Huidrom Konungjao Singh vs State Of Manipur & Ors on 17 May, 2012 Dr. B.S. CHAUHAN, J. l. This Criminal Appeal has been preferred against the impugned judgment and order dated !.l."#" passed b$ the %auhati High Court, &mphal Ben'h at &mphal in (rit )etition *Crl.+ No.- of "# dismissing the Habeas Corpus petition 'hallenging the order of detention of appellants son dated !#./."# passed b$ the Distri't 0agistrate, 0agistrate, &mphal (est Distri't under Se'tion !*"+ of !*"+ of the National Se'urit$ A't, -# *hereinafter 'alled 1the A't+. ". The The son son of the the appe appell llan ant, t, namel namel$, $, Huid Huidro rom m Shan Shanti ti2u 2uma marr Sing Singh h 3as 3as arrested on ./."# b$ the &mphal )oli'e under Se'tion !#" of !#" of &ndian )enal Code, -/# *hereinafter 'alled 1&)C 1&)C+ read 3ith Se'tion "4*5C+ "4*5C+ of the Arms A't, 4 *hereinafter 'alled 1 Arms A't A't+. The Distri't 0agistrate, &mphal (est passed the detention order dated !#./."# under the A't on 6arious grounds 3ith an apprehension that as in similar 'ases, the a''used in6ol6ed therein had been enlarged on bail the detenu in this 'ase 3ould also be released on bail and he 3ould indulge in a'ti6ities prejudi'ial to publi' order. !. The The appe appella llant nts s son son 3as 3as ser6 ser6ed ed 3ith 3ith the the groun grounds ds of deten detenti tion on date dated d ".7. ".7."# "# .. The The dete detenu nu made made repr represe esent ntat atio ions ns on /.7 /.7." ."# #t to o the the Ce Cent ntra rall %o6ernment as 3ell as to the %o6ernment of 0anipur 3hi'h stood reje'ted. The The det detenti ention on orde orderr 3as 3as 'on 'onfirm firmed ed 6ide 6ide orde orderr dat dated /./.-.."# "#an and d 'onfirmation order 3as furnished to the detenu on -.-."#. The appellant filed (rit )etition *Crl.+ No.- of "# 'hallenging the detention order in %auhati High Court *&mphal Ben'h+ 3hi'h stood dismissed 6ide impugned judgment and order dated !.."#". Hen'e, this this appeal. 8. The The 9ues 9uesti tion on of perso persona nall libe libert rt$ $ of a pers person on is sa'ro sa'rosa san' n'tt and and Stat Statee Authorit$ 'annot be permitted to ta2e it a3a$ 3ithout follo3ing the pro'edure pres'ribed b$ la3, other3ise it 3ould be 6iolati6e of the fundamental rights guaranteed under Arti'les " and :"" of the Constitution. &n A$$a alias A$ub 6. State ofU.). ; Anr., A&< - SC !/8, this Court held that the la3 of pre6enti6e detention is based and 'ould be des'ribed as a =jurisdi'tion of suspi'ion> and the 'ompulsion of 6alues of freedom of demo'rati' so'iet$ and of so'ial order sometimes might 'ompel a 'urtailment of indi6idual?s libert$. 4. &n @umman ngbi embi eima 6. State of 0anipur ; rs., rs ., *"#"+ " SCC 7/, this Court held that personal libert$ of an indi6idual is the most pre'ious and pried right guaranteed under the Constitution in )art &&& thereof. The State has been granted the po3er to 'urb su'h rights under 'riminal la3s as also under the la3s of pre6enti6e detention, 3hi'h, therefore, are re9uired to be eer'ised 3ith due 'aution as 3ell as upon a proper appre'iation of the fa'ts as to 3hether su'h a'ts are in an$ 3a$ prejudi'ial to the interest and the se'urit$ of the State and its 'itiens, or see2 to disturb publi' la3 and order, 3arranting the issuan'e of su'h an order. /. (hether a person 3ho is in jail 'an be detained under detention la3 has been a subje't matter of 'onsideration before this Court time and again. &n
Dharmendra Sugan'hand Chela3at ; Anr. 6. Union of &ndia ; rs., A&< # SC /, this Court 3hile 'onsidering the same issue has re'onsidered its earlier judgments on the point in
The de'isions referred to abo6e lead to the 'on'lusion that an order for detention 'an be 6alidl$ passed against a person in 'ustod$ and for that purpose it is ne'essar$ that the grounds of detention must sho3 that *i+ the detaining authorit$ 3as a3are of the fa't that the detenu is alread$ in detentionE and *ii+ there 3ere 'ompelling reasons justif$ing su'h detention despite the fa't that the detenu is alread$ in detention. The epression >'ompelling reasons> in the 'ontet of ma2ing an order for detention of a person alread$ in 'ustod$ implies that there must be 'ogent material before the detaining authorit$ on the basis of 3hi'h it ma$ be satisfied that *a+ the detenu is li2el$ to be released from 'ustod$ in the near future, and *b+ ta2ing into a''ount the nature of the ante'edent a'ti6ities of the detenu, it is li2el$ that after his release from 'ustod$ he 3ould indulge in prejudi'ial a'ti6ities and it is ne'essar$ to detain him in order to pre6ent him from engaging in su'h a'ti6ities.> . &n 6ie3 of the abo6e, it 'an be held that there is no prohibition in la3 to pass the detention order in respe't of a person 3ho is :alread$ in 'ustod$ in respe't of 'riminal 'ase. Ho3e6er, if the detention order is 'hallenged the detaining authorit$ has to satisf$ the Court the follo3ing fa'tsG *+ The authorit$ 3as full$ a3are of the fa't that the detenu 3as a'tuall$ in 'ustod$. *"+ There 3as reliable material before the said authorit$ on the basis of 3hi'h he 'ould ha6e reasons to belie6e that there 3as real possibilit$ of his release on bail and further on being released he 3ould probabl$ indulge in a'ti6ities 3hi'h are prejudi'ial to publi' order. *!+ &n 6ie3 of the abo6e, the authorit$ felt it ne'essar$ to pre6ent him from indulging in su'h a'ti6ities and therefore, detention order 3as ne'essar$. &n 'ase either of these fa'ts does not eist the detention order 3ould stand 6itiated.
!. &ndisputabl$, the obje't of la3 of preventi6e detention is not puniti6e, but onl$ preventi6e. &n 'ase of preventi6e detention no offen'e is to be pro6ed nor is an$ 'harge formulated. The justifi'ation of su'h detention is suspi'ion and reasonabilit$ and there is no 'riminal 'on6i'tion 3hi'h 'an onl$ be 3arranted b$ legal e6iden'e. Ho3e6er, the detaining authorit$ must 2eep in mind 3hile passing the order of detention the 'i6il and 'onstitutional right granted to e6er$ 'itien b$ Arti'le " of the Constitution of &ndia inasmu'h as no person shall be depri6ed of life and libert$ e'ept in a''ordan'e 3ith the pro'edure established b$ la3. The la3s of Preventi6e etention are to be stri'tl$ 'onstrued and the pro'edure pro6ided must be meti'ulousl$ 'omplied 3ith. >!". The po3er of preventi6e detention is 9ualitati6el$ different from puniti6e detention. The po3er of preventi6e detention is a pre'autionar$ po3er eer'ised in reasonable anti'ipation. &t ma$ or ma$ not relate to an offen'e. &t is not a parallel pro'eeding. &t does not o6erlap 3ith prose'ution e6en if it relies on 'ertain fa'ts for 3hi'h prose'ution ma$ be laun'hed or ma$ ha6e been laun'hed. An order of preventi6e detention ma$ be, made before or during prose'ution. An order of preventi6e detention ma$ be made 3ith or 3ithout prose'ution and in anti'ipation or after dis'harge or e6en a'9uittal. The penden'$ of prose'ution is no pi'Ibar to an order of preventi6e detention. An order of preventi6e detention is also not a bar to prose'ution. !!. Arti'le 8 is inappli'able be'ause preventi6e detention and prose'ution are not s$non$mous. The purposes are different. The authorities are different. The nature of pro'eedings is different. &n a prose'ution an a''used is sought to be punished for a past a't. &n preventi6edetention, the past a't is merel$ the material for inferen'e about the future 'ourse of probable 'ondu't on the part of the detenu.
The prin'iples 3hi'h 'an be broadl$ stated are these. irst, merel$ be'ause a detenu is liable to be tried in a 'riminal 'ourt for the 'ommission of a 'riminal offen'e or to be pro'eeded against for preventing him from 'ommitting offen'es dealt 3ith in Chapter K&&& of the Code of Criminal )ro'edure 3ould not b$ itself debar the %o6ernment from ta2ing a'tion for his detention under the A't. Se'ond, the fa't that the )oli'e arrests a person and later on enlarges him on bail and initiates steps to prose'ute him under the Code of Criminal )ro'edure and e6en lodges a first information report ma$ be no bar against the Distri't 0agistrate issuing an order under the preventi6e detention. Third, 3here the 'on'erned person is a'tuall$ in jail 'ustod$ at the time 3hen an order of detention is passed against him and is not li2el$ to be released for a fair length of time, it ma$ be possible to 'ontend that there 'ould be no satisfa'tion on the part of the detaining authorit$ as to the li2elihood of su'h a person indulging in a'ti6ities 3hi'h 3ould jeopardise the se'urit$ of the State or the publi' order. ourth, the mere
'ir'umstan'e that a detention order is passed during the penden'$ of the prose'ution 3ill not 6iolate the order. ifth, the order of detention is a pre'autionar$ measure. &t is based on a reasonable prognosis of the future beha6iour of a person based on his past 'ondu't in the light of the surrounding 'ir'umstan'es.> Balancing of societal interests and protection of rights of the accused.- We are not unaware that crime rate is going up in our country for various reasons which 6 need not be recounted here. Terrorism, drugs and organized crime have become so acute that special measures have become necessary to fight them not only at the national level but also at the international level. We also take note of the fact that uite a number of policemen risk their lives in discharge of their duties and that they are specially targeted by the criminal and terrorist gangs. We recognize that in certain situations e.g., like the one obtaining in !ashmir today, a literal compliance with several legal and constitutional safeguards may not be practicable but we must also take note of and provide for the generality of the situation all over the country and not be deflected by certain specific, temporary situations. We must also take note of the fact that very often it is the poor who suffer most at the hands of "olice. Their poverty itself makes them suspects. This was said, though from a different angle, by #eorge Bernard $haw. %e said &poverty is crime'. But nowadays, even middle classes and other well-to-do people, who do not have access to political power-wielders, also are becoming targets of "olice e(cesses. We recognize that ensuring a balance between societal interest in peace and protection of the rights of the accused is a difficult one but it has to be done. We also recognize the fundamental significance of the %uman )ights, which are implicit in "art *** of our +onstitution and of the necessity to preserve, protect and promote the )ule of aw which constitutes the bedrock of our constitutional system. . #uidelines laid down by the $upreme +ourt.- The effort of the courts, and in particular of the $upreme +ourt over the last more than two decades has been to circumscribe the vast discretionary power vested by law in "olice by imposing several safeguards and to regulate it by laying down numerous guidelines and by sub/ecting the said power to several conditionalities. The effort throughout has been to prevent its abuse while leaving it free to discharge the functions entrusted to the "olice. While it is not necessary to refer to all of them for the purpose of this working paper, it would be sufficient if we refer to a few of them 0which indeed reaffirm and recapitulate the directions and guidelines contained in earlier decisions1. *n 2oginder !umar v. $tate of 3.". 04*) 55 $+ 751, the power of arrest and its 8 e(ercise has been dealt with at length. *t would be appropriate to refer to certain perceptive observations in the /udgment9 &The horizon of human rights is e(panding. 4t the same time, the crime rate is also increasing. :f late, this court has been receiving complaints about violation of human rights because of indiscriminate arrests. %ow are we to strike a balance between the two; 4 realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other< of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively< of simply deciding what is wanted and where to put the weight and the emphasis< of deciding which comes first = the criminal or society, the law violator or the law abider< of meeting the challenge which >r. 2ustice +ardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society?s rights and wisely held that the e(clusion rule was bad law, that society came first, and that the
criminal should not go free because the constable blundered. The uality of a nation?s civilisation can be largely measured by the methods it uses in the enforcement of criminal law.'
