Manipur High Court
Shri Kaikam Kipgen vs The State Of Manipur on 28 February, 2023
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (Cril.) No. 32 of 2022
Shri Kaikam Kipgen, aged about 64 years, F/o Satminlen
Kipgen of Loibol Village, Kangpokpi District, Manipur-795129.
...... Petitioner/s
- Versus -
1. The State of Manipur, represented by Chief Secretary,
Government of Manipur, Babupara, P.O. & P.S. Imphal,
Imphal West District, Manipur-795001.
2. The Special Secretary (Home), Government of Manipur
Babupara, P.O. & P.S. 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
B E F O R E
HON'BLE THE ACTING CHIEF JUSTICE M.V. MURALIDARAN
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioner :: Mr. Ph. Sanajaoba, Advocate.
For the Respondents :: Mr. Th. Vashum, G.A. and Mr. Boboy
Potsangbam, CGC.
Date of hearing :: 20.02.2023
Date of Judgment and Order :: 28.02.2023
WP(Cril.) No. 32 of 2022 Page 1
JUDGMENT & ORDER
(CAV)
A. Guneshwar Sharma, (J)
[1] The present writ petition has been filed by the father of the
detenu. On 20.04.2022, a team of Commanda Unit/Bishnupur at Keinou Bazar
arrested (i)Nongthombam Premjit Singh (45) S/o (L) N. Biren Singh of
Terakhongshangbi Wahengbam Leikai, A/P Tingkai Khullen, Kangpokpi District
and (ii) Satminlen Kipgen (24) S/o Kaikam Kipgen of Loibol Khullen,
Kangpokpi District (the detenu herein) in connection with FIR No. 13(4)2022
BPR-PS U/S 18(b) ND & PS Act. From their possession, 5 (five) plastic packets
filled with blackish sticky substances suspected to be opium weighing 4.800
kilograms (appox.) from Nongthombam Premjit Singh and 255 grams of
opium (Kani) from Satminlen Kipgen were seized.
[2] Vide order dated 02.09.2022 passed by the Special Secretary
(Home), Government of Manipur, the detenu namely Mr. Satminlen Kipgen
was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act (PIT-ND & PS Act), 1988 for
effectively preventing him from further involvement in illicit trafficking of
narcotic drugs and psychotropic substances for a period of three months until
further orders. It is stated in the detention order that the detenu has filed
Cril.Misc.(B) Case No. Nil of 2022 before the Special Judge (ND & PS),
Bishnupur and it is highly suspected that on release from jail on bail, he would
continue in illicit trafficking of drugs.
[3] Vide letter dated 06.09.2022 of the Special Secretary (Home),
Government of Manipur, the grounds of detention was furnished to the
detenu. It is stated the detenu was dealing in the illegal drug trafficking
business to make easy money and he was likely to be released on bail and on
being released, he would continue to engaged in illegal activities of drug
trafficking. So, in order to prevent this, he was taken into preventive
WP(Cril.) No. 32 of 2022 Page 2
detention. It is stated that the detenu was not produced before the State
Advisory Board.
[4] The detenu submitted 2 (two) representations all dated
02.09.2022 through the Superintendent of Manipur Central Jail, Sajiwa to the
Special Secretary (Home), Government of Manipur and to the State Advisory
Board for revoking the detention order dated 02.09.2022. It is stated that he
was falsely implicated by the police. Vide order dated 15.12.2022, the
Commissioner (Home), Government of Manipur has revoked the detention
order dated 02.09.2022 under Section 12(a) of PIT-NS & PS Act, 1988.
Immediately thereafter, vide order dated 16.12.2022, the Commissioner
(Home), Government of Manipur issued second detention order against the
detenu, namely, Satminlen Kipgen to prevent him from further involvement in
illicit trafficking of narcotic drugs and psychotropic substances for a period of
three months until further orders on the ground that he was likely to be
released on bail. Vide letter dated 20.12.2022, the Commissioner (Home),
Government of Manipur, furnished the grounds of detention to the detenu
alleging that he was dealing in the illegal drug trafficking to make easy money
and on release on bail, he would engage in illegal activities including illicit
trafficking of drugs. Vide order dated 01.12.2022 passed by the learned
Special Judge (ND & PS), Bishnupur in Cril.Misc. (B) Case No. 74 of 2022, the
detenu was directed to be released on default bail as charge sheet could not
be submitted within the statutory period of 180 days.
[5] In the representation dated 10.10.2022 (Annexure - P/3)
submitted to the Special Secretary (Home), Government of Manipur, the
detenu made a specific request to send photocopies of the same
representation and forward the same to the Chief Secretary (Home),
Government of Manipur, as well as the Deputy Secretary (PIT-ND & PS),
Ministry of Finance, Department of Revenue, Government of India, New Delhi
for their considerations. It is stated that the detenu has no information
WP(Cril.) No. 32 of 2022 Page 3
whether the said representation was forwarded to the Chief Secretary
(Home), Government of Manipur and to the Deputy Secretary (PIT-ND & PS),
Ministry of Finance, Department of Revenue, Government of India. It is stated
that till date, the representations were kept pending and not disposed of and
thus violated the provisions of Article 22(5) of the Constitution of India. It is
stated that the ground of detention relied in the 2nd detention order was the
same which was relied in the earlier detention order dated 02.09.2022. It is
stated that the respondent No. 1 violated Section 9(f) of the Act inasmuch as
he failed to make the confirmation order even after the lapsed of about 13
weeks. The detention order was challenged on the following grounds:
(a) The impugned detention order dated 02.09.2022 and
16.12.2022 were passed mechanically and without
application of judicious mind;
(b) There was no cogent materials to show that the detenu was
involved in illicit trafficking of narcotic drugs and psychotropic
substances;
(c) The respondent No. 2 failed to comply Section 3(2) and
Section 9(b) of PIT-ND & PS Act and the respondent No. 1
failed to comply Section 9(f) of PIT-ND & PS Act;
(d) The respondent Nos. 1, 2 & 3 failed to consider and dispose
of the representations dated 10.10.2022;
(e) There is no inordinate delay on the part of the respondent
No. 2 while forwarding the representation to the respondent
Nos. 1 & 3;
(f) The allegations made in the detention order are vague and
not sufficient enough to warrant preventive detention.
[6] The respondent No. 2 has filed counter affidavit on behalf of the
State Government. It is stated that the 1st detention order dated 02.09.2022
was revoked by order dated 15.12.2022 and as per record, the process for
WP(Cril.) No. 32 of 2022 Page 4
revocation was started on 07.12.2022, by then, stipulated timeline of 5 weeks
as provided under Section 9 (b). It is stated that the revocation order was
done on technical ground after seeking advice of the Ld. Advocate General,
Manipur and obtaining due approval by the then detaining authority as
corrective measure. Since, no reference was made within 5 weeks as provided
under Section 9(b) of PIT-ND & PS Act to the Advisory Board. The 1st
detention order was revoked and the 2nd detention order dated 16.12.2022
was passed. It is stated that Section 12(2) of PIT-ND & PS Act provide
revocation of the detention order under Section 12(1) does not bar detention
of the same person. It is stated that the detention orders dated 02.09.2022
and 16.12.2022 are independent and the second detention order is not
consequential order to the first. It is also stated that the detenu is a hardened
drug peddler who buys, transports, stores and sells onward opium and is a
member of dedicated drug trafficker network across the state. At the time of
detention, there was possibility of him release on bail. It is also stated that the
representation dated 10.10.2022 submitted by the detenu was received on
12.10.2022 and para-wise comment was sought from DGP vide letter dated
19.10.2022 and the para-wise comment was received on 07.12.2022, by then,
the whole process for revocation. Para-wise comment was not received till
07.12.2022 when the process of revocation of the 1st detention order dated
02.09.2022 was started. As para-wise comment from the police was not
received, the representation dated 10.10.2022 could not be disposed of by
then. Further, representation was not referred to the Government of India and
the representation dated 10.10.2022 was not forwarded to the Government of
India. It is stated that that on 06.12.2022, the accused could not be released
from jail even after granting of default bail as no revocation order was
received from the Government for his detention. It is stated that the detenu
was not released from jail as revocation order dated 15.12.2022 was received
on 17.12.2022 and the detention order under NIT-ND & PS was also received
on the same day. The 2nd detention order dated 16.12.2022 was also received
on the same day. It is stated that there is no need for confirmation of the
WP(Cril.) No. 32 of 2022 Page 5
revoked 1st detention order dated 02.09.2022. It is stated that the
representation with respect to the 1st detention order dated 02.09.2022 does
not survive as the same was revoked. It is stated in para 11 of the reply filed
by the State Government that the detenu filed the 2nd representation dated
30.12.2022 against the detention order dated 16.12.2022 forwarded by the
Superintendent, Manipur Central Jail, Sajiwa, vide letter dated 02.01.2023, the
same has been referred to the police for para-wise comment.
[7] Vide letter dated 06.01.2023 and para-wise comment was
received on 10.01.2023 and after due consideration, the representation was
disposed of vide orders dated 13.01.2023. It is also stated that the 2 nd
detention order dated 16.12.2022 was intimated to Government of India vide
letter dated 23.12.2022 within the stipulated time of 10 days. Further
reference to Advisory Board was made vide letter dated 06.01.2023 which is
also within the stipulated 5 weeks' as provided under Section 9(b) of PIT-ND
& PS Act. It is stated that there is no violation of Section 3(2) and 9(b) of PIT-
ND & PS Act. It is stated that the writ petition may be dismissed being devoid
of merit. The Central Government did not file any reply as the representation
was not forwarded to it.
[8] Heard Mr. Ph. Sanajaoba, learned counsel for the petitioner, Mr.
Th. Vashum, learned PP for the State respondent Nos. 1 & 2 and Mr. Boboy
Potsangbam, learned CGC for the respondent No. 3, Union of India.
[9] Mr. Ph. Sanajaoba, learned counsel for the petitioner, draws the
attention of this Court that the 1st detention order dated 02.09.2022 was valid
only for 3 months until further orders as there was no order extending the
same. The 1st detention order expired on 01.12.2022 vide order dated
15.12.2022 passed by the Commissioner (Home), Government of Manipur and
it was revoked after 13 days' of its lapse. He submits that the revocation order
is illegal and any revocation of a lapsed order has no meanig. He refers to the
provision of Section 11 of the PIT-ND & PS Act where maximum period of
WP(Cril.) No. 32 of 2022 Page 6
detention is one year. However, the detaining authority may revoke or
modified the detention within the validity. He further submits that the 1st
detention order is illegal and without considering the relevant materials. The
revocation order dated 15.12.2022 was also illegal as the same was done
after 13 days of lapse of the 1st detention order and hence, the detaining
authority cannot exercise the power confer under Section 12 of the PIT-ND &
PS Act for revocation of lapsed order. It is further submitted that the 2 nd
detention order dated 16.12.2022 is also illegal because there is no new facts
and it was issued on the same ground as the 1st detention order.
Mr. Ph. Sanajaoba, learned counsel, relies on the judgment of
the Hon'ble Supreme Court in the case of Union of India v. Paul
Manickam and Anr. reported in (2003) 8 SCC 342, at para 16 where it
was held that meticulous compliance of the procedural safeguard provided in
a preventive detention, however, technical, is mandatory. It is reproduced
herein below:
"16. In a case of preventive detention no offence is
proved, nor is any charge formulated and the justification
of such detention is suspicion or reasonability and there is
no criminal conviction which can only be warranted by
legal evidence. Preventive justice requires an action
to be taken to prevent apprehended objectionable
activities. (See R. v. Halliday and Kubic Darusz v.
Union of India). But at the same time, a person's
greatest of human freedoms i.e. personal liberty is
deprived, and, therefore, the laws of preventive
detention are strictly construed, and a meticulous
compliance with the procedural safeguard,
however technical, is mandatory. The compulsions of
the primordial need to maintain order in society, without
which enjoyment of all rights, including the right of
personal liberty would lose all their meanings, are the
true justifications for the laws of preventive detention.
This jurisdiction has been described as a "jurisdiction of
suspicion", and the compulsions to preserve the values of
WP(Cril.) No. 32 of 2022 Page 7
freedom of a democratic society and social order
sometimes merit the curtailment of the individual liberty.
(See Ayya v. State of U.P.). To lose our country by a
scrupulous adherence to the written law, said Thomas
Jefferson, would be to lose the law, absurdly sacrificing
the end to the means. No law is an end in itself and the
curtailment of liberty for reasons of the State's security
and national economic discipline as a necessary evil has
to be administered under strict constitutional restrictions.
No carte blanche is given to any organ of the State to be
the sole arbiter in such matters."
Mr. Ph. Sanajaoba, learned counsel, also refers to another
judgment of the Hon'ble Supreme court in the case of Abdul Basit Alias
Raju & Ors. v. Mohd. Abdul Kadir Chaudhary & Anr. reported in (2014)
10 SCC 754 at para 25 where it was held that what cannot be done
directly, cannot be done indirectly. He also refers to another judgment of
the Hon'ble Supreme Court in the case of Banka Sneha Shella v. State of
Telangana & Ors. reported in (2021) 9 SCC 415, at para 20, 21, 23, 24,
26 and 30 where it was held that the Hon'ble Supreme court has laid down
the principle while interpreting the law of preventive detention and it
requires strict construction as it affects the right and liberty of a person who
has been detained without any fair trial. It was also held that preventive
detention is an exception to general law and taking recourse to the
provisions of preventive detention is contrary to the constitution guaranteed
enshrined under Article 19 and 21 of the Constitution and sufficient
grounds have to be made out by detaining authorities to invoke such
provisions. The same has to be resorted if the detenu cannot be effectively
dealt with by normal criminal procedure.
Mr. Ph. Sanajaoba, learned counsel, submits that there was
an illegal detention from 02.12.2022 to 15.12.2022 of the detenu after the
lapsed of the 1st detention order till the 2nd detention order was made and
as such, he prayed for awarding adequate compensation to the detenu for
WP(Cril.) No. 32 of 2022 Page 8
his illegal detention for the period from 02.12.2022 to 15.12.2022 even
though the petitioner has not made any specific prayer. He submits that
this prayer can be considered and moulded by this Court with respect to
prayers (ii) & (iii) of the writ petition where the petitioner prayed for passing
any other necessary order in the facts and circumstances of the case and
for award of the cost of petition. It is prayed that the 1st detention order
dated 02.09.2022 passed by the Special Secretary (Home), Government of
Manipur and the 2nd detention order dated 16.12.2022 be set aside as
there were no materials to detain the detenu under preventive detention
and the representations have not been disposed of by the State and
Central Authorities on time.
[10] Mr. Th. Vashum, learned PP for the State respondents,
submits that the 1st detention order was made on the basis of police report
and it was valid only for 3 months until further orders as there was technical
defect of not forwarding the detention order to the State Advisory Board.
The State Authority after taking opinion of the Ld. Advocate General and in
exercise of power under Section 11 & 12 of PIT-ND & PS Act revoked the
1st detention order on 15.12.2022 and issued another 2 nd detention order
dated 16.12.2022 as the case of the detenu would be not able to be dealt
with by normal criminal procedure. He stated that the 2nd detention order
dated 16.12.2022 is valid as such order can be passed under Section 12(2)
of PIT-ND & PS Act. He also refers to the judgment of the Hon'ble
Supreme Court in the case of Union of India v. Paul Manickam and Anr.
reported in (2003) 8 SCC 342, at para 7, where it was that the Hon'ble
Supreme Court had explained the object beyond the preventive detention and
he points out that preventive detention 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 matter
prejudicial to certain objects which are specified by law. The action of the
executive in detaining a person being only precautionary, the matter has
WP(Cril.) No. 32 of 2022 Page 9
necessarily to be left to the discretion of the executive authority. He submits
that when the 1st detention order is revoked, the representation against it
does not survive and there is no need for formal order of disposal or
confirmation of the same. It is stated that the 2nd representation dated
30.12.2022 against the 2nd detention order dated 16.12.2022 was duly
disposed of on 13.01.2023. Hence, there is no delay on the part of the State
Government. He prays that the writ petition may be dismissed as being devoid
of merit.
[11] Mr. Boboy Potsangbam, learned CGC for the Central
Government, submits that the representations were not forwarded to the
Central Government by the State Authority and the same cannot be
processed. However, the Union of India has not filed any counter affidavit and
the learned CGC has no specific instruction in this regard.
[12] The 1st detention order dated 02.09.2022 was valid only for 3
months and on its expiry, there was no order for extension of the same nor
no confirmation order was issued prior to 02.12.2022. However, vide order
dated 15.12.2022, the State Government revoked the detention order without
assigning any specific reason and the 2nd detention order dated 16.12.2022
was issued. But in the counter affidavit filed by the State Authority, it is stated
that the 1st detention order was revoked due to technicalities. From the period
02.12.2022 to 15.12.2022, there was no order from the State Authority to
keep the detenu under detention. So, in another word, the detenu was under
illegal detention for the period from 02.12.2022 to 15.12.2022 and the State
Authority has not given any justification in this regard. It is the specific case of
the detenu that he was under illegal detention for 13 days.
[13] In the case of Ujjal Mandal v. State of W.B. reported in
(1972) 1 SCC 456, the Hon'ble Supreme Court held that the detention order
is valid only for three months as mandated under Article 22(4) of the
Constitution and unless it is confirmed before the expiry of three months,
WP(Cril.) No. 32 of 2022 Page 10
further detention would be without any authority of law. The relevant paras.
are reproduced below:
"8. Article 22(4) of the Constitution has specified the maximum
limit of initial detention, and detention for a longer period than
three months can only be made on the basis of the report of the
Board. The Act authorises a possible detention of more than
three months. It is because the appropriate Government wants
to detain a person for more than three months that the matter is
referred to the Board and it is only when the Board makes its
report that the appropriate Government can fix the period of
detention under sub-section (1) of Section 12. So, when the
Government receives the report of the Board stating that there
is sufficient cause for detention of a person, if the Government
wants to detain him for a period beyond three months, it has to
pass an order or make a decision under Section 12(1) to confirm
the order of detention. The confirmation of the detention order
without anything more would result in an automatic continuation
of the detention, even if there is no separate decision to
continue the detention for any specific period as held by this
Court in Dattatreya Moreshwar Pangarkar v. State of Bombay.
When Section 12(1) of the Act speaks of "and continue the
detention of the person concerned for such period as it thinks
fit", it can only mean continuance of detention from the point of
time at which detention would become illegal if the order of
detention is not confirmed, namely, the expiry of three months
from the date of detention. It would not be necessary to confirm
the order of detention even after the receipt of the report of the
Board by the Government if the Government only wants to
continue the detention for the period of three months from the
date of detention, as the initial order of detention would
authorise the continuance of detention for that period without
any confirmation. Confirmation is necessary only to continue the
detention after the expiry of three months. If that be so, it
stands to reason to hold that the order of detention must be
confirmed before the expiry of the three months.
9. To put the matter in a nut-shell: the State Government has
power under the Act to detain a person without trial beyond a
period of three months but limited to a period of one year. That
power the State Government may exercise on the receipt of the
opinion of the Board that there is sufficient cause for the
detention. When the State Government receives that opinion, it
has still the option to exercise the power and to continue the
detention beyond the period of three months or not.
WP(Cril.) No. 32 of 2022 Page 11
Confirmation is the exercise of the power to continue the
detention after the expiry of three months. Unless that power is
exercised within the period of three months from the date of
detention, the detention after the expiry of that period would be
without the authority of the Law.
......................................................................................................
14. The question was considered by this Court in Deb Sadhan
Roy v. State of West Bengal6 and the Court took the view that
the order of detention must be confirmed within three months of
the date of detention; else the detention beyond that period
would become illegal. We see no reason to doubt the
correctness of this decision and we follow it."
It is clear from the above cited case law that preventive
detention is valid for only three months unless it is extended or confirmed
before its expiry. Any further detention without confirmation will render the
detention illegal.
[14] On perusal of the 1st detention order dated 02.09.2022 and the
2nd detention order dated 16.12.2022, both are almost similar contains and
there is no fresh material in the 2nd detention order. There is justification in
the submission of Mr. Ph. Sanajaoba, learned counsel for the petitioner that in
the preventive detention, the 2nd detention order ought to be based on new
facts and the repeated detention order cannot be passed on the same set of
facts. It may be noted that FIR was lodged in the month of April and the 1st
detention order was issued in the month of September, 2022 and the 2nd
detention order was issued to overcome technicalities only in the month of
December, 2022 after a lapsed of more than 105 days. In the 2 nd detention
order, no new facts have been disclosed for detaining the detenu under
preventive detention and it was based on the same set of facts. It may be
noted that the preventive detention is not an alternative means to keep a
person in detention without any trial only on the ground that he will be
released on bail. All mandatory, technicalities and constitutional safeguards
have to be meticulously complied with.
WP(Cril.) No. 32 of 2022 Page 12
[15] In the present case, the representations are not disposed of on
time and the delay in the disposal of the representations and non-furnishing
of the information on time vitiate the detention order. Moreover, the Central
Government has no acted upon the representation while the State
Government in their counter affidavit states that the necessary documents
have already been forwarded to the Central Authority on time. The learned
counsel for the Central Government submits that no representation has been
forwarded to it and hence, no decision by the Central Government. So, we are
of the view that in the present case, this is a classic case where both the State
and Central Authority have flouted the statutory safeguards given to a person
taken into preventive detention. The detention orders cannot be sustained in
the eye of law [Kindly see Sarabjeet Singh Mokha v. District Magistrate,
Jabalpur: MANU/SC/1010/2021 @Para 55]. Accordingly, detention order dated
02.09.2022 and 16.12.2022 are set aside and the detenu, Mr. Satminlen
Kipgen be released from detention, if not required in any other case.
[16] The law of compensation under public law for violation of
fundamental right enshrined under Article 21 of the Constitution has been
upheld by the Hon'ble Supreme Court in a catena of cases.
[17] In the case of Sube Singh v. State of Haryana, (2006) 3
SCC 178, Hon'ble Supreme Court recognised the award of compensation
against State for infringement of fundamental right under Article 21 under the
public law in addition to the right of the citizen to claim compensation under
private law of tort. It is held in para 38 as:
"38. It is thus now well settled that the award of compensation
against the State is an appropriate and effective remedy for
redress of an established infringement of a fundamental right
under Article 21, by a public servant. The quantum of
compensation will, however, depend upon the facts and
circumstances of each case. Award of such compensation (by
way of public law remedy) will not come in the way of the
WP(Cril.) No. 32 of 2022 Page 13
aggrieved person claiming additional compensation in a civil
court, in the enforcement of the private law remedy in tort, nor
come in the way of the criminal court ordering compensation
under Section 357 of the Code of Criminal Procedure."
[18] In the case of Inhuman Conditions in 1382 Prisons, In re,
(2017) 10 SCC 658, Hon'ble Supreme Court considered the concept of
compensation for custodial death and illegal detention under public law relying
on the famous case of D K Basu and held in para 46 as:
"46. In D.K. Basu v. State of W.B.9 this Court recognised that at
the time of ratification of the International Covenant on Civil and
Political Rights, 1966 in 1979, the Government of India made a
specific reservation to the effect that the Indian legal system
does not recognise a right to compensation for victims of
unlawful arrest or detention and only became a party to the
covenant, subject to this reservation. It was noted, however,
that the reservation has lost its relevance in view of the law laid
down by this Court in several cases wherein compensation has
been awarded for the infringement of a fundamental right of a
citizen. It was also noted that while there is no express provision
in the Constitution for grant of compensation, this right has been
judicially evolved in cases of established unconstitutional
deprivation of personal liberty or life. This Court summed up the
law in the following words: (SCC p. 443, para 54)
"54. Thus, to sum up, it is now a well-accepted
proposition in most of the jurisdictions, that monetary or
pecuniary compensation is an appropriate and indeed an
effective and sometimes perhaps the only suitable
remedy for redressal of the established infringement of
the fundamental right to life of a citizen by the public
servants and the State is vicariously liable for their acts.
The claim of the citizen is based on the principle of strict
liability to which the defence of sovereign immunity is not
available and the citizen must receive the amount of
compensation from the State, which shall have the right
to be indemnified by the wrongdoer. In the assessment of
compensation, the emphasis has to be on the
compensatory and not on punitive element. The objective
is to apply balm to the wounds and not to punish the
transgressor or the offender, as awarding appropriate
punishment for the offence (irrespective of compensation)
must be left to the criminal courts in which the offender is
prosecuted, which the State, in law, is duty-bound to do.
WP(Cril.) No. 32 of 2022 Page 14
The award of compensation in the public law jurisdiction
is also without prejudice to any other action like civil suit
for damages which is lawfully available to the victim or
the heirs of the deceased victim with respect to the same
matter for the tortious act committed by the functionaries
of the State. The quantum of compensation will, of
course, depend upon the peculiar facts of each case and
no straitjacket formula can be evolved in that behalf. The
relief to redress the wrong for the established invasion of
the fundamental rights of the citizen, under the public law
jurisdiction is, thus, in addition to the traditional remedies
and not in derogation of them. The amount of
compensation as awarded by the Court and paid by the
State to redress the wrong done, may in a given case, be
adjusted against any amount which may be awarded to
the claimant by way of damages in a civil suit."
[19] Regarding the compensation for illegal detention, it is an
admitted fact that the detention of the detenu with effect from 02.12.2022 to
15.12.2022 was without any authority of law and hence illegal. It may be
noted that there is no remand order from the Court nor any order extending
the detention beyond 01.12.2022. In fact, the detenu got favourable order
from the Ld. Special Judge (ND & PS) where he was directed to be released
on default bail vide order dated 01.12.2022 passed in Cril. Misc. (B) Case No.
74 of 2022 as charge sheet could not be filed within the stipulated period of
180 days as prescribed under Section 167(2) Cr.P.C. (the Manipur
amendment). There is no extension for the period of illegal detention by the
State Authority. The explanation given for the same is that the revocation
order dated 15.12.2022 and the detention order dated 16.12.2022 were
received on the same day, i.e., 17.12.2022. In the judgment of DG & IG of
Police v. Prem Sagar reported in (1999) 5 SCC 700, the Hon'ble Supreme
Court granted a compensation of Rs. 20,000/- for illegal detention. Reliance
was placed on the judgment of the Hon'ble Supreme Court in the case of
Bhuwneshwar Singh v. Union of India reported in (1993) 4 SCC 327
where the compensation of Rs. 1000/- was enhanced to Rs. 30,000/- for
illegal pretrial custody.
WP(Cril.) No. 32 of 2022 Page 15
[20] In the present case, it is a fact that the detenu was under illegal
detention for a period of 02.12.2022 to 15.12.2022 without any authority by
the State Authority while exercising the extra-ordinary power of preventive
detention in a very casual and callous manner without taking scant respect for
the statutory safeguard provided by the statute for which the detenu have to
be adequately compensated. This Court expresses deep anguish in the
manner which the law of preventive detention has been resorted to by the
State Authority in a very mechanical and casual manner and this requires to
be rectified immediately. Exercising the inherent power conferred on this
Court and in order to do complete justice, the State Authority is directed to
pay a nominal sum of Rs. 50,000/- (Rupees fifty thousand) to the detenu as
compensation for his illegal detention for the period from 02.12.2022 to
15.12.2022 within a period of one month from the date of receipt of this order
failing which, it shall carry an interest at the rate of 6% from the date of this
order.
[21] Writ petition is allowed and disposed of in terms of the above
observations and directions.
[22] Send a copy of this order to the Chief Secretary, Government of
Manipur, for information and necessary compliance.
JUDGE ACTING CHIEF JUSTICE
FR/NFR
joshua
KH. JOSHUA Digitally signed by KH.
JOSHUA MARING
MARING Date: 2023.03.02
11:58:06 +05'30'
WP(Cril.) No. 32 of 2022 Page 16
