Manipur High Court
Thoubalmayum Rafique @ Rafique ... vs Special Secretary (Home) on 21 February, 2023
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (Cril.) No. 36 of 2022
Thoubalmayum Rafique @ Rafique Ahamed, aged about 43
years, S/o Th. Siraj Ahamed of Moijing Thoubalmayum Leikai,
P.O & P.S. Thoubal, District Thoubal, Manipur.
...... Petitioner/s
- Versus -
1. Special Secretary (Home), Government of Manipur Babupara,
Old Secretariat Building P.O. & P.S. Imphal, District Imphal
West, Manipur-795001.
2. State of Manipur, represented by Chief Secretary,
Government of Manipur, Old Secretariat Building, P.O. & P.S.
Imphal, District Imphal West, Manipur-795001.
3. Deputy Secretary (PIT-ND & PS) Ministry of Finance,
Department of Revenue, New Delhi-110001.
4. The Superintendent of Manipur Central Jail, Sajiwa near
Khabeisoi, P.O. Porompat, P.S. Heingang, Imphal East
District, Manipur.
........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. Ch. Ngongo, Adv.
For the respondents :: Mr. Th. Vashum, G.A. and Mr. BR.
Sharma, CGC
Date of hearing :: 16.02.2023
Date of Judgment and Order ::
WP(Cril.) No. 36 of 2022 Page 1
JUDGMENT & ORDER
(CAV)
A. Guneshwar Shar, (J)
[1] The petitioner was arrested on 19.06.2022 in connection with
FIR No. 108(06)2022 TBL-PS U/S 21(b) ND & PS Act on the allegation of
running drug vendor and selling illegal drugs to drug users and seized from
him 17.10 grams of heroin (Brown Sugar) and Rs. 64,000/- in cash. He
filed a bail application being Cril.Misc.(B) Case No. Nill of 2022 in the Court
of Special Judge (ND & PS), Thoubal. Vide order dated 31.10.2022 issued
by the Special Secretary, Home Department, Government of Manipur, the
petitioner 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 and he would continue his illegal activities
including illicit trafficking of drugs even after his release on bail.
Vide letter dated 04.11.2022, The Special Secretary (Home),
Government of Manipur, furnished the grounds of detention to the
petitioner where it is stated that 17.10 grams heroin excluding the weight of
container and Rs. 64,000/- was recovered from the the possession of the
petitioner and his wife and both of them were arrested and it was found out
that both the petitioner and his wife were running drug vendor and selling
illegal drugs to drug abusers at their residence. It is also stated that they
are habitually dealing and selling of drugs to the customers. Since, the
petitioner is likely to be released on bail and he would continue in the illegal
activities of drug trafficking and he was detained under Section 3 of the PIT
- ND & PS Act.
[2] The petitioner submitted 3 (three) similar representations all
dated 17.11.2022 to the Chief Secretary, Government of Manipur, to the
WP(Cril.) No. 36 of 2022 Page 2
Deputy Secretary, (PIT-ND & PS), Ministry of Finance, Department of
Revenue, Government of India and to the State Advisory Board, ND & PS,
Government of Manipur, through the Superintendant, Central Jail, Sajiwa,
for revocation of the impugned detention order dated 31.11.2022 issued by
the Special Secretary (Home), Government of Manipur on the ground that
the grounds of detention are all concocted and fabricated stories and there
is no single evidence against him and he was formally arrested on
19.11.2022 by Thoubal Police Station and he has been to judicial custody
for more than 120 days. He was released from judicial custody on bail and
while he was on bail, the detention order dated 31.10.2022 was issued
against him and the Central Government did not consider the revocation of
the detention order based on report submitted by the State Government.
[4] During the pendency of the 1st 3 (three) representations all
dated 17.11.2022, the petitioner also submitted another representations all
dated 21.11.2022 to the Chief Secretary, Government of Manipur, to the
Deputy Secretary, (PIT-ND & PS), Ministry of Finance, Department of
Revenue, Government of India and to the State Advisory Board, ND & PS,
Manipur through the Superintendent, Manipur Central Jail, Sajiwa, where it
is stated that the 1st representation dated 17.11.2022, due to bonafide
mistake, the FIR No. was wrongly mentioned and hence, the 2nd
representation was submitted with the correct FIR No. In the 1st
representation, FIR No. was wrongly mentioned as 115(7) TBL-PS U/S
21(b)/27(a)/29/60(3) ND & PS Act. In order to correct this mistake, the
petitioner submitted the 2nd representation with the correct FIR No. as
108(6)2022 TBL-PS U/S 21(b)/29 ND & PS Act. It is stated that the
representations are not duly disposed of by the State as well as the Central
Authorities and as such, the detention order is liable to be set aside. The
detention order is challenged on the following grounds:
WP(Cril.) No. 36 of 2022 Page 3
(a) For that, the detention of the petitioner is liable to be set
aside as there was misapplication of law by the detaining
authority while passing the detention order as such the
order in Annexure A/1 Order No. H-3301/105/2022-HD-HD
dated 31.10.2022 is liable to be set aside.
(b) For that, the detaining authority did not formulate the
ground of detention before passing detention order as
such liable to be set aside.
(c) For that, there was no material as evident before the
detaining authority for coming to the conclusion that the
petitioner is likely to indulge in the prejudicial activity if
released from detention and as such liable to be set aside.
(d) For that, the respondent No. 1 is not aware of the
likelihood of prejudicial activity after releasing on bail and
as such liable to be set aside.
(e) For that, the respondents are violating the mandatory
provision of the Prevention of Illicit Traffic in Narcotics
Drugs and Psychotropic Substances Act (PIT-ND & PS)
Act, 1988 and as such the impugned order is liable to be
set aside.
(f) For that the detaining authority while passing detention
order at Annexure A/1 did not indicate that the detenue is
already in police custody and as such the impugned order
is liable to be set aside.
WP(Cril.) No. 36 of 2022 Page 4
(g) For that the respondent No. 2 did not disposed the
representations made by the petitioner till today and as
liable to be set aside.
(h) For that the respondent No. 3 did not disposed the
representations made by the petitioner till today and as
liable to be set aside.
(i) For that the detaining authority did not indicate his
livelihood of being released on bail and as such the
impugned order is liable to be set aside.
(j) For that the detaining authority did not specify the detenue
about making representation to the detaining authority
himself and as such the impugned order is liable to be set
aside.
(k) For that the detaining authority did not forward a report to
Central Government within the specific time mentioned in
section 3 (2) of the PIT-ND & PS and as such the
impugned order is liable to be set aside.
(l) For that the Central Government did not consider the
revocation of detention order based on report submitted by
the State Government under Section 3(2) of Prevention of
Illicit Traffic in Narcotics Drugs and Psychotropic
Substances Act (PIT-ND & PS) Act, 1988 independently
and as such the detention order is liable to be set aside.
[5] In the reply filed by the State respondents, it is stated that the
petitioner and his wife started to sell drugs to drug users in small quantities
thereby earning profits for his personal gain from the drug users. It is also
WP(Cril.) No. 36 of 2022 Page 5
stated that the petitioner is a notoriously clever, habitual offender and
hardened criminal and has been involved in trafficking of illegal drugs and
selling of Heroin No. 4 in huge quantity at his residence and there has been
apprehension that he would continue the drugs business when he was out
of bail and there was possibility of him of being released on bail. In order to
prevent him from further indulging in illegal activities of drug trafficking, he
was detained under the PIT-ND & PS Act. It is also submitted that the
detention order dated 30.11.2022 was served to the detenu on 04.11.2022
within the timeline line as stipulated under Sub-Section 3 of Section 3 of
PIT-ND & PS Act. Further, the detention order of the detenue was
furnished to the Central Government vide letter dated 16.09.2022 within
the stipulated time. It is also stated that the representation of the petitioner
was forwarded to the Deputy Secretary (PIT-ND & PS), Ministry of Finance,
Department of Revenue, Government of India, New Delhi within time. It is
also stated that the State Government duly considered the representation
of the detenue and rejected the same vide letter dated 07.12.2022 after
calling comments from the Police department. It is also stated that the
delay in disposing the representation and forwarding copy to the
Government of India was due to the high volume of proposals received and
routine works of the department. It is prayed that the writ petition may be
disposed of as the Union of India did not file any reply to the writ petition.
[6] Heard Mr. Ch. Ngongo, learned counsel for the petitioner, Mr.
Th. Vashum, learned G.A. for the State respondents and Mr. BR. Sharma,
learned CGC for the Union of India.
[7] Mr. Ch. Ngongo, learned counsel for the petitioner, draws the
attention of this Court that the 2nd representation has not been disposed of
till date and no explanation has been given for the delay in the present
case. He has also stated that the detention order was issued in the name
of the Governor but the confirmation/rejection order was issued by the
WP(Cril.) No. 36 of 2022 Page 6
Subordinate Officer, i.e., The Deputy Secretary (Home), Government of
Manipur, which is subordinate and has no authority. The rejection order
dated 07.12.2022 was issued by the Deputy Secretary (Home),
Government of Manipur, and the same was not in the name of the
Governor and confirmation was also vitiated. The 2nd representations are
still pending waiting for disposal by the State and Central Authorities. It is
also stated that there was 20 days delay in disposal of the 1 st
representation dated 17.11.2022 by the State Government and the delay
has not been explained except being busy in high volume official works.
Mr. Ch. Ngongo, learned counsel for the petitioner has relied
upon the judgment of the Hon'ble Supreme Court in the case of Rajammal
-vs- State of Tamil Nadu reported in (1999) 1 SCC 417 where it was held
that the obligation of the State Government to consider the representation
forwarded by the detenue without any unexplained delay and any delay in
the disposal of representation would be a breached of the constitutional
safeguards and it would render the continued detention impermissible and
illegal. He prays that the detention order be set aside as the 2nd
representation has not been disposed of till date and 20 days delay in
disposal of the 1st representation has not been duly considered.
[8] Mr. Th. Vashum, learned G.A., submits that there is no undue
delay on the part of the State Authorities. The ground for detention was
intimated within the stipulated time and the detention order was forwarded
to the Central Government. The representation submitted by the detenue
was also forwarded to the Central Government on time and the delay in
disposal of the 1st representation was due to the overburden in the
department and was explained. The learned G.A. relies upon the Judgment
of the Hon'ble Supreme Court in the case of Senthamil Selvi -vs- State of
Tamil Nadu reported in (2006) 5 SCC 676 where it was held that the delay
of 12 days was duly explained and condoned and the detention order was
WP(Cril.) No. 36 of 2022 Page 7
upheld. He submits that the petitioner, being habitually indulged in selling
of drugs from his residence to drug users, was detained as Normal
Criminal Court cannot deal with his case.
[9] On perusal of the original case record, it is seen that the State
Authorities as well as the Advisory Board consider only the 1 st
representation dated 17.11.2022 and there is no whisper of the 2 nd
representation dated 21.11.2022.
[10] Vide Order dated 13.01.2022, the Commissioner (Home),
Government of Manipur, rejected the representation of the detenue after
considering the opinion of the Advisory Board confirming the detention
order and fixed the period of detention as 12 months as provided under
Section 11 of the PIT-ND & PS Act.
[11] Mr. BR. Sharma, learned CGC for the Union of India, has
adopted the counter affidavit of the State Government. However, he
submits that no instruction has been received with respect to the allegation
made against the Central Government in the writ petition.
[12] From the perusal of the case record, it is seen that the 2 nd
representation dated 21.11.2022 has not been considered by the Advisory
Board nor by the State Government and rejection order is with respect to
the 1st representation dated 17.11.2022. Both the State Government and
the Central Government have not dealt with the 2nd representation dated
21.11.2022. Besides, the Central Government has also not passed any
order on the 1st representation dated 17.11.2022. Non-disposal of the
representation in the case of preventive detention of a person, who has
been detained without any trial, is impermissible and illegal as per the
various judgments of the Hon'ble Apex Court. It will be appropriate to
reproduce para Nos. 7, 8 & 9 of the judgment passed by the Honb'e
Supreme Court in the case of Rajammal v. State of T.N. reported in
WP(Cril.) No. 36 of 2022 Page 8
(1999) 1 SCC 417: 1999 SCC (Cri) 93, at page 421 , which reads as
under:
"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 India5. 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 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.
WP(Cril.) No. 36 of 2022 Page 9
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
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."
It may be relevant to point out another judgment of the Hon'ble
Supreme Court in the case of Sarabjeet Singh Mokha v. The District
Magistrate, Jabalpur reported as MANU/SC/1011/2021, it was held that
unexplained delay on the part of the State Government in deciding the
representation of the detenu and failure of the Central and State Government
to inform rejection of the representation in timely manner rendered the
detention order as invalid.
[13] So, we are of the view that non-decision on the 2nd
representation by the State Government as well as the 1 st and 2nd
representation by the Central Government has impeached the right of
personal liberty of the detenu and also there was unexplained delay on the
part of the State Authorities in disposal of the 1st representation. Accordingly,
the detention order dated 31.10.2022 passed by the Special Secretary
(Home), Government of Manipur, as well as confirmation order dated
13.01.2022 passed by the Commissioner (Home), Government of Manipur are
set aside and the detenu is to be released from detention if not required in
any other case.
WP(Cril.) No. 36 of 2022 Page 10
Writ petition is allowed in terms of the above order. No cost.
JUDGE ACTING CHIEF JUSTICE
FR/NFR
Digitally signed by
joshua KH. JOSHUA KH. JOSHUA MARING
MARING Date: 2023.02.21
16:22:34 +05'30'
WP(Cril.) No. 36 of 2022 Page 11
