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2015 Supreme(Megh) 84
IN THE HIGH COURT OF MEGHALAYA
UMA NATH SINGH & T NANDAKUMAR SINGH, JJ.
Johny A. Marak - Petitioner
Versus
The Union of India and Ors. – Respondents
WP(Crl) No. 9 of 2014
Decided On : 16-06-2015
Advocate Appeared:
For the petitioner: Mr. A.H.Hazarika, Adv.
For the respondents: Mr. N.D.Chullai, Sr. GA, Mr. S.Sen Gupta, GA
The main legal point established in the judgment is the requirement for the detaining authority to apply extreme caution and circumspection in passing preventive detention orders, ensuring awareness of the detenu's custody and the likelihood of release on bail.
Headnote:
Preventive Detention - Meghalaya Preventive Detention Act, 1995 - Section 3(1) - 3(1) of MPDA, 1995 - Summary of Acts and Sections: The court discussed the provisions of the Meghalaya Preventive Detention Act, 1995, particularly Section 3(1), and emphasized the constitutional safeguards for preventive detention under Article 22(4) and (5) of the Constitution of India. The court also referred to various judgments highlighting the need for extreme caution and circumspection in interfering with preventive detention orders.
Fact of the Case:
The petitioner, wife of the detenu, challenged the impugned detention order issued under Section 3(1) of the Meghalaya Preventive Detention Act, 1995, based on the grounds of non-application of mind by the detaining authority and subjective satisfaction of the detaining authority regarding the detenu's potential actions if released on bail.
Finding of the Court:
The court found non-application of mind by the detaining authority in passing the impugned detention order and held that the satisfaction of the detaining authority regarding the detenu's potential actions if released on bail was merely ipse dixit. Consequently, the impugned detention order, approval order, and confirmation order were quashed and set aside, and the writ petition was allowed.
Issues: The issues revolved around the validity of the impugned detention order, approval order, and confirmation order, specifically focusing on non-application of mind and subjective satisfaction of the detaining authority.
Ratio Decidendi: The court emphasized the need for extreme caution and circumspection in interfering with preventive detention orders, highlighting the constitutional safeguards under Article 22(4) and (5) of the Constitution of India. It also stressed the importance of the detaining authority's awareness of the detenu's custody and the likelihood of release on bail in cases of preventive detention.
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. A.H.Hazarika, 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. 2 to 5. Mr. R.Deb Nath, learned CGC appears for the respondent No.1.
2. The petitioner is the wife of the detenu (Shri. Johny. A. Marak). By this writ petition, the petitioner is challenging (i) the impugned detention order dated 27-02-2014 issued by the detaining authority i.e. the District Magistrate, West Garo Hills, Tura 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 husband, (ii) the impugned order of the Government of Meghalaya dated 10-03-2014 under Sub-section (3) of Section 3 of the MPDA, 1995, for approving the impugned detention order dated 27-02-2014 and (iii) the impugned order of the State Government dated 28-04-2014 for confirming the impugned detention order dated 27-02-2014 and continuing the detention of the detenu for a period of 3(three) years w.e.f. 27-02-2014 to 26-02-2017.
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 than a rule because the exe
