Order
1. Leave granted. Since the matter was fixed for final arguments as per the earlier direction of this Court given in its order dated 15-5-2015 SLP (Cri) No. 2149 of 2015, we have heard the case finally.
2. In this appeal the appellant has challenged the validity of the judgment dated 15-12-2014 passed by the High Court in Champion R. Sangma v. State of Meghalaya 2014 SCC OnLine Megh 258, 2015 Cri LJ 1088. By the said judgment the appeal court has upheld the order and judgment dated 13-6-2013 2013 SCC OnLine Megh 48, 2013 Cri LJ 3827 passed by the learned Single Judge of the High Court and by the order dated 13-6-2013 2013 SCC OnLine Megh 48, 2013 Cri LJ 3827 the High Court had affirmed the detention order dated 29-1-2013 which was passed against the appellant herein.
3. On going through the detention order we find that as per detaining authority, a new militant outfit by the name of Garo National Liberation Army (GNLA) has come into existence in Garo Hills in Meghalaya and two persons, namely, the appellant herein as well as one Mr Sohan D. Shira are the founders thereof. It is also alleged in this detention order that this militant organisation has unleashed a reign of terror on the peace-loving citizenry by executing criminal activities like extortion, kidnapping for ransom, ruthless murders of businessmen and traders, criminal intimidation to create a fear psychosis to suit their nefarious designs.
4. It is to prevent the occurrence of the aforesaid alleged acts on the part of this organisation, the detaining authority found it fit to detain the appellant.
5. The detention order also takes note of the fact that there are many criminal cases which are pending against the appellant. Particulars of 8 such cases are given in the detention order. It is further recorded in this order that in connection with those cases the appellant has been arrested and is in judicial custody. Thus, it becomes clear that as on the date of passing of the detention order, the appellant was already under arrest and in judicial custody.
6. The appellant was also supplied with the ground of detention on the same day which are reproduced in the impugned judgment in entirety. Apart from reproducing the contents of the detention order as grounds of detention, particulars of cases which are pending trial against the appellant are given in some detail. At the end, it is mentioned that in accordance with Article 22(5) of the Constitution of India read with Section 8(1) of the Meghalaya Preventive Detention Act, 1995, the detenu has a right to make a representation against the order of detention of the Government, addressed to the District Magistrate East Garo Kites District Williamnagar and the Principal Secretary to the Government of Meghalaya, Political Department, Shillong. The appellant had made a representation to the State Government which was rejected.
7. It is, thereafter, he challenged the order of detention and the rejection of his representation by filing a writ petition in the High Court of Meghalaya and further appeal to the Division Bench, both of which have been dismissed, as noted earlier.
8. Various contentions are advanced by the learned Senior Counsel questioning the correctness of the impugned judgment. It is not necessary to traverse all those arguments as we are of the opinion that this appeal warrants to be allowed on one ground itself, as would be noted hereinafter.
9. Coming to the ground on which we intend to allow this appeal, we may point out that even if the appellant is in jail in connection with some criminal case(s) there is no prohibition in law to pass the detention order. Law on this aspect is well settled and stands crystallised by a plethora of judgments of this Court. However, a reading of those very judgments also clarifies that there are certain aspects which have to be borne in mind by the detaining authority and satisfaction on those aspects is to be arrived at while passing the detention order.
10. There are three such factors which were restated in Kamarunnissa v. Union of India (1991) 1 SCC 128:
“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 Ramesh Yadav (1985) 4 SCC 232 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 be 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.”
11. The aforesaid dicta is reiterated in subsequent judgments as well. Some of which are as under:
(i) T.V. Sravanan v. State (2006) 2 SCC 664,
(ii) K.K. Saravana Babu v. State of T.N. (2008) 9 SCC 89,
(iii) Huidrom Konungjao Singh v. State of Manipur (2012) 7 SCC 181.
12. In the present case, as already pointed out above, the appellant was under incarceration as he is implicated in as many as 8 cases. In fact till date he is in jail and has not been granted bail.
13. In view of the above, it was for the respondents to satisfy the Court as to whether the triple requirements, as postulated above, stand satisfied in the present case. We find that the respondents have miserably failed to fulfil this requirement.
14. In the instant case, though the detention order and even the grounds of detention record the factum of the appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail. On the contrary, we are amazed that the averments made in the counter-affidavit which are self-defeating and clinching the issue against the respondent at p. 171 Para 3 of the paper book which reads as under:
“3. I state that the submission of the learned Senior Counsel for the petitioner that the detaining authority was satisfied that there was some likelihood of the petitioner being released on bail and thereafter the detention order was passed to prevent such contingency is completely unfounded. In fact the detention order was passed on 29-1-2013 and from the detention order it no way reflects that with a view to pre-empt the petitioner from getting the bail in the pending 8 criminal cases that the detention order 2013 was passed. In fact after noticing the fact that the petitioner was arrested by the police in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery with deadly weapons for ransom, for disruption of public order, etc. and being satisfied that if the petitioner is allowed to remain at large he would act in a manner prejudicial to the security of the State and shall be a constant threat to peace that the detention order was passed under Section 3(1) of the Meghalaya Preventive Detention Act, 1995.”
15. We, thus, have no option but to hold that the detention order suffers from material illegality, thereby vitiating the same. This appeal is accordingly allowed, setting aside the impugned judgment 2014 SCC OnLine Megh 258, 2015 Cri LJ 1088 of the High Court and quashing the detention order.