Manipur High Court
Md. Sagir Khan vs The State Of Manipur on 27 January, 2023
Digitally
KABOR signed by
KABORAMBAM
AMBAM SAPANA
SAPANA CHANU
Date: Item No. 3
CHANU 2023.01.27
16:41:23 -08'00'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP (Crl.) No. 50 of 2022
Md. Sagir Khan, aged about 26 years, S/o Managing Director
Tomba of Yairipok Singa Ethei Mapal. P.O. and P.S. Yairipok,
District-Thoubal, Manipur, 795138.
Petitioner
Vs.
1. The State of Manipur, represented by the Chief Secretary,
Government of Manipur, Babupara, P.O. and P.S. Imphal,
Imphal West District, Manipur - 795001.
2. The District Magistrate, Thoubal District, P.O. & P.S.
Thoubal, District - Thoubal, Manipur- 795138.
3. The Union of India, through the Secretary to the Government
of India, Ministry of Home Affairs, Department of Internal
Security, North Block, New Delhi - 110001
Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE MV MURALIDARAN
For the Petitioner : Mr. Ph. Sanajaoba, Advocate
For Respondent Nos. 1 & 2 : Mr. Th. Vashum, Government Advocate
For Respondent No. 3 : Mr. BR Sharma, CGSC
Date of Order : 27.01.2023
ORDER (ORAL)
Sanjay Kumar (C.J.):
[1] Challenge in this writ petition is to the order dated 11.11.2022 of the
District Magistrate, Thoubal District, subjecting the petitioner's mother,
Mrs.Thambalmani @ Laila, to preventive detention in exercise of power under
W.P. (Crl.) No. 50 of 2022 Page 1
Section 3 (2) of the National Security Act, 1980. He seeks a consequential writ of
habeas corpus to set her at liberty forthwith.
[2] Heard Ph. Sanajaoba, learned counsel for the petitioner;
Mr. Th. Vashum, learned Government Advocate, appearing for respondents No. 1
& 2; and Mr. BR Sharma, learned CGSC, appearing for respondent No. 3.
[3] The primary ground of attack urged by Mr. Ph. Sanajaoba, learned
counsel, is that there was no material before the detaining authority to surmise
that there was any likelihood of the petitioner's mother being released on bail in
the near future. He would point out that she was arrested in September, 2022, in
connection with 3 FIRs, viz., FIR No. 25 (5) 2022 Khongjom PS; FIR No. 77 (6)
2022 Kakching PS; and FIR No. 26 (7) 2022 Andro PS. Two of these FIRs pertained
to offences under the Unlawful Activities (Prevention) Act, 1967.
[4] Perusal of the impugned order of detention reflects that the District
Magistrate, Thoubal District, noted in unnumbered para 4 thereof as follows:-
'And whereas, I am satisfied from the police report that Mrs.
Thambalmani @ Laila (46 yrs.) W/o, Md. Tomba of Yairipok Singa Ethei Mapal, P.O
& P.S. Yairipok, District-Thoubal, Manipur who is now in judicial custody and is
likely to be released on bail in the near future and also she is likely to continue to
act in the manner prejudicial to the security of the State and maintenance of public
order, and also that an alternative preventive measure is called for.'
However, the documents furnished to the detenu along with the
grounds of detention made no mention of any bail petition having been filed by the
detenu in connection with any of the FIRs registered against her.
[5] The affidavit-in-opposition filed by the Deputy Secretary (Home),
Government of Manipur, also does not shed any light on this aspect of the matter.
W.P. (Crl.) No. 50 of 2022 Page 2
No mention is made therein of any bail petition having been filed by the detenu in
relation to any of the cases registered against her, whereby it could be
apprehended that there was a likelihood of her being released on bail.
[6] The original files pertaining to this detention case were produced by
Mr. Th. Vashum, learned Government Advocate. However, there is not a single
document found in either of the files referring to bail applications, if any, filed by
the detenu in relation to the 3 FIRs registered against her. In effect, the statement
made by the District Magistrate, Thoubal District, in unnumbered para 4 of the
impugned detention order had no basis whatsoever and there was no material
placed before him to infer that there was a likelihood of the detenu being released
on bail, necessitating issuance of the detention order.
[7] Significantly, in Rekha vs. State of Tamil Nadu, through Secretary
to Government and another [(2011) 5 SCC 244], the Supreme Court observed
that there would be a real possibility of release of a person who is already in custody
provided he has moved a bail application, which is pending, as in such a case, the
detaining authority can reasonably conclude that there is likelihood of the detenu
being released on bail. Reference may also be made to A. Shanthi (Smt) vs.
Govt. of T.N. and others [(2006) 9 SCC 711], wherein, the Supreme Court
noted its earlier judgment in T.V. Saravanan vs. State [(2006) 2 SCC 664]
holding to the effect that the imminent possibility of the appellant therein coming
out on bail was merely the ipse dixit of the detaining authority unsupported by any
material whatsoever as there was no cogent material before the detaining authority
on the basis of which he could satisfy himself that the detenu was likely to be
released on bail. The Supreme Court pointed out that the inference in that regard
had to be drawn from the available material on record and in the absence of such
W.P. (Crl.) No. 50 of 2022 Page 3
material, the mere ipse dixit of the detaining authority would not be sufficient to
sustain the order of detention.
[8] In the light of the aforestated precedential edicts, it would be
incumbent upon a detaining authority to verify whether or not the person in custody
has actually moved a bail petition so as to determine the possibility of his/her being
released on bail and only thereafter, proceed to exercise power under the special
law of preventive detention.
[9] In the case on hand, except for the bald statement in unnumbered
para 4 of the impugned detention order, there is no material whatsoever to support
the conclusion that the detenu may be released on bail. Based on the mere ipse
dixit of the detaining authority, the impugned order of detention cannot be
sustained.
[10] W.P. (Crl.) No. 50 of 2022 is accordingly allowed, setting aside the
order of detention dated 11.11.2022 passed by the District Magistrate, Thoubal
District, in exercise of power under Section 3 (2) of the National Security Act, 1980.
All consequential proceedings based thereon shall also stand set aside.
The detenu, Mrs. Thabalmani @ Laila, presently incarcerated in
Manipur Central Jail, Imphal, shall be set at liberty forthwith unless her continued
incarceration is validly required in connection with any other case.
In the circumstances, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
Sapana
W.P. (Crl.) No. 50 of 2022 Page 4
