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Mainam Manikumar Vs. State of Manipur and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMainam Manikumar
RespondentState of Manipur and ors.
Excerpt:
.....rule on behalf of the respondents, thereafter, on 1-12-81, the petitioner was furnished with the basic materials or the factual materials which led to the factual inferences drawn by the detaining authority to detain the petitioner under 'the act'.we extract below the grounds of detention communicated to the petitioner on 27-10-81: 1(a). that you being an editor of the manipuri daily 'matam' have consistently supported the activities of the outlawed organisations like pla and prepak by publishing their unlawful activities through your newspaper. (iii) in the issue of 'matam' dated 1-10-81 you have published photos of two persons said to be members of pla killed on 1-10-1980 namely (l) yumnam yoirel tompek alias inaocha and (2) wangjam subachandra under the heading 'hakungi october..........rule on behalf of the respondents, thereafter, on 1-12-81, the petitioner was furnished with the basic materials or the factual materials which led to the factual inferences drawn by the detaining authority to detain the petitioner under 'the act'. we extract below the grounds of detention communicated to the petitioner on 27-10-81:1(a). that you being an editor of the manipuri daily 'matam' have consistently supported the activities of the outlawed organisations like pla and prepak by publishing their unlawful activities through your newspaper. you have also constantly published in your said newspaper, news item/editorials which might create communal tension' thereby you have acted in a manner prejudicial to the maintenance of public order as is evident from the following:(i) in the.....
Judgment:

K.M. Lahiri, J.

1. This is a Habeas Corpus application. On 22-10-81, at about

8 P. M., the petitioner was arrested under the National Security Act, 1980 (for short 'the Act'). The respondents, however, claim that he was arrested on 23-10-81. On 27-10-81 the detenu was furnished with insufficient grounds of detention. On communication of the grounds 'he petitioner made representation on 16-11-81 complaining that he had, not been furnished with the materials referred to and relied in 'the grounds' of detention. Thereafter, the petitioner filed this writ application on 23-11-81 questioning the validity of his order of detention and a Rule was issued, the Government Advocate Manipur received notice of the Rule on behalf of the Respondents, thereafter, on 1-12-81, the petitioner was furnished with the basic materials or the factual materials which led to the factual inferences drawn by the detaining authority to detain the petitioner under 'the Act'. We extract below the grounds of detention communicated to the petitioner on 27-10-81:

1(a). That you being an Editor of the Manipuri Daily 'Matam' have consistently supported the activities of the outlawed organisations like PLA and PREPAK by publishing their unlawful activities through your newspaper. You have also constantly published in your said newspaper, news item/editorials which might create communal tension' thereby you have acted in a manner prejudicial to the maintenance of public order as is evident from the following:

(i) In the issue of 'MATAM' dated 24-8-81 you have published under the heading 'PLA gi phiranbu Govinda Khurumba Lakpasingna kok nonkhra' — that those who came to worship Shri Shri Govindajee have shown respect to the PLA flag.

(ii) In the issue of 'MATAM' dated 25-9-81 you have published under 'he caption 'Army na faraga police ta sinnakhiba PLA gi Army ni haibadu masak taku hairi' that PLA has done nothing except to help the people that PLA has not been snatching money by threatening the people that PLA is for the people and that PLA lives for fhe people.

(iii) In the issue of 'MATAM' dated 1-10-81 you have published photos of two persons said to be members of PLA killed on 1-10-1980 namely (l) Yumnam Yoirel Tompek alias Inaocha and (2) Wangjam Subachandra under the heading 'Hakungi October amade-ni loikhidraba PLA gi lanmi anina leikhid-raba adugi phirori ngashini, that their annual Shradha ceremony is today'.

(iv) In the issue of 11-10-81 you have published in your Editorial that the insurgency cannot be brought to the end easily stating that even after arrest of important leaders like Bisheswar of PLA, Tullachandra, Maipak Sharma ol PREPAK and Y. Ibohanbi Singh of KGP the activities of Ihe underground organisations have increased,

(v) In the same issue of your paper dated 11-10-81 you have published the heading 'PREPAK' ki mangasuba mapok kianongi mari leinana sahargi rnapham khudinga paojel che chairemle' that Prepak bows its head to the people that long live PREPAK, Marxism and Maoism etc.

(vi) In the issue of 21-10-81 you have tried to create discord between the Tribals and Meiteis by stating that the Chief Minister, Bishang Keishing has not started Judicial Inquiry into firing incident at- the Central Jail as he hates the Meiteis.

(vii) In the issue of 25-9-81 you have published that the Chief Minister who is a Tribal has looked down the people of the Valley under the Caption 'Manipur Sarkarna Lalhouba' 'masing hangathan-naba somna thousin naharol singna yaningde'. In the same issue of 'Matam' you have also tried to give a communal colour to the normal activities of Rajasthan Police by stating that they check only the Meiteis whereas the Mayangs have not been checked under the Caption 'Rajasthan Police na Meitei machada check touba'.

(viii) In the issue of 20-10-81 you have published that the CRPF fired on the prisoners in jail as soon as Bishang returns from his wife's home. In ihe editorial of the same issue you have encouraged discussion of the people against the Government by stating that the Govt. proposes to harass the poor people by bringing out Ihe ordinance for Revenue collection, (b). That you have continued to bring out the illegal publication of 'MATAM' even after cancellation of the declaration for violation of the Press and Registration of Books Act, 1967.

2. In view of the circumstances mentioned above and also of your being an active supporter of the out-lawed or- ganisation there is every likelihood that you shall continue to indulge in similar anti-national and unlawful activities, thereby, guillible numbers of, encouraging them to cause prejudice to the maintenance of public order. Hence the undersigned is compelled to order your detention Under Section 3(2) of the National Security Act, 1980 I am satisfied that with a view to prevent you from acting in a manner prejudicial to the maintenance of the public order and security of the State I have made this detention order.

3. You are hereby informed that you have a right to make a representation to the Govt. against the order of detention passed against you and that you shall be afforded earliest opportunity to make such a representation if you wish so to do. The representation is to be addressed to the Chief Secretary, Govt. of Manipur through 'he Jail Superintendent, Imphal as soon as possible from the dale of detention. The representation shall be placed before the Advisory Board along with the grounds on which your detention is made and such other papers connected with your detention as the Govt, are bound under the law to produce before the Board for its consideration.

4. You are hereby also informed that the Advisory Board may call for such information as it may deem necessary from you and shall, if you desire to the Govt. along with your representation so that the Advisory Board may be intimated about it and arrangement may be made to produce you before the Board on the date fixed by it for the purpose.

Sd/- xxx

(E. Kunjeswar Singh) dated

27-10-81

District Magistrate

(Central) Manipur

2. It is indubitable that all the publications allegedly made by the petitioner were furnished to him by the Detaining Authority only on 1-12-81. These are the publications said to have been made by the petitioner on 23-8-81, 24-9-81, 39-9-81, 11-10-81, 21-10-81, 24-9-81, 20-10-81 and so on. The learned Advocate General, Manipur contests that the documents which were referred to in the grounds and furnished to the detenu on 1-12-81 were 'other materials' but not 'basic facts' which led to the factual inferences drawn by the Detaining Authority.

3. learned Counsel for the petitioner Mr. R. K. Nakul Sena Singh has made two-fold submissions before us. First, the learned Counsel submits that the publications are insufficient to form a subjective satisfaction. Secondly, the learned Counsel submits that the detenu was not furnished with Ihe grounds within the period prescribed Under Section 8 of 'the Act'. He further submits that only the reasons for his detention were furnished to the detenu on 27-10-81, but the basic facts on which the detaining authority formed its opinion were not furnished within the outer-limit of Section 8 of 'the Act'. According to the learned Counsel for the petitioner, the inner-Umit of communicating the ground is 5 days and the outer-limit is 10 days from the date of detention. '

4. Section 8 undoubtedly mandates the detaining authority lo communicate the grounds 'not later than 10 days from the date of detention'. The learned Advocate General, Manipur has very rightly conceded this point but be has submitted that the grounds which were furnished were self-sufficient and thai the detenu could make an effective representation on the basis thereof and, as as such, there was no violation of the provisions of Section 8 of 'the Act' and Article 22(5) of the Constitution.

5. It is indubitable that the detenu made his representation on 16-11-81 and he complained therein that he was not furnished with the material documents. The detaining authority itself has admitted vide Annexure-B/l that those were the basic materials on which reliance had been placed by it while detaining the petitioner. In addition, while furnishing the documents the detaining authority itself stated that the detenu could file 'further representation' on 4-12-81. It is indicative of the fact thai these were treated to be the basic facts for which a further representation was necessary. However these materials which formed an integral part of the grounds were furnished to the detenu far beyond the outer-limit of 8(eight) days (10 days?) as prescribed in Section 8 of 'the Act'.

6. We are of the view that the procedural safeguards are meant lo be observed. They should not be illusory, artificial or fanciful. They must be real, fair arid just as contemplated under Article 21 of the Constitution and, in the instant case we have not the least doubt that the detaining authority violated the mandatory provisions of Section 8 of 'the Act' and Article 22(5) of the Constitution in not furnishing the detenu the basic materials, within the statutory period of 10 days and/or 'as soon as may be', as contemplated under Article 22(5) of the Constitution of India.

7. The word 'grounds' in Article 22(5) of the Constitution of India and Section 8 of 'the Act' means (i) revelation of all basic facts and (ii) other materials which were taken into consideration by the detaining authority while making an order of detention. The facts may be characterised or compartmentalised into two divisions, viz. (a) the basic facts and (b) other materials which are not basic. The basic facts must be in existence at the time of rendering the order of detention and such basic facts must be furnished to the detenu. The expression 'grounds' is not merely the reasons or the conclusions drawn by the detaining authority; but it includes within its fold the material facts which led to such falcual inferences drawn by the detaining authority. The law of the land as laid down by their Lordships of the Supreme Court is that the copies of the documents and materials to which references are made in the grounds must be supplied to the detenu, if the materials relied upon led the detaining authority to draw factual inferences in making the order of detention. Such basic materials or basic facts must be supplied to the detenu pari passu the ground of detention as they form an integral part of one whole, which is known as the 'grounds'. The Rule has been laid down by their Lordships in a number of cases and we take the liberty of referring the following decisions ad-seriatem:1) Ramchandra A. Kamat v. Union of India, decided on 22-2-1980 per S. M. Fazal AH, P.S. Kailasam and A. D. Koshal, JJ., : [1980]2SCR1072 Hansmukh v. State of Gujarat: per R. S. Sarkaria and P.S. Pathak, JJ., decided on 4-8-80 : 1980CriLJ1286 Corr. P. N. Bhagawali, A. P. Sen, JJ. (3). Icchu Devi v. Union of India, per P. N. Bhagawati and E. S. Venkataramiah, JJ. decided on 9-9-80 : [1981]1SCR640 Pritam Nath Hoon v. Union of India, V. R. Krishna Iyer and A. D. Koshal, JJ. decided on 11-9-80 : 1980CriLJ1340 . Mangalbhai Motiram Patel v. State of Maharashtra, Corr. P. N. Bhagawati, A. P. Sen and E. S. Venkata-ramiah, JJ, decided on 26-9-80; : 1981CriLJ331 . Smt. Shalini Soni v. Union of India: per R. S. Sarkaria and O.C. Reddy, JJ. decided on 24-10-1980: : 1980CriLJ1487 S. Gur-dip Singh v. Union of India per Corr. S. M. Fazal Ali and A. D. Koshal, JJ. decided on 13-11-80; : 1981CriLJ2 Lallu-bhai Jogibhai v. Union of India per R. S. Sarkaria and O.C. Reddy, JJ. decided on 15-12-80: : 1981CriLJ288 . Kamala Kanhyalal Khushlani v. State of Maharashtra: per Corr. Fazal Ali and A, Var-darajan, JJ. decided on 6-1-81; : 1981CriLJ353 .

8. We have no hesitation in concluding that the grounds of detention must be self-sufficient and self-explanatory. The 'grounds' include the basic facts which led to the drawing of the inferences to conclude the necessity of detention under the Act; the basic materials or documents so relied while formulating the subjective satisfaction form an integral part of 'the grounds'. If the reasons or the inferences and such (materials are not furnished to the detenu, the order of detention is violalive of Article 22(5) of the Constitution read with Section 8 of 'the Act'.

9. The learned Advocate General, Manipur, has candidly submitted that it is the law of the land. However, he submits that there is a slight change in law made by the Supreme Court in Ummu Saleema's case : [1981]3SCR647 . In that case the records of investigation were not furnished t0 the petitioner. Their Lordships concluded that the records of investigation did not lead to drawing up of the factual inferences by the detaining authority. They were subsidiary Or non-basic or non-relevant documents referred by the detaining authority 'by way of casual or passing reference'. Their Lordships concluded that the materials were not relied upon by the detaining authority in drawing requisite inferences. However, in the present case, it is indubitable that the publications referred to in the ground led the detaining authority to conclude the necessity of detention of the petitioner. This apart, the detaining authority itself considered these documents to be material and furnished the petitioner with the documents as late as on 1-12-81. In our opinion, the ratio decidendi of Ummu Saleema's case is not applicable in the instant case.

10. For the foregoing reasons, we have no hesitation in coming to the conclusion that the grounds were not communicated to the petitioner 'as soon as may be' as contemplated under Article 22(5) of the Constitution within a period of 10 days as enjoined Under Section 8 of 'the Act' and, therefore, the continuous detention of the petitioner is illegal and void for failure to furnish grounds within the stipulated period enshrined under Article 22(5) of the Constitution apart from violation of Section 8 of 'the Act'. The width, depth and contour of the constitutional obligation to furnish the grounds of detention have been underscored by their Lordships of the Supreme Court in Icchu Devi v. Union of India : [1981]1SCR640 ; Pritam Singh Hoon v. Union of India : 1980CriLJ1340 ; Mangalbhai Motilai Patel v. State of Maharashtra : 1981CriLJ331 and several other decisions of the Supreme Court. The two outside limits of 5 and 10 days provided in Section 8 of the Act must be the time-limit for furnishing 'the grounds'. Accordingly, we hold that the requirements of Article 22(5) of the Constitution and Section 8 of . the Act were not fulfilled and the continuous detention of the petitioner is illegal and void.

In the result, we allow the petition and direct that the petitioner shall be released forthwith unless he is wanted in connection with any other case.


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