Manipur High Court: In a case wherein a person was arrested for being in possession of opium and was illegally detained for 13 days, a division Bench of M.V. Muralidaran, C.J. and A. Guneshwar Sharma, J opined that the State and Central Authority had flouted the statutory safeguards which should be given to a person taken into preventive detention and therefore, the Court directed the State Authority to pay Rs. 50,000 to the detenu as compensation for his illegal detention.
Background
The present petition was filed by the father of the detenu who was arrested by a Commanda Unit team for being in possession of plastic packets filled with blackish sticky substance suspected to be opium. On 2-9-2022, the detenu was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (“Act”) to prevent him from further involvement in illicit trafficking of narcotic drugs and psychotropic substances for a period of three months until further orders. It was stated that the detenu was dealing in the illegal drug trafficking business to make easy money and he was likely to be released on bail and on being released, he would continue to be engaged in illegal activities of drug trafficking. So, to prevent this, he was taken into preventive detention.
The detenu submitted representations to the Special Secretary (Home), Government of Manipur and to the State Advisory Board for revoking the detention order and stated that he was falsely implicated by the police. On 15-12-2022, the Commissioner (Home), Government of Manipur revoked the detention order under Section 12(a) of the Act and on 16-12-2022, a second detention order was issued against the detenu to prevent him from further involvement in illicit trafficking of narcotic drugs and psychotropic substances for a period of three months until further orders on the ground that he was likely to be released on bail. On 1-12-2022, the detenu was directed to be released on default bail as charge sheet could not be submitted within the statutory period of 180 days.
It was submitted by the petitioner that till date, the representations were kept pending and not disposed of and thus violated the provisions of Article 22(5) of the Constitution of India. Thereafter, the petitioner challenged the detention order.
Analysis, Law, and Decision
The Court noted that the first detention order was valid only for three months and on its expiry, there was no order for extension of the same nor any confirmation order was issued, however, on 15-12-2022, the State Government revoked the detention order without assigning any specific reason and the second detention order was issued on 16-12-2022. But in the counter affidavit filed by the State Authority, the Court further noted that it was stated that the first detention order was revoked due to technicalities and from 2-12-2022 to 15-12-2022, there was no order from the State Authority to keep the detenu under detention. Therefore, the Court opined that the detenu was under illegal detention for the period from 2-12-2022 to 15-12-2022 and the State Authority had not given any justification in this regard and thus, the Court held that the detenu was under illegal detention for 13 days.
The Court relied on Ujjal Mandal v. State of W.B., (1972) 1 SCC 456, wherein the Supreme Court held that “the detention order was valid only for three months as mandated under Article 22(4) of the Constitution and unless it was confirmed before the expiry of three months, further detention would be without any authority of law”. Thus, the Court opined that “preventive detention was valid for only three months unless it was extended or confirmed before its expiry and any further detention without confirmation would render the detention illegal”.
The Court noted that the first and second detention orders were almost similar and there was no fresh material in the second detention order. The Court agreed with the submission of the petitioner that “in the preventive detention, the second detention order ought to be based on new facts and the repeated detention order could not be passed on the same set of facts”. The Court further noted that “the preventive detention was not an alternative means to keep a person in detention without any trial only on the ground that he would be released on bail and all mandatory technicalities and constitutional safeguards must be meticulously complied with”.
The Court noted that in the present case, the representations were not disposed of on time and the delay in the disposal of the representations and non-furnishing of the information on time vitiated the detention order and the Central Government had not acted upon the representation while the State Government in their counter affidavit stated that the necessary documents had already been forwarded to the Central Authority on time. Thus, the Court opined that “the present case was a classic case where both the State and Central Authority had flouted the statutory safeguards given to a person taken into preventive detention”.
The Court held that the detention orders could not be sustained in the eyes of law and therefore, the detention orders dated 2-9-2022 and 16-12-2022 were set aside and the Court further held that the detenu should be released from detention, if not required in any other case.
The Court relied on Sube Singh v. State of Haryana, (2006) 3 SCC 178, wherein the Supreme Court recognized the award of compensation against State for infringement of fundamental right under Article 21 under the public law in addition to the right of the citizen to claim compensation under private law of tort. The Court also relied on Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658, wherein the Supreme Court considered the concept of compensation for custodial death and illegal detention under public law relying on D.K. Basu v. State of W.B., (1997) 1 SCC 416, and held that “it was now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation was an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State was vicariously liable for their acts”.
The Court opined that the detenu was under illegal detention for 13 days without any authority by the State Authority while exercising the extra-ordinary power of preventive detention in a very casual and callous manner without taking scant respect for the statutory safeguard provided by the statute for which the detenu should be adequately compensated. Therefore, the Court after relying on DG & IG of Police v. Prem Sagar, (1999) 5 SCC 700 and Bhuwneshwar Singh v. Union of India, (1993) 4 SCC 327 directed the State Authority to pay Rs. 50,000 to the detenu as compensation for his illegal detention and failing which, the amount would carry an interest at the rate of 6%. Thus, the Court allowed and disposed of the petition.
[Kaikam Kipgen v. State of Manipur, 2023 SCC OnLine Mani 86, decided on 28-2-2023]
Advocates who appeared in this case :
For the Petitioner: Advocate Ph. Sanajaoba;
For the Respondents: G.A. Th. Vashum;
CGC Boboy Potsangbam.
*Judgment authored by: Justice A. Guneshwar Sharma.