WP (Cril) Nos. 56 and 57 of 2009. Case: Sanasam Irabanta Singh Vs State of Manipur and Ors.. Guwahati High Court
| Case Number | WP (Cril) Nos. 56 and 57 of 2009 |
| Counsel | For Appellant: Ph. Sanajaoba, Adv. And For Respondents: R.S. Reisang and Amarjit Naorem, Advs. |
| Judges | T. Nandakumar Singh and K. Meruno, JJ. |
| Issue | National Security Act, 1980 - Sections 3(3), 3(4), 3(5) and 5; Maintenance of Internal Security Act - Section 3(4) |
| Citation | (2010) 4 GLR 343, 2009 (5) GLT 595 |
| Judgement Date | November 20, 2009 |
| Court | Guwahati High Court |
Judgment:
T. Nandakumar Singh, J., (Imphal Bench)
1. These two writ petitions, i.e., WP(Crl.) No. 56 of 2009 and WP(Crl.) No. 57 of 2009, challenging the detention orders on the same question of facts and law, are taken up for joint hearing and disposal by a common judgment and order.
2. Heard Mr. Ph. Sanajaoba, Learned Counsel appearing for the petitioners. Also heard Mr. R.S. Reisang, learned Government Advocate appearing for the respondent Nos. 1 and 2 as well as Mr. Amarjit Naorem, learned C.G.S.C. appearing for the respondent No. 3.
3. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objective of the society, specified in the Constitution. 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 detenue is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the loss of preventive detention afford 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)).
The Apex Court (Constitution Bench), by relying on the earlier decision in Rattan Singh's case (supra) held that procedural safeguards provided for protection of persons sought to be preventively detained should be seriously enforced by the court. [Ref.: Kamalesh Kumar Ishwardas Patel v. Union of India and Ors. (1995) 4 SCC 51].
4. No doubt, the doctrine of preventive power of the Administrative/ Executive authority, constitutionally validate preventive process for the maintenance of public order, security of the State, national security, defence of India and relations of India with the foreign power. The Apex Court in Amir Shad Khan v. L. Hmingliana and Ors. (1991) 4 SCC 39 held that -
The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of Clauses (1) and (2) of the said article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under:
22. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." (Ref.: Para 3 of the SCC in Amir Shad Khan's case (supra)).
5. The Apex Court in Union of India v. Paul Manickam and Anr. (2003) 8 SCC 342, held that the history of liberty has largely been the history of observance of procedural safeguards. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a person's greatest of human freedoms, i.e., personal liberty is deprived, and, therefore, the laws of preventive detention ore strictly construed, and a meticulous compliance with the procedural safeguard, however, technical, is...
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