MANU/MG/0225/2014

Equivalent/Neutral Citation: 2015C riLJ528

IN THE HIGH COURT OF MEGHALAYA

W.P. (Cri.) No. 11 of 2014
Decided On: 22.09.2014
Lasting G. Momin Vs. The Union of India and Ors.
Hon'ble Judges/Coram:
U.N. Singh, Actg. C.J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.P. Mahanta, Sr. Advocate, assisted by P.T. Sangma and H. Abraham
For Respondents/Defendant: S. Sen Gupta
ORDER
U.N. Singh, Actg. C.J.
1. I have heard the learned counsel for the parties and perused the petition. This writ petition has been filed for
issuance of writ of habeas corpus by Smt. Majila G. Momin, mother of detenu Shri Lasting G. Momin who has
been detained by the order dated 25.03.2014 passed under provisions of the Meghalaya Preventive Detention
Act, 1995 (for short "MPDA") by respondent Deputy Commissioner/District Magistrate. The main grounds of
challenge to the impugned detention order, inter alia, are that there is a non application of mind in passing it;
there was non-supply of necessary documents and materials, and despite the fact that there was no criminal
case pending against the detenu, he was detained on the omnibus grounds which may relate to the cases of
other detenus travelling in one car wherein the petitioner had innocently asked for and given a lift to travel from
Shallang to his native place. The detention orders passed on 25.03.2014 are reproduced herein-below:
"Annexure-1
CONFIDENTIAL
GOVERNMENT OF MEGHALAYA,
OFFICE OF THE DEPUTY
COMMISSIONER:
WEST KHASI HILLS DISTRICT,
NONGSTOIN.
No. NDC. 1/2014/10 Dated Nongstoin, the 25th March, 2014.
To,
Shri Lasting G. Momin,
S/o. Rosber Marak,
Of Rongjeng Village,
East Garo Hills District,
Williamnagar.
In pursuance of the provision of Sec. 8(1) of the Meghalaya Preventive Detention Act, 1995 read with
order No. NDC. 1/2014/7 dt. 25.03.2014, I am to inform you that you have been detained under the
provisions of section 3(1) of the said Act on the grounds.
(a) That on 29th January, 2014 at about 11.00 a.m., while S.I.R.B. Swer along with SWAT team and
E/186 CRPF Personnel from Shallang were conducting Counter Insurgency Operations duty in Dorangre
area, suddenly a Bolero Camper bearing Regn No. ML-06-6451 approached towards the operation team
on being stopped, 5 (five) GNLA cadres namely (1) Shri Lasting G. Momin, S/o. Rosber Marak, of
Rongjeng, East Garo Hills (2) Shri Arnesh G. Momin, S/o. Robert R. Sangma of Chockpot, South Garo
Hills, (3) Shri Bosco Momin (27 yrs), S/o. Shri Martin T. Sangma of Dorangre, West Khasi Hills (4) Shri
Fedrick Rongrin (22 yrs) S/o. Shri Lewin Gare of Dorangre, West Khasi Hills (5) Shri Joro Sangma (25
yrs.), S/o. Shri Ransom Sangma of Nengchigre, West Khasi Hills were detected while they were planning
to extort money from the coal laden trucks and from the possession 2(two) Nos. of .32 Pistol with 2

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(two) Nos. Magazines, 7 (seven) rounds live ammunitions, 3 (three) Nos. mobile phones and 21 (twenty
one) Nos. dry cell batteries were recovered and seized, hence Shallang PS C/No. 01(01)2014 u/s.
384/506/120(B) IPC r/w Sec. 27 Arms Act and Sec. 13/17/18/39/40, UAP Act was registered and
investigated into.
Such act of yours along with other associates was committed by you with criminal intention for your
personal gains and for your organization thereby posing serious threat to the security of the State and
disrupting public order by creating a sense of fear and panic in the mind of the people and the society at
large.
I am therefore, satisfied that if you are allowed to remain at large you will continue to indulge in such
activities as mentioned above, which are prejudicial to maintenance of the public order in West Khasi
Hills District and also pose a threat to the security of the State. For prevention of such activities, I
consider your detention necessary.
I am also to inform you that you have a right to make representation to the District Magistrate, West
Khasi Hills District and the Commissioner & Secretary, Political Department, Government of Meghalaya
against the order of detention as envisaged by Article 22(5) of the Constitution of India read with
Section 8(1) of the Meghalaya Preventive Detention Act.
Sd/-
(S. Kharlyngdoh)
District Magistrate,
West Khasi Hills District,
Nongstoin".
"Annexure-2
GOVERNMENT OF MEGHALAYA
OFFICE OF THE DEPUTY COMMISSIONER
WEST KHASI HILLS
DISTRICT, NONGSTOIN
No. NDC. 1/2014/7
Dated Nongstoin
the 25th March,
2014.
ORDERS UNDER SECTION 3(1) OF
THE MEGHALAYA PREVENTIVE
DETENTION ACT, 1995.
Whereas, I am satisfied that in respect of the person known as Shri Lasting G. Momin son of Shri Rosber
Marak of Rongjeng Village of East Garo Hills District who is now in judicial custody.
Whereas, he has been arrested by the Police for his involvement in various unlawful activities and
crimes like criminal trespass, house trespass, mischief by fire or explosive substances with intent to
destroy a house, criminal disruption of public order etc. for which the police have implicated conspiracy
to commit an offence etc.
In C/W Shallang PS Case No. 01(01), 2014 u/s. 384/506/120(B), IPC r/w Sec. 27 Arms Act and Sec.
13/17/18/39/40, UAP Act. Whereas, the likelihood of the said Shri Lasting G. Momin in obtaining bail
cannot be ruled out.
Whereas, I am satisfied that if the said Shri Lasting G. Momin is allowed to remain at large, he would
act in a manner prejudicial to the security of the State and maintenance of public order in the District.
Now, therefore, in exercise of the power conferred upon me under Section 3(1) of the Meghalaya
Preventive Detention Act, 1995, I Shri S. Kharlyngdoh, IAS, District Magistrate, do hereby direct
forthwith that the person Shri Lasting G. Momin shall be taken into preventive detention with immediate
effect and that the detention shall be at District Jail, Tura until further orders.
Further, the said Shri Lasting G. Momin, shall, in accordance with Article 22(5) of the Constitution of
India read with Section 8(1) of MPDA, 1995, have every right to make a representation against the order
of detention to the Government addressed to the District Magistrate, West Khasi Hills District, Nongstoin
and the Principal Secretary in Political Department, Govt. of Meghalaya.
Given under my hand and seal this 25th March, 2014.
(Sd/-)
District Magistrate,
West Khasi Hills District,
Nongstoin".

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The said detention order was approved by the Governor of Meghalaya, vide the order dated 01.04.2014
(Annexure 3) as:
"Annexure-3
"GOVERNMENT OF MEGHALAYA
POLITICAL DEPARTMENT
ORDERS BY THE GOVERNOR
Dated Shillong the 1st April, 2014.
No. POL.79/2014/20 - In exercise of the powers conferred by sub-section (3) of Section 3 of the
Meghalaya Preventive Detention Act, 1995 (Meghalaya Act No. 5 of 1995), the Governor of Meghalaya is
pleased to approve the Order No. NDC. 1/2014/7, Dated 25.03.2014 made, under sub-section (1) of
Section 3 of the aforesaid Act by the District Magistrate, West Khasi Hills District, Nongstoin directing
that Shri Lasting G. Momin be detained under sub-section (1) of Section 3 of the aforesaid Act. By order
of the Governor of Meghalaya Sd/- Commissioner & Secretary to the Govt. of Meghalaya, Political
Department."
The detention order was confirmed by the Governor of Meghalaya, on the recommendation of the Advisory Board
vide the order dated 22.05.2014, which reads as follows:
"GOVERNMENT OF MEGHALAYA
POLITICAL DEPARTMENT
ORDERS BY THE GOVERNOR
Dated Shillong the 22nd May, 2014
No. POL.79/2014/27 - In exercise of the powers conferred by sub-section (1) of Section 13 of the
Meghalaya Preventive Detention Act, 1995 (Meghalaya CT No. 5 of 1995), read with The Meghalaya
Preventive Detention (Amendment) Act, 2003 (Amendment of Section 14 of the aforesaid Act), vide
Notification No. POL.58/95/58, Dated 1st November, 2004, the Governor of Meghalaya, acting on the
recommendation of the Advisory Board, is pleased to confirm the detention order No. NDC. 1/2014/7
Dated 25.03.2014 made by the District Magistrate, West Khasi Hills District, Nongstoin and approved by
the Government vide order No. POL.79/2014/20 Dated 1.04.2014 detaining Shri Lasting G. Momin and
to continue his detention for a period of 3 years with effect from 25.3.2014 to 24.3.2017.
By order of the Governor of Meghalaya.
Sd/-
Commissioner & Secretary to Govt.
of Meghalaya, Political Department."
2 . As per averments made in the writ petition, detenu Shri Lasting G. Momin was arrested on 29.01.2014 by
SIRB Swer along with SWAT team and E/186 CRPF personnel from Shallang when they were conducting counter
operations duty in Dorangre area and an FIR was registered against the detenu vide Shallang PS Case No. 01.
(01) 2014 under Sections 384/506/120(B), IPC read with Section 27 of Arms Act and Sections 13/17/18/39/40
of the Unlawful Activities (Prevention) Act, 1967. He was given to police custody for fourteen days, and
thereafter, sent to judicial custody. When he was still in judicial custody in District Jail, East Khasi Hills,
Shillong, he was served with the impugned detention order vide letter No. NDC. 1/2014/10, dated 25.03.2014
along with the grounds of detention under Section 3(1) of MPDA, 1995. The detention order was passed in order
to prevent the detenu from acting in a manner pre judicial to security of the State and maintenance of public
order. Subsequently, the detenue was served with the order vide Memo No. POL.79/2014/20-A, dated
01.04.2014, whereby the detention order was approved.
3. Learned Senior Counsel Mr. S.P. Mahanta submitted that the grounds of detention and supporting documents
like FIR etc. were never served upon the detenu. Thus, there was a gross violation of fundamental rights of the
detenu because he was deprived of his rights to make effective representation and assert his rights as
guaranteed under Article 22(5) of the Constitution of India read with Section 8(1) of MPDA, 1995. Moreover, the
grounds shown to have been furnished in detention order are totally irrelevant and that also goes to suggest that
there was a total non-application of mind. The detenu has not acted in any manner which can be said to be
prejudicial to the security of the State or to the maintenance of public order or of supplies and services essential
to the community. There was no proximity or reasonable nexus between the order of detention and the grounds
furnished to the detenu which rather appear to be totally extraneous. The detenu is a student of Class X, and he
is ignorant about his rights guaranteed under the Constitution and the MPD Act. He was not provided any legal
assistance soon before the arrest and also thereafter, which he was entitled to, before served with the detention
order in jail. Even the requirements of Section 207, Cr.P.C. were not complied. It is also a submission that other
occupants of the car who, perhaps, might have been indulging in anti national activities were not served with
any detention order, whereas the petitioner who only took a lift in the car to travel from Shallang market to his
native place was apprehended by police team. He is not a member of the Garo National Liberation Army (for

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short "GNLA") nor has he any knowledge about any activity of the Organization. The allegations regarding
recovery of illegal arms etc. may be true in respect of other accused but not in the case of the detenu. The
petitioner could not even submit a representation to the authority in the absence of knowledge because he was
not informed about his rights to do so. Failure on the part of detaining authority to inform the detenu about his
rights upon detention has caused a serious infraction of his fundamental rights under Articles 21 and 22(5) of
the Constitution of India.
4. Learned Senior Counsel for the Petitioner in his arguments also submitted that when there was no material,
whatsoever, to detain the son of the petitioner along with other persons, the District-Magistrate in passing an
ambiguous and omnibus detention order in respect of all the detenus, who were travelling in the same car, has
acted with total non-application of mind. The detenu was also not made aware of his right to make
representation nor was he supplied necessary materials which formed the grounds of detention. It is precisely
for this reason that the Government of Meghalaya has issued detailed guidelines vide the letter dated 21.04.2014
directing all the detaining authorities in the State to furnish the connected and relevant documents to the
detenus. The said letter is reproduced hereinbelow for ready reference:
"GOVERNMENT OF MEGHALAYA
POLITICAL DEPARTMENT
No. POL.122/2008/PM/1, Dated Shillong, the 21st April, 2014.
From: Shri B. Khongwir
Under Secretary to the Govt. of Meghalaya
To,
The District Magistrate,
Shillong/Nongstoin/Nongpoh/Mawkyrwat/Jowai/Khliehriat/Ampati/Resubelpara/Tura/Baghmara/Williamnagar.
Subject: Forwarding of documents to MPDA detenu(s)
Sir,
I am directed to refer to the subject above and to say that the Hon'ble MPDA Advisory Board has
observed that in most cases pertaining to detention of persons under MPDA, important documents
linking the persons to the case culminating in their arrest and subsequent booking under MPDA were not
supplied. The Advisory Board in its review meeting held recently had instructed the undersigned to alert
all District Magistrates in this regard and to impress upon all that the detenus have every right of access
to documents indicated below (besides Detention Order containing elaborate grounds) to enable the
detenus to make effective representation. These are:--
1. Copy of FIR
2. Copy of Seizure List
3. Copy of the Statement of detenu before the Police.
4. Copy of confessional Statement before the Magistrate (if any).
The detaining authority should mention clearly that the documents above have been furnished to the
detenu(s) at the time of issuance of Detention Order.
Yours faithfully,
Sd/-
under Secretary to the Govt.
of Meghalaya Political
Department."
5. That apart, though it is asserted on the affidavit that the detention order was served upon the detenu but the
letter dated 31.03.2014 does not bear the signature of the detenu to show that the detention order was ever
served upon him.
6 . On the other hand, in the affidavit-in-opposition filed by the District Magistrate/detaining authority,
Nongstoin, West Khasi Hills, it is set out that upon the report of Superintendent of Police, the District Magistrate,
West Khasi Hills, in exercise of powers conferred under Section 3(1) of the MPDA, 1995 vide the order dated
25.03.2014 passed the detention order against the detenu. The detention order itself provided that in terms of
Article 22(5) of the Constitution of India read with Section 8(1) of MPDA, 1995, the detenu has every right to
make a representation against the detention order. It is also submitted that the respondents-State have
necessary input regarding alliance of detenu with the armed insurgent group whose existence and functioning

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are viewed as prejudicial to the security of State or maintenance of public order and of supplies and services
essential to the community. Ignorance of law is not an excuse for a citizen.
7 . Learned State counsel submits that since some vital inputs were available with the State police, upon the
recommendation of Superintendent of Police, the District Magistrate of West Khasi Hills passed the detention
order. The documents as pointed out in the writ petition, which were alleged to have not been supplied to the
detenu and which are said to have been necessary for making effective representation, were in fact not very
relevant for that purpose.
8. On due consideration of rival submissions, for a proper adjudication of the matter it would be necessary first
to peruse the objects of the MPDA, 1995 vide Section 3 thereof. The said provision is reproduced hereinbelow
as:
"3. Power to make detention order-(1) The State Government or a District Magistrate may, if he is
satisfied with respect to any person that with a view to preventing him from acting in any manner
prejudicial to the security of the State or to the maintenance of public order or of supplies and services
essential to the community it is necessary so to do, make an order directing that such person be
detained.
(2) The powers under sub-section (1) may also be exercised by such officer of the State Government
not below the rank of a Secretary (hereinafter referred to as empowered officer) as may be specially
empowered by it in this behalf.
(3) When a detention order is made under this section by a District Magistrate or by the empowered
officer, such District Magistrate or officer, as the case may be, shall forth with report the fact to the
State Government together with the grounds on which the order has been made and such other
particulars as in his opinion have a bearing on the matter and no such order shall remain in force for
more than twelve days after the making thereof unless in the meantime it has been approved by the
State Government:
Provided that where the grounds of detention are communicated under section 8 to the person
detained after five days not later than ten days from the date of detention, this sub-section shall
apply subject to the modification that for words "twelve days", the words "fifteen days" shall be
substituted."
9. There is a categorical statement on affidavit that the petitioner had not indulged in any criminal activity in the
past or at the time of travelling in the Bolero Camper car ML-06-6451 from Shallang market to his native place
having taken lift innocently from the owner and driver of the car, nor is there any incriminating material to
support the detention order. Thus, only on the ground that he was found to be travelling with other people in
the car from Nongstoin to his native place as a passenger, he could not have been branded as a member of the
GNLA.
10. It is also to be noted that as per the FIR, names of five persons viz., (1) Shri Lasting G. Momin son of
Rosber Marak from Rongjeng, East Garo Hills District, Meghalaya (2) Shri Arnesh G. Momin son of Shri. Robert
R. Sangma from Chockpot, South Garo Hills District, Meghalaya (3) Shri Bosco Momin 27 years son of Martin T.
Sangma, village Darongre, South West Garo Hills District, Meghalaya (4) Shri Fedrik Rongrin 22 years son of
Shri Lewin Gare, village Dorangre, South West Khasi Hills District, Meghalaya and (5) Shri Joro Sangma 25
years son of village (sic) Nengchigre Village had come in picture. Out of these five accused persons, who were
arrested, two accused persons namely Shri Bosco Momin 27 years son of Martin T. Sangma, Village Darongre,
South West Garo Hills District, Meghalaya and Shri Bosco Momin 27 years son of Martin T. Sangma village
Darongre, south-west Garo Hills District, Meghalaya were released on bail after sometime, but they were also
detained under the provisions of MPDA. Shri Bosco Momin is the owner of the Bolero Camper bearing
registration No. ML06-6451 and Shri Fredik Rongrin, 22 years, is a person who had been working with the
owner and was present with him in the car. Thus, they are the main accused. However, they were released on
bail, and, thereafter, were not detained under the MPDA. It has been alleged in the petition that the relatives of
Shri Bosco Momin and Fedrick Rongrin who are influential, having good relationship with the bureaucrats, had
met some top police officers, and that is why, they were released on bail.
11. Shri Lasting/detenu was not even aware as to who are the real members of the GNLA. As per the averments
made in the writ petition, though in the impugned Ground of Detention order No. NDC. 1/2014/7 dated
25.03.2014 it is mentioned as, "accused is arrested by the Police for his involvement in various unlawful
activities and crime like criminal trespass, house trespass, mischief by fire or explosive substances with intent to
destroy a house, criminal disruption of public order etc, for which the police have implicated conspiracy to
commit an offence etc." but it is nowhere reflected in the police records that the detenu had ever been arrested
in any other case or cases, apart from the one case that is referred in the Grounds of Detention, i.e. Shallang
P.S. case No. 01 (01)2014 u/s. 384/506/120(B), IPC R/W Sec. 27, Arms Act and Sec. 13/17/18/39/40, UAP Act.
Further, this was the first time when the detenu was arrested by the police and implicated. Never ever was any
recovery of deadly weapon or any other offensive material from him. The accused is a student of Class 10(X),

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hence, the charge of his committing repeated crimes appears to be a false allegation. The allegation has been
made by the respondent District Magistrate without any supporting evidence just in order to justify the detention
of petitioner's son under the MPDA. It is also specifically stated that the Detenu is not a member of insurgent
organization like the GNLA etc., and the respondents have not submitted any document or evidence to show
otherwise.
12. That apart, the detaining authority before reaching his subjective satisfaction should have inquired, verified
and satisfied himself regarding the existence of incriminating materials, if any, against the detenu which was
rather conspicuous by absence. There was no past criminal history which may give rise to grounds for attracting
the provision of Section 3 of the MPDA or to reach a reasonable conclusion that the detenu possesses propensity
or potentiality to indulge in illegal activities which may be cognizable for detention under Section 3 of the MPDA.
A detention order has to satisfy the requirements of law as discussed in the judgment of Hon'ble the Apex Court,
reported in MANU/SC/0366/2011 : (2011) 5 SCC 244 : (2011 Cri.L.J. (Supp) 363) (Rekha v. State of Tamil
Nadu). The relevant paragraphs being 30 to 35 are reproduced hereinbelow:
"30. Whenever an order under a preventive detention law is challenged, one of the questions the court
must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation?
If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge
against the detenu was of selling expired drugs after changing their labels. Surely, the relevant
provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this
situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
31. In this connection, it may be noted that it is true that the decision of the 2 Judge Bench of this
Court in Biram Chand v. State of Uttar Pradesh & Anr., MANU/SC/0413/1974 : (1974) 4 SCC 573, was
overruled by the Constitution Bench decision in Haradhan Saha's case (supra) (vide para 34). However,
we should carefully analyse these decisions to correctly understand the legal position.
32. In Biram Chand's case (supra), this Court held that the authorities cannot take recourse to criminal
proceedings as well as pass a preventive detention order on the same facts (vide para 15 of the said
decision). It is this view which was reversed by the Constitution Bench decision in Haradhan Saha's case
(supra). This does not mean that the Constitution Bench laid down that in all cases the authorities can
take recourse to both criminal proceedings as well as a preventive detention order even though in the
view of the Court, the former is sufficient to deal with the situation. This point which we are
emphasizing is of extreme importance, but seems to have been overlooked in the decisions of this
Court.
33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha's case (supra) that
even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is
actually being so tried, that does not debar the authorities from passing a detention order under a
preventive detention law. This observation, to be understood correctly, must, however, be construed
against the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we
have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a
fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our
Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be
held giving him opportunity of placing his defence through his lawyer. It follows that if a person is
liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (Indian
Penal Code or other penal statutes) is not able to deal with the situation, then, and only then, can the
preventive detention law be taken recourse to.
3 4 . Hence, the observation in para 34 in Haradhan Saha's case (supra) cannot be regarded as an
unqualified statement that in every case where a person is liable to be tried, or is actually being tried,
for a crime in a criminal court, a detention order can also be passed under a preventive detention law.
3 5 . It must be remembered that in cases of preventive detention, no offence is proved and the
justification of such detention is suspicion or reasonable probability, and there is no conviction which
can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of
suspicion', (vide State of Maharashtra v. Bhaurao Punjabrao Gawande, (supra) - para 63). The detaining
authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22
specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the
right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially
dangerous power, the law of preventive detention has to be strictly construed and meticulous
compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital".
13. Since the petitioner had no criminal past nor was he involved in any offence on the date of his detention,
and moreover, if there was any suspicion about his activities and movements in that case, it could have been
dealt with under the ordinary law of the land, therefore, there was no justification for the detaining authority to
pass the impugned detention order against the detenu. That apart, in the absence of necessary materials to make
timely and effective representation, the fundamental rights of the petitioner as contained in and guaranteed by

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Articles 21 and 22(5) of the Constitution of India have been seriously infringed. In another judgment reported in
MANU/SC/0562/2009 : (2009) 11 SCC 438 : (2009 Cri.L.J. 2451) (Thahira Haris and Ors. v. Government of
Karnataka & Ors.), vide paragraphs 13 and 27, the aforesaid observations have been reiterated while referring to
the judgment in Shalini Soni v. Union of India, reported in MANU/SC/0227/1980 : (1980) 4 SCC 544 : (1980
Cri.L.J. 1487). As the said paragraphs also contain detailed discussions, it would be appropriate to reproduce
them as under:
"13. In Shalini Soni v. Union of India, this Court aptly observed that the accused must have proper
opportunity of making an effective representation. The Court observed thus: (SCC 0. 549, para 7)
"7........Communication of the grounds pre-supposes the formulation of the grounds and
formulation of the grounds requires and ensures the application of the mind of the detaining
authority to the facts and materials before it, that is to say to pertinent and proximate matters in
regard to each individual case and excludes the elements of arbitrariness and automatism (if
one may be permitted to use the word to describe a mechanical reaction without a conscious
application of the mind). It is an unwritten rule of the law, constitutional and administrative,
that whenever a decision making function is entrusted to the subjective satisfaction of a
statutory functionary, there is an implicit obligation to apply his mind to pertinent and
proximate matters only eschewing the irrelevant and the remote. Where there is further an
express statutory obligation to communicate not merely the decision but the grounds on which
the decision is founded, it is a necessary corollary that the grounds communicated, that is, the
grounds so made known, should be seen to pertain to pertinent and proximate matters and
should comprise all the constituent facts and materials that went in to make up the mind of the
statutory functionary and not merely the inferential conclusions. Now, the decision to detain a
person depends on the subjective satisfaction of the detaining authority. The Constitution and
the statute cast a duty on the detaining authority to communicate the grounds of detention to
the detenu. From what we have said above, it follows that the grounds communicated to the
detenu must reveal the whole of the factual material considered by the detaining authority and
not merely the inferences of fact arrived at by the detaining authority. The matter may also be
looked at from the point of view of the second fact of Art. 22(5). An opportunity to make a
representation against the order of detention necessarily implies that the detenu is informed of
all that has been taken into account against him in arriving at the decision to detain him. It
means that the detenu is to be informed not merely, as we said, of the inferences of fact, but of
all the factual material which have led to the inferences of fact. If the detenu is not to be so
informed, the opportunity so solemnly guaranteed by the Constitution becomes reduced to an
exercise in futility. Whatever angle from which the question is looked at, it is clear that
"grounds" in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus
factual material which led to such factual inferences. The 'grounds' must be self-sufficient and
self-explanatory. In our view, copies of documents to which reference is made in the 'grounds'
must be supplied to the detenu as part of the 'grounds'.
2 7 . This Court in Sophia Gulam Mohd. Bham v. State of Maharashtra & others
MANU/SC/0470/1999 : (1999) 6 SCC 593 para 11 : (1999 Cri.L.J. 4064) observed that effective
representation by the detenu can be made only when copies of the material documents which
were considered and relied upon by the Detaining Authority in forming his opinion were
supplied to him".
14. Learned counsel for the respondents-State placed reliance on the judgment in Pooja Batra v. Union of India
& Ors., reported in MANU/SC/0472/2009 : (2009) 5 SCC 296 : (2009 Cri.L.J. 2797) to argue that for a detention
order what is important is the subjective satisfaction of detaining authority and that satisfaction was formed in
this case on the basis of recommendation of Superintendent of Police. However, in the absence of supporting
materials being supplied to the detenu to make effective representation, after finding out as to whether the
recommendation of Superintendent of Police was based on definite incriminating grounds, it cannot be said the
detaining authority had fully satisfied himself to reach a reasonable and valid conclusion before passing the
impugned detention order. This fact is well evident from the averments made in the petition. The petitioner has
also alleged that the documents required to be supplied under Section 207, Cr.P.C., were not supplied. Section
207 provides for furnishing of the following documents: (i) The Police Report, (ii) The First Information Report
recorded under Section 154, (iii) The statements recorded under sub-section (3) of Section 161 of all persons
whom the prosecution proposes to examine as its witnesses, exclusion therefrom any part in regard to which a
request for such exclusion has been made by police officer under sub-section (6) of section 173, (iv) The
confession and statements, if any, recorded under Section 164 (v). Any other documents or relevant extract
thereof forwarded to the Magistrate with the Police report under sub-section (5) of Section 173. These
documents which were to be mandatorily served upon the detenu were never served and thereby a gross
violation of his valuable rights has been committed. The petitioner could not make an effective and meaningful
representation to the Advisory Board or the Government of Meghalaya and the Central Government, (Ministry of
Home Affairs). Thus, the detenu was kept in the dark about his right to make an effective representation against
the impugned detention order which, as noted above, appears to suffer from serious vices of being in conflict
with the detention law.

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15. The detenu was arrested on 29-1-2014, whereas the detention order was passed on 25-3-2014, after a gap
of about 1 month 25 days. From the averments as made in the writ petition, it appears that the detenu was
unaware of the reasons of his arrest till he was served with a copy of the detention order without any supporting
evidence/materials. Between the date of arrest and the date of passing of detention order, the petitioner was
entitled to seek the enforcement of his fundamental rights under Articles 21 and 22(5) of the Constitution also in
terms of guidelines laid down in the case of D.K. Basu v. State of West Bengal MANU/SC/0157/1997 : (1997) 1
SCC 416 : (1997 Cri.L.J. 743) as under:
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should
bear accurate, visible and clear identification and name tags with their designations. The particulars of
all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may either be a member of
the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall
also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person
known to him or having interest in his welfare being informed, as soon as practicable, that he has been
arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest
is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where
the next friend or relative of the arrestee lives outside the district or town through the Legal Aid
Organization in the District and the police station of the area concerned telegraphically within a period
of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or
detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend or the person who has been informed of the arrest
and the name and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and
minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo"
must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during
his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health
Services of the State or Union Territory concerned. Director, Health Services should prepare such a
panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the
Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
(11) A police control room should be provided at all district and State headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be
displayed on a conspicuous notice board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the official
concerned liable for departmental action, also render him liable to be punished for contempt of court
and the proceedings for contempt of court may be instituted in any High Court of the country, having
territorial jurisdiction over the matter".
In view of the aforesaid discussion, the impugned orders of preventive detention dated 25-03-2014 and the
orders of approval dated 01-04-2014 and confirmation dated 22-04-2014 cannot be sustained in law. Hence,
these orders are hereby quashed. Resultantly, the detenu, namely, Shri Lasting G. Momin shall be released and
set free upon issuance and service of a copy of this judgment. This writ petition, thus, stands allowed in terms
of the aforesaid order and directions.
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