Manipur High Court
Sr Angam Chiru vs The State Of Manipur on 4 April, 2023
KABOR Digitally
signed by
AMBA KABORAMB
AM LARSON
M Date: IN THE HIGH COURT OF MANIPUR
LARSO 2023.04.04
14:56:13 AT IMPHAL
N +05'30'
W.P.(Cril.) No.24 of 2023
SR Angam Chiru, aged about 68 years, S/o AR Roirueng Chiru
of Chawangkining, Village Thonglang, PO & PS Kangpokpi,
Kangpokpi District, Manipur - 795129.
....... Petitioner/s
- Versus -
1. The State of Manipur, represented by the Chief Secretary,
Government of Manipur, Babupara, PO & PS Imphal, Imphal
West District, Manipur - 795001.
2. The Special Secretary (Home), Government of Manipur,
Babupara, PO & PS Imphal, Imphal West District, Manipur -
795001.
3. The Deputy Secretary (PIT-ND&PS), Ministry of Finance,
Department of Revenue, near North Block, Room No.26, Church
Road, RFA - Barrack, New Delhi - 110001.
.... Respondent/s
W.P.(Cril.) No.24 of 2023 Page 1
BEFORE
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner : Mr. Ph. Sanajaoba, Advocate
For the Respondents : Mr. O. Ratankumar, Deputy GA for the State Govt.
Mr. S. Samarjeet, Sr. PCCG for the Central Govt.
Date of Hearing : 20.03.2023
Date of Judgment & Order : 04.04.2023
JUDGMENT & ORDER
(CAV)
(A. Guneshwar, J.)
The detenu Mr. Sevan Raja Athoi Chiru was arrested on
12.06.2022 in connection with FIR No.17(06)2022 Jiribam Police Station U/S
21(c)/60(3) ND&PS Act. He is accused No.3 in the FIR. From their possession,
1.073 kgs of brown sugar was seized. The detenu was remanded to judicial
custody on 18.06.2022 by the Special Court (ND&PS), Manipur.
The detenu filed Bail Application No.25 of 2022 before the High
Court of Manipur. Vide order dated 07.11.2022, Special Secretary (Home),
W.P.(Cril.) No.24 of 2023 Page 2
Govt. of Manipur issued detention order under Section 3(1) of PIT-ND&PS for
detaining the detenu for preventing from further involvement in illicit trafficking
of narcotic drugs. On 11.11.2022, Special Secretary (Home), Govt. of Manipur
furnished ground of detention under Section 3(3) of the PIT-ND&PS Act to the
detenu and stated that he was a habitual offender indulging in transport of
brown sugar in commercial quantity from Manipur to Silchar and earning huge
amount of profit and belonging to a drug racket. If he was to be released on
bail, he would likely to continue indulging in the illicit trafficking of drugs. As an
alternative measure, he was taken into preventive detention.
[2] The detenu submitted common representation dated 19.11.2022 to
(i) Chief Secretary, Govt. of Manipur; (ii) Special Secretary (Home), Govt. of
Manipur; (iii) Deputy Secretary (PIT-ND&PS), Ministry of Finance, Department
of Revenue, Govt. of India, New Delhi; and (iv) Advisory Board, ND&PS for
revoking his detention order. It is stated that the detenu is innocent and he has
just accompanied his illiterate brother (accused No.1 in the FIR). On the way,
he and his brother were arrested along with other and the car they were
travelling. He is just a good student and has no other previous involvement in
any criminal case. Vide letter dated 23.11.2022, Deputy Secretary (Home),
Govt. of Manipur forwarded the representation submitted by the detenu to the
Central Government. Vide letter dated 16.12.2022, Deputy Secretary (Home),
Govt. of Manipur informed the detenu that his representation was rejected
being devoid of merit. Vide memorandum dated 27.12.2022, the Central
W.P.(Cril.) No.24 of 2023 Page 3
Government rejected the representation dated 19.11.2022 submitted by the
detenu. Vide letter dated 17.01.2023 issued by the Commissioner (Home),
Government of Manipur, the detention order dated 07.11.2022 was confirmed
and fixed the period of detention for a period of 12(twelve) months from the
date of detention.
The detention order is challenged amongst the following grounds:-
a) the detention order was issued mechanically without application of
mind;
b) no cogent material was shown involving the detenu in illicit trafficking
of narcotic drugs;
c) failure to compliance Section 3(2) of the Act of involving the Central
Government about the detention order within 10(ten) days;
d) there was inordinate delay on the part of both the State and Central
Governments in disposing the representation submitted by the detenu;
e) the detention order was based on the solitary activity by the detenu.
[3] The State Government filed counter affidavit and it is stated that as
the petitioner was habitual offender and has been indulging in illicit trafficking of
drugs, he was taken into preventive detention. It is stated that the representation
dated 19.11.2022 was forwarded by IG of Prisons vide letter dated 21.11.2022
and received on the same day and parawise comment was sought from DGP,
Manipur vide letter dated 23.11.2022 and the parawise comments dated
W.P.(Cril.) No.24 of 2023 Page 4
01.12.2022 was received on 05.12.2022 and rejected on 16.12.2022. It is further
stated that the detention order dated 07.11.2022 and ground of detention dated
11.11.2022 were intimated to the Central Government vide e-mail dated
14.11.2022, i.e., within 10 days of the time line issued under Section 3(2) of the
PIT-ND&PS Act. It is stated that there is no inordinate delay on the part of the
State Government in dealing with the detention of the detenu and prayed that
the writ petition be dismissed.
[4] At the time of hearing, Mr. Salam Samarjeet, learned Sr. PCCG for
the Central Government handed over a copy of the counter affidavit dated
10.03.2023 sworn by Under Secretary, Ministry of Finance, Department of
Revenue, Government of India, New Delhi. It was stated that the detention order
dated 07.11.2022 issued by the Special Secretary (Home), Government of
Manipur was furnished to the Government of India vide letter dated 14.11.2022
by e-mail on the same day; representation dated 19.11.2022 submitted by the
detenu was received by the Central Government from the State Government
through e-mail dated 24.11.2022 parawise comments on the representation
submitted by the detenu was received by the Ministry vide e-mail dated
14.12.2022 and it was placed before the competent authority, i.e., Secretary
(Revenue), Government of India on 20.12.2022 and rejection was conveyed to
the petitioner vide memorandum dated 27.12.2022. It is stated that the effective
time taken by the Central Government is not fatal and prayed for rejection of the
writ petition.
W.P.(Cril.) No.24 of 2023 Page 5
[5] Heard Mr. Sanajaoba, learned counsel for the detenu, Mr. O.
Ratankumar, learned Dy. GA for the State and Mr. S. Samarjeet, learned Sr.
PCCG for the Central Government.
[6] Mr. Sanajaoba, learned counsel for the detenu submits that the
detenu has no previous involvement in criminal case and he has been wrongly
implicated in the present case. It is stated that it took 28 days for the State
Government to dispose the representation dated 19.11.2022 on 16.12.2022. Out
of this, 11 days, i.e., from 05.12.2022 (the day parawise comments was received
from the State police) to 16.12.2022 (the day rejecting the representation) has
not been properly explained. He draws the attention of this Court to the
judgment passed by the Hon'ble Supreme Court in the case of 1999 (1) SCC
417 in the case of Rajammal v. State of T.N. reported as Para 7, 8, 9, 10 and
11. It was held that even though no period is prescribed by Article 22(5) of the
Constitution, the representation should be considered and disposed at the
earliest. However, the authority may explain any delay which had occasion in
the disposal of the writ petition. If the delay is not properly explained, detention
order can be set aside. In that case, the authority cannot explain the delay of 5
days and accordingly, detention order was set aside.
[7] Mr. Sanajaoba, learned counsel for the detenu further relies on a
case of Prof. Khaidem Ibocha Singh vs. State of Manipur (1972) 2 SCC 576
where the Hon'ble Supreme Court held that any unexplained delay in the
disposal of representation amounts to violation of Article 22(5) of the
W.P.(Cril.) No.24 of 2023 Page 6
Constitution and the same renders the detention order illegally. The learned
counsel also relies on the orders passed by this Court in W.P.(Crl) No.51 of
2022 and 31 of 2022 where detention order was set aside for unexplained delay
in the disposal of the representation. He also submitted that there is no
explanation for the Central Government for delay in the disposal of the
representation and it took 38 days in disposing the representation submitted by
the detenu. He prays that detention order be set aside for the undue and
unexplained delay on the part of the authorities in disposing the representation
submitted by the detenu.
[8] Mr. O. Ratankumar, learned Dy. GA for the State submits that the
delay has been duly explained in the counter affidavit filed by the State
Government. It is stated that the detention order dated 07.11.2022 and the
ground of detention dated 11.11.2022 were furnished to the Central Government
on 14.11.2022 within 10 days as stipulated under Section 3(2) of the PIT-
ND&PS Act. The time taken in processing the representation submitted by the
detenu has been explained in Para 6 of the counter affidavit. It is stated that the
representation dated 19.11.2022 was received from the Office of the IG Prisons
on 21.12.2022. The same was forwarded to the Central Government on
23.11.2022 and on the same day, parawise comments was called from the
DGP, Manipur. Parawise comments dated 01.12.2022 was received by the Dy.
Secretary (Home), Government of Manipur on 05.12.2022 and the same was
W.P.(Cril.) No.24 of 2023 Page 7
forwarded to the Central Government also and the representation was rejected
on 16.12.2022.
Mr. O. Ratankumar, learned Dy. GA says that it took only effective
11 days for the State Government, i.e., from 05.12.2022 to 16.12.2022 in
disposing the representation submitted by the State Government. He further
clarifies that 11 days' time taken by the State Government is due to the
communication between the Offices and proceeding of file and getting approval.
At the same time, the officers/officials were dealing with the urgent matter and
dealing with similar cases and other time bound Court matters and Home
Department related issues like protocol duties, etc. Mr. O. Ratankumar, learned
Dy. GA submits that there is no inordinate delay and the effective 11 days has
been explained as above. He prays that the writ petition may be rejected.
[9] Mr. S. Samarjeet, learned Sr. PCCG for the Central Government
submits that the representation dated 19.11.2022 was received by the Central
Authority on 07.11.2022 along with the ground of detention was received on
14.11.2022 by the Central Government. Again, the representation dated
19.11.2022 was forwarded by e-mail and the same was received on 24.11.2022
and parawise comments from the State Government was received on
14.12.2022 and the same was placed before the competent authority, i.e.,
Secretary, Revenue Department, Government of India on 20.12.2022 and it was
rejected on 27.12.2022. He submits that there is no delay on the part of the
Central Government and the writ petition be rejected.
W.P.(Cril.) No.24 of 2023 Page 8
[10] Considered the submissions of the learned counsels for the parties
and perused the documents on record including the original file submitted by the
State Government.
[11] In the case of Rajammal v. State of T.N.: (1999) 1 SCC 417 :
1999 SCC (Cri) 93, Hon'ble Supreme Court held that even though no period is
prescribed for disposal of the representation submitted by the detenu, the
authorities should dispose the same as expeditiously as possible. The
unexplained delay in disposal of the representation shall vitiate the detention
order. Relevant para are reproduced below:
7. It is a constitutional obligation of the Government to consider the
representation forwarded by the detenu without any delay. Though no
period is prescribed by Article 22 of the Constitution for the decision to be
taken on the representation, the words "as soon as may be" in clause (5) of
Article 22 convey the message that the representation should be
considered and disposed of at the earliest. But that does not mean that the
authority is pre-empted from explaining any delay which would have
occasioned in the disposal of the representation. The court can certainly
consider whether the delay was occasioned due to permissible reasons or
unavoidable causes. This position has been well delineated by a
Constitution Bench of this Court in K.M. Abdulla Kunhi v. Union of India 5.
The following observations of the Bench can profitably be extracted here:
(SCC p. 484, para 12)
"It is a constitutional mandate commanding the authority concerned 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 concern of the
Framers that the representation should be expeditiously considered and
W.P.(Cril.) No.24 of 2023 Page 9
disposed of with a sense of urgency without an avoidable delay. However,
there can be no hard and fast rule in this regard. It depends upon the facts
and circumstances of each case. There is no period prescribed either
under the Constitution or under the detention law concerned, within which
the representation should be dealt with. The requirement, however, is that
there should not be supine indifference, slackness or callous attitude in
considering the representation. Any unexplained delay in the disposal of
representation would be a breach of the constitutional imperative and it
would render the continued detention impermissible and illegal."
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 explain 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 the test is not the duration or
range of delay, but how it is explained by the authority concerned.
9. What happened in this case was that the Government which received
remarks from different authorities submitted the relevant files before the
Under-Secretary for processing it on the next day. The Under-Secretary
forwarded it to the Deputy Secretary on the next working day. Thus there is
some explanation for the delay till 9-2-1998. Thereafter the file was
submitted before the Minister who received it while he was on tour. The
Minister passed the order only on 14-2-1998. Though there is explanation
for the delay till 9-2-1998, we are unable to find out any explanation
whatsoever as for the delay which occurred thereafter. Merely stating that
the Minister was on tour and hence he could pass orders only on 14-2-
1998 is not a justifiable explanation when the liberty of a citizen guaranteed
under Article 21 of the Constitution is involved. Absence of the Minister at
W.P.(Cril.) No.24 of 2023 Page 10
the Headquarters is not sufficient to justify the delay, since the file could be
reached the Minister with utmost promptitude in cases involving the vitally
important fundamental right of a citizen.
10. Mr V.R. Reddy, learned Senior Counsel for the State of Tamil Nadu,
referred to a decision of this Court in U. Vijayalakshmi v. State of T.N. 6 to
contend that it could not be said that there was any delay in considering the
representation from 9-2-1998 to 14-2-1998. In that case also, the detention
was under Section 3(1) of the Act. The detenu made a representation
against the detention which was received by the State Government on 18-
5-1992 and the State Government conveyed the rejection of the
representation on 23-6-1992. The detenu received the rejection order on
26-6-1992. It was submitted that there was an inordinate long delay in
dealing with the representation and that the detenu was entitled to have the
detention order quashed. This Court noticed that in the counter-affidavit
filed by the Deputy Secretary to the State Government, the manner in
which the representation was dealt with after its receipt on 18-5-1992 had
been stated in detail. The Court then observed:
"We have perused the stages through which the file containing the
representation was dealt with promptly and there was no indifference,
lethargy or negligence in dealing with the same. The file was not
unnecessarily held up at any level but moved from level to level promptly.
We are, therefore, satisfied that the explanation tendered by the Deputy
Secretary in this behalf is acceptable and does not betray any lack of
sense of urgency in dealing with the representation. We, therefore, do not
see any merit in the first contention."
In the present case, however, there is no explanation forthcoming as to
why the representation could not be dealt with by the Minister concerned
from 9-2-1998 to 14-2-1998.
W.P.(Cril.) No.24 of 2023 Page 11
11. We are, therefore, of the opinion that the delay from 9-2-1998 to 14-2-
1998 remains unexplained and such unexplained delay has vitiated further
detention of the detenu. The corollary thereof is that further detention must
necessarily be disallowed. We, therefore, allow this appeal and set aside
the impugned judgment. We direct the appellant-detenu to be set at large
forthwith.
From the decision of the Rajammal (supra), it is settled proposition
of law that the representation ought to be disposed of as expeditiously as
possible even though no time period is prescribed under Article 22(5) of the
Constitution. It is further held that if the delay caused in disposal is due to the
lapse on the part of the authority, it will adversely affect further detention of the
prisoners. The test is in the duration on rest of the delay, but how it is explained
by the authority concerned. The authority may explain the delay in disposal and
the Court is bound to consider the explanation. In that case, the delay of 5 days
while the file was pending before the concerned magistrate could not be
explained and detention order was set aside on that ground.
In the present case, State Government has explained the
movement of the file from one office to another and the parawise comments
from the police department was received on 05.12.2022 and the representation
was disposed on 16.12.2022. However, there is no explanation for the 11 days'
time (from 05.12.2022 to 16.12.2022) taken after receipt of the parawise
W.P.(Cril.) No.24 of 2023 Page 12
comments and till the disposal of the representation, there is no plausible.
However, in Para 6 of the counter affidavit filed by the State Government, it is
vaguely stated that this 11 days were taken in movement of the file from one
office to another and getting approval and many officials were engaged in other
compelling urgent works. We are of the opinion that such vague explanations
are not reasonable when it concerns with the personal liberty of a person as
guaranteed by Article 21 of the Constitution. Hence, the detention order is liable
to be set aside on this ground alone.
In the counter affidavit filed by the Central Government, it is stated
that parawise comments was received on 14.12.2022 and it was placed before
the competent authority/Secretary (Revenue), Government of India on
20.12.2022 and the representation was rejected on 27.12.2022. It took 13
effective days out of (38 days) for the Central Government in disposing the
representation submitted by the detenu. There is explanation for the period
19.11.2022 to 24.12.2022 as the representation was received on that day. The
period from 24.11.2022 to 14.12.2022 as the time taken in receiving parawise
comments from the State Government and the same is duly explained.
However, there is no explanation for the period of 6 days, i.e., from 14 to 20
December, 2022 in placing the file before the Secretary (Revenue) and also for
the period of 7 days, i.e., from 20 to 27 December, 2022, the time taken by the
Secretary (Revenue) in disposing the representation submitted by the detenu.
The Central Government could not explain the effective 13 days' time taken from
W.P.(Cril.) No.24 of 2023 Page 13
the date of receipt of the representation till the date of disposal of the detention
order is also vague on this ground also.
[12] Accordingly, detention order dated 07.11.2022 and the confirmation
order dated 17.01.2023 are set aside for delay in disposal of representations by
both the State and Central Governments. The detenu SR Athoi Chiru, aged
about 23 years, S/o SR Angam Chiru of Chawangkining, Village Thonglang,
be set at liberty if not required in any other case.
[13] Copy of the order be sent to the Superintendent of Manipur Central
Jail, Sajiwa for information.
[14] Return the original file to the State Government.
[15] The writ petition is allowed. No cost.
JUDGE ACTING CHIEF JUSTICE
-Larson
FR/NFR
W.P.(Cril.) No.24 of 2023 Page 14
