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2015 Supreme(Megh) 85
IN THE HIGH COURT OF MEGHALAYA
UMA NATH SINGH and T NANDAKUMAR SINGH, JJ.
Pringchi N.Marak – Appellant
Versus
The State of Meghalaya & Ors. – Respondents
WP(Crl) No. 17 of 2014
Decided On : 16-06-2015
Advocate Appeared:
For the petitioner: Mr. B. Bhattacharjee, Adv.
For the respondents: Mr. N.D.Chullai, Sr. GA, Mr. S.Sen Gupta, GA
The judgment establishes the importance of minimum safeguards for preventively detained persons, the exceptional circumstances required for court interference at the pre-execution stage, and the consideration of bail applications in preventive detention cases.
Headnote:
Preventive Detention - Meghalaya Preventive Detention Act, 1995 - Section 3(1), 3(3) - The judgment discusses the impugned detention order, approval order, and confirmation order under the Meghalaya Preventive Detention Act, 1995. The court emphasizes the non-punitive nature of preventive detention and the need for minimum safeguards for the protection of persons preventively detained. It highlights the principles of judicial scrutiny and the exceptional circumstances required for interference by a court of law at the pre-execution or pre-arrest stage. The judgment also addresses the subjective satisfaction of the detaining authority, the awareness of subsisting custody of the detenu, and the consideration of bail applications in preventive detention cases.
Fact of the Case:
The petitioner challenges the impugned detention order issued under the Meghalaya Preventive Detention Act, 1995, for detaining the petitioner's brother. The detenu was arrested in connection with criminal activities and the impugned detention order was based on the suspicion of his involvement in activities prejudicial to the security of the state and public order.
Finding of the Court:
The court found non-application of mind on the part of the detaining authority in passing the impugned detention order and held that the satisfaction of the detaining authority was merely ipse dixit. Consequently, the impugned detention order, approval order, and confirmation order were quashed and set aside, and the detenu was ordered to be set at liberty.
Issues: The issues revolved around the non-application of mind by the detaining authority, the subjective satisfaction of the detaining authority, and the consideration of bail applications in the preventive detention process.
Ratio Decidendi: The court emphasized the need for minimum safeguards for preventively detained persons, the exceptional circumstances required for court interference at the pre-execution stage, and the awareness of subsisting custody of the detenu by the detaining authority. It also highlighted the principles related to the consideration of bail applications in preventive detention cases.
Final Decision: The impugned detention order, approval order, and confirmation order were quashed and set aside, and the detenu was ordered to be set at liberty forthwith if not required in connection with any other case(s).
T. Nandakumar Singh, J.
Heard Mr. B.Bhattacharjee, learned counsel appearing for the petitioner and also Mr. N.D.Chullai, learned Sr. GA, assisted by Mr. S. Sen Gupta, learned GA, appearing for the respondents No. 1 to 4. Mr. R.Deb Nath, learned CGC appears for the respondent No.5.
2. The petitioner is the sister of the detenu (Shri. Balgra N. Marak). By this writ petition, the petitioner is challenging (i) the impugned detention order dated 25-03-2014 issued by the detaining authority i.e. the District Magistrate, East Garo Hills District, Williamnagar in exercise of his powers conferred upon him under Section 3 (1) of the Meghalaya Preventive Detention Act, (for short MPDA), 1995, for detaining the detenu i.e. the petitioner’s brother, (ii) the impugned order of the Government of Meghalaya dated 01-04-2014 under Sub-section (3) of Section 3 of the MPDA, 1995, for approving the impugned detention order dated 25-03-2014 and (iii) the impugned order of the State Government dated 14-05-2014 for confirming the impugned detention order dated 25-03-2014 and continuing the detention of the detenu for a period of 3(three) years w.e.f. 25-03-2014 to 24-03-2017.
3. The object of law of preventive detention is not punitive but only preventive. Preventive detention is an anticipatory measure and does not relate to an offence. It is resorted when the Executive is convinced that such detention is necessary in order to prevent the persons detained from acting in a manner prejudicial to certain objects which are specified by the law. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be “zealously watched and enforced by the Court”. The Apex Court in Rattan Singh v. State of Punjab: (1981) 4 SCC 481 observed that:
“….. May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralyzed the Indian economy. But the loss of preventive detention affords only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus…….” (Ref:- Para 4 of the SCC in Rattan Singh’s case (Supra).”
4. In Vijay Narayan Singh v. Bihar : (1984) 3 SCC 14, Chinnapa Redy, J observed “our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter …. Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the Constitution itself and incorporated as Fundamental Right ….. when demanded, where there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny.”
5. It is fairly settled that jurisdiction of preventive detention is “suspicious jurisdiction” based on suspicion and an action is taken with the view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the detention order. Interference by a court of law at that stage must be an exception rather than a rule. The Hon’ble Apex Court in State of Maharastra v. Bhaurao Punjabrao Gawande: (2008) 3 SCC 613 held that the Court must be conscious and mindful of the fact that jurisdiction preventive detention is “suspicious jurisdiction” based on suspicion and an action is taken with the view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the detention order. Interference by a court of law at that stage, must be an exception rather tha
