court concluded there was no remissness or avoidable delay in the facts of this case.
Smti. Manjushri Raha v. B.L. Gupta, (1977) 2 SCC 174 : AIR 1977 SC 1158	Pleadings should be interpreted with latitude and not with formalistic rigour, especially considering low legal literacy of many litigants.	Applied to reject the petitioner's contention that imperfect or technical pleading defects in respondents' counter-affidavit should defeat the State's explanatory case regarding delay.
Nagubal Ammal v. B. Sharma Rao, AIR 1956 SC 593	Rule of specific pleadings may not apply where parties go to trial with knowledge that a question is in issue despite lack of precise pleading.	Relied upon to support the proposition that strict pleading rules should not nullify substantive explanations provided by the State in its affidavit and conduct.
Madan Gopal Kanodia v. Mamraj Maniram, (1977) 1 SCC 669 : AIR 1976 SC 461	Pleadings are often loosely drafted and courts should not defeat genuine claims on trivial technicalities.	Applied to reinforce that imperfect pleadings in the context of life-and-liberty litigation must be viewed leniently; helped the Court decline the petitioner's submission about defective pleading on delay explanations.
Mohinuddin @ Moin Master v. District Magistrate, Beed, (1987) 4 SCC 58 : AIR 1987 SC 1977	Court should not dismiss habeas corpus or life-and-liberty claims merely for imperfect pleadings.	Invoked to buttress the Court's approach of examining the substance of the State's explanation rather than rejecting it on technical pleading grounds.

Court's Reasoning and Analysis

The Court proceeded in two main analytical strands corresponding to the two grounds raised by the petitioner.

Analysis of Ground No. 1 — Non-application of mind

The Court first recapitulated the factual matrix: the detenu's arrest on 17-8-2007 from an MLA's quarter; registration of multiple FIRs alleging extortion, threats and other offences; particulars of alleged extortion (lists of establishments and sums), demands made by telephone, and seizure of ammunition and dismantled weapon parts. The grounds of detention (and supporting documents) were served to the detenu within the statutory period.

The Court observed the settled principle that subjective satisfaction recorded by a detaining authority must be founded on relevant material and that satisfaction based on irrelevant or non-existent material will be invalid (citing Dwarika Prasad Sahu). It then analysed the materials before the detaining authority and concluded that the subjective satisfaction was the cumulative result of the documentary evidence and information supplied by the Superintendent of Police. The Court relied on precedents (A.P. Saravanan; Gurudayal Singh; Union of India v. Paul Manickam; Kamarunnissa) explaining the nature of preventive detention and the circumstances in which a person in custody may validly be detained under preventive law.

Applying the Kamarunnissa test, the Court found that (1) the detaining authority was aware the detenu was in custody; (2) there was material to believe that there was a real possibility of release on bail and that upon release the detenu would likely commit prejudicial activities; and (3) it was essential to detain the detenu to prevent such activity. Consequently, the Court concluded that the first ground (non-application of mind) was unsustainable.

Analysis of Ground No. 2 — Delay in disposal of representation dated 22-9-2007

The Court considered the constitutional guarantee under Article 22(5) that the detenu be afforded the earliest opportunity to make representation and that authorities deal with such representation "as early as may be." The Court reviewed the body of case law (K.M. Abdulla Kunhi, Lama Dhondu Borade, Rajammal, Senthamil Selvi) which establishes that while there is no fixed statutory period for disposing representations, authorities must act expeditiously and must explain any delay; the test is the adequacy of the explanation rather than the bare duration.

Turning to the facts, the Court noted the State respondents' account: the jail forwarded the joint representation; the State received it on 24-9-2007 (the 23rd being a Sunday); the representation was processed on 25-9-2007; the matter was placed before the Joint Secretary (Home) on 29-9-2007; 30-9-2007 was a Sunday; the State Government examined and rejected the representation on 4-10-2007; the result was communicated to the detenu in early November (the opinion records forwarding to the Central Government after State rejection and refers to dates of communication including 5-11-2007 and an earlier reference to 8-11-2007). The State argued bona fide reasons for any short delay in forwarding the joint representation to the Central Government, given that it had taken a view the joint representation could be disposed of by the State itself.

The Court also addressed the petitioner's challenge that the explanations were not specifically pleaded. Relying on precedents (Smti. Manjushri Raha; Nagubal Ammal; Madan Gopal Kanodia; Mohinuddin), the Court held that pleadings should not be interpreted with rigid formalism and that life-and-liberty litigation calls for a liberal approach to pleadings. Having regard to the State's explanations and the processing timeline, and applying Rajammal and Senthamil Selvi, the Court found no supine indifference, slackness, or callousness on the State's part; there was an adequate explanation for the timeline and no unexplained delay that would render the continued detention illegal.

Holding and Implications

Holding: The writ petition challenging the detention order dated 11-9-2007 is DISMISSED.

Implications and immediate consequences:

The detention order under the NSA as challenged in the petition stands; the Court found both grounds advanced by the petitioner to be unsustainable on the record before it.
The Court applied established precedents on preventive detention and the handling of detenu representations; it did not purport to lay down any new legal standard beyond those precedents.
No broader novel precedent was announced; the decision affirms the principles that (a) subjective satisfaction under preventive detention must be based on relevant materials (but need not conform to a rigid statutory checklist), and (b) delays in disposing representations must be explained and assessed for remissness rather than measured by a strict temporal limit.

Disposition: Petition dismissed.

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Lourembam Sana Singh v. State Of Manipur & Ors.

T. Nk. Singh, J.:— The doctrine of preventive power of the Administrative/Executive authority, constitutionally validate preventive processes for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. Even so, deprivation of personal freedom, must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution.

2. Justice S. Ratnavel Pandian in Kartar Singh v. State of Punjab (C/B), reported in (1994) 3 SCC 569 : (1994 Cri LJ 3139) ob served that:

“When Law ends. Tyranny begins: Legislation begins where Evils begins. The function of the Judiciary begins when the function of the Legislature ends. Because the law is when the Judges say it is since the power to interpret the law vests in the Judges.”

3. The challenge in the present writ petition is to the detention order being No. Cril/NSA/No. 49 of 2007 dated 11-9-2007 passed by the District Magistrate, Imphal West in exercise of the powers conferred under Subsection (3) of Section 3 of the National Security Act, 1980 read with Home Department's Order No. 17(1)/49/80-H(Pt-I) dated 1-9-2007 directing Shri Lourembam Sana Singh alias Nilachandra, s/o Shri L. Jugeshwar Singh who is now in judicial custody be detained under Section 3(2) of the National Security Act until further order, order of the Government of Manipur dated 22-9-2007 approving the detention order dated 11-9-2007 and also the order of the Government of Manipur dated 25-9-2007 confirming the detention order dated 11-9-2007.

4. Heard Mr. Ph. Sanajaoba, learned counsel appearing on behalf of the petitioner as well as Mr. R.S Reishang, learned Government Advocate appearing for the respondent Nos. 1, 2 and 3. Also heard Mr. N. Ibotombi, learned CGSC appearing for the respondent No. 4.

5. The petitioner is assailing the detention order only on two grounds:—

i) There is non-application of mind of the detaining authority in passing the detention order dated 11-9-2007 inasmuch as there is no material to show that the detenu is likely to be released on bail and also that the normal application of criminal law against the detenu will not at all be effective to prevent him from the commission of further judicial activities.

ii) There is inordinate delay in disposal of the representation dated 22-9-2007 filed by the detenu to the Secretary, Government of India, Ministry of Home Affairs, Department of Internal Security inasmuch as the representation dated 22-9-2007 was rejected by the Union Home Ministry only on 8-11-2007.

6. In order to decide the two grounds for assailing the detention order, a short facts leading to the filing of the present writ petition is required to be recapitulated. On 17-8-2007, the detenu Shri Lourembam Sana Singh was arrested from the quarter of MLA Shri W. Brajabidhu Singh by the Imphal West Police, Commando personnel on the allegation that he is an active member of the unlawful organization namely “KYKL” and a regular police case being FIR No. 240(8) 2007 IPC under Section 16/17/20 UA(P) A Act was registered against him and he was also formerly arrested in connection with other 7 (seven) police cases namely:—

i) FIR No. 60(6) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act

ii) FIR N. 61(6) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act

iii) FIR N. 62(6) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act

iv) FIR N. 63(6) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act

v) FIR N. 64(6) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act

vi) FIR N. 65(6) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act

vii) FIR N. 84(8) 2007 City P.S u/s-387/353/34 IPC & 17/20 UA(P) A Act.

7. While the detenu was in judicial custody i.e Manipur Central Jail Sajiwa, detention order dated 11-9-2007 passed by the District Magistrate, Imphal West, Manipur was served to the detenu. Within the permissible period under Section 8 of the National Security Act 1980 (for short NSA), the detenu was served with the grounds of order of detention along with the copies of the documents which formed basis of Page: 2849grounds of detention under the letter of the District Magistrate, Imphal West dated 15-9-2007.

8. In the ground No. 2 of the order of detention it is specifically mentioned that the detenu and his associates mentioned in the said ground had extorted annual tax from the hotel, private agencies etc. etc. located in the Imphal. The particular of the documents basing on which the detention order had been passed also mentioned in the grounds of detention. Over and above, the copies of the documents which formed grounds of detention were also furnished to the detenu.

9. In the ground No. 5 of the detention order, the detaining authority had specifically mentioned that after having availed of bail facilities and becoming a free person the detenu being a hard core member of the unlawful organization KYKL (Kanglei Yaol Kanba Lup) would continue to indulge in prejudicial activities to the security of the State and maintenance of the public order and as such application of normal criminal law against the detenu will not at all be effective to prevent the detenu from the commission of further prejudicial activities.

10. Under ground No. 7 of the order of detention, the detenu had been informed his right to make representation to the Chief Secretary, Government of Manipur and Secretary to the Government of India Ministry of Home Affairs (Department of Internal Security), North Block. New Delhi in respect of the representation to the Central Government. For ready reference, the relevant portion of the grounds of order of detention dated 15-9-2007 are quoted hereunder:—

1. That you joined the banned organization namely Kanglei Yaol Kanba Lup (KYKL, in short) in the week of August, 2006 through Shri Ashok Singh (32 years) of Wagjing Bazar, an important member of KYKL ……… ……. …… …. …… …. ……. …. … ……. ……. ……. …… …… ………… ………. ……. ……. …… …… …… …………

2. That, just after joining the KYKL organization you worked in the Central Bureau, Finance II, Imphal West, KYKL, under the command of Shri Kh. Sanatamacha @ Somorjit Singh @ Radha @ Shanti @ Kiran (30) of Thanga Lawai Sabal Leikai S/S Sgt. Major and in-charge Imphal West Finance II of KYKL since September, 2008. Shri Loktongbam Dinesh Meitei @ Dine @ Bedanta was 2-i-c of Imphal West Finance II. About 10 KYKL cadres including Shri Kongrailat Giridhari Sharma @ Sharma (31 years) of Maharabi Makha Leikai, R.K Robindro Singh ® Sanjoy ® R.K of Naoremthong Khullem Leikai and Shri Soberson Meitei @ Captain ® Nanao of Top Awang Leikai were working in Imphal West Finance II under the command of Shri Kh. Santamacha Singh, S/S Sgt. Maj. In the last week of January, 2007 Shri Kh. Santamacha Singh along with L. Subash and K. Giridhari Sharma were arrested by police. But Shri K. Giridhari Sharma was released on bail by the Court on 6-2-2007 and resumed to his work in Imphal West Finance II as 2-i-c. After the arrest of Kh. Santamacha Singh, L. Dinesh Meitei @ Dine was the in-charge of Imphal West Finance II of KYKL. You along with your associates mentioned above under the command of Shri L. Dinesh Meitei @ Die extorted annual tax from the following hotels, private agencies, shop keepers etc. located in Imphal area in the first part of 2007.

i) White Palace Thangal Bazar — Rs. 30,000/- for the year 2006. ii) City Heart, Thangal Bazar — Rs. 30,000/- -do- iii) Air Bus Travels North AOC, Imphal — Rs. 1,20,000/- for the year 2006–07 iv) Sony Travels, -do- — Rs. 1,20,000/- -do- v) Super Jet Travels, -do- — Rs. 1,20,000/- -do- vi) Jet Travels -do- — Rs. 1,00,000/- -do- vii) Kangla Travels -do- — Rs. 1,25,000/- -do- viii) Net Works Travels -do- — Rs. 50,000/- for the year 2006 ix) Silver Line Travels -do- — Rs. 1,10,000/- for the year 2006–07 x) Royal Rajdham Travels -do- — Rs. 1,45,000/- -do- xi) Royal Tour Travels -do- — Rs. 1,40,000/- -do- xii) Imphal Rajdhani Travels -do- — Rs. 70,000/- for the year 2006 xiii) Seven Sisters Travels -do- — Rs. 1,00,000/- for the year 2006–07 xiv) Manipur Golden Travels -do- — Rs. 1,75,000/- -do- xv) ASTC, North AOC, Imphal -do- — Rs. 1,10,000/- -do- xvi) Khera Brothers, Paona Bazar — Rs. 20,000/- for the year 2007. xvii) Gitanjali Stores -do- — Rs. 20,000/- -do- xviii) Santosh Textile -do- — Rs. 40,000/- -do- xix) Subhash Stores -do- — Rs. 40,000/- -do- xx) Rabindra Textile -do- — Rs. 40,000/- -do-

Over and above you and your associates mentioned above extorted about Rs. 8.10 lacs at the rate of Rs. 40,000/- per shops from 22 shops located at Paona Bazar near B.T Road, Imphal. All the extorted money had been deposited to Shri L. Dinesh Meitei @ Dine, S/S in-charge of Imphal West Finance II, KTKL staying in the residential quarter of the Hon'ble MLA Shri W. Brajabidhu Singh, Lamshang A/C at Babupara, Imphal to avoid suspicion by the security force/police on their movements. You and your associates took shelter in the quarter of the Hon'ble MLA since April, 2007 every now and then to evade arrest by the security force/police. The quarter of the Hon'ble MLA became their safe heaven and place of discussion regarding the modus-operandi for extortion of money to different agencies, offices etc.

3. That, in the month of May, 2007 the following new recruits of KYKL were also working along with the above noted KYKL members including you under the command of Shri Dinesh Meitei @ Dine:—

(i) Shri Keisham Hemanta Meitei of Ingourok Awang.

(ii) Shri Ingudam Ibosana Meitei S/o (L) I. Chaomu Meitei of Taothong Mamang Leikai.

(iii) Shri Lourembam Tiken Singh of Page: 2850Taothang Maning Leikai.

(iv) Shri Ningthoujam Romen Singh of Leimaram Makha Leikai.

In the months of May and June, 2007 you and your associates mentioned above demanded huge amount of money from the following offices, farms, companies etc. and threatened the lives of the Staffs over phone with dire consequences if they fail to comply with the demand within a short period:—

(I) Demanded Rs. 10 lacs from the staffs of the State Bank of India, Imphal Branch over telephone under No. 9856577364 on 18-5-2007. This refers to FIR No. 60(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.

(I) Demanded Rs. 20 lacs from the Staffs of the Life Insurance Corporation, Imphal Branch Office, Khoyathong on 16-05-2007. It refers to FIR No. 61(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(A) A. Act.

(I) Demanded Rs. 15 lacs from the Staffs of the National Insurance Company, Imphal Divisional Office, Dharmasala on 11-5-2007 at about 11 a.m This refers to FIR No. 62(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(A) A. Act.

(I) Demanded Rs. 10 lacs from the Orientel Insurance, Imphal Branch Office, Thangal Bazar over phone No. 9856577364 on 11-5-2007. It refers to FIR No. 63(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.

(I) Demanded Rs. 10 lacs from the New India Assurance Company, Imphal Branch, Thangal Bazar on 5-5-2007. It refers to FIR No. 64(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.

(I) Demanded Rs. 10 lacs from the Staffs of the United India Insurance Company, Imphal Branch, Thangal Bazar on 5-5-2007. This refers to FIR No. 65(6)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(P) A. Act.

(I) Demanded Rs. 1 Crore from the pharmaceutical Companies through druggists/stockiest and Medical Representatives located at Khwai Bazar area, Imphal. This refers to FIR No. 84(8)2007 City P.S u/s. 387/353/34 IPC & 17/20 UA(A) A. Act.

Such act of extortion and threat intimidation to the people done by you and your associates gave a terror wave to the general people residing/staying in Imphal City and its surrounding area which not duly disturb the even tempo of life but also endanger the public order which is prejudicial to the security of the State and maintenance of public order.

4. That, on 16-8-2007 in the late evening some KYKL members you under the command of Shri K. Giridhari Sharma @ Sharma were assembled at the quarter of the Hon'ble Page: 2851MLA Shri W. Brajabidhu Singh, Lamshang A/C and discussed in length the strategies, policies as well as modus operandi for extortion of money from the different agencies, offices, etc. and halted the right there. At about 6 a.m of 17-8-2007 a Police team of Imphal West Commando led by S.I.M James Thangal arrived at the Hon'ble MLA Shri W. Brajabidhu Singh, Lamshang A/C and conducted search operation. During the course of search operation you were arrested at about 6:05 a.m and other members of KYKL including Shri K. Griridhari Sharma, S/S 2-i-c, Imphal West Finance II KYKL. The following articles were seized from the possession and disclosure/instance of K. Giridhari Sharma by preparing two separate seizure Memos:—

i) 10 live rounds of 5.56 ammn.

ii) 5 live rounds of 9mm ammn.

iii) 5 Nos. of KYKL demand letter signed by one Nongthang Mangang, Dy. Secy, of Finance, KYKL.

iv) 10 different parts of dismantled M-16 rifle and 9mm Pistol.

a. One barrel with body group of M-16.

b. One spring.

c. 2 pieces of M-16 barrel.

d. One bolt of M-16.

e. One M-16 empty magazine.

f. One barrel of 9 mm pistol.

g. One broken pistol, h. Magazine spring.

i. One broken magazine of 9mm pistol.

5. That, in view of your tendencies and inclinations reflected in the offences committed by you in the proximate past as a hard core member of the banned organization namely Kanglei Kaol Kanba Lup (KYKL in short) which aim of establishing a sovereign independent State of Manipur by waging war against the lawfully established Government of India and Manipur holding fire arms, I am satisfied that after having availed of bail facilities and becoming a free person, you being a hard core member of the said organization would continue to indulge in the same activities which are prejudicial to the security of the State and maintenance of the public order. Hence, the application of normal criminal law against you will not at all be effective to prevent you from the commission of further prejudicial activities. An alternative preventive measure is, there fore, immediately called for.

From the above grounds, I am satisfied that with a view to prevent you from acting in any manner prejudicial to the security of the State and maintenance of public order, I have made this order directing that you be, detained under NSA, 1980.

7. That, you are hereby informed that you have the right to make representation to the Government of Manipur as well as to the Central Government against the order of detention passed against you and you are hereby afforded the earliest opportunity for making such representation if you wish to do so. The representation is to be sent through Additional Superintendent of Manipur Central Jail, Sajiwa to the Chief Secretary, Government of Manipur in respect of representation to the Government of Manipur and to “The Secretary to the Government of India Ministry of Home Affairs” (Department of Internal Security) North Block, New Delhi-110001 in respect of representation to the Central Government and should be submitted within 3 (three) weeks from the date of detention. Further, you are informed that you have right to make representation to the detaining authority within 12 (twelve) days from the date of detention or till the order is approved by the State Government whichever is earlier. The representation is to be sent to the District Magistrate, Imphal West representation, if any would be placed before the Advisory Board within 3 (three) weeks time from the date of your detention and such other documents/papers connection with your detention as the Government is bound under the law to produce before the Board for its consideration.

11. The detenu filed the joint representation dated 22-9-2007 to (i) Chief Secretary to the Government of Manipur and (ii) Secretary to the Government of India, Ministry of Home Affairs, Department of Internal Security, North Block, New Delhi. On bare perusal of the grounds of the order of detention dated 9-11-2007 it is crystal clear that there are materials both documentary evidences as well as informations for coming to the subjective satisfaction that after having availed bail facilities and becoming a free person detenu being a hard core member of the unlawful organization i.e KYKL would indulge in the same activities which are prejudicial to the security of the State and maintenance of public Page: 2852order and as such normal application of criminal law against the detenu will not at all be effective to prevent him from the commission of further prejudicial activities and having no alternative as a preventive measure, the detenu would therefore be detained under NSA as a preventive measure.

12. It is well settled law that subjective satisfaction of the detaining authority arrived at for detaining the detenu as a preventive measure under the preventive law is invalid if such satisfaction is based on non-existence or irrelevant ground only. Reference in Dwarika Prasad Sahu v. State of Bihar reported in (1975) 3 SCC 722 : AIR 1975 SC 134 : (1975 Cri LJ 221). The subjective satisfaction of the detaining authority arrived at while considering the materials and records was the cumulative result of all the grounds of detention and the involvement of the detenu in different activities. Reference may be made in A.P Saravanan v. State of Tamil Nadu reported in (2001) 10 SCC 212 : (2001 Cri LJ 3285). There is no set standards laid down by the NSA for arriving at subjective satisfaction of the detaining authority on the basis of all the materials placed before it by the police. In the present case as stated above, the detaining authority had arrived at, on subjective satisfaction, for detaining the detenu under the NSA on the basis of the materials and the information placed by the Superintendent of Police, Imphal West. Therefore, the detention order cannot be said to be illegal on the ground of non-application of mind. Reference in Gurudayal Singh v. Union of India reported in (2002) 1 SCC 545 : (AIR 2002 SC 10). The Apex Court in Union of India v. Paul Manickam reported in (2003) 8 SCC 342 : (2003 Cri LJ 4561) held that:—

“Preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced on the materials available and placed before it that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of the executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authorities. It is not practicable to lay down objective rules of conduct, the failure to confirm to which alone should lead to detention.”

13. The Apex Court in a catena of cases held that a person in the custody can validly be detained under the detention order passed under the preventive detention law i.e NSA etc.

i) If the authority passing the order is aware of the fact that he is actually in custody.

ii) If he has the reason to believe on the basis of available materials placed before him.

(a) That there is every possibility of being released and

(b) That on being so released he would in all probability indulge in prejudicial activities.

iii) If it is felt essential to detain him to prevent him from doing so.

14. Para No. 13 of SCC in Kamarunnissa v. Union of India reported in (1991) 1 SCC 128 : (1991 Cri LJ 2058) is quoted hereunder:—

13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) If the authority passing the order is aware of the fact that he is actually in custody. (2) If he has reason to believe on the basis of reliable material placed before him (a) That there is a real possibility of his being released on bail, and (b) That on being so released he would in all probability indulge in prejudicial activity and (3) If it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can Page: 2853be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.

15. From the above discussion we are of the considered view that first ground for assailing the detention order is not at all sustainable under the law inasmuch as there are materials for coming to the subjective satisfaction for detaining the detenu as a preventive measure under the detention order dated 9-11-2007 and also the detaining authority was very much aware of the fact that the detenu is actually in custody and also that there is every possibility of releasing the detenu on bail and on being so released he would in all probability indulge in prejudicial activities and as such it is essential to detain the detenu to prevent him from indulging in prejudicial activity. Over and above, there is a clear satisfaction on the part of the detaining authority that the application of normal criminal law against the detenu will not at all be effective to prevent him from commission of further prejudicial activities.

16. Before taking up the second ground it would be relevant to see the relevant provisions of the Constitution of India as well as NSA. It is the fundamental right of the detenu guaranteed by Article 22(5) of the Constitution of India that the detenu shall be afforded the earliest opportunity of making representation against the detention order. Therefore, a constitutional protection is given to the detenu which mandates the grant of liberty to the detenu to make a representation against the detenu as imparted in Article 22(5) of the Constitution of India and it also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition.

17. The Apex Court in K.M Abdulla Kunhi & B.L Abdul Khader v. Union of India State of Karnataka reported in (1991) 1 SCC 476 : (1991 Cri LJ 790), held that the representation relates to the liberty of the individuals is the highly cherished right enshrined in Article 21 of the Constitution. Clause (5) of Article 22 castes a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be” occurring in clause (5) of Article 22 reflects the concerned of the framers that the representation should be expeditiously considered and disposed of with the sense of urgency without an unavoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of the case. There is no prescribed time limit either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should be no supine indifference slackness or callousness attitude in considering the representation. Any unexplained delay in the disposal of the representation would be a prejudice of the constitutional imperative and it would render the continued detention impermissible and illegal.” The Apex Court again in Lama Dhondu Borade v. V.K Saraf, Commissioner of Police, (1989) 3 SCC 173 : (1989 Cri LJ 2119) held that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose of the same as expeditiously as possible. The Apex Court in Rajammal v. State of T.N, (1999) 1 SCC 417 : (1999 Cri LJ 826), had discussed as to the duration or range of delay in disposing the representation and held that the test is not the duration or range of delay but it is the explanation made by the concerned authority. Para 8 of SCC in Rajammal v. State of T.N (1999 Cri LJ 826, Para 9) reads as follows:—

8. The position, therefore, now is that if delay was caused on account of any indifference, or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to Page: 2854explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So, test is not the duration or range of delay, but it is the reasons explained by the authority concerned.”

18. The Apex Court had discussed the duties of the Court while deciding as to whether or not there is delay in disposal of the representation and also the circumstances which called interference by the Court in Senthamil Selvi v. State of T.N, reported in (2006) 5 SCC 676 : (2006 Cri LJ 4605) and held that duty of the Court is to see that if there is negligence or callous inaction or avoidable red tapism on the facts of a case while disposing the representation.

19. Para No. 6 in Senthamil Selvi (2006 Cri LJ 4605) (supra) is quoted hereunder:—

6. Coming to the plea that there was delay in disposal of the representation it is to be noted that the order of detention is dated 1-12-2005. The representation was sent on 11-12-2005 which was received by the respondents on 15-12-2005. The details were called for on 16-12-2005 which were received on 20-12-2005. The file was submitted on 21-12-2005 and dealt with by the Under Secretary and Deputy Secretary on 22-12-2005. The Minister concerned passed an order on 22-12-2005 and the order of rejection which was passed on 27-12-2005 was issued on 28-12-2005 which was sent to the Superintendent of the Jail where the detenu was incarcerated, which was communicated to the detenu. It was received by the prison authorities and it was served on the detenu on the day it was received by the Jail authority. The factual scenario indicated above indicates that the representation was dealt with utmost expedition. There can be no hard and fast rule as to the measure of reasonable time and each case has to be considered from the facts of the case and if there is no negligence or callous inaction or avoidable red tapism on the facts of a case, the Court would not interfere. It needs no reiteration that it is the duty of the Court to see that the efficacy of the limited, yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference, on the part of the authorities entrusted with their application. When there is remissness, indifference or avoidable delay on the part of the authority, the detention becomes vulnerable. That is not the case at hand. It may be noted that the writ petition was filed on 22-12-2005, even before the order or rejection was served. That being so the detenu cannot make grievance that the State had not explained the position as to how his representation was dealt with.

20. The corollary of the decisions of the Apex Court as well as this Court in the cases discussed above are that:

1) There is no period prescribed either under the Constitution or under the concerned detention law within which representation should be dealt with;

2) It is a constitutional mandate under clause (5) of Article 22 commanding the concerned authority to whom detenu submitted this representation to consider the representation and dispose of the same as expeditiously as possible;

3) There should not be supine indifference, slackness or callousness attitude in considering the representation. Any unexplained delay in disposal of the representation would be a prejudice of the constitutional imperative and it would render the continued detention impermissible and illegal;

4) It is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that delay was very short. Even longer delay can as well be explained. So, the test is not the duration or the range of delay, but it is the reasons explained by the authority concerned.

21. From the above discussion, it is clear that this Court is not concerned with the number of days delay in disposing the representation dated 22-9-2007 but what is concern with this Court is that whether or not there is reasonable explanation for the delay in disposing the representation dated 22-9-2007. In the present case even if the detenu was informed his right to make representation under ground No. 7 of the ground of order of detention that in respect of representation to the Central Government, the representation should be addressed to “Secretary to the Government of India, Ministry of Home Affairs (Department of Internal Security), North Block, New Delhi) the detenu did not file the separate representation to the Central Government but he filed the joint representation dated 22-9-2007. In the joint affidavit-in-opposition filed by the respondent No. 1 i.e State of Manipur Page: 2855and the respondent No. 3, Superintendent of Manipur Central Jail, Sajiwa, it is categorically mentioned that the representation dated 22-9-2007 filed by the detenu was forwarded by the Jail Department and received on 24-9-2007 by the State Government 23-9-2007 was holiday being Sunday. Immediately on 25-9-2007 the representation was processed by the concerned S.O to the higher authority, thereafter, the matter was placed with file to the Joint Secretary (Home) on 29-9-2007 for consideration of the said representation. 30-9-2007 was holiday being Sunday. Accordingly, the representation of the detenu requesting for revocation of the detention order was immediately examined and finalized on 4-10-2007 by the State Government by rejecting it on the ground that detenu is found involved in various FIR cases which are supported by the documents and materials and the result was communicated to the detenu on 5-11-2007.

22. Mr. R.S Seishang, learned counsel appearing for the State respondents has strenuously contended that since the representation dated 22-9-2007 was a joint representation filed by the detenu to the (1) Chief Secretary, Government of Manipur (2) Secretary Home to the Government of India, Ministry of Home Affairs, Department of Internal Security, the State respondents and authority concerned were of the bona fide view that the joint representation dated 22-9-2007 if allowed by the State Government, it would not be necessary to forward the same to the Central Government. On such bona fide views the State-respondents had taken up prompt steps for disposing of the joint representation as expeditiously as possible and as such there are reasonable explanations for delay of 7 (seven) days in forwarding the joint representation dated 22-9-2007 by the State Government to the Central Government. Mr. Reishang further contended that the said joint representation to the Central Government was forwarded on 5-11-2007 immediately after the joint representation was rejected by the State Government.

23. Mr. Ph. Sanajaoba, learned counsel appearing for the petitioner strenuously contended that the above explanations for the delay in forwarding the joint representation dated 22-9-2007 by the State respondents to the Central Government are not specifically pleaded in their counter-affidavit.

24. It is a well settled position of law that even in the normal civil suit, the Court should be slowed to throw out a claim on mere technicality such as imperfect pleadings and also there are exceptions to the rule of pleadings. The Apex Court in Smti. Manjushri Raha v. B.L Gupta, reported in (1977) 2 SCC 174 : AIR 1977 SC 1158, held that pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. The Apex Court in Nagubal Ammal v. B. Sharma Rao, reported in AIR 1956 SC 593 held that rule of specific pleadings has no application to a case where parties go to trial with knowledge that a particular question is in issue though no specific issue has been framed thereon.

25. Again, the Apex Court in Madan Gopal Kanodia v. Mamraj Maniram, reported in (1977) 1 SCC 669 : AIR 1976 SC 461, held that the pleadings are loosely drafted in the Court, and Court should not scrutinize the pleadings with such meticulous care so as to result any genuine claim being defeated on trivial ground. The Apex Court while dealing with the matter relating with the life and liberty of a citizen guaranteed by Article 22(5) of the Constitution, in a criminal appeal arising out of a writ of habeas corpus petition in Mohinuddin @ Moin Master v. District Magistrate, Beed, reported in (1987) 4 SCC 58 : (AIR 1987 SC 1977) held that the Court was not justified in dismissing a habeas corpus petition merely on the ground of imperfect pleadings of the petitioner.

26. From the ratio laid down by the Apex Court in the cases discussed above, it is crystal clear that the pleading in the habeas corpus writ petition and counter-affidavit have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of the citizen of India. Therefore, the submissions of Mr. Ph. Sanajaoba, learned counsel for the petitioner regarding imperfect pleading in the counter-affidavit of the respondents in the present habeas corpus is not sustainable in the eye of law.

27. For the reasons discussed above, we are constrained to observe that there is no supine indifference, slackness and callousness attitude in considering the joint representation dated 22-9-2007 by the State Government as well as by the Central Government and also there is no unexplained delay in disposing the representation dated 22-9-2007 which would be prejudice of the constitutional imperative so far as the present detenu in the facts and circumstances of the Page: 2856present case. Accordingly, the ground No. 2 for assailing the detention order dated 11-9-2007 is not sustainable in the eye of the law in the given case of the present case. For the reasons discussed above, we are of the considered view that two grounds for assailing the detention order failed to persuade us to interfere with the detention order. Accordingly, writ petition is devoid of merit and hereby dismissed.

28. Petition dismissed.

Lourembam Sana Singh v. State Of Manipur & Ors.

Judgment Summary — T. Nk. Singh, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Ph. Sanajaoba)

Respondents' Arguments (Mr. R.S. Reishang and State respondents; Mr. N. Ibotombi for Central respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Analysis of Ground No. 1 — Non-application of mind

Analysis of Ground No. 2 — Delay in disposal of representation dated 22-9-2007

Holding and Implications

Lourembam Sana Singh v. State Of Manipur & Ors.

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