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2011 DIGILAW 285 (GAU)

Koko Lamkang v. State of Nagaland

2011-03-31

A.K.GOSWAMI, AMITAVA ROY

body2011
JUDGMENT Amitava Roy, J. 1. The detention of the Petitioner under the National Security Act, 1980 (for short hereafter referred to as the Act) pursuant to the order dated 14.01.2011 of the Special Secertary, Government of Nagaland, Home Department (Political Branch), Nagaland, Kohima, in exercise of powers conferred by Sub-section (1) and (2) of Section 3 of the aforementioned enactment and his continued incarceration is the subject matter of challenge in the instant proceeding. 2. We have heard Mr. D.K. Mishra, Sr. Advocate assisted by Ms. S. Jahan and Mr. B. Prasad, Advocates for the Petitioner and Ms. T. Khro, learned Government Advocate, Nagaland for the State Respondents. Mr. R.K. Ka)ita, Advocate appeared on behalf of Mr C. Baruah, learned Central Government Counsel representing the Union of India. 3. Briefly stated the Petitioner's pleaded case is that he had been arrested on 28.12.2010 by the Nagaland Police in connection with Kohima (North) Police Station Case No. 0134/2010 under Sections 381/411/468/471/120(B)/34 IPC read with 7 of the Nagaland Security Regulation, 1962. On an application for bail being moved for his release, he was by order dated 06.01.2011, passed by the learned Additional District and Sessions Judge, Kohima, in the aforementioned case released on interim bail till 08.02.2011. Thereby he was directed to report to the Court on the said date. 4. According to the Petitioner, while he was thus on bail, he was detained in execution of the order of preventive detention as above and the grounds therefore were served on him on 15.01.2011. He thereafter submitted his representation against his detention to the Special Secretary to the Government of Nagaland, Home Department (Political Branch), Kohima, Nagaland, through the Jailor, Central Jail, Dimapur, Nagaland, on 15.02.2011. A copy of the said representation was also marked to the Secretary, Home Department, New Delhi. Contending in substance that his detention is wholly uncalled for besides being illegal and arbitrary, the Petitioner has asserted as well that his representations have not yet been disposed of by the concerned authorities under the Act. 5. A copy of the said representation was also marked to the Secretary, Home Department, New Delhi. Contending in substance that his detention is wholly uncalled for besides being illegal and arbitrary, the Petitioner has asserted as well that his representations have not yet been disposed of by the concerned authorities under the Act. 5. The State of Nagaland in its affidavit filed on behalf of the Respondents 1, 3 and 4 has endorsed the impugned detention of the Petitioner on the ground that he had been found to be involved in stealing and selling of vehicles in and outside the State and that he was accordingly, having been found to be involved in such illegal trade and in possession of stolen vehicles was rightly detained. According to the answering Respondents, the activities in which the detenu was found to be involved were detrimental to the peaceful existence of the public and that therefore the concerned State authorities being satisfied of the necessity of doing so decided to detain him under the Act. While disclosing that the detenu was arrested on 08.02.2011, the order of preventive detention dated 14.01.2011 notwithstanding, they have averred, that his representation dated 15.02.2011 had been forwarded by the Respondent No. 4 to the detaining authority on 17.02.2011 and the Advisory Board on 23.02.2011. On the basis of the order No. CON/NSA/55/97 dated 11.02.2011, they have claimed that the Advisory Board had been constituted under the Act amongst others to deal with the preventive detention of the detenus. 6. Mr. Mishra with particular reference to the materials constituting the satisfaction of the detaining authority leading to the impugned detention has urged the blatant non-application of mind would be evident therefrom thereby vitiating the order assailed. The learned Sr. Counsel has argued that as the detenu was in bail in the aforementioned case on the date on which the impugned order of detention was passed, the facts as narrated in paragraph-4 of the Schedule accompanying the grounds of detention testify that the detaining authority either had overlooked material facts or had been kept uninformed thereof thus vitiating the impugned detention. Additionally Mr. Additionally Mr. Mishra has submitted that a plain reading of the materials purportedly contributing to the satisfaction of the detaining authority would reveal on the face of the records that the alleged activities of the detenu could by no means be said to have any bearing on the defence of India or the security of the State of Nagaland or maintanance of public order. The essential ingredients for preventive detention under the Act being conspicuously absent, according to Mr. Mishra, the impugned order of detention, if allowed to continue, would be in transgression of the fundamental right to life of the detenu guaranteed under Article 21 of the Constitution of India. The learned Sr. Counsel has further urged that the non-disposal of the Petitioner's representation as well invalidates the impugned detention and on that ground as well as the same is liable to be declared null and void. In order to buttress his submissions Mr. Mishra has placed reliance on the decisions of the Apex Court in Ashok Kumar v. State of Jammu and Kashmir, (1981) 2 SCC 73 , Anant Sakharam Rout v. State of Maharastra and Anr., (1986) 4 SCC 771 , Hem Lall Bhandari v. State of Sikkim and Ors. (1987) 2 SCC, Prof. Khaidem lbocha Singh etc. v. the State of Manipur, AIR 1972 SC 438 , Ayya @ Ayub v. State of Uttar Pradesh and Anr. (1989) 1 SCC 374 . 7. While the learned Central Government Counsel has offered no comment on the debate, Ms. Khro with reference to the official records has insisted that the detenu had been justifiably arrested on 08.02.2011. She has submitted further that the Petitioner's representation has been considered and rejected by the detaining authority on 07.03.2011. On being queried by this Court the learned Government Counsel, however, has not been able to apprise it of the decision, if any, taken on the representation by the Advisory Board meanwhile. There is no indication as well about the fate of the representation forwarded to the Union Government. 8. We have extended our consideration to the pleadings on record and the submissions advanced. There is no indication as well about the fate of the representation forwarded to the Union Government. 8. We have extended our consideration to the pleadings on record and the submissions advanced. Noticeably the fact that on the date of issuance of the impugned order of preventive detention i.e. 14.01.2011, the Petitioner was on bail in Kohima (North) Police Station Case No. 0134/2010 under Sections 381/411/468/471/120(B)/34 IPC read with 7 of trie Nagaland Security Regulation, 1962 has not been denied by the Respondents. The claimed to have re-arrested him on 08.02.2011. There is thus a time gap of over three week's in between. This assumes considerable significance in view of the following contents of paragraph-4 of Schedule annexed to the grounds of detention said to contain the materials on which the detaining authority derived its subjective satisfaction to the effect that it was compellingly essential to detain the Petitioner under the Act. That the subject is presently under judicial custody, however, unless an effective alternative measure is called for the subject is likely to be released on expiry of the custodial period. Keeping the subject at large till the case is tried is likely to endanger the safety and security of the State. Also, the subject is likely to indulge in similar criminal activities. On examination of the report forwarded by the-district authority, the State Government has found the case of the subject fit to be booked under the National Security Act, 1980. Hence, in order to prevent him from further indulging in criminal activities which undermines the defence of India, security of the State and jeopardize maintenance of public order, the State Government of Nagaland has ordered the detention of the subject under the National Security Act, 1980 as per the provisions of Section 3(1) and (2) of the Act. 9. It would be apparent from the above extract that the detaining authority proceeded on the premise that the detenu at that point of time i.e. on 14.01.2011 was in judicial custody in connection with the aforementioned police station case and that there was a likelihood of the being released on the expiry of the custodial period. 9. It would be apparent from the above extract that the detaining authority proceeded on the premise that the detenu at that point of time i.e. on 14.01.2011 was in judicial custody in connection with the aforementioned police station case and that there was a likelihood of the being released on the expiry of the custodial period. According to the detaining authority, to leave the detenu at large till the criminal case was tried would pose a potential danger to the safety and security of the State and that there was a likelihood of his indulging in similar criminal activities. 10. At the first instance, in view of the undeniable fact that at the relevant point of time, the Petitioner was on bail, we are constrained to sustain the plea on his behalf that the impugned order of detention suffers from the vice of non-application of mind. There is nothing forthcoming from the schedule that between 06.01.2011 and 14.01.2011 the Petitioner had been indulging in similar or graver unlawful activities having a bearing on the defence of India, security of the State or public order. Nothing akin thereto is also alleged for the period between 14.01.2011 and 08.02.2011. 11. Further the gravamen of the accusation on which it was felt by the detaining authority that the Petitioner's detention under the Act was inevitably called for is contained in paragraph-3 of the Schedule to the Grounds of Detention, which is extracted herein below. That the subject who is an active member of an underground faction involved in a case of purchasing a stolen vehicle and tampering/replacing the engine number, chassis number and other parts of the said vehicle with the help of three accomplices. Such activity is against the interest of the State and maintenance of public order, hence, the detention of the subject under preventive law is warranted. 12. The extract reveals that the Petitioner was considered to be an active member of an underground faction found involved in a case of purchasing a stolen vehicle and tampering/replacing the engine number, chassis number and other parts thereof with the help of three accomplices. Such activity was construed to be against the interest of the State and maintenance of public order justifying his preventive detention. 13. Such activity was construed to be against the interest of the State and maintenance of public order justifying his preventive detention. 13. To say the least, in view of the background of the criminal case referred to hereinabove and the fact that he was on bail on the date on which the impugned order of detention under the Act was passed, we are of the comprehension that the solitary instance of his alleged involvement could not have had the potential of causing any impact on the even tempo of life of the society so as to draw the same within the realm of threat to public order. The impugned order of detention, in the estimate of this Court, cannot be sustained on both the above counts. 14. The Petitioner's representation, as the official records disclose, though had been disposed of on 07.03.2011 by the detaining authority, the grounds thereof also relate to that isolated incident for which the criminal case against him is pending. The records do not disclose any other ground whatsoever, in support of the decision to reject his representation. The records do not disclose either that this order has been communicated to the Petitioner till date. On the other hand, the same reveals that parawise comments to his representation are in the stage of being prepared to be forwarded to the Union Government for its decision thereon. 15. In Anant Sakharam Raut (supra) the Apex Court interfered with the detention order also under the Act on the ground that the detaining authority had not been made aware that at the relevant point of time, the detenu was an under trial prisoner in connection with the three incidents for which he was sought to be preventively detained and that applications by him for his bail in connection therewith were pending. Their Lordships were of the view that the order of preventive detention in the factual premise indicated a total absence of application of mind on the part of the detaining authority. 16. Dwelling on the nature and import of preventive detention, their Lordships in Hem Lall Bhandari (supra), held that in matters involving liberty and freedom of a citizen, it would be impermissible either to take a liberal or a generous view of the lapses on the part of the State Agencies. 17. 16. Dwelling on the nature and import of preventive detention, their Lordships in Hem Lall Bhandari (supra), held that in matters involving liberty and freedom of a citizen, it would be impermissible either to take a liberal or a generous view of the lapses on the part of the State Agencies. 17. The order of detention impugned in the instant proceeding, judged on the touchstone of the above judicial pronouncements, also cannot be sustained in law and on facts. 18. That in cases of preventive detention, if a representation is made by the detenu against the same, the law casts a dual responsibility on the detaining authority as well as the Advisory Board has been underlined by the Apex Court in Prof. Khaidem Ibocha Singh etc. (supra). The solemn responsibility of ensuring timely disposal of such representation has been reiterated by the Apex Court in Ashok Kumar (supra). 19. In the case in hand though the detaining authority claims to have disposed of the Petitioner's representation on 07.03.2011, it admittedly has been done after three weeks of the submission thereof. The records demonstrate that the decision has not yet been communicated to him. There is nothing forthcoming to indicate decision, if any, taken by the Advisory Board thereon. The parawise comments on his representation made for the Union Government are in the stage of preparation. The rejection of the Petitioner's representation by the concerned State Authority has been with reference to the isolated incident on which a criminal case is pending. 20. On a totality of the consideration of the above facts, we are of the view that the sincerity and the expedition with which a detenu's representation ought to be attended to and decided are lacking in the present case. On this count as well, the Petitioner's further detention is constitutionally impermissible. 21. In view of all above, the challenge to the impugned order of detention is sustained. The order dated 14.01.2011 to that effect is set aside. As his further detention has also been held to be illegal, it is ordered that the Petitioner Shri Koko Lamkang son of Shri Peshot Khullar be released forthwith if he is not required in connection with any other case. Petition stands allowed. No costs. Petition allowed