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IN THE HIGH COURT OF GAUHATI (IMPHAL BENCH)
Utpalendu Bikas Saha and Ketulhou Meruno, JJ.
Nameirakpam Inaotomba Singh - Appellants
Vs.
Union of India (UOI) and Ors. - Respondent
Decided on : 02.08.2007
National Security Act - Detention - Section 17 / 20 UA(P)A Act, 25(-1-B) Act 5 - Summary of Acts and Sections: The court discussed the legality of the detention of the detenu under the National Security Act, 1980, and the provisions of Section 17 / 20 UA(P)A Act, 25(-1-B) Act 5. The court highlighted the detenu's right to make representation and be heard before the Advisory Board, and the duty of the detaining authority to inform the detenu of his rights under Article 22 of the Constitution and Section 8 of the Act.
Fact of the Case:
The petitioner challenged the detention of his brother under the National Security Act, alleging violation of the detenu's rights to be assisted by a next friend and non-consideration of his representation by the Central Government. The State respondents contended that the detenu was an active member of a banned organization and played a role in crimes prejudicial to the security of the State.
Finding of the Court:
The court found that the detaining authority failed to inform the detenu of his rights to make representation and be heard before the Advisory Board, which rendered the detention illegal. The non-consideration of the detenu's representation by the Central Government for about 4 months and 8 days was also held to vitiate the detention.
Issues: The issues included the detenu's right to be assisted by a next friend, the duty of the detaining authority to inform the detenu of his rights, and the non-consideration of the detenu's representation by the Central Government.
Ratio Decidendi: The court held that the detaining authority must inform the detenu of his rights under Article 22 of the Constitution and Section 8 of the Act, including the right to make representation and be heard before the Advisory Board. The non-consideration of the detenu's representation for an extended period was deemed to infringe the detenu's rights.
Final Decision: The court set aside the detention order and held it unconstitutional, null, and void, ordering the immediate release of the detenu.
U.B. Saha, J.
1. Heard Mr. M.I. Sharma, learned Counsel appearing for the petitioner, Mr. Th. Ibohal, learned Addl. G.A. for the State respondents-2 to 3 and Mr. N. Ibotombi, learned CGC appearing for the respondent No. 1.
2. This is an application filed by the petitioner the brother of detenu, namely, Nameirakpam Gandhi Singh @ Robindro @ Inaocha @ Pakhanglakpa of Nambol Kongkham Awang Leikai, Bishnupur District, challenging the legality of the detention of the detenu, who has been detained by an order of the District Magistrate, Imphal West in exercise of his power under Sub-section 3 of Section 3 of the National Security Act, 1980 (hereinafter refers to as the Act) issued by the District Magistrate, Imphal West on 15.9.2006 (Annexurc-A/1) while the aforesaid detenu was in police custody in connection with FIR No. 202(9)/06 Under Section17 / 20 UA(P)A Act, 25(-1-B) Act 5, as the detaining authority was satisfied that the detenu was likely to be released on bail in near future.
3. State approved and confirmed the aforesaid order of detention vide order No. 17(1)/1054/2006-11 dated 25.09.2006 and Order No. 17(1)/10054/06-11 dated 20.10.06 respectively.
4. By this writ petition, petitioner assails the order of detention of his brother, detenu, and prayed for quashing the order of detention dated 15.9.2006 (Annexure-A/1) as well as the order of approval and confirmation and also to release his brother, detenu, on the grounds that (1) the detenu was not given a chance of being assisted by his next friend/local friend before the Advisory Board though he prayed for and (2) non consideration of his representation for a period of 4 months 8 days by the Central Govt. along with other grounds.
5. Pleaded case of the petitioner is that the detenu, namely, Nameirakpam Gandhi Singh @ Robindro @ Inaocha @ Pakhanglakpa was apprehended by 4th Assam Rifles and handed over to OC, Imphal Police Station and registered a case vide FIR No. 202(9)06 Under Section 17 / 20 UA(P), A. Act, 25(1-B) Act, 5 expl. Sub. Act. Thereafter, the detenu was arrested as a formal arrest from the Court of Chief Judicial Magistrate, Chandel on 13.9.06 and the detenu was kept in the said Police Station under FIR No. 989(8)94 IPS Under Section 121-121A/302 IPC, 25(1-B)A. Act and 3(2) (ii) TDA(P) Act and detenu was remanded to judicial custody on 14.9.06. He was also again arrested under so-called formal arrest by the Molcham Police Station under FIR No. 1(4)2001 Molcham P.S. Under Section 186/451/436 IPC, 13 UA(P) Act, 25(1-B)A Act and 3 Expl. Subs. Act. The Superintendent of Police, Imphal West District, Manipur while the detenu was in police custody sent proposal to the District Magistrate/Imphal West, Manipur stating that the detenu may be detained under the provision of N.S.A. 1980. In pursuance to the proposal aforesaid, the state respondent accordingly passed an order vide No. Cril/National Security Act/No.48 of 2006 dated 15th Sept. 2006 to detain the detenu under Sub-section 3 of Section 3 read with Section 3 of the N.S.A 1980 while the detenu was in police custody.
6. The State filed counter affidavit stating that the detenu joined UNLF in Nov. 1992 and he is a trained hand in foot & Arms drill, handling of different arms, jungle training etc. and he played important role in carrying out many crimes and as such prayer for quashing the detention order should not be allowed.
In the affidavit-in-opposition filed by the respondent No. 2, State of Manipur it is stated, among others, that the detenu is not entitled to appear before the Board of National Security Act through a lawyer or a legal practitioner. The representation of the detenu dated 9.10.06, which was received by the Govt. on 11.10.06, was considered under due process of law and application of mind and result thereof was communicated to the detenu on 12.10.06 and the detenu received the same on 13.10.06 and the representation filed by the detenu addressed to the Secretary to the Govt. of India, Ministr
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