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2011 DIGILAW 842 (GAU)

J. Sangwo Janger v. Union of India and Ors.

2011-10-17

A.K.GOSWAMI, P.K.MUSAHARY

body2011
P.K. Musahary, J;- 1. Heard Mr. Yanger Wati, learned counsel for the petitioner/detenue and Mr. N.M. Jamir, learned Government Advocate appearing for the respondent Nos. 1, 2, 3 and 4 and Mr. T.B. Jamir, learned CGSC for the respondent No. 5. 2. This application under article 226 of the Constitution has been filed challenging the detention order dated 8.2.2011, approval order dated 15.2.2011 of the aforesaid detention and also the order dated 21.3.2011 confirming the detention of the petitioner. 3. The petitioner was arrested on 31.1.2011 in connection with Dimapur SEN PS Case No. 005/11U/S 25(i)(IA) of the Arms Act read with section 7 of the NSR Act. Thereafter by an order passed by the District Magistrate on 8.2.2011, the petitioner was detained under section 3(3) of the NSA Act, 1980. The District Magistrate, Dimapur on the same date sent a formal proposal to the Addl. Chief Secretary and Commissioner, Nagaland for approval of detention. The petitioner was furnished with the grounds of detention on the same day, i.e., 8.2.2011. Thereafter, the Addl. Deputy Commissioner (HQ) vide his communication dated 9.2.2011 addressed to the Home Commissioner, Nagaland sought approval of detention order from the Government of Nagaland, Kohima. Accordingly, the Special Secretary to the Government of Nagaland vide order dated 15.2.2011 accorded approval to the detention order. In the aforesaid approval order it was provided that the petitioner shall be detained and kept in Central Jail, Dimapur for a period of one year w.e.f. 8.2.2011. Against the order of detention, the petitioner filed a representation on 18.2.2011 before the (1) Secretary, Ministry of Home Affairs, C/O Department Secretary (Security) Division 9th Floor O.C. Wings, Lok Nayak Bhawan, Khan Market, New-Delhi, (2) The Additional Chief Secretary and Commissioner, Nagaland, Kohima and (3) the District Magistrate, Dimapur Nagaland through the Superintendent Central Jail, Dimapur but the same was rejected, which was informed to the petitioner by the said Special Secretary vide his communication dated 14.3.2011. Ultimately, the detention order in respect of the petitioner was confirmed by the Special Secretary to the Government of Nagaland. Home Department vide order dated 21.3.2011 (Annexure 9 to the writ petition). 4. The specific ground of challenge is that the State Government did not place the representation submitted by the petitioner before the Advisory Board for its consideration. Ultimately, the detention order in respect of the petitioner was confirmed by the Special Secretary to the Government of Nagaland. Home Department vide order dated 21.3.2011 (Annexure 9 to the writ petition). 4. The specific ground of challenge is that the State Government did not place the representation submitted by the petitioner before the Advisory Board for its consideration. The State respondents have withheld the representation submitted by the petitioner and thereby deprived him of opportunity of being considered by the Advisory Board in violation of section 10 of the National Security Act, for short the Act. Such withholding of representation of the detenue is a serious lapse which has amounted to violation of the provisions under the Act and on that score alone the detention order is rendered invalid and the same is liable to be quashed and set aside. The other specific submission of the learned counsel for the petitioner is that the impugned detention order was passed by the respondent-District Magistrate mechanically without applying his mind and without looking into the materials placed by the arresting authority and without being satisfied himself that preventive detention of the detenue was necessary. 5. We have carefully gone through the official records produced by the Mr. N.M. Jamir, learned Government advocate. From the records, we find that the Special Secretary to the Government of Nagaland, Home Department, Political Branch, referred the petitioner along with another detenue before the Advisory Board vide letter No Con/NSA/55/97 dated 25.2.2011. The said letter was received by the Secretary to the Advisory Board on 2.3.2011. In the said letter, it is specifically stated that no representation has been submitted by the detenue. The petitioner was produced before the Advisory Board on 12.3.2011 and 13.3.2011. His case was considered by the Advisory Board. The Board observed that the case has been referred within time as required under section 10 of the Act. It also observed that grounds of detention dated 15.2.2011 were furnished to the detenue on 19.2.2011 and as such, the provisions of section 8 of the Act has been duly complied with. It is however, observed that the detenue has not filed representation. On the other hand, the respondent authorities in their affidavit-in opposition stated that the petitioner's representation dated 18.2.2011 was received and necessary steps were taken by the State authority concerned. It is however, observed that the detenue has not filed representation. On the other hand, the respondent authorities in their affidavit-in opposition stated that the petitioner's representation dated 18.2.2011 was received and necessary steps were taken by the State authority concerned. For a clear appreciation, paragraph No. 7 of the said counter affidavit is quoted hereunder : "7. With regard to the statement made in paragraph 11D of the petition the answering respondents states that the representation of the petitioner dated 18.2.2011 was received by the Respondent State Authority on 2.3.2011 through Central Jail Authority, Dimapur. It is to state that such representations are routed through proper channel and are dispatched through postal services. It is pertinent to state that on receipt of the aforesaid representation of the petitioner, necessary action was initiated for decision of the respondent State authorities without any delay. As a matter of fact, certain amount of time is required to process the matter by the State Authorities. As such, there was no intentional or inordinate delay in rejecting the representation of the petitioner by letter dated 14.3.2011." 6. Again in the communication bearing No. Con/NSA/33/3022 dated 14.3.2011 issued by the Special Secretary to the Government of Assam, Home Department, Political Branch (Annexure 8 to the writ petition), the petitioner was informed that his representation for revocation of detention order passed under the Act was examined by the State Government but not acceded to. From this communication it appears that the petitioner's representation was placed before the State Government, for consideration without placing the same before the Advisory Board as required under the provision of the Act. This makes the position abundantly clear that the State Government did not place the petitioner's representation before the Advisory Board, and the State Authority usurp the powers and functions of the statutory body like the Advisory Board. It is crystal clear that the petitioner's representation was withheld from the Advisory Board and as a result, it could not be considered and disposed of by the Advisory Board. That the State Government did not place the petitioner's representation before the Advisory Board can also be seen from the Government letter dated 25.2.2011 issued by the Special Secretary, Government of Nagaland, as referred to earlier, a copy of which was sent/marked to the Chairman of the Board. That the State Government did not place the petitioner's representation before the Advisory Board can also be seen from the Government letter dated 25.2.2011 issued by the Special Secretary, Government of Nagaland, as referred to earlier, a copy of which was sent/marked to the Chairman of the Board. The operative portion of the said letter reads as under : ".....................Copy along with the copies of Detenue's Order, Grounds of Detention and other relevant documents are sent herewith to the hon'ble Justice-S.P. Rajkhowa (Retd.), Chairman Advisory Board, NSA constituted under Government Notification. No representations have been submitted by the detenue. (emphasis supplied) 7. As regard the other grounds of challenge to the detention order, it can be examined in the light of the provisions under section 3(3) of the Act which provides that the District Magistrate, as the detaining authority, before passing the detention order has to be satisfied with circumstances that are prevailing or likely to prevail in any area within his jurisdiction that the detention of a person is, necessary for a specific period. The Apex Court as well as this court in a number of cases have held that the District Magistrate or the other detaining authorities empowered under the Act must record its satisfaction on the basis of materials/documents placed before him that the prevailing circumstances are such that the detention of a person has become necessary. The satisfaction must be subjective and based on materials on record. It is apparent from the detention order that the District Magistrate concerned has not referred himself to or perused the records and the material placed before him to be satisfied himself with the same for passing a detention order against the petitioner. 8. Without referring to various other decisions of the Apex Court in this regard we would choose to refer ourselves to a recent decision of the Apex Court in Pebam Ningol Mikol Devi v. State of Manipur, (2010) 9 SCC 618 wherein it has been held that there must be a reasonable basis for the detention order and there must be material to support the same. The court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion and accordingly determine, if there is an objective basis for subjective satisfaction. It is also held that the subjective satisfaction must be two-fold. The court is entitled to scrutinise the material relied upon by the authority in coming to its conclusion and accordingly determine, if there is an objective basis for subjective satisfaction. It is also held that the subjective satisfaction must be two-fold. Firstly, the detaining authority must be satisfied with the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order. Secondly, the authority must be satisfied that it is necessary to detain a person in order to prevent from so acting. The subjective satisfaction of the detaining authority, i.e., the District Magistrate, in the present case, on objective basis, i.e., the material collected and placed before the detaining authority is the sine qua non of passing the detention order. The detention order passed otherwise should be treated as invalid and illegal. In the present case, the District Magistrate as detaining authority, in our considered opinion has not complied with the aforesaid requirements of law. 9. We have considered the submissions of the learned counsel for the petitioner with serious concern and we are of the firm opinion that the respondent authorities have not complied with the statutory procedures and established rules in passing the preventive detention order under the aforesaid Act. We are also of the opinion that by virtue of the impugned detention order, the personal liberty of the detenue has been curtailed and in the process the procedural safeguard envisaged in the appropriate provisions of the Act have been violated. 10. Consequently, we are left with no other option but to interfere with the impugned detention orders dated 8.2.2011 (Annexure 3), 15.2.2011 (Annexure 6) and confirmation order dated 21.3.2011 (Annexure 9) issued by the respondent-authorities. The aforesaid impugned orders are hereby set aside and quashed. The respondent-authorities are directed to release the petitioner/detenue forthwith, if his further detention is not require. 11. ed, in connection with any other case or no fresh detention order has been issued in the meantime. 12. With the above observations and directions, this writ petition stands allowed.