SMT. PEBAM NINGOL MIKO DEVIversusSTATE OF MANIPUR AND ORS.

                  [2010] 12 S.C.R. 429


            SMT. PEBAM NINGOL MIKOi DEVI                          A
                              v.
             STATE OF MANIPUR AND ORS.
            (Criminal Appeal No. 1849 of 2010)
                  SEPTEMBER 27, 2010
                                                                  B
            [D.K. JAIN AND H.L. DATTU, JJ.]

    National Security Act, 1980 - s. 3(2) - Preventive
detention - Legality - Editor of a Daily evening paper
detained under the National Security Act - Detention order - C
Challenge to - Held: There was no reasonable basis for the
detention order, and there was no material to support the
same - None of the documents relied on by the detaining
Authority in passing the detention order could be deemed to
be pertinent - Delay in forwarding the representation of the D
detenu to Central Government also remained unexplained -
Sufficient ground made out for quashing the order of
preventive detention - Constitution of India, 1950 - Article
22(5) - Judicial review - Purpose of - Delay
                                                                  E
     Code of Criminal Procedure, 1973 - s.161 - Statements
under - Held: Cannot be taken as sufficient grounds in the
absence of any supportive or corroborating grounds - S. 161
statements are not considered substantive evidence, but can
only be used to contradict the witness in the course of a trial
- Evidence.                                                       F

     The husband of the appellant was the Editor of a
Manipuri Daily evening paper. He was detained under
Section 3(2) of the National Security Act, 1980 on the
allegation that he was involved in extorting money from           G
contractors and engineers of Public Health Engineering
Department and Forest Department of Manipur
Government by delivering demand letters which he
printed in his own press; and that this extortion resulted
                           429                                    H
      430      SUPREME COURT REPORTS         [2010] 12 S.C.R.


A..   in a terror wave in the general public which was
      prejudicial to the maintenance of public order.

       The appellant filed a habeas corpus petition before
  the High Court questioning the detention on various
  grounds viz.: (1) that the allegations made in the
8
  detention order were vague and irrelevant and not
  sufficient to deprive the detenu of his fundamental rights
  guaranteed under Art. 22(5) of the Constitution; (2) that
  there were no cogent materials upon which the subjective
C satisfaction of the detaining Authority that the detenu was
  likely to be released on bail was arrived at; (3) that there
  was a delay in forwarding the representation to the
  Central government; (4) that all the procedural
  requirements of Article 22 are mandatory in character and
  even if one of the procedural requirements is not
D complied with, the order of detention would be rendered
  illegal. The High Court dismissed the petition.

       In the instant appeal, the question arising for
  consideration was whether, in the fact and circumstances
E of the case, a prima facie case for release of the detenu
  was made out.

            Allowing the appeal, the Court

       HELD:1. Individual liberty is a cherished right, one of
F the most valuable Fundamental Rights guaranteed by the
  Constitution to the citizens of this Country. The
  Constitution of India protects the liberty of an individual.
  Article 21 of the Constitution provides that no person
  shall be deprived of his life and personal liberty except
G according to procedure established by law. In matters of
  preventive detention such as this, as there is deprivation
  of liberty without trial, subsequent safeguards are
  provided in Article 22 of the Constitution. They are, when
  any person is detained pursuant to an order made under
H
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 431
                AND ORS.
any law providing for preventive detention, the authority      A
making the order is required to communicate the grounds
on the basis of which, the order has been made and give
him an opportunity to make a representation against the
order as soon as possible. [Para 4] [435-C, E-G]
                                                               B
     2. In matters of this nature, this Court normally will
not go into the correctness of the decision as such but
will only look into decision making process. Judicial
review is not an appeal from a decision but review of the
manner in which the decision was made. The purpose of
review is to ensure that the individual receives a fair        C
treatment. The fact that the grounds stated in the order
of detention are sufficient or not, is not within the ambit
of the discretion of the court and it is the subjective
satisfaction of the detaining authority which is implied.
However, if one of the grounds or reasons which lead to        D
the subjective satisfaction of the detaining authority
under the National Security Act, is non-existent or
misconceived or irrelevant, the order of detention would
be invalid. [Paras 15 and 22] [441-D-E] [444-D]
                                                               E
    3. There must be a reasonable basis for the detention
order, and there must be material to support the same.
The Court is entitled to scrutinize the material relied upon
by the Authority in coming to its conclusion, and
accordingly determine if there is an objective basis for the   F
subjective satisfaction. The subjective satisfaction must
be two fold. The detaining authority must be satisfied that
the person to be detained is likely to act in any manner
prejudicial to the security of the State or from acting in
any manner prejudicial to the maintenance of the public        G
order and the authority must be further satisfied that it is
necessary to detain the said person in order to prevent
from so acting. [Para 20] [443-8-C]

    Fazal Ghosi v. State of Uttar Pradesh, (1987) 3 SCC 5Q2;
                                                               H
   432      SUPREME COURT REPORTS              (2010] 12 S.C.R.


A Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC
  556; State of Punjab v. Sukhpa/ Singh, (1990) 1 SCC 35 and
  State of Rajasthan v. Talib Khan, (1996) 11 SCC 393, relied
  on.
       4. Under Article 22(5) of the Constitution, a detenu
8 has two rights (1) to be informed, as soon as may be, of
  the grounds on which his detention is based and (2) to
  be afforded the earliest opportunity of making a
  representation against his detention. The inclusion of an
  irrelevant or non-existent ground among other relevant
C grounds is an infringement of the first right and the
  inclusion of an obscure or vague ground among other
  clear and definite grounds is an infringement of the
  second right. No distinction can be made between
  introductory facts, background facts and 'grounds' as
D such; if the actual allegations were vague and irrelevant,
  detention would be rendered invalid. [Para 23) [444-G-H]
  [445-A]
         5. In the instant case, it is clear that the grounds on
E which detention order was passed has no probative
  value and were extraneous to the scope, purpose and the
  object of the National Security Act. Insofar as the
  documents on which reliance is placed is concerned,
  none of these documents provide any reasonable basis
  for passing the detention order. The primary reliance has
F been on the accused's own statement made to an
  Investigating Officer. This cannot be said to be sufficient
  to form the subjective satisfaction of the detaining
  Authority. Statements under Section 161, CrPC cannot be
  taken as sufficient grounds in the absence of any
G supportive or corroborating grounds. Section 161
  statements are not considered substantive evidence, but
  can only be used to contradict the witness in the course
  of a trial. The same is clear from the wording of Section
  162(1) of CrPC and has been so held time and again by
H this Court. Furthermore, none of the other documents
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 433
                AND ORS.
substantiate the involvement of the detenu in unlawful            A
activities as alleged in the detention order. Thus, it is clear
that there was no pertinent or relevant material on the
basis of which., the detention order could be passed.
[Para 23] [444-F; G-H] [445-A-C]
                                                                  B
     Mohd. Yousuf Rather Vs. State of Jammu & Kashmir and
Ors. (AIR 1979 SC 1925) and Rajendra Singh v. State of Uttar
Pradesh, (2007) 7  sec 378, relied on.

    6. The other issue in the instant case is that of delay.
There has been a delay of 7 days, i.e. from 09/10/2009 to         C
16/10/2009, in forwarding the representation of the detenu
to the Central Government. There has been no
explanation of the reasons for this delay given by the
respondents. Article 22(5) of the Constitution of India
mandates in preventive detention matters that the detenu          D
should be afforded the earliest possible opportunity to
make a representation against the order. The delay of 7
days may not be inordinate; however, at no stage has
there been an explanation given for this delay. The State
Government or Central Government has not clarified the            E
same and thus the delay remains unexplained. [Paras 24,
25 and 27] [445-G-H] [446-A] [447-8-C]

    Union of India v. Laishram Lincola Singh @ Nicolai,
(2008) 5 SCC 490 and Haji Mohd. Akhlaq v. District                F
Magistrate, 1988 Supp (1) SCC 538, relied on.

    7. In light of the fact that none of the documents relied
on by the detaining Authority in passing the detention
order can be deemed to be pertinent, and the fact that the
delay has remained unexplained, there is sufficient               G
ground made out in order to quash the order of
preventive detention made against the detenu. In the facts
and circumstances of the case, the appellant prima-facie
had made out a case for release of the detenu. The
husband of the appellant ought not to have been                   H
    434      SUPREME COURT REPORTS              [2010] 12 S.C.R.


A detained under preventive detention and have his liberty
  curtailed by virtue of his incarceration under Section 3(2)
  of the National Security Act, 1980. [Paras 2, 3 and 28]
  [434-H] [435-B] [447-B-C]

                         Case Law Reference:
B
          (1987) 3 sec 502        relied on            Para 16

          (1989) 4 sec 556        relied on             Para 17

          (1990) 1 sec 35         relied on             Para 18
c         (1996) 11 sec 393       relied on             Para 19

          AIR (1979) SC 1925      relied on             Para 23

          (2007) 1 sec 378        relied on             Para 23
D         (2008) 5 sec 490        relied on             Para 25

          1988 Supp (1) SCC 538 relied on               Para 26
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal·
    No. 1849 of 2010.
E
         From the Judgment & Order dated 18.2.2010 of the High
    Court of Gauhati, Imphal Bench in Writ Petition (Crl.) No. 111
    of 2009.

        Dolen Phurailatpam, L. Roshmani Kh., Thajamanbi
F Luwang, Ananga Bhattacharyya, Khwairakpam Nobin Singh,
  Dr. Charu Wali Khanna, Shailendra Saini, Shreekant N. Terdal
  for the appearing parties.
          The Judgment of the Court was delivered by

G         H.L. DATTU, J. 1. Leave granted.

       2. By our order dated 14.09.2010, after hearing the
  learned counsel for the parties to the lis, we had directed the
  release of the detenu, since we were satisfied that the appellant
H prima-facie had made out a case for release of the detenu. Now
 PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 435
           AND ORS. [H.L. DATTU, J.]
we give our reasons for allowing this appeal in support of our           A
pre-emptory order.

      3. Here is an unfortunate case involving a person who
ought not to have been detained under preventive detention
and have his liberty curtailed by virtue of his incarceration under
                                                                         8
Section 3(2) of the National Security Act, 1980 (hereinafter "NS
Act").

       4. Individual liberty is a cherished right, one of the most
 valuable Fundamental Rights guaranteed by the Constitution to
 the citizens of this Country. On "liberty", William Shakespeare,        C
 the great play writer, has observed that "a man is master of his
 liberty". Benjamin Franklin goes even further and says that "any
 society that would give up a little liberty to gain a little security
 will deserve neither and lose both". The importance of
 protecting liberty and freedom is explained by the famous               D
 lawyer Clarence Darrow as "you can protect your liberties in
·this world only by protecting the other man's freedom; you can
 be free only if I am free." In India, the. utmost importance is
 given to life and personal liberty of an individual, since we
                                                                             t
 believe personal liqerty is the paramount essential to human            E
 dignity and human happiness. The Constitution of India protects
 the liberty of an individual. Article 21 provides that no person
 shall be deprived of his life and personal liberty except
 according to procedure established by law. In matters of
 preventive detention such as this, as there is deprivation of           F
 liberty without trial, and subsequent safeguards are provided
 in Article 22 of the Constitution. They are, when any person is
 detained pursuant to an order made under any law providing
 for preventive detention, the authority making the order is
 required to communicate the grounds on the basis of which,              G
 the order has been made and give him an opportunity to make
 a representation against the order as soon as possible. It thus,
 cannot be doubted that the Constitutional framework envisages
 protection of liberty as essential, and makes the circumstances
 under which it can be deprive_d.
                                                                         H
    436      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A      5. The appellant is the wife of Mr. Ranjit Oinamcha @
  Oinam Ranjit Singh, who is the detenu under the National
  Security Act. She is questioning the detention order dated 24/
  0912"009 passed by the District Magistrate, Imphal West
  District, Manipur, against which, a challenge was made in the
B form of a habeas corpus petition in the Gauhati High Court
  (Imphal Bench) in Writ Petition (Crl.) No. 111/2009. By an order
  dated 18/02/2010, the High Court dismissed the writ petition.
  Aggrieved by the same, the appellant has filed this appeal.

         6. The facts of this case, in a nutshell, are that the detenu
C   was the Editor of a Manipuri Daily evening paper named
    'Paojel', having its printing press at Keisamthing Top Leirak,
    Manipur. The assertions and allegations leading to his
    detention, as stated in the Grounds of Detention order passed
    by the District Magistrate dated 2810912009, are that the detenu
D   could not get enough money from his press to maintain it or
    support his family, particularly due to the high rates of essential
    commodities in Manipur. Therefore, in 2003, he contacted Mr.
    lrom Priyobarta Singh @ Naocha with the intention of earning
    money without labour. From July 2003, he was in touch with Mr.
E   Ratan @ lnao@ N. lbochouba Singh, who was the Finance in-
    Charge of the United National Liberation Front (UNLF), Imphal
    West, after discussion with whom he decided to get involved
    in extorting money from contractors and engineers of Public
    Health Engineering Department ("PHED" for short) and Forest
F    Department of Manipur Government by delivering demand
    letters which he printed in his own press. He and Mr. lrom
     Priyobarta Singh were to receive a 10% share of the extortion
    money. They accordingly started carrying out such extortion by
    printing these demand letters in his press and delivering them
G   to the aforementioned contractors and engineers, and even
     issued threats to them not to report the matter to the Security
    Forces. This extortion resulted in a terror wave in the general
    public which is prejudicial to the maintenance of public order.
    The Grounds also pointed out that the UNLF is an unlawful
H   association {declared so vide Gazette of India Notification,
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 437
          AND ORS. [H.L. DATTU, J.]

under No. S.O. 1992(E), dated 13/11/2007) which looks to           A
create an independent, sovereign State of Manipur by seceding
from the Union of India, and that the said organization has
involved itself in procuring arms and ammunitions from foreign
countries, recruiting youngsters, and committing heinous crimes
such as murder, dacoity, extortion, kidnapping for ransom etc.     B

     7. Further, it is pointed out that on 17/09/2009 at 8 PM, a
team of CDO/IW led by S.I. T. Khogen Singh came to the
detenu's house as disclosed by Mr. lrom Priyobarta Singh,
arrested him, and seized after observing due formality
'10,04,000/- from him, as well as one Nokia handset from Mr.       C
lrom Priyobarta Singh. An F.l.R. No. 183(9)09 SJM-P.S. was
registered under Section 17/20 of the Unlawful Activities
(Prevention) Act, 1967, and the detenu was arrested on 18/09/
2009 and remanded into police custody till 24/09/2009. On 24/
09/2009, he was presented before the Magistrate for jlidicial      D
remand, and the detention order passed by the District
Magistrate, Imphal Vj_est, was served on him. The Grounds of
Detention were served on him on 28/09/2009, as required
under Section 8 of the National Security Act.
                                                                   E
     8. The version of the detenu, on the contrary, as emerges
from his Representation made to the Secretary, Ministry of
Home Affairs, Government of India, as well as to the Chief
Secretary, Manipur State, and the District Magistrate, Imphal
West on 09/10/2009, is that he was indeed the editor of            F
'Paojel', an evening daily, which was established on 08/04/
2006. On 17/09/2009 at about 4:30 PM, Mr. lrom Priyobarta
Singh @ Naocha, who was a 'locality brother', brought to his
residence a sum of '10,04,000/- for safe keeping, which he
claimed was received for contract work, and which the detenu       G
bona fide believed, and kept the money with him. The detenu
then claims that at around 8:30 PM on the same day, police
personnel of COO, Imphal West, along with Mr. lrom Priyobarta
Singh, came to his residence and asked him to hand over the
money, which he did. On 18/09/2009, i.e. the next day, he was
                                                                   H
    438     SUPREME COURT REPORTS              (2010] 12 S.C.R.


A told to report to the Officer in-Charge of the COO, Imphal West,
  where he asserts he was interrogated regarding the money and
  forced to sign on a back dated Seizure Memo for 17/09/2009,
  as well as a back dated Arrest Memo. He was then detained
  and handed over to the Singjamei Police Station, where he was
B told that he was made a co-accused with Mr. lrom Priyobarta
  Singh, and a police case F.l.R. No. 183(9)09 SJM-P.S. was
  registered under Section 17/20 of the Unlawful Activities
  (Prevention) Act, 1967. Then, on 19/09/2009, he was
  remanded to police custody till 24/09/2009, when he was
c produced before the Magistrate for judicial remand, and the
  detention order passed by the District Magistrate, Imphal West,
  was served on him, which was followed by the Grounds of
  Detention given to him on 28/09/2009 at his cell at Manipur
  Central Jail, Sajiwa. He denies all the allegations made against
  him in the Grounds for Detention, claiming that he was not in
0
  any way involved with the UNLF or any of its associated cadres,
  that he starteq the press only in 2006 and could not hav~ been
  involved in printing demand letters since 2003, that he did not
  even know Mr. Ratan @ lnao@ N. lbochouba Singh, that the
E arrest and seizure was not done on 17/09/2008, but actually
  on 18/09/2009, and that he has not committed any acts so as
  to disturb the maintenance of public order and cause prejudice
  to the security of the State in any manner so as to have the NS
  Act invoked against him.

F      9. The Representation made by the detenu was rejected
  by State of Manipur on 03.10.2009. The Advisory Board
  constituted under Section 9 of the Act opined that there was
  sufficient cause for detention of the husband of the appellant
  under the National Security Act. The Governor of Manipur, in
G exercise of the power conferred under Section 12(1) of the Act,
  has approved the opinion expressed by the Advisory Board
  and has ordered that the detention of the husband of the
  appellant made by the District Magistrate, Imphal West District,
  dated 24.09.2009,and fixed the period of the detention for
H 12(twelve) months from the date of detention by his order dated
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 439
          AND ORS. [H.L. DATTU, J.]

07 .11.2009. There was delay in forwarding the Representation
        I                    •
                                                                    A
of the detenu to the Government of India. It was filed on 09f1 Of
2009 and it was forwarded to the Central Government on 16f
1Of2009 by the State Government and received only on 28f1 Of
2009, before being finally rejected by the Central Government
on 03f11f2009.                                                      B

      10. The detention order was questioned before the
Gauhati High Court in W.P. (Crl.) No.111f2009. The Court in
the course of its order has noticed the main contention of the
petitioner (who is the appellant in this appeal). They are: (1) the C
allegations made in the detention order are vague and irrelevant
and not sufficient to deprive the detenu of his fundamental rights
guaranteed under Art. 22(5); (2) there are no cogent materials
upon which the subjective satisfaction of the detaining Authority
that the detenu was likely to be released on bail was arrived
at; (3) there was a delay of 6 days in forwarding representation D ·
to the Central government. (4) All the procedural requirements
of Article 22 are mandatory in. character and even if one of the
procedural requirements is not complied with, the order of
detention would be rendered illegal.
                  ~                                                 E
      11. The High Court has responded to each of these, by
holding that the allegations projected in the grounds of detention
have been corroborated in material particulars. Further, the
allegations were not vague or ambiguous, and the material was
sufficient for the detaining Authority to arrive at the subjective F
satisfaction that the detenu was acting in a manner prejudicial
to the maintenance of the public order. The High Court has also
pointed out that the statement incriminating himself under
Section 161 was prepared by a public servant, and there is a
presumption of regularity, which the appellant has a burden to G
disprove in order to prove them false and fabricated, which was
not done in this case. It highlighted that the exercise of
discretionary power involved objective and subjective elements,
and the subjective elements if derived from objective elements
cannot be questioned on grounds of adequacy of subjective H
    440      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A   satisfaction by a judicial review.

       12. On the second ground, the Court held that the likelihood
  of detenu being released on bail can be determined by
  objective criteria, such as the conditions prevailing in Manipur,
  the fact that he was charged with heinous offences, and that
8
  he was remanded to judicial custody; it refused to interfere with
  the determination as it said it was not irrational, and the Court
  in such circumstances could not substitute its view for that of
  the detaining Authority. On the isSL'e of delay, it pointed out that
  even though no explanation has been given by the State on
C delay, it is not inordinate enough to quash the order, and that
  delay per se cannot be a ground to quash the order.

          13. At the time of hearing, learned Counsel for the
    appellant Mr.Dolen Phurailatpam argued, that though a few
D   days have remained for the detention period to expire, the
    appeal need not be disposed of as having become infructuous,
    since the reputation of the detenu is sacrosanct and the right
    of reputation is a facet of right to life under Article 21. He took
    considerable time explaining the factual background of the
E   case. He pointed out that the printing press of the detenu was
    established only in 2006, and therefore, there could be no
    question of him having been involved in printing demand letters
    from 2003 or 2004. He further explained that there was no
    supportive material to sustain the detention order, and that the
F   same had also been mentioned in the writ petition filed before
    the High Court. He also stressed the point of delay of forwarding
    the representation of the detenu, and that no adequate reasons
    for the same had been given by the respondents in either the
    affidavit or in the pleadings before the Court.

G        14. Per contra, the learned counsel for the State of Manipur
    Mr.Khwairakpam Nobin Singh urged the factual background on
    the basis of which the decision to detain had been taken, and
    the difficulty faced due to the special conditions prevailing in
    Manipur in getting the evidence to prove the illegal activities of
H   people such as the detenu and further the prosecution would
  PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 441
            AND ORS . .[H.L. DATTU, J.]

  not be in a position to procure any evidence to sustain                A
  conviction. It is also urged that with the documents available,
  the detaining authority could form an opinion that the person to
  be detained is likely to act in a manner prejudicial to the security
  of the State or from acting in any manner prejudicial to the
  maintenance of the public order etc. He did not, however,              B
  provide any explanation regarding the reason for delay in
. forwarding the representation. The learned counsel appearing
  for the Union of India Ms. Charu Wali Khanna, when questioned
  by this Court, also did not shed any further light on this issue.

        15. To decide the correctness or otherwise of the detention      C
 order, two issues of importance arise before this Court. The
 first is, regarding the documents and material on which reliance
 was placed by the detaining Authority in passing the detention
 order. Secondly, with those materials, the detaining authority
 was justified in arriving at a finding that the detenu should be        D
 detained under the National Security Act without any trial. In
 matters of this nature, this Court normally will 'not go into the
 correctness of the decision as such but will only look into
 decision making process. Judicial review, it may be noted, is
 not an appeal from a decision but review of the manner in which         E
 the decision was made. The purpose of review is to ensure that
 the individual receives a fair treatment.

      16. Some of the decisions of this Court may be of relevance
 in determining in what manner such subjective satisfaction of           F
 the Authority must be arrived at, in particular on Section 3(2)
 of the National Security Act. In Faza/ Ghosi v. State of Uttar
 Pradesh, (1987) 3 SCC 502, this Court observed that:

      "The District Magistrate, it is true, has stated that the
      detention of the detenus was effected because he was               G
      satisfied that it was necessary to prevent them from acting
      prejudicially to the maintenance of public order, but there
      is no reference to any material i:n support of that
      satisfaction. We are aware that the! satisfaction of the
      District Magistrate is subjective in nature, but even              H
    442      SUPREME COURT REPORTS                [2010} 12 S.C.R.


A         subjective satisfaction must be based upon some
          pertinent material. We are concerned here not with the
          sufficiency of that material but with the existence of any
          relevant material at all." (emphasis supplied) (Para 3).

        17. In Shafiq Ahmed v. District Magistrate, Meerut, (1989)
8
    4 SCC 556, this Court opined :-

          "Preventive detention is a serious inroad into the freedom
          of individuals. Reasons, purposes and the manner of such
          detention must, therefore, be subject to closest scrutiny
C         and examination by the courts." (emphasis supplied)
          (Para 5).

    This Court further added:

          " ... there must be conduct relevant to the formation of the
D
          satisfaction having reasonable nexus with the action of
          the petitioner which are prejudicial to the maintenance of
          public order. Existence of materials· relevant to the
          formation of the satisfaction and having rational nexus
          to the formation of the satisfaction that because of certain
E         conduct "it is necessary" to make an order "detaining" such
          person, are subject to judicial review." (emphasis
          supplied) (Para 5).

         18. In State of Punjab v. Sukhpal Singh, (1990) 1 SCC
F   35, this Court held:

          " ... the grounds supplied operate as an objective test for
          determining the question whether a nexus reasonably
          exists between grounds of detention and the detention
          order or whether some infirmities had crept in." (emphasis
G         supplied) (Para 9).

         19. In State of Rajasthan v. Talib Khan, (1996) 11 SCC
    393, this Court observed that:

H         " ... what is material and mandatory is the communication
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 443
          AND ORS. [H.L. DATTU, J.]

    of the grounds of detention to the detenu together with         A
    documents in support of subjective satisfaction reached
    by the detaining authority." (emphasis supplied) (Para 8).

     20. What emerges from these rulings is that, there must
be a reasonable basis for the detention order, and there must
                                                                    8
be material. to support the same. The Court is entitled to
scrutinize the material relied upon by the Authority in coming
to its conclusion, and accordingly determine if there is an
objective basis for the subjective satisfaction. The subjective
satisfaction must be two fold. The detaining authority must be
satisfied that the person to be detained is likely to act in any    C
manner prejudicial to the security of the State or from acting in
any manner prejudicial to the maintenance of the public order
and the authority must be further satisfied that it is necessary
to detain the said person in order to prevent from so acting.
                                                                    D
     21. In light of these decisions, to determine the validity of
the detention order, it is necessary to go into the materials relied·
on by the detaining Authority in passing the detention order. The
documents relied upon by the District Magistrate, West Imphal,
as mentioned in the Grounds for Detention dated 28/09/2009 E
are:

     (a} The statement of the detenu given before the 1.0. on
     18/09/2009.

    (b) Statement of S.I. T. Khogen Singh of CDO/l.W.               F
    recorded under S. 161 Cr.P.C. in connection with F.l.R. No.
    183 (9) 09 SJM-P .S. under S. 17/20 of the Unlawful
    Activities (Prevention) Act, 1967.

    (c) Statement of Rfm. No. 15007038 L. Rajen Singh of            G
    CDO~l.W. recorded under S. 161 Cr.P.C. in connection
    with FJ.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the
    Unlawful Activities (Prevention) Act, 1967.
            I

     (d) Statement of C/No. 0601193 S. Khomei Singh
     recorded under S. 161 Cr.P.C. in connection with F.1.R. No.    H
    444       SUPREME COURT REPORTS               [2010] 12 S.C.R.


A         183 (9) 09 SJM-P.S. under S. 17/20 of the Unlawful
          Activities (Prevention) Act, 1967.

          (e) Copy of arrest memo dated 17/09/2009.

          (f) Copy of seizure memo dated 17/09/2009.
B
          (g) Copy of Manipur Local daily "the Poknapham" dated
          08/03/1999.

          (h) Copy of Notification under No. S.O. 1922 (E) dated 13/
          11/2007.
c
       22. We are conscious of the fact that the grounds stated
  in the order of detention are sufficient or not, is not within the
  ambit of the discretion of the court and it is the subjective
  satisfaction of the detaining authority which is implied. However,
D if one of the grounds or reasons which lead to the subjective
  satisfaction of the detaining authority under NS Act, is non-
  existent or misconceived or irrelevant, the order of detention
  would be invalid,

E       23. Keeping in view these well settled legal principles, we
  have perused the grounds of detention and the documents
  relied on by the detaining authority while passing the order of
  detention. In our considered view, the grounds on which
  detention order is passed has no probative value and were
F extraneous to the scope, purpose and the object of the National
  Security Act. This Court in the case of Mohd. Yousuf Rather
  Vs. State of Jammu & Kashmir and Ors. (AIR 1979 SC 1925)
  has observed that under Article 22(5), a detenu has two rights
  (1) to be informed, as soon as may be, of the grounds on which
  his detention is based and (2) to be afforded the earliest
G opportunity of making a representation against his detention.
  The inclusion of an irrelevant or non-existent ground among other
  relevant grounds is an infringement of the first right and the
  inclusion of an obscure or vague ground among other clear and
  definite grounds is an infringement of the second right. No
H distinction can be made between introductory facts, background
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 445
          AND ORS. [H.L. DATTU, J.]

facts and 'grounds' as such; if the actual allegations were vague     A
and irrelevant, detention would be rendered invalid. In so far as
the documents on which reliance is placed, in our opinion, none
of these documents provide any reasonable basis for passing
the detention order. The primary reliance has been on the
accused's own statement made to an Investigating Officer. This        B
cannot be said to be sufficient to form the subjective satisfaction
of the detainin~ Authority. Statements under Section 161, Code
of Criminal Procedure, 1973, (hereinafter Cr.P.C.) cannot be
taken as sufficient grounds in the absence of any supportive
or corroborating grounds. Section 161 statements are not              c
considered substantive evidence, but can only be used to
contradict the witness in the course of a trial. The same is clear
from the wording of Section 162(1) of the Cr.P.C and has been
so held time and again by this Court. In Rajendra Singh v.
State of Uttar Pradesh, (2007) 7 SCC 378, this Court laid down        D
that:

     "A statement under Section' 161 Cr. P. C. is not a
     substantive piece of evidence: In view of the proviso to
     Sub-section (1) of Section 162 Cr.P.C., the statement can
     be used only for the limited purpose of contradicting the        E
     maker thereof in the manner laid down in the said proviso.
     Therefore, the High Court committed a manifest error of
     law in relying upon wholly inadmissible evidence ... "
     (emphasis supplied) (Para 6).
                                                                      F
     23. Furthermore, none of the other documents substantiate
the involvement of the detenu in unlawful activities as alleged
in the detention order. Thus, it is clear that there was no
pertinent or relevant material on the basis of which, the
detention order could be passed.                                      G

     24. The second issue is that of delay. There has been a
delay of 7 days, i.e. from 09/10/2009 to 16/10/2009, in
forwarding the representation of the detenu to the Central
Government. There has been no explanation of the reasons for
this delay given by the respondents.                                  H
    446       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A        25. Article 22(5) of the Constitution of India mandates in
    preventive detention matters. The detenu should be afforded
    the earliest possible opportunity to make a representation
    against the order. With regard to the importance of delay in
    preventive detention matters under the National Security Act,
s   it has been held by this Court in Union of India v. Laishram
    Linea/a Singh @ Nicolai, (2008) 5 SCC 490, that:

          "There can be no hard and fast rule as to the measure of
          reasonable time and each case has to be considered from
          the facts of the case and if there is no negligence or callous
c         inaction or avoidable red-tapism on the facts of a case,
          the Court would not interfere. It needs no reiteration that it
          is the duty of the Court to see that the efficacy of the
          limited, yet crucial, safeguards provided in the law of
          preventive detention is not lost in mechanical routine, dull
D         casualness and chill indifference, on the part of the
          authorities entrusted with their application. When there is
          remissness, indifference or avoidable delay on the part
          of the authority, the detention becomes vulnerable."
          (emphasis supplied) (Para 6).
E
        26. On the specific ground of delay in forwarding the
    representation under the National Security Act, it has been
    observed by this Court in Haji Mohd. Akhlaq v. District
    Magistrate, 1988 Supp (1) SCC 538, that:
F         "There can be no doubt whatever that there was
          unexplained delay on the part of the State Government
          in forwarding the representation to the Central
          Government· with the result that the said representation
          was not considered by the Central Government till October
G         16, 1987 i.e. for a period of more than two months. Section
          14(1) of the Act confers upon the Central Government the
          power to revoke an order of detention even if it is made
          by the State Government or its officer. That power, in order
          to be real and effective, must imply a right in a detenu to
H         make representation to the Central Government against
PEBAM NINGOL MIKOi DEVI v. STATE OF MANIPUR 447
          AND ORS. [H.L. DATTU, J.]
     the order of detention. Thus, the failure of the State             A
     Government to comply with the request of the detenu for
     the onward transmission of the representation to the
     Central Government has deprived the detenu of his
     valuable right to have his detention revoked by that
     Government." (emphasis supplied) (Para 3).                         8
     27. In the matter before us, a delay of 7 days has occurred
in the forwarding of the representation. This may not be
inordinate; however, at no stage has there been an explanation
given for this delay. The State Government or Central
Government has not clarified the same and thus the delay                C
remains unexplained.

     28. In light of the fact that none of the documents relied on
by the detaining Authority in passing the detention order can
be deemed to be pertinent, and the fact that the delay has              D
remained unexplained, there is sufficient ground made out in
order to quash the order of preventive detention made·against
the detenu.

     29. Before parting with the case, we wish to add that in a
criminal case, if it is initiated against the detenu, the prosecution   E
would not be in a position to procure evidence to sustain
conviction cannot be a ground to pass an order of preventive
detention under National Security Act. Therefore, we cannot
agree with the submission made by the learned counsel for the
State of Manipur.                                                       F

     30. As a result of our above discussion, we cannot sustain
the impugned judgment and order of the High Court and the
order of detention passed by the detaining authority.
Accordingly, the appeal is allowed. The impugned order·of the           G
High Court and the order of detention passed by the detaining
authority are set aside. Ordered accordingly. /

B.B.B.                           .          .     Appeal allowed.

                                                                        H