Jamkholun Touthang v. Union of India and 3 Ors

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

[1]

The petitioner assails the order dated 13.09.2022 of the Special Secretary (Home), Government of Manipur, whereby the petitioner's son, Thangjamang Touthang, 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 his son at liberty forthwith. For the Petitioner : Mr. Serto T. Kom, Advocate For Respondent Nos. 1 & 2 : Mr. Kh. Samarjit, DSGI For Respondent Nos. 3 & 4 : Mr. S. Nepolean, Government Advocate Date of Order : 25.01.2023 LAIRENM AYUM INDRAJE ET SINGH by LAIRENMAYUM INDRAJEET SINGH Date: 2023.01.25 17:20:56 +05'30'

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[2]

Heard Mr. Serto T. Kom, learned counsel for the petitioner; Mr. S. Nepolean, learned Government Advocate, appearing for respondent Nos. 3 & 4; and Mr. Paikhomba, learned counsel, representing Mr. Kh. Samarjit, learned DSGI, appearing for respondent Nos. 1 & 2. [3]

The primary ground of attack urged by Mr. Serto T. Kom, learned counsel, is the unexplained delay in the disposal of the detenu's representation against his detention. The representation of the detenu is dated 10.10.2022. It was rejected on 14.12.2022. The affidavit-in-opposition filed by the Deputy Secretary

(Home), Government of Manipur, reflects that the detenu's representation dated

10.10.2022 was forwarded by the jail authority on the same day and but received by the Home Department on 12.10.2022. Para-wise comments were sought from the police authorities under letter dated 20.10.2022. However, comments were furnished by the Officer-in-Charge, Kakching Police Station, only on 08.12.2022. Upon receiving the same, the matter was considered and the representation was rejected on 14.12.2022. It was further stated that an explanation has been sought from the Director General of Police, Manipur, for the delay in the submission of the para-wise comments but no explanation had been received. [4]

The file of the detaining authority produced by Mr. S. Nepolean, learned Government Advocate, reflects that the detenu's representation was forwarded by the Superintendent, Manipur Central Jail, Sajiwa, to the Inspector General of Prisons, Manipur, on 10.10.2022 itself and was received in the Directorate of Prisons, Manipur, on 11.10.2022. It was then forwarded to the Home Department by the Inspector General of Prisons, Manipur, on 12.10.2022, and received on the same day. By letter dated 20.10.2022, the Deputy Secretary

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(Home), Government of Manipur, sought para-wise comments from the Director General of Police, Manipur. No explanation is forthcoming as to why the police authorities were not addressed immediately. In any event, comments were furnished by the Officer-in-Charge, Kakching Police Station, only under letter dated

08.12.2022. Perusal thereof reflects that reference was made therein only to past events and there were no subsequent developments which were awaited leading to delay in the furnishing of such comments. Further, having received the para-wise comments from the Police Department, it appears that no action was taken thereon till 14.12.2022, as it is evident from the Note file. The delay at several stages therefore remains unaccounted for. [5]

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. [6]

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.

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[7]

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 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. [8]

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. [9]

The unexplained somnolence on the part of the State and the Police authorities in dealing with the detenu's representation 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. [10] The order of detention dated 13.09.2022 issued by the Special Secretary (Home), Government of Manipur, is accordingly set aside. All consequential proceedings based thereon shall also stand set aside. The detenu, Thangjamang Touthang, presently incarcerated in Manipur Central Jail, Sajiwa,

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shall be set at liberty forthwith unless his continued incarceration is validly required in connection with any other case. WP (Cril.) No. 34 of 2022 is accordingly allowed. 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 the detaining authorities and the police authorities in the State of Manipur as to what are the procedural and temporal norms that they need to adhere to while exercising power and jurisdiction under preventive detention laws.

JUDGE

CHIEF JUSTICE Indrajeet

Page 1 Item No. 4 IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P.(Crl.) No. 34 of 2022 Mr. Jamkholun Touthang, aged about 64 yrs. S/o Vumkhothang Touthang, a permanent resident of Moltuh Village, Chakpikarong Sub-Division, Chandel district, Manipur- 795135. …Petitioner Vs. 1. Union of India, represented by Secretary, Ministry of Finance, Dept. of Revenue, Near North Block, Room No. -26, Church Road, RFA Barracks, New Delhi -110001. 2. The Deputy Secretary (PIT-ND & PS), Ministry of Finance, Department of Revenue, Near North Block, Room No. – 26, Church Road, RFA Barracks, New Delhi-110001. 3. State of Manipur, represented by the Chief Secy., Government of Manipur, Babupara, Imphal – 795001. 4. Special Secretary (Home) Government of Manipur, Babupara, Imphal- 795001. …Respondents BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON'BLE MR. JUSTICE MV MURALIDARAN