Md. Najir v. Special Secretary (Home) and 3 Others

ORDER (ORAL) Sanjay Kumar (C.J.):

[1]

By way of this writ petition, the petitioner assails the order dated

08.09.2022 of the Special Secretary (Home), Government of Manipur, whereby he was subjected to preventive detention in exercise of power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. He seeks a consequential writ of habeas corpus to set him at liberty forthwith. [2]

Heard Mr. Ch. Ngongo, learned counsel for the petitioner; Mr. Athouba Khaidem, learned Government Advocate, for respondents No. 1, 2 & 4; and Mr. W. Darakeshwar, learned Sr. PCCG, appearing for respondent No. 3. [3]

The primary ground of attack urged by Mr. Ch. Ngongo, learned counsel, against the impugned order of detention is the delay on the part of the authorities in dealing with the petitioner's representation against his detention order. According to him, the said representation has not been disposed of till date. The petitioner's representation is dated 23.09.2022. [4]

As per the para-wise comments furnished to Mr. Athouba Khaidem, learned Government Advocate, by the Superintendent, Manipur Central Jail, Sajiwa, the said representation was forwarded by him on the same day to the concerned authority for necessary further action. However, the affidavit-in-opposition filed by the Deputy Secretary (Home), Government of Manipur, makes no mention of the said representation having been received by the Home Department. It appears that the Advisory Board was furnished a copy

Page 3

of the petitioner's representation only by the Investigating Officer and not by the Home Department of the State Government. It is therefore clear that there was a serious lapse in the forwarding of the petitioner's representation dated

23.09.2022 and it is not even clear as to where and how this failure occurred. [5]

The file of the detaining authority was produced by Mr. Athouba Khaidem, learned Government Advocate, but it sheds no light on the issue as the representation made by the petitioner was never received by the Home Department. [6]

Be it noted that in Rajammal vs. State of T.N. and another [(1999) 1 SCC 417], the Supreme Court observed that if delay is caused in consideration of the detenu's representation owing to indifference or any other lapse, such delay would adversely affect further detention of the prisoner. According to the Supreme Court, it is for the authority concerned to explain the delay, if any, in disposing of the representation and it is not enough to say that the delay is very short, as even longer delay can as well be explained and so, the test is not the duration or range of delay, but how it is explained by the authority concerned. The unexplained delay in that case was a mere 5 days. [7]

Earlier, in Professor Khaidem Ibocha Singh vs. The State of Manipur [AIR 1972 Supreme Court 438], the Supreme Court set aside an order of detention on the ground that there was unexplained delay of 17 days in the passing of an order on the representation made by the detenu. [8]

More recently, in Sarabjeet Singh Mokha vs. The District Magistrate, Jabalpur, and others [(Criminal Appeal No. 1301 of 2021, decided on 29.10.2021 = 2021 SCC OnLine SC 1019], the Supreme Court

Page 4

held that by delaying a decision on such representation, the State Government denied the detenu a valuable statutory right. The Supreme Court observed that the delay by the State Government in disposing of such representation strikes at the heart of the procedural rights and guarantees granted to a detenu. [9]

Though it is laudable that the Government of Manipur is waging a 'war on drugs' and initiating stringent measures to arrest the menace of illicit drug manufacture, trafficking and marketing in and through the State of Manipur, it is equally its responsibility to ensure that procedural safeguards are taken note of strictly so as to protect the Constitutional and statutory rights of persons detained under preventive detention laws. Despite this Court stating to this effect time and again, scant regard is shown by the authorities concerned to compliance with the prescribed norms. [10] The unexplained delay on the part of the authorities in dealing with the detenu's representation dated 23.09.2022 clearly indicates a lackadaisical and casual approach on their part, which is inimical to the mandatory legal requirements in a matter of this nature. The same would also be fatal to the very validity and continuance of the impugned detention order. [11] The order of detention dated 08.09.2022 issued by the Special Secretary (Home), Government of Manipur, is accordingly set aside. All consequential proceedings based thereon shall also stand set aside. The petitioner, Md. Najir, presently incarcerated in Manipur Central Jail, Sajiwa, shall be set at liberty forthwith unless his continued incarceration is validly required in connection with any other case. WP (Cril.) No. 1 of 2023 is accordingly allowed.

Page 5

In the circumstances, there shall be no order as to costs. A copy of this order shall be sent to the Chief Secretary, Government of Manipur, for information and necessary further action in the context of educating all the authorities concerned in the State of Manipur as to what are the procedural norms that they need to adhere to while exercising power and jurisdiction under preventive detention laws.

JUDGE

CHIEF JUSTICE Sandeep

Page 1 Item No. 4 IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P. (Crl.) No. 1 of 2023 Md. Najir, aged about 50 years, S/o. (L) Nurudin of Irong Chesaba, P.O. & P.S. Mayang Imphal, Thoubal District, Manipur. Petitioner Vs. 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 the Chief Secretary, Government of Manipur, at 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 – 1110001. 4. The Superintendent of Manipur Central Jail, Imphal, 1st M.R. P.O. & P.S. Imphal, District Imphal West, Manipur. Respondents BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON'BLE MR. JUSTICE MV MURALIDARAN For the Petitioner : Mr. Ch. Ngongo, Advocate For Respondent Nos. 1, 2 & 4 : Mr. Athouba Khaidem, Government Advocate For Respondent No. 3 : Mr. W. Darakeshwar, Sr. PCCG Date of Order : 02.02.2023 KABORA MBAM SANDEE P SINGH by KABORAMBAM SANDEEP SINGH Date: 2023.02.02 15:48:12 +05'30' Page 2