Manipur HC quashes detention order of Myanmar national under NSA in drug smuggling case
The HC issued the order four days after the Special Judge ND&PS Thoubal cancelled an order of the same court that granted bail to accused Md. Kyaw Kyaw Naing alias Abdul Rahim, on January 28, 2020.
The High Court of Manipur directed the authorities to release a 33-year-old alleged drug smuggler from Myanmar, who has been detained under National Security Act (NSA), provided that he is not required for any other cases.
The HC issued the order four days after the Special Judge ND&PS Thoubal cancelled an order of the same court that granted bail to accused Md. Kyaw Kyaw Naing alias Abdul Rahim, on January 28, 2020. The Special ND&PS Judge issued the order in response to a petition filed by the state seeking cancellation of the bail order of Kyaw Kyaw that charge sheet was submitted in April 9 and hearing of the same had been fixed on December 4. Moreover, the state said that Kyaw Kyaw is a citizen of Myanmar, if released from jail may abscond rendering the trial of the case futile among others.
However, observing that certain principles laid down by the Supreme Court were not observed and the detention violated Article 21 of the Constitution of India, the HC directed the chief secretary of Manipur to circulate a copy of judgment delivered in case of Rekha Vs. State of Tamil Nadu & Ors. (Supra) and to all the district magistrates for study and guidance in future.
It further directed to circulate the copies of the judgments delivered in (1) Union of India –vs- Paul Manickam, (2003) 8 SCC 342; 2004 SCC (Cril.) 239, (2) Rekha –vs State of Tamil Nadu & Ors. (2011) 4 SCC 260 and (3) Huidrom Konungjao –vs- State of Manipur & Ors (2012) 7 SCC 181 be circulated to all the Superintendents of Police, deputy commissioner/ District Magistrates of all the districts for strict compliance of the law laid down in the aforesaid judgments.
If necessary, the chief secretary of the state may organise training programmes of the deputy commissioners and superintendents of police through the State Academy of Training (SAT) or any such body as it may be deemed fit, the court mentioned.
“In the future, the court may pass order against those persons responsible for issuing defective detention order by the way of imposing exemplary costs who continue to issue such defective orders as these defective orders may amount to illegally detaining persons and violating their Fundamental Right as guaranteed under Article 21 of the Constitution” the court judgment noted.
Therefore, the chief secretary, Manipur has been directed to look into the matter without fail and issue appropriate instructions to the detaining authorities, at the earliest possible, so as to avoid any order being passed by the Court, imposing heavy costs upon the detaining authorities for violating the provisions of Article 21 of the Constitution of India.
The court noted that most of the persons who have been detained under the National Security Act in Manipur have been accused of being members of or associated with various outlawed organisations and of having committed serious heinous crimes. Therefore, the court directed that the notice be issued to the chief secretary; director general of Police, Manipur; commissioner/ secretary (Home), Government of Manipur to explain before the Court as to what steps they had taken earlier in compliance of the earlier directions issued by this Court in W.P.(Cril) No. 37 of 2013 as well as in W.P.(Cril) No.37 of 2016.
It stated that they will make their explanations by filing their respective affidavits before the Court within a period of one month from today with the copies of relevant instructions issued by the authorities in this regard, the court stated.
The Myanmar national, Kyaw Kyaw Naing alias Abdul Rahim of Kawhmu village in Rangoon, Myanmar was arrested by a team of Thoubal district police led by SP S. Ibomcha Singh, from the gate of the Imphal airport on September 24, 2019. He was arrested in connection with the seizure of a large quantity of World is Yours (WY) tablets worth Rs 400 crore.
Following his arrest, the Thoubal district magistrate issued a detention order against him on January 29 under NSA. Naing has again been lodged in Manipur central jail at Sajiwa in Imphal since then.
Naing filed a writ petition, challenging the detention order of Thoubal district magistrate in May. After admitting the writ petition and holding the proceedings, the court has kept the order reserved from November 30.
A double bench comprising Justice Kh Nobin and justice Ahanthem Bimol observed that the principles laid down by the Supreme Court in Union of India Vs. Paul Manickam (supra) has not been followed by the District Magistrate (Thoubal). It was observed that the District Magistrate appears to have not applied her judicious mind while passing the order of detention which is in violation of Article 21 of the Constitution of India. Considering the materials on record and having heard the learned counsels appearing for the parties, the court is of the view that the order of detention is bad in law and is liable to be quashed and set aside, the court observed.
Therefore, the order of detention passed by the District Magistrate, Thoubal District, Manipur on January 29 was quashed and set aside by the court. It further directed that Kyaw Kyaw Naing alias Addul Rahim, 33, son of Abdul Jabar alias Ula Sin of Kawhmu Village, Moha Rangoon, Myanmar be released, if he is not required for any other case.
The court further pointed out that it is not the first occasion where the court had dealt with such habeas corpus petitions, which challenged the detention orders passed under the National Security Act, 1980. In many petitions, the issues have been raised by the detainee that there was no material before the detaining authority to arrive at the satisfaction that the detainee, who was already in custody, is likely to be released on bail in the near future.
The court mentioned 39 petitions filed by the detainee to set aside the detention orders. The quashing of the detention order was mostly based on decisions of the Supreme Court rendered in Union of India –vs- Paul Manickam, (2003) 8 SCC342; 2004 SCC (Cril.) 239.
The court observed that the detaining authority and the other authorities concerned have not been properly applying the law as laid down in the aforesaid decisions of the Supreme Court, in W.P (CRIL). no.37 of 2013, which was disposed of in 2014.
Therefore, the court observed that in absence of any bail application on behalf of the petitioner pending consideration by the Court, the order of detention passed by the District Magistrate, becomes invalid.