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1996 DIGILAW 4 (GAU)

Bihie Angami v. State of Nagaland

1996-01-12

A.K.PATNAIK, M.SHARMA

body1996
Smti. M. Sharma, J.: Heard Mr.N.Dutta, learned counsel for the petitioner. Mr.KP Sarma. CGSC and Mr.P.Khataniar, Govt Advocate, Nagaland. 2. In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the impunged order of detention dated 1.7.95 passed by the Government of Nagajand. under sub-section (1) and (2) of section 3 of the National Security Act, 1980 (for short 'the Act'). 3. The main ground urged in this writ petition is that under sub-section (5) of section 3 of the Act, the State Government is obliged to report the fact of detention, within seven days from the date of passing of the orderly the State Government, to the Central Government together with the grounds on which detention order has been made and such other particulars as in the opinion of the State Government have a bearing oil the necessity for the order. But in the present case, although a communication has been sent by the State Government on 6.7.95, no report in terms of sub-section (5) of section 3 of the Act has been submitted to the Central Government within the statutory period of seven days from the date of the order of detention. The further ground taken in this writ petition is that the detenu is a Naga and he does not know English language and yet the grounds of detention served on him were in English which he was not able to understand for the purpose of making his representation under Article 22 (5) of the Constitution. 4. At the time of hearing the writ petition, Mr.Dutta. learned counsel for the petitioner, brought to our notice the averments made in the counter affidavit filed by the Union of India, respondent No.2, that the State Government of Nagaland has intimated the Central Government about the detention of the detenu by their message dated 6.7.95, but the Central Government had not received any report from the State Government as required under sub-section (5) of section 3 of the Act. Mr.Dutta submits that mere intimation of the fact of detention is not enough. What sub-section (5) of section 3 of the Act requires is that the State Government shall, within seven days, report the fact of detention to the Central Government together with the grounds on which the order of detention was passed. 5. In reply to said submission Mr. Mr.Dutta submits that mere intimation of the fact of detention is not enough. What sub-section (5) of section 3 of the Act requires is that the State Government shall, within seven days, report the fact of detention to the Central Government together with the grounds on which the order of detention was passed. 5. In reply to said submission Mr. P. Khataniar, Govt Advocate, Nagaland, however, submitted that by the message dated 6.7.95, the fact of detention of the detenu was duly intimated to the Central Government with the grounds of detention and this amount to sufficient compliance with the provisions of sub-section (5) of section 3 of the Act. 6. We are unable to accept the aforesaid submission of Mr. Khataniar. A bare reading of sub-section (5) of section 3 of the Act makes it clear that the State Government is not only required to report the fact of detention but also the grounds on which the order of detention has made. The message dated 6.7.95 of the State Government of Nagaland to the Central Government, a copy of which find place in the records produced before us indicates that although the fact of detention of detenu was intimated, no grounds as such were intimated to Central Government and all that was stated in the said message dated 6.7.95 is that the detenu was detained to prevent him from acting in any manner prejudicial to the defence of India, the security of the State of Nagaland and the maintenance of public orders. In our view, the mere statement that the detenu was detained with a view to prevent him from acting in any manner prejudicial to the defence of India, security of the State of Nagaland and the maintenance of public orders does not amount to communication of the grounds of detention as required under sub-section (5) of section 3 of the Act. It is perhaps for this reason, that the respondent No.2 made a categorical statement in its counter or affidavit before this Court that report of the. State Government to the Central Government as required under sub-section (5) of section 3 of the Act has not been received by the Central Government, although the message dated 6.7.95 of the State Government has been received. 7. State Government to the Central Government as required under sub-section (5) of section 3 of the Act has not been received by the Central Government, although the message dated 6.7.95 of the State Government has been received. 7. We are, thus, of the view that the provisions of sub-section (5) of section 3 of the Act have not been complied with. We find that by a decision dated 23.8.95 in Civil Rule (HC) No.29 of 1995, a Division Bench of this Court, relying on the judgment of the Apex Court m the case of Sher Mahammad vs. State of West Bengal, AIR 1975 SC 2049 has held that for non-compliance of statutory requirements of sub-section (5) of section 3 of the Act. the detention order is liable to be quashed. 8.. Mr. Dutta, further urged that it has also been settled by the Apex Court in the case of Lallubhai Jogibhai Petal vs. Union of India, AIR 1981 SC 728 , that the detenu should be served with the grounds of detention in the Language which he understands and the fact that the grounds of detention were explained to the detenu would not be sufficient compliance with the mandates of Article 22 (5) of the Constitution which requires that the grounds of detention must be communicated to the detenu. Mr.Dutta submits that in the present case, admittedly, the detenu is a Naga and does not understand English language and yet grounds of detention were served in English and the grounds of detention were explained in Nagamese to the detenu as has been averred by the respondents in their counter affidavit. We find a lot of force in this submission of Mr.Dutta. A similar plea taken by the authorities has been rejected by the Apex Court in the case of Lallubhai Jogibhai (supra) wherein a stand was taken that although the detenu did not know English, the grounds of detention had been explained to him in Gujrati. 9. Thus, the impunged order of detention cannot be allowed to continue in view of non-compliance of the mandatory provisions of sub-section (5) of section 3 of the Act as well as Article 22 (5) of the Constitution and, is, therefore, quashed. 9. Thus, the impunged order of detention cannot be allowed to continue in view of non-compliance of the mandatory provisions of sub-section (5) of section 3 of the Act as well as Article 22 (5) of the Constitution and, is, therefore, quashed. The detenu Sri Mezhu-u-Angami, son of late Krulhouvi Angami, village Jotsoma, District Kohima, Nagaland, who was put in Naini Jail, Nainital, UP, shall be forthwith released and set at liberty, if he is not required in any other case. 10. Civil Rule is allowed but considering the facts and circumstances of the case, there shall be no order as to costs.