Manipur High Court
Leishangthem Rajesh Singh vs District Magistrate on 17 June, 2025
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
KABORAMBA Digitally
KABORAMBAM
signed by
M SANDEEP SANDEEP SINGH
Date: 2025.06.20
SINGH 13:51:38 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (Crl.) No. 1 of 2025
Leishangthem Rajesh Singh
Petitioner
Vs.
District Magistrate, Kakching; & Ors.
Respondents
BEFORE
HON’BLE THE CHIEF JUSTICE MR. KEMPAIAH SOMASHEKAR
HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH
(ORDER)
(K. SOMASHEKAR, C.J.)
17.06.2025
[1] This writ petition has been filed under Article 226 of the
Constitution of India challenging the detention order dated 27.02.2025 passed
by the District Magistrate, Kakching in respect of registration of FIR No.
03(2)2025 WKG-PS u/s 140(2)/308(4)3(5) of BNS & 17/20 UA(P) Act dated
01.02.2025 and at present in judicial custody, for issuance of this detention order
in respect of the aforesaid petitioner/accused under the National Security Act,
1980 as he is acting in a manner prejudicial to the security of the State,
maintenance of public tranquility and also creating terror in the mind of the
people general public, and is not possible to prevent his activities by application
of ordinary laws.
[2] Heard the learned counsel for the petitioner, Mr. S. Rajeetchandra
who is appearing through video conferencing and so also the learned
Government Advocate for the respondents, Mr. Y. Ashang and perused the
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impugned detention order dated 27.02.2025 rendered by the District Magistrate,
Kakching.
[3] The factual matrix of this petition are as under:
As on 01.02.2025 based on an intel about the presence of unknown
miscreants mainly extortionist provided by Maj. Shivam Sachan, Coy. Cdr, C-Coy,
46 AR, a search operation was conducted at Langmeidong Mamang Awang Leikai
area from area from 0600 hrs by a combined team of CDO Unit Kakching, team
of Waikhong PS and a Platoon of F-Coy, 151 Bn. BSF and detained some
suspected individuals including the petitioner/accused/detenu. As his nature
became suspicious, he was taken to CDO Office, Kakching for further examination
by the combined team and as there was apprehension of mob formation in the
meantime by the local people, especially womenfolk. On examination, the detenu
identified himself as one Leishangthem Rajesh Singh @ Malemnganba, aged
about 30 years, S/o (L) Leishangthem Kullabidhu Singh, Langmeidong Mamang
Awang Leikai. During the course of enquiry, he admitted that he was currently
serving as Vice-Chariman of the banned organization Kangleipak Communist
Party (KCP) (Taibanganba) and he was in-charge of extortion activities in
Kakching, Thoubal and Imphal area. As a Vice-Chairman of the aforesaid banned
organization, the same has been stated in detail in the factual matrix of the crime
as registered by the authorities as keeping in view the provision of Section 154
of the Code of Criminal Procedure.
[4] It is further revealed as in the particulars of the case as being
registered against the petitioner/accused/detenu in FIR No. 03(2)2025 WKG-PS
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u/s 140(2)/308(4)3(5) of BNS & 17/20 UA(P) Act dated 01.02.2025 for the
offences which is reflected in the FIR. The said individual was arrested by the
team leader from the office of the CDO-Unit, Kakching at around 0845 hrs by
preparing an arrest memo in the presence of the witnesses by observing
necessary legal formalities. From his possession, they have seized the items
which are indicated in the particulars of crime as registered by the authorities for
the offences which are leveled against him.
[5] Whereas learned counsel for the petitioner/accused in this matter
took us to the impugned detention order dated 27.02.2025 as rendered by the
District Magistrate, Kakching for the offences leveled against the
petitioner/accused in FIR No. 03(2)2025 WKG-PS u/s 140(2)/308(4)3(5) of BNS
& 17/20 UA(P) Act dated 01.02.2025. The original copy of the impugned
detention order in respect of the case in Cril/NSA/No. 3 of 2025/294 dated
27.02.2025 issued by the District Magistrate, Kakching is produced vide
Annexure-A/1.
[6] Whereas learned counsel for the petitioner/accused took us to the
contentious contention as being made in this writ petition that the
petitioner/detenu/accused being a law abiding citizen and he is ready to abide
any terms and conditions imposed by this Court. Further, learned counsel for the
petitioner/accused took us to the contention that he is entitled to all the
constitutional guarantees and safeguards enshrined in the Constitution of India
and therefore, learned counsel for the petitioner has referred to Article 22(5) of
the Constitution of India relating to the detention order as has been challenged
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under this writ petition by referring to the provision of Article 226 of the
Constitution of India.
[7] It is further denied that the petitioner/detenu in this matter is a
member of banned organization Kangleipak Communist Party (KCP) and the
same has been taken in the grounds which are urged in this writ petition as
initiated by the petitioner against the aforesaid detention order dated 27.02.2025
rendered by the District Magistrate, Kakching.
[8] However, learned counsel for the petitioner/accused in this matter
further contended that legible copy of the relevant document has not been
furnished by the District Magistrate even though the detention order was
rendered as keeping in view the relevant provision of law and also keeping in
view the scope of Article 22(5) of the Constitution of India, as the aforesaid
Articles are mandatory.
[9] It is further contended that though the detaining authority has
produced certain materials to him which is not legible and also it is not readable
but the detenu/accused has been remanded to the police custody initially and
thereafter he has been remanded to the judicial custody after being formally
arrested in connection with 5 (five) other FIR cases.
i) FIR No. 48(7)2024 KCG-PS u/s 17/20 UA (P) Act.
ii) FIR No. (2)2025 WKG-PS u/s 140 (2)/308 (4)/3(5) BNS.
iii) FIR No. 01(1)2025 WKG P.S. u/s 304(4) BNS, 17/20 UA (P) Act
added Section 61 (2) BNS.
iv) FIR No. 26(7)2024 WKG-PS u/s 308(2)(5) BNS & 17/20 UA (P) Act.
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v) FIR No. 110(10)2010 LPS PS u/s 307/34 IPC & 4
These are all the FIRs that have been registered by the authorities
having power and keeping in view the relevant provision under code of criminal
procedure.
[10] Whereas learned counsel for the petitioner/accused took us to
various grounds in this writ petition relating to the detention order dated
27.02.2025 which was served along with some illegible documents purported in
the basis of the grounds and the learned counsel further took us to the grounds
of the detention dated 28.02.2025 which is marked as Annexure-A/2. These are
the documents facilitated by the learned counsel for the petitioner seeking
intervention keeping in view the provision of the Article 22(5) of the constitution
of India.
[11] It is further contended that the petitioner/detenu has filed a
representation cum application to the District Magistrate asking for revocation of
the order on 06.03.2025 and supply of legible documents, missing O.E of some
FIR and copies of referred documents. That contention is also taken by the
learned counsel for the petitioner.
[12] The detenu was served with an approval order dated 08.03.2025
issued by the Commissioner (Home) Govt. of Manipur vide Annexure A/4. These
are all the documents facilitated by the petitioner for seeking consideration of
the grounds which are urged in the ground of detention. However, the District
Magistrate, Kakching has failed to appreciate the material available on record
inclusive of the registration of the FIR against the petitioner/accused.
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On failure of the District Magistrate, Kakching to dispose the
representation made by the detenu, he filed another representation dated
13.03.2025 addressed to the Chief Secretary, Govt. of Manipur for revocation
and supply of earlier sought documents. However, the aforesaid representation
was disposed of by rejecting the request for revocation but the documents sought
for were still not supplied.
[13] It is further contended that the impugned order of detention dated
27.02.2025 rendered by the District Magistrate, Kakching is vitiated for non-
application of mind. Stale materials have been taken into consideration while
formulating the grounds of detention by the District Magistrate. The impugned
order is vitiated for taking into consideration even earlier grounds of detention
and for non-supply of legible and relevant documents despite repeated request.
[14] It is further contended that the detenu is not communicated of
compliance of mandatory provision as laid down in Section 3(4) and (5) of the
statute, the detenu has no knowledge if the same has been complied with or not.
On these premises, learned counsel for the petitioner/detenu/accused is seeking
intervention and to proceed in accordance with the relevant provision of the
Articles of the Constitution of India inclusive of the relevant provision under the
Code of Criminal Procedure and correspondent provision of the BNS Act of 2023.
[15] Lastly, learned counsel for the petitioner forcefully submits that the
order rendered by the District Magistrate, Kakching is without any based
materials and also no material has been facilitated by the concerned police
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authority/team members relating to passing the detention order against the
petitioner/detenu/accused.
[16] Whereas the learned counsel for the petitioner in this matter
specifically taken contention and also facilitated certain reliance that as follows
(i) Mehul Desai Vs. Joint Secretary (PITNDPS), Government of India
& Ors. reported in 2024 Legal Eagle (Manipur) 114 , Case No. W.P. (Crl.)
No. 10 of 2024, date of decision 26.07.2024, wherein the coordinate bench in
the aforesaid matters has dealt with the relevant provisions of the Prevention of
Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 in
respect to Section 3(1) – Preventive detention not punishment but to prevent
person from committing an offence; if person already in custody than there would
be no need for preventive detention except when authorities arrives at subjective
satisfaction that the detenu might be released on bail.
(ii) State of Manipur and others vs. Buyamum Abdul Hanan @ Anand
and Anr reported in 2022 Legal Eagle (SC) 1220, whereas this judgment
has been facilitated by the learned counsel for the petitioner whereby the Hon’ble
supreme Court of India extensively dealt the scope of Article 22(5) of the
Constitution of India and inclusive of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988, whereas in the aforesaid
judgment, the Hon’ble Supreme Court of India has specifically stated that non
supply of legible copies of documents relief upon by the detaining authority, it is
a settled position of law by the Supreme Court of India that the supply of legible
copies of documents relied upon by the detaining authority is a sine qua non for
making an effective representation which is fundamental right of detenu
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guaranteed as under Article 22(5) of the Constitution of India. The order of
detention under 1988 Act, the detention suffered for one year, challenged before
High Court on the ground that illegible copies of documents and blurred
documents were supplied, High Court set aside the order of detention holding
same to be violative of Article 22 (5) of the Constitution of India. This citation
has been produced by the learned counsel for the petitioner whereby seeking for
consideration of the observation made by the Hon’ble Supreme Court of India in
that judgment referred in various judgments by the Hon’ble Supreme Court
reported in Smt. Dharmista Bhagat V. State of Karnataka & Another 1989 Supp
(2) SCC 155, Manjit Singh Grewal @ Gogi V. Union of India & Ors. 1990 (Supp.)
SCC 59, Mehrunissa V. State of Maharashtra (1981) 2 SCC 709 and Bhupinder
Singh V. Union of India & Others (1987) 2 SCC 234. Whereas the learned counsel
for the petitioner placed the reliance rendered by the Hon’ble Supreme Court of
India and more importantly and also referred para 21, 22, 23 which read as thus:
“21. Thus, the legal position has been settled by this Court that the right to
make representation is a fundamental right of the detenu under Article 22(5)
of the Constitution and supply of the illegible copy of documents which has
been relied upon by the detaining authority indeed has deprived him in
making an effective representation and denial thereof will hold the order of
detention illegal and not in accordance with the procedure contemplated
under law.
22. It is the admitted case of the parties that respondent no.1 has failed to
question before the detaining authority that illegible or blurred copies were
supplied to him which were relied upon while passing the order of detention,
but the right to make representation being a fundamental right under Article
22(5) of the Constitution in order to make effective representation, the
detenu is always entitled to be supplied with the legible copies of the
documents relied upon by the detaining authority and such information
made in the grounds of detention enables him to make an effective
representation.
23. Proceeding on the principles which have now been settled by this Court,
it was specifically raised by the respondents in their writ petition and the
reference has been made in para 9 of the petition referred to(supra) and in
the pleadings on record, there was no denial in the counter filed by the
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appellants before the High Court that the documents which were supplied
and relied upon by the detaining authority were legible and that has not
denied respondent no.1 in making effective representation while questioning
the order of detention and once this fact remain uncontroverted from the
records as being placed before the High Court in writ petition filed under
Article 226 of the Constitution and the legal principles being settled, we find
no substance in the submissions made by learned counsel for the appellants
that merely because respondent no.1 has failed to raise this question before
the detaining authority which go into root of the matter to take away the
right vested in the appellant/detenu in assailing the order of detention while
availing the remedy available to him under Article 226 of the Constitution of
India.”
Whereas the learned counsel for the petitioner is submitting in
further and also lastly submitting that even taking into the scope of Article 226
of the Constitution of India even holding that the grounds of detention did not
satisfy the rigors of proof as a foundational effect which has enabled him in
making effective representation in assailing the order of detention in view of the
protection provided under article 22(5) of the Constitution, the same renders the
order of detention illegal and we find no error committed by the High Court in
setting aside the order of preventive detention under the impugned judgment.
[17] Learned counsel for the petitioner also placed reliance in the case
of Sarabjeeet Singh Mokha versus District Magistrate, Jabalpur & Ors,
reported in 2021 Legal Eagle (SC) 731, in this judgment, the Hon’ble Supreme
Court of India addressed the scope of Sections 10, 11, 12(1) and 15 read with
Sections 3(2), 3(4), 3(5), 5-A and 8 of the Preventive Detention, the detention
under Section 3(2) of the NSA, the appellant, a Director of City Hospital, Jabalpur
faced an FIR under relevant provisions of IPC, Disaster Management Act,
Epidemic Diseases Act for procurement of fake Remedesivir injection in
contravention of certain orders and administering the same to patients during
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Covid-19 pandemic in order to make illegal profits thereby endangering the life
of the general public.
Wherein, the Hon’ble Supreme Court of India, in Foot Note (A)
referred to Section 53 of the Disaster Management Act, 2025; Sections 3 of the
Epidemic Diseases Act, 1897; Sections 25 and 27 of the Arms Act, 1959, Sections
144, 161, 13 of the Code of Criminal Procedure, 1973, Article 136 read with
Article 226, 22 and 22(5) of the Constitution of India, wherein the Hon’ble
Supreme Court of India in the extensively addressed the issues and scope of the
said provision of law in paragraph 2, 13, 46, 54-57.
[18] These are all the citations facilitated by the petitioner and seeking
for intervention needs, if not, there shall be some miscarriage of justice.
However, learned counsel for the petitioner specifically submits that the detaining
authority, i.e., the District Magistrate has passed the impugned order which is
based upon the reliable information submitted by the police authority and also
the materials which has been collected during the course of some enquiries made
and also making some enquiries with the petitioner/accused/detentu in the
aforesaid crimes. It is deemed appropriate to refer the provision of Section 154
of the Code of Criminal Procedure which reads as thus.
154. Information in cognizable cases.–(1) Every information relating to the
commission of a cognizable offence, if given orally to an officer in charge
of a police station, shall be reduced to writing by him or under his direction,
and be read over to the informant; and every such information, whether
given in writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State Government may prescribe
in this behalf:
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Provided further that–
(a) in the event that the person against whom an offence under
section 354, section 354A(a) in the event that the person against
whom an offence under section 354, section 354A, section 354B,
section 354C, section 354D, section 376, 1 [section 376A, section
376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB], section 376E or section 509 of the Indian Penal
Code (45 of 1860) is alleged to have been committed or
attempted, is temporarily or permanently mentally or physically
disabled, then such information shall be recorded by a police
officer, at the residence of the person seeking to report such
offence or at a convenient place of such person’s choice, in the
presence of an interpreter or a special educator, as the case may
be;
(b) the recording of such information shall be video graphed;
(c) the police officer shall get the statement of the person
recorded by a Judicial Magistrate under clause (a) of sub-section
(5A) of section 164 as soon as possible.](2) A copy of the information as recorded under sub-section (1)shall be
given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of
a police station to record the information referred to in sub-section (1) may
send the substance of such information, in writing and by post, to the
Superintendent of Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either investigate
the case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Code, and such officer
shall have all the powers of an officer in charge of the police station in
relation to that offence.”
[19] These are all the contentious contentions taken by the learned
counsel for the petitioner and seeking for allowing this writ petition and
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consequently setting aside the impugned detention order dated 27.02.2025
rendered by District Magistrate, Kakching
[20] On the contrary, learned Government Advocate in this matter
submits that even though reliable information has been secured by the police
authority and thereafter registered the case in the aforesaid FIR. Subsequent to
enquiry with the petitioner/detenu/accused, and thereafter only registered the
said FIR against petitioner/detenu/accused for the offences and further initially
the accused was remanded to the police custody and thereafter the accused was
remanded to judicial custody. However, the accused has committed several
offences which also indicated in the material which has been collected by the
investigating agency during the course of investigation. Wherein, the
petitioner/accused led in various crimes which has been registered by the
investigating authority under the relevant provision of law and also registered
various crimes and therefore, the accused in case release on bail, certainly he
would come in the way of the prosecution case and also terrorizing to the public
in general. The activities of the accused has been stated in detail and the report
has been made by the investigating agency to the concerned District Magistrate
to secure the detention order. The detaining authority rendered the order of
detention which has been challenged in this writ petition, by urging various
grounds. However, the learned Government Advocate in this matter stoutly
addressed the arguments stating that the detaining authority has rendered the
order based upon the reliable information as being secured by the investigating
agency consisting of certain team members, who apprehended the
petitioner/accused when he was about to leave his residence with his daughter
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for dropping her to school. The same is indicated in the material available on
record and also the same is indicated in the FIR registered by the concerned
police authority keeping in view the provision of Section 154 of the Code of
Criminal Procedure.
[21] Subsequent to registration of FIR against the accused, the
investigating authority has submitted the detailed report and seeking for
detention order. Then the District Magistrate, Kakching has rendered the
impugned order of detention even though legible/readable materials have not
been supplied to the petitioner/detenu. This ground has been urged by the
learned counsel for the petitioner seeking for intervention of the impugned order
of detention.
[22] Whereas the learned Government Advocate in this matter is further
submitting that if the petitioner/accused/detenu has been released on bail,
certainly he would come in the way of the prosecution and also cause hindrance
to the progress made by the investigating agency to proceed for filing a charge
sheet keeping in view the provision of Section 173 of the Code of Criminal
Procedure.
[23] However, once the FIR has been registered by the investigating
authority as keeping in view the provision of Section 154 of Code of Criminal
Procedure and thereafter the investigating agency to look into the provision of
Section 161 and 162 of the Code of Criminal Procedure for recording the
statement of witnesses and also in order secure the witnesses to drew the
punchnama. These are all the recourses which have to be taken by the
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investigating agency. Lastly, filing of a charge sheet under section 173 of the
Code of Criminal Procedure, inclusive of the relevant provision of law. Even the
crime has been registered under the National Security Act, 1980 the same has
been indicating in the materials available on record inclusive of the FIR as being
registered by the investigating agency. These are all the submissions made by
the learned Government Advocate in this matter and contended that impugned
order rendered by the District Magistrate, Kakching is justifiable and it does not
arise for call for any interference. On these premises, learned Government
Advocate in this matter seeking for dismissal of the writ petition.
[24] Keeping in view all the contentious contentions taken by the
learned counsel for the petitioner and so also counter arguments advanced by
the learned Government Advocate and more so based upon the detention order
rendered by the District Magistrate, Kakching, it is relevant to refer that the
Article 21 and 22 of the Constitution of India in respect of personal liberty of
individuals, the preventive detention when may be imposed, personal liberty has
to be subordinated within a reasonable bounds to be good of the people.
[25] The Constitution and the Supreme Court of India are very zealous
of upholding personal liberty of individual, but liberty of individual has to be
subordinated within a reasonable bounds to be good of the people, order of
detention is clearly a preventive measure and liberty to offer protection to the
society. When preventive detention is aimed to protect safety and security of
nation, balance has to be struck between the liberty of individuals and need of
society the preventive detention generally nature scope and object, the same has
been addressed by the Hon’ble Supreme Court of India in various judgments.
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However, the Hon’ble Supreme Court of India rendering a judgment in A.K.
Gopalan Vs. State of Madras reported in AIR 1950 SC 27 relating to
preventive detention in detail address the issue.
[26] Whereas keeping in view the factual matrix of this matter, it is
deemed appropriate to refer petitioner/detenu/accused in the aforesaid crime as
being registered by the investigating agency under the National Security Act,
1980. The grounds of detention for the petitioner/detenu/accused which has
been served upon him indicate that the materials had been placed before the
detaining authority, i.e, the District Magistrate, Kakching, which reveals that the
petitioner was indulging in antisocial activities and that in pursuance to the
activities he had threatened many people and in fact had assaulted them. This
ground further indicated that the petitioner/detenu/accused had disturbed the
public peace and tranquility in the area. The notice even convened the said
grounds to the petitioner further alleged that as a result of the criminal activities
of the petitioner/detenu/accused, even the materials which has been facilitated
by the detaining authority to the accused but the materials are not
readable/illegible, but the said documents have been facilitated to the
petitioner/detenu/accused, there is no purpose would be served on the
State/investigating agency.
[27] Whereas it is true that the satisfaction of the detaining authority
keeping in view the provision of Section 3 (1)(a) refers to its subjective
satisfaction and so he is not justifiable. Therefore, it would not be open to the
detenu to ask the Court to consider the question as to whether the said
satisfaction the detaining authority can be justified by the application of objective
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test, it would not be open, for instance to the detenu to contend that the grounds
supplied to him do not necessarily or reasonably lead to the conclusion that if he
is not detained. This issue has already been addressed in a judgment of State
of Bombay Vs. Atma Ram Shridhar Vaidya reported in AIR 1951 SC 157.
There is no doubt if any grounds have been urged and also grounds have been
based upon the materials as being secured by the investigating agency during
the course of the investigation and also to make some enquiry with the concerned
petitioner/accused. But unless the scope of Article 22(5) of the Constitution of
India has been complied with and the order which has been rendered by the
detaining authority which is under suspicious and it may be considered even at
any stage of the proceedings.
[28] Whereas in this detention order, reliable information has been
secured by the investigating agency during the course of the arrest of the
petitioner/accused, there must be bearing in mind even though the past conduct
and antecedent history of the person on which the authority purposed the act,
should ordinarily be proximate in point of time should have a rational connection
with the conclusion that the detention of the person is necessary, it would for
instance be irrational to take into account the conduct of the person which took
place even several years also, even so on the strength of the said incident for
recording the various FIRs by the investigating agency, it will not be the ground
for seeking for detention order unless the materials which has been facilitated by
the investigating agency which should be justifiable and also have some good
grounds which should not come in the way of Article 22 (5) of the Constitution
of India and equally the Article 21 of the Constitution of India.
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[29] It is trite law and also settled position of law relating to entertaining
a writ petition filed under Article 226 of Constitution of India and whereby
challenging the detention order rendered by the detaining authority. Even
obligation of the consideration of the detentu’s representation by the concerned
authority flows from Article 22(5) of the Constitution of India. When only one
representation is made addressed to the detaining authority and there shall be
some reason and that reason should be justifiable to hold that the detaining
authority has relied upon its obligation merely because the representation is
addressed to the advisory board, instead of addressing to the detaining authority.
Whereas, submitting to the advisory board during the pendency of the reference
before it, is difficult to spell out such an interference from the content of Article
22(5) of the Constitution of India, however, it does not require in detail for
address the impugned order.
[30] The detaining authority is required to bear in mind that there exists
a distinction between the likelihood of his moving an application for bail and the
likelihood to be released on bail while arriving at the subjective satisfaction that
there is likelihood of the detenu being released on bail, but releasing on bail also
consideration of the grounds it is under relevant provision of the code of criminal
procedure, recording the satisfaction on the part of the detaining authority and
merely because an application for grant of bail had been filed would not be
enough, it would also not be sufficient to compliance with the legal obligation
that the detaining authority had informed himself that the detenu as reflected
from his earlier confession, but the confession concept is as under the relevant
provision of Indian Evidence Act, 1872 under what circumstances the
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confessional statement has to be recorded by the investigating agency but the
confessional statement has to be recorded keeping in view the provision of
Section 164 of the Code of Criminal Procedure and also the relevant provision of
Indian Evidence Act, 1872 and more importantly, Section 24 and 25 of the Indian
Evidence Act, 1872, and more so, the appreciation of the evidence which is also
vested with the Trial Court as keeping in view the provision of Section 3 of the
Indian Evidence Act, 1872 and the said provision has been dealt relating to
proved, disproved and not proved in respect of the facts, whereas Section 4 of
the Indian Evidence Act, 1872 deals with may presume, shall presume and
conclusive proof. Therefore, at this stage, it cannot be considered the scope of
the aforesaid provisions of law, no doubt the antecedent of the detenu/accused
would be a relevant factor, but the same may not be sufficient to seeking
detention order inasmuch as the principles which governed so as to enable the
Court to arrive at a proper decision that the order of detention can be validly
passed despite the detenu in custody.
[31] If the detaining authority passing an order is aware of the fact that
he is actually in custody, the custody in sense is according to the materials
available on record, the police custody initially and thereafter he has been
remanded in judicial custody, in accordance with the relevant provision of the
Code of Criminal Procedure, if he had a reason to believe on the basis of reliable
materials and that material had been facilitated by the investigating agency
relating to the crime as being registered by the concerned police authority that
there is a real possibility of his being release on bail and that on being released,
he would be probably indulging in prejudicial activity, this role is only to be vested
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with the concerned court having jurisdiction of the consideration of the bail
petition if the petitioner/detenu/accused has filed an application under the
relevant provision of Code of Criminal Procedure. It is trite essential to detaining
him to preventing him to so doing.
[32] However, as regards to the facts and circumstances of the present
case and for the finding and reasons herein above, we are of the considered view
that the detention order passed by the District Magistrate, Kakching District
against the petitioner cannot be sustained. Accordingly, the impugned detention
order dated 27.02.2025, the approval order dated 08.03.2025 and the
confirmation order dated 21.03.2025 are hereby set aside. Consequently, the
detenue be set at liberty forthwith, if his detention is not required in connection
with any other cases.
JUDGE CHIEF JUSTICE
Sandeep
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