REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  26       OF 2012 (Arising out of SLP(Crl) No.7926 of 2011)

YUMMAN ONGBI LEMBI LEIMA … APPELLANT   Vs.

STATE OF MANIPUR & ORS.   … RESPONDENT

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. Under the Detention Order No.Cril/NSA/No.10 of  

2011, Imphal, the 31st January, 2011, issued by the

District Magistrate, Imphal West District, Manipur,  

the Appellant’s husband, Yumman Somendro @ Somo @  

Tiken,  was  detained  under  the  provisions  of  the  

National Security Act, 1980.  The 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 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 Appeal is directed against the said  

order of the High Court and the order of detention  

itself.  Earlier, the Appellant’s husband had been  

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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 the above, again on  

29th June,  1995,  the  Appellant’s  husband  was  

arrested in connection with FIR No.450(6)95 under  

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, 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 17th January, 2011, who remanded him  

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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  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 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.  

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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,  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 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  

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parties, the 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 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 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  

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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 be legitimised. Mr. Parikh submitted that not  

only had the Appellant’s husband not applied for  

bail 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 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  

been arrested in connection with several cases, but  

had been released on bail in all the said cases  

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till ultimately an order of 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  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, 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  

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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 charged with having committed an  

offence  under  Section  302  IPC,  Section  386  and  

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  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 to the decision of this Court in  

Union of India Vs. Paul Manickam & Anr. [(2003) 8  

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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  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  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  

preventive  detention  and  the  decision  in  this  

regard has to depend on the facts of each case.  

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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  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  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 SCC 198], wherein in the  

case of a preventive detention order passed under  

the Maintenance of Internal Security Act, 1971, the  

distinction  between  preventive  detention  and  

criminal prosecution was sought to be defined and  

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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 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 possible by a trial  

and legal evidence.   

11. Referring to the Division Bench order dated 31st  

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  Security  

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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 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, 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  

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  

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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 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 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 10th February, 2011.  The  

matter was, thereafter, referred to the Advisory  

Board  which  came  to  the  conclusion  that  since  

Yumman  Somendro  was  a  member  of  the  banned  

organization,  Kanglei  Yaol  Kanna  Lup,  he  was  a  

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potential danger to society, whose activities were  

prejudicial to the maintenance of public order and  

there was a 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  be  no  reason  to  

interfere with the same prior to its dissolution by  

efflux of time.   

13. Having  carefully  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  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  

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than the fact that there was every likelihood of  

Yumman  Somendro  being  released  on  bail  in  

connection with 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,  

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.   

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  

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justified.  In addition to the above, the FIRs in  

respect of which the Appellant’s husband had been  

arrested relate to the years 1994, 1995 and 1998  

respectively, whereas the order of detention was  

passed against him on 31st January, 2011, almost 12  

years  after  the  last  FIR  No.190(5)98  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.  

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 III  

thereof.  The State has been granted the power to  

curb such rights under criminal laws as also under  

the 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  

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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  Code,  however  heinous,  is  insufficient  to  

make  out  a  case  for  issuance  of  an  order  of  

preventive detention.  

16.  In our view, 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 Constitution and Article 22(2)  

thereof, as well as the provisions of Section 167  

of the Code of Criminal Procedure.   

17. The  Appeal  must,  therefore,  succeed.   The  

impugned  order  of  detention  dated  31st January,  

2011,  passed  by  the  District  Magistrate,  Imphal  

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West District, Manipur, in regard to the detention  

of Yumman Somendro @ Somo @ Tiken son of 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.  

   ……………………………………………………J.

                    (ALTAMAS KABIR)

……………………………………………………J. (SURINDER SINGH NIJJAR)

……………………………………………………J.                        (J. CHELAMESWAR)

New Delhi                    Dated: 04.01.2012                  

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