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Elam Ongbi Meipakpi Devi and ors. Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantElam Ongbi Meipakpi Devi and ors.
RespondentDistrict Magistrate and ors.
Excerpt:
.....was clearly breached. in the instant case, in respect of grounds 1(b) and 1(c) as well, the detaining authority did not furnish the statement of the detenu and we are constrained to hold that he was prevented from making an effective representation against the detention since his constitutional safeguards under article 22(5) of the constitution read with his statutory right under section 8(1) of 'the act' were breached. 6. for the reasons set forth, we hold the continued detention of the detenu as well as the order of detention as void and illegal and direct that the detenu should be set at liberty forthwith unless he is required to be detained in prison in connection with any other case under 'the act' and/or any other criminal case. civil rule (hc) 43 of 1983 7. in this case as..........have been breached, as copies of the vital documents which were the basic materials on which the detaining authority arrived at its subjective satisfaction were not furnished to the detenu and thereby he was prevented from making an effective representation. the first ground of detention reads as follows:1(a) that you are an active member of outlawed organization namely peoples liberation army (p.l.a. for short) having joined the organisation in february, 1980 through ch. apaobi singh, a hard core member of the organisation.3. how could the detaining authority reach the subjective satisfaction that the detenu was an active member of the outlawed organisation? mr. th. munindra kumar singh, learned govt. advocate, manipur, has candidly admitted that there was a material which was taken.....
Judgment:

K. Lahiri, J.

1. We find that the case is covered by the decision of their Lordships in Yumnam Mangibabu Singh v. State of Manipur reported in : 1983CriLJ445 . In the present case as well, the detenu is a young college student of P.U. Class of Maharaja Budhachandra College at Imphal. He claims that he is a law abiding person and has had no connection with any of the allegations for which he has been detained under Section 3, National Security Act, 1980, for short 'the Act'.

2. Various points have been urged by the learned Counsel for the petitioner but we propose to take up the main successful challenge by the Counsel for the petitioner that the Constitutional safeguards of making an effective representation against the detention; which is available to the detenu under Article 22(5) of the Constitution and the statutory safeguards under Section 8 of 'the Act' have been breached, as copies of the vital documents which were the basic materials on which the detaining authority arrived at its subjective satisfaction were not furnished to the detenu and thereby he was prevented from making an effective representation. The first ground of detention reads as follows:

1(a) That you are an active member of outlawed organization namely Peoples Liberation Army (P.L.A. for short) having joined the organisation in February, 1980 through Ch. Apaobi Singh, a hard core member of the organisation.

3. How could the detaining authority reach the subjective satisfaction that the detenu was an active member of the outlawed organisation? Mr. Th. Munindra Kumar Singh, learned Govt. Advocate, Manipur, has candidly admitted that there was a material which was taken into consideration by the detaining authority in reaching the said subjective satisfaction and produced a statement of the detenu said to have been made by him during the course of investigation of a criminal case. Learned Govt. Advocate submits that it is not a confession but a statement recorded under Section 162, Criminal P.C. 1973. Therefore, to bear up the subjective satisfaction there was a live and existing document, namely, the alleged statement of the detenu. Did the authority furnish the statement to the detenu? In answer to the question learned Govt. Advocate submits that it was not furnished and the learned Govt. Advocate contends that the statement was the own admission of the detenu, so it was unnecessary to furnish the same to him. Obviously, the statement of the detenu was the only material and relevant to the alleged activity of the type attributed to him in Ground 1(a). No copy of the statement was furnished to the detenu. It is also not denied by the State and/or learned Govt. Advocate In Khudiram Das v. State of West Bengal : [1975]2SCR832 , their Lordships have laid down:

It is the right and duty of the Court to examine what are the basic facts and materials which are actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The ' judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction.

It is also not disputed that the statement of the petitioner containing the alleged admission would fall within the concept of the 'basic facts and materials'. It is also not disputed, as it cannot be disputed, that the statement was before the detaining authority and it must have weighed with it in reaching the requisite satisfaction. Now, can we brush aside the non-furnishing of the copy of the statement on the ground that after all it was an admission of the detenu, and, as such was not violative of Article 22(5) of the Constitution and/or Section 8 of 'the Act'? Similar were the nature and character of allegations in Y. Mangibabu Singh (supra) 1983 Cri LJ 445(SC) and their Lordships answered the question as follows:

It is not possible to accept the view of the High Court for the simple reason that the appellant was entitled to put forth his case about it which could include either a denial or an explanation of the alleged admission and he was deprived of an opportunity to do so.

Their Lordships held that non-furnishing of the copy of the statement prevented the detenu from making an effective representation against his detention, since his Constitutional safeguard was breached, the impugned order was declared to be invalid.

4. In the instant case the main material on the basis of which the subjective satisfaction in respect of ground 1(a) was formed, entirely and exclusively based on the statement; the statement was taken into consideration by the detaining authority in making the order of detention but it was not furnished to the detenu. On the authority of Y. Mangibabu Singh (supra) 1983 Cri LJ 445 (SC), we find no hesitation in reaching the conclusion that non-furnishers of the copy of the statement prevented the detenu from making an effective representation against his detention and his constitutional safeguard under Article 22(5) of the Constitution was clearly breached. Similarly, grounds 1(b) and 1(c) speak about certain positive alleged criminal acts. Mr. Th. Munindra Kumar Singh, learned Govt. Advocate submits that the only basis for reaching the conclusions as contained in grounds (b) and 1(c) was the statement of the detenu made under Section 162, Cr.P.C. The copy of the statement, as alluded, was not furnished to the detenu at all.

5. The detenu is a college student. He was asked to make his representation. We cannot assume that he had any knowledge about the technicalities of law. In our opinion, it is not for the detenu to ask for and obtain the copies of the material documents as it is the duty and obligation of the detaining authority to furnish the detenu with the basic facts and materials, which were considered by it and/or weighed with it. In the instant case, in respect of grounds 1(b) and 1(c) as well, the detaining authority did not furnish the statement of the detenu and we are constrained to hold that he was prevented from making an effective representation against the detention since his constitutional safeguards under Article 22(5) of the Constitution read with his statutory right under Section 8(1) of 'the Act' were breached.

6. For the reasons set forth, we hold the continued detention of the detenu as well as the order of detention as void and illegal and direct that the detenu should be set at liberty forthwith unless he is required to be detained in prison in connection with any other case under 'the Act' and/or any other criminal case.

In the result, the petition is allowed.

CIVIL RULE (HC) 43 of 1983

7. In this case as well it has been candidly admitted by Mr. Th. Munindra Kumar Singh, learned Govt. Advocate, that apart from the statement of the detenu recorded under Section 162 of the Criminal P.C. there was no basic material in support of the allegations contained in the grounds of detention served on the detenu under Section 3(2) of 'the Act'. It is also conceded that the detaining authority considered the statement, it was the only basic material or the source of information furnished to the detaining authority. It is also not disputed that the statement weighed heavily with the detaining authority in reaching the subjective satisfaction. It is also not disputed that the statement containing the alleged admission falls within the concept of 'basic facts and materials' as contemplated under Article 22(5) of the Constitution read with Section 8(1) of 'the Act'. It is also not disputed by the learned Govt. Advocate, Manipur, that the subjective satisfaction that the detenu was a hard core member of People's Liberation Army and, about his commission of certain alleged criminal offences were all based on the alleged statement made by the detenu. No copy of the said statement, which was the only material before the detaining authority and which heavily weighed with it, was not furnished to the detenu. Non-furnishing of the copy of the statement to the detenu prevented him from making an effective representation against his detention since his constitutional safeguards under Article 22(5) of the Constitution as well as his statutory right under Section 8(1) of 'the Act' were clearly breached, the impugned order of detention cannot be substained.

8. In the result, we hold the continued detention of the detenu as well as the order of detention as void and illegal and direct that the detenu should be set at liberty forthwith unless he is wanted in connection with any other case under 'the Act' and/or connection with any other criminal case.

8A. The petition is allowed.

CIVIL RULE (HC) 44 of 1983

9. This case is also covered by the decision of Y. Mangibabu Singh (supra) (1983) Cri LJ 445 (SC). In the instant case as well, learned Govt. Advocate, Manipur, has stated that the three grounds of detention were based on the statement of the detenu under Section 162, Cr.P.C. We have also scrutinized the grounds and find that the alleged admission would fall within the concept of 'basic facts and materials'. The statement was the only material before the detaining authority and it structured the grounds on the said statement, and, it weighed with the detaining authority in reaching the subjective satisfaction. This document was not furnished to the detenu and on the authority of Y. Mangibabu Singh (supra) we hold that non-furnishing of the copy of the statement, the only document, in fact and in reality, prevented the detenu from making an effective representation against his detention. Since his constitutional safeguards under Article 22(5) of the Constitution dnd the statutory rights under Section 8(1) of 'the Act' were clearly breached, the impugned order of detention cannot be sustained.

10. We have just received an order from the Hon'ble Supreme Court dismissing on merit on 14.1.83 S.L. Appeal (Criminal) 3528 of 1981, Mahendra Kalita v. District Magistrate, Darrang. In the said case, we relied on Ramchandra A. Kamat v. Union of India : [1980]2SCR1072 ; Hansmukh v. State of Gujarat : 1980CriLJ1286 ; Icchu Devi v. Union of India : [1981]1SCR640 ; Prittam Nath Hoon v. Union of India : 1980CriLJ1340 ; Mangalbhai Motiram Patel v. State of Maharastra : 1981CriLJ331 ; Shalini Son v. Union of India : 1980CriLJ1487 ; Section Gurdip Singh v. Union of India : 1981CriLJ2 ; Lallubhai Jogibhai v. Union of India : 1981CriLJ288 ; Kamala Kanhaiyalal Khushlani v. State of Maharashtra : 1981CriLJ353 and held that in a line of pronouncements the Supreme Court laid down that the documents and material relied upon in the grounds, which had been taken into consideration by the detaining authority while making the order of detention must be supplied to the detenu 'pari passu' the grounds of detention, as they formed 'an integral part of the grounds'. However, Y. Mangibabu Singh (supra) : 1983 Cri LJ 445 decided on 17.9.1982 is the last reported decision brought to our notice.

11. For the foregoing reasons, we hold the continued detention of the detenu as well as the order of detention as void and illegal and direct that the detenu should be set at liberty forthwith unless he is wanted in connection with any other case.

12. In the result, the petition is allowed.


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