YUMMAN ONGBI LEMBI LEIMAversusSTATE OF MANIPUR & ORS.

                      [2012] 1 S.C.R. 1


              YUMMAN ONGBI LEMBI LEIMA                             A
                              v.
                STATE OF MANIPUR & ORS.
              (Criminal Appeal No. 26 of 2012)
                     JANUARY 4, 2012
                                                                   B
  [ALTAMAS KABIR, SURINDER SINGH NIJJAR AND
             J. CHELAMESWAR, JJ.]

    NATIONAL SECURITY ACT, 1980:

      s.3(4) - Order of detention - Held: An individual incident
                                                                   c
of an offence under the Indian Penal Code, however heinous,
is insufficient to make out a case for issuance of an order of
preventive detention - In the instant case, the grounds of
detention do not disclose any material which was before the
detaining authority, other than the fact that there was every      D
likelihood of the detenu being released on bail in connection
with the case in respect of which he had been arrested - The
power is required to be exercised with due caution as well as
upon a proper appreciation of the facts as to whether the acts
are in any way prejudicial to the interest and the security of     E
the State and its citizens, or seek to disturb public law and
order, warranting the issuance of such an order -The detaining
authority acted rather casually in the matter in issuing the
order of detention and the High Court also appears to have
missed the right to liberty as contained in Article 21 of the      F
Constitution and Article 22(2) thereof, as well as the
provisions of s.167 of the Code of Criminal Procedure, 1973
- The order of detention is quashed - Constitution of India,
 1950 - Articles 21 and 22 - Code of Criminal Procedure, 1973
- s.167.                                                           G
    The appellant's husband, who had been earlier
arrested and released on bail in connection with offences
punishable under Indian Penal Code and Unlawful
                               1                                   H
    2        SUPREME COURT REPORTS            [2012) 1 S.C.R.


A Activities (Prevention) Act (the last such case being of the
  year 1998) was, on 31.1.2011, remanded to police custody
  in connection with the murder of the then Chairman of
  the Board of Secondary Education. He was served with
  a detention order dated 31.1.2011 issued by the District
B Magistrate under the National Security Act, 1980. The
  order was confirmed by the Governor fixing the period
  of detention for 12 months. The writ petition challenging
  the detention order on behalf of the detenu having been
  dismissed, the instant appeal was filed.
c       Allowing the appeal, the Court
      HELD: 1.1. The extra-ordinary powers of detaining an
  individual in contravention of the provisions of Article
  22(2) of the Constitution was not warranted in the instant
0 case, where the grounds of detention do not disclose any
  material which was before the detaining authority, other
  than the fact that there was every likelihood of the detenu
  being released on bail in connection with the cases in
  respect of which he had been arrested, to support the
E order of detention. [Para 13) [10-D-E]
      1.2. When the courts thought it fit to release the
  detenu on bail in connection with the cases in respect of
  which he had been arrested, the mere apprehension that
  he was likely to be released on bail as a ground of his
F detention, is not justified. Besides, the FIRs in respect of
  which the detenu had been arrested relate to the years
  1994, 1995 and 1998 respectively, whereas the order of
  detention was passed against him, almost 12 years after
  the last FIR. There is no live link between the earlier
G incidents and the incident in respect of which the
  detention order was passed. [Para 14) [10-G-H; 11-A-B]
      1.3. Article 21 of the Constitution enjoins that no
  person shall be deprived of his life or personal liberty
  except, according to procedure established by law. In the
H instant case, although the power is vested with the
    YUMMAN ONGBI LEMBI LEIMA v. STATE OF                    3
             MANIPUR & ORS.
authorities concerned, unless the same is invoked and A
implemented in a justifiable manner, such action of the
detaining authority cannot be sustained, inasmuch as,
such a detention order is an exception to the provisions
of Articles 21 and 22(2) of the Constitution. The power is
required to be exercised with due caution as well as upon       s
a proper appreciation of the facts as to whether such acts
are in any way prejudicial to the interest and the security
of the State and its citizens, or seek to disturb public law
and order, warranting the issuance of such an order. An
individual incident of an offence under the Indian Penal C
Code, however heinous, is insufficient to make out a case
for issuance of an order of preventive detention. [Para 13
and 15] (10-F; 11.C-D]

     1.4. The detaining authority acted rather casually in
the matter in issuing the order of detention and the High       D
Court also appears to have missed the right to liberty as
contained in Article 21 of the Constitution and Article 22(2)
thereof, as well as the provisions of s.167 of the Code of
Criminal Procedure, 1973. The order of detention dated
31.1.2011, passed by the District Magistrate; in regard to      E
the detention of the detenu, is quashed. [Para 16 and 17]
[11-E-G]

    Rekha Vs. State of Tamil Nadu through Sec. to Govt.
                   =
2011 (3) SCR 885 (2011) 4 SCC 260; Union of India Vs.           F
                                                  =
Paul Manickam & Anr. 2003 Suppl. (4) SCR 618 (2003) 8
SCC 342; and Haradhan Saha Vs. The State of West Bengal
                          =
& Ors. 1975 (1) SCR 778 (1975) 3 sec 198 - relied on.

                     Case Law Reference:
                                                                G
    2011 (3) SCR 885             relied on        para 5

    2003 (4) Supple. SCR 618 relied on            .para 9

    1975 (1) SCR 778             relied on        para 10
                                                                H
     4        SUPREME COURT REPORTS                 [2012) 1 S.C.R.


 A       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No. 26 of 2012.
         From the Judgment & Order dated 25.8.2011 of the High
     Court of Gauhati (Imphal Bench) in Writ Petition (Criminal) No.
     41 of2011.
B
         Sanjay Parikh, Pukhrambam Ramesh Kumar, Marnia
     Sinha, Pranav Raina, Shanmugo Patro, A.N. Singh for the
     Appellant.
      Jaideep Gupta, Khwairakpam Nobin Singh, B. Krishna
C Prasad for the Respondents.
         The Judgment of the Court was delivered by
         ALTAMAS KABIR, J. 1. Leave granted.
D        2. Under the Detention Order No.CriVNSNNo.10 of 2011,
    Imphal, the 31st January, 2011, issued by the District
    Magistrate, Imphal West District, Manipur, the Appellant's
    husband, Yumman Somendro @ Somo @ liken, was detained
    under the provisions of the National Security Act, 1980. The
i: said detention order was approved by the Governor of Manipur
   on 7th February, 2011, in exercise of his powers conferred
   under Section 3(4) of the aforesaid Act. The order of the
   Governor of Manipur dated 18th March, 2011, confirming the
   detention order passed against the husband of the Appellant
F and fixing the period of detention for 12 months on the subjective
   satisfaction of the detaining authority that the detenu was likely
   to be· released on bail by the normal criminal Courts in the near
   future, was challenged on behalf of Yumman Somendro in the
   Gauhati High Court (Imphal Bench), but without success. This
G Appeal is directed against the said order of the High Court and
   the order of detention itself. Earlier, the Appellant's husband had
   been arrested on 21st March, 1994 in connection with FIR
   No.478(3)1994 IPS u/s 13 Unlawful Activities (Prevention) Act,
   but was released on bail by the normal criminal Court. Despite
H the above, again on 29th June, 1995, the Appellant's husband
     YUMMAN ONGBI LEMBI LEIMA v. STATE OF                      5
       MANIPUR & ORS. [ALTAMAS KABIR, J.)
was arrested in connection with FIR No.450(6)95 ur.der A
Churachandpur P.S. under Sections 386 and 34 IPC. Though
he was released on bail by the normal criminal Court, he was
again arrested under Section 13 UA (P) Act in connection with
FIR No.190(5)98 and was released on bail on 8th July, 1998.
After being released on bail by the normal Criminal Court, B
Yumman Somendro was again arrested on 16th January, 2011,
in connection with FIR No.21 (1 )11 IPS under Section 302 IPC
for the alleged murder of the then Chairman of the Board of
Secondary Education, Manipur, Dr. N. Kunjabihari Singh. The
Appellant's husband was produced before the Magistrate on c
17th January, 2011, who remanded him to police custody till
31st January, 2011. On the said date, he was further remanded
to police custody till 2nd February, 2011, and when he was
produced before the Chief Judicial Magistrate in connection with
the said case, he was served with a copy of the detention order o
dated 31st January, 2011, issued by the District Magistrate,
Imphal West, under the National Security Act, 1980.
     3. On 31st January, 2011, the Appellant's husband was
served with the grounds of detention under the National Security
Act, 1980, under the authority of the District Magistrate, Imphal   E
West. Along with the said order, copies of the documents on
which the detaining authority had relied on to arrive at the
conclusion that the detention of the Appellant's husband was
necessary, was also served on him.
                                                                    F
     4. On a perusal of the grounds of detention, it is clear that
the subjective satisfaction of the detaining authority is founded
on the belief that after having availed of bail facility, the
Appellant's husband could indulge in commission of further
prejudicial activities. An alternative preventive measure was, G
therefore, immediately needed in the circumstances.
    5. On behalf of the Appellant, Mr. Sanjay Parikh, relied
heavily on the decision of this Court in Rekha Vs. State of Tamil
Nadu through Sec. to Govt. [(2011) 4 SCC 260), in which it
had been held that in the absence of material particulars in        H
    6        SUPREME COURT REPORTS                [2012] 1 S.C.R.


A similar cases in which bail had been granted, the subjective
  satisfaction of the detaining authority was merely a ruse for
  issuance of the impugned detention order. After considering
  various decisions of this Court and the views of several jurists
  and the submissions made on behalf of the parties, the
B Division Bench of the High Court was of the view that the
  subjective satisfaction of the detaining authority was based on
  proper material and the detaining authority was also aware that
  the detenu was in custody and was likely to be released on
  bail. The detaining authority, therefore, was of the view that the
c detention of the detenu was required in order to prevent him
  from acting in a manner prejudicial to the maintenance of public
  order as he was likely to be released on bail in the near future
  by the normal criminal Courts. On the aforesaid reasoning, the
  Division Bench of the High Court dismissed the Writ Petition
o filed by the detenu's wife.
        6. The main contention urged by Mr. Parikh appearing for
  the Appellant was that the personal life and liberty of a person
  was too precious to be allowed to be interfered with in the
  manner in which it had been done. Mr. Parikh submitted that
E as would be evident, the detention order was passed on a
  mere supposition that the Appellant's husband was likely to be
  released on bail in the near future in connection with the case
  in respect of which he had been arrested and that in view of
  such future apprehension, the detention order was sought to
F be legitimised. Mr. Parikh submitted that not only had the
  Appellant's husband not applied for !:'ail at any stage, nor was
  there any indication that he intends to do so, which could give
  rise to the supposition that in the future there was every
  likelihood that he would be released on bail. Mr. Parikh
G submitted that supposition could never take the place of facts
  which were necessary to establish a case which warranted the
  detention of a person without any trial.
      7. Mr. Parikh pointed out that Yumman Somendro had
H been arrested in connection with several cases, but had been
     YUMMAN ONGBI LEMBI LEIMA v. STATE OF                       7
       MANIPUR & ORS. [ALTAMAS KABIR, J.]
released on bail in all the said cases till ultimately an order of   A
detention was passed against him under the National Security
Act, 1980, on the flimsiest of excuses. Mr. Parikh submitted that
if at all the Appellant's husband was alleged to have committed
a crime which was punishable under the Indian Penal Code,
the same could not be equated with the national security in any      B
way, which warranted the issuance of a detention order under
the National Security Act, 1980.
      8. Referring to the provisions of Section 3 of the aforesaid
Act, Mr. Parikh submitted that the sine qua non for an order of
detention to be passed under the National Security Act, 1980, C
is that the Central Government or the State Government would
have to be satisfied that in order to prevent any person from
acting in any manner prejudicial to the security of the State or
from acting in any manner prejudicial to the maintenance of the
public order or from acting in any manner prejudicial to the D
maintenance of supply of services essential to the community
that it was necessary so to do, make an order directing that
such person be detained. Mr. Parikh submitted that although
the Appellant's husband had been char~ed with having
committed an offence under Section 302 IPC, Section 386 and E
Section 13 Unlawful Activities (Prevention) Act, there was no
material whatsoever to bring the Appellant's husband within the
ambit of the grounds enumerated in Sub-Section (2) of Section
3 of the aforesaid Act. Mr. Parikh submitted that the order of
detention had been passed not for the reasons enumerated in F
SUb-Section (2) of Section 3, but since the police was unable
to pin any offence against the Appellant's husband on account
whereof he could be denied bail by the Courts.
     9. In support of his submissions, Mr. Parikh firstly referred G
to the decision of this Court in Union of India Vs. Paul
Manickam & Anr. [(2003) 8 SCC 342], wherein while.
considering the delay in disposal of a representation in the
matter of preventive detention, this Court noticed that when the
detenu was already in custody, the anticipated and H
    8        SUPREME COURT REPORTS               (2012] 1 S.C.R.


A apprehended acts were practical impossibilities, as was the
  case as far as the Appellant's husband is concerned. This
  Court further observed that as far as the question relating to
  the procedure to be adopted in case the detenu is already in
  custody is concerned, the detaining authorities would have to
B apply their minds and show their awareness in this regard in
  the grounds of detention. The necessity of keeping such person
  in detention under preventive detention laws have to be clearly
  indicated. It was further observed that the subsisting custody
  of the detenu by itself does not invalidate an order of his
c preventive detention and the decision in this regard has to
  depend on the facts of each case. However, preventive
  detention being necessary to prevent the detenu from acting
  in any manner prejudicial to the security of the State or to the
  maintenance of public order or economic stability, ordinarily it
o is not needed when the detenu is already in custody and the
  detaining authority must be reasonably satisfied with cogent
  materials that there is likelihood of his release and in view of
  his antecedent activities which are proximate in point of time,
  he must be detained in order to prevent him from indulging in
E such prejudicial activities.
       10. Mr. Parikh also referred to another decision of this
  Court in Haradhan Saha Vs. The State of West Bengal & Ors.
  ((1975) 3 sec 198], wherein in the case of a preventive
  detention order passed under the Maintenance of Internal
F Security Act, 1971, the distinction between preventive detention
  and criminal prosecution was sought to be defined and it was
  held that the essential concept of preventive detention is that
  the detention of a person is not to punish him for something he
  has done, but to prevent him from doing it. It was further
G observed that the basis of detention is the satisfaction of the
  Executive of a reasonable probability or the likelihood of the
  detenu acting in a manner similar to his past acts and preventing
  him by detention from doing the same. The criminal conviction,
  on the other hand, is for an act already done which can only be
H possible by a trial and legal evidence.
     YUMMAN ONGBI LEMBI LEIMA v. STATE OF                     9
       MANIPUR & ORS. [ALTAMAS KABIR, J.]

     11. Referring to the Division Bench order dated 31st          A
January, 2011, Mr. Parikh submitted that the same did not
contain any material whatsoever on which the detaining
authority could have arrived at a satisfaction that Yumman
Somendro had acted in any manner which warranted his
detention under the provisions of Section 3(2) of the National     B
Security Act, 1980. The only reason given for issuing such order
of detention was that Yumman Somendro, who was in police
custody, was likely to be released on bail in the near future by
the normal criminal Courts, as, according to him, bails are
granted in similar cases by the criminal Courts. Mr. Parikh        C
submitted that this is a case where the detention order passed
against the Appellant's husband was without any basis
whatsoever and had been resorted to on account of the failure
of the police to keep him in judicial custody.
      12. On the other hand, appearing for the State of Manipur, D
Mr. Jaideep Gupta, learned Senior Advocate, repeated the
facts indicated earlier to the effect that the Appellant's husband
had been arrested in connection with several cases and, in
particular, for the murder of Dr. N. Kunjabihari Singh, the then E
Chairman of the Board of Secondary Education, Manipur, in
his office room on 11th January, 2011. Mr. Gupta submitted that
it was subsequent to the murder of Dr. N. Kunjabihari Singh that
on 31st January, 2011, the order of detention was passed
under Section 3 of the aforesaid Act and was served on the
Appellant's husband, while he was in judicial custody, on 2nd F
February, 2011. It was also submitted that thereafter the
grounds of detention were provided to the Appellant's husband,
as required under Section 8 of the above-mentioned Act to
enable him at the earliest opportunity of making a
representation against the order to the appropriate G
Government. The detention order was considered by the State
Government which approved the same on 7th February,-2011,
and the representation made by Yumman Somendro to the
State Government was rejected on 1Oth February, 2011. The
                                                                   H
    10        SUPREME COURT REPORTS                (2012] 1 S.C.R.


A matter was, thereafter, referred to the Advisory Board which
  came to the conclusion that since Yumman Somendro was a
  member of the banned organization, Kang lei Yaol Kanna Lup,
  he was a potential danger to society, whose activities were
  prejudicial to the maintenance of public order and there was a
B likelihood that he would continue such activities the moment he
  was released from detention and accordingly he should be
  detained for the maximum period of 12 months, as provided
  under Section 13 of the Act. Mr. Gupta submitted that since the
  detention order was to end on 31st January, 2012, there could
c be no reason to interfere with the same prior to its dissolution
  by efflux of time.
      . 13. Having carefuHy considered the submissions made on
  behalf of respective parties, we are inclined to hold that the
  extra-ordinary powers of detaining an individual in contravention
D of the provisions of Article 22(2) of the Constitution was not
  warranted in the instant case, where the grounds of detention
  do not disclose any material which was before the· detaining
  authority, other than the fact that there was every likelihood of
  Yumman Somendro being released on bail in connection with
E the cases in respect of which he had been arrested, to support
  the order of detention. Article 21 of the Constitution enjoins that
  no person shall be deprived of his life or personal liberty except,
  according to procedure established by law. In the instant case,
  although the power is vested with the concerned authorities,
F unless the same are invoked and implemented in a justifiable
  manner, such action of the detaining authority cannot be
  sustained, inasmuch as, such a detention order is an exception
  to the provisions of Articles 21 and 22(2) of the Constitution.
G        14. When the Courts thought it fit to release the Appellant's
   husband on bail in connection with the cases in respect of which
  he had been arrested, the mere apprehension that he was likely
  to be released on bail as a ground of his detention, is not
  justified. In addition to the above, the Fl Rs in respect of which
H the Appellant's husband had been arrested relate to the years
       YUMMAN ONGBI LEMBI LEIMA v. STATE OF                      11
         MANIPUR & ORS. [ALTAMAS KABIR, J.]
1994, 1995 and 1998 respectively, whereas the order of                 A
detention was passed against him on 31st January, 2011,
almost 12 years after the last FIR No.190(5)9.8 IPS under
Section 13 of the Unlawful Activities (Prevention) Act. There is
no live link between the earlier incidents and the incident in
respect of which the detention order had been passed.                  B
      15. As has been observed in various cases of similar
nature by this Court, the personal liberty of an individual is the
most precious and prized right guaranteed under the
Constitution in Part Ill thereof. The State has been granted the
power to curb such rights under criminal laws as also under the        C
laws of preventive detention, which, therefore, are required to
be exercised with due caution as well as upon· a proper
appreciation of the facts as to whether such acts are in any way
prejudicial to the interest and the security of the State and its
citizens, or seek to disturb public law and order, warranting the      D
issuance of such an order. An individual incident of an offence
under the Indian Penal Code, however heinous, is insufficient
to make out a case for issuance of an order of preventive
detention.
                                                                       E
      16. In our view, the detaining authority aoted rather casually
in the matter in issuing the order of detention and the High Court
also appears to have missed the right to liberty as contained
in Article 21 of the Constitution and Article 22(2) thereof, as well
as the provisions of Section 167 of the Code of Criminal               F
Procedure.
     17. The Appeal must, therefore, succeed. The impugned
order of detention dated 31st January, 2011, passed by the
District Magistrate, Imphal West District, Manipur, in regard to
the detention of Yumman Somendro @ Somo @ Tiken son of                 G
Y. Roton Singh, is hereby quashed. The Appeal accordingly
succeeds. Let the Appellant's husband, Yumman Somendro,
be released from custody, if he is not required in connection
with any other case.
                                                 Appeal allowed.       H
R.P.