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2017 DIGILAW 1328 (GAU)

Asing v. State of Nagaland

2017-10-09

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : Songkhupchung Serto, J. 1. These batches of habeas Corpus petitions arose from similar orders passed separately by the same authorities based on the same grounds of detention and the FIR case. Therefore, they are being disposed of by this common judgment and order. Heard the learned counsel representing the petitioners, Mr. Limawapang, assisted by Mr. Pfosekho and also heard Mr. K. Wotsa, learned Sr. Government Advocate representing the State respondents. I have also heard Mr. Yangerwati, learned CGC appearing on behalf of the Union of India. 2. The facts leading to the filing of the habeas corpus petitions may be stated briefly as follows; On 18.01.2017, while the detenus/petitioners were travelling in two white colour Gypsys with Registration No. NL-07 2621 & NL-07H-4082 at Mon Town they were stopped by the troops of Ex. 35 Assam Rifles and told to dismount from their respective vehicles. During the search huge quantity of arms and ammunitions were recovered from the two Gypsys. As such, they were arrested and the two Gypsy's on which they were travelling along with the arms and ammunitions and all the other articles found in the Gypsys were seized. On spot interrogation, the detenus/petitioners revealed that they are members of the NSCN-BVI. The Assam Rifles on the same day submitted a report given at Annexure-A of all the petitions to the Officer-in-Charge, Mon, Police Station and the Officer-in-Charge registered an FIR Case No. 3/2017, dated 18.01.2017, u/s. 121(A)/34 IPC r/w-7/8 NSR u/s. 25(1A) Arms Act & u/s. 5 Explosive Act. Thereafter, on 20.1.2017 they were produced before the learned Session Judge, Mon, who remanded them to Police custody till the next day that is 21.1.2017. On 21.01.2017, they were produced once again before the learned Sessions Judge, Mon, with a prayer for judicial remand and the learned Sessions Judge, Mon, allowed the prayer and remanded them to judicial custody for 14 days. While they were in judicial custody, the District Magistrate, Mon, on 04.02.2017, vide his orders No. CON/NSA/2017/197, 177, 207, 187, 162, 182, 192, 172, 167 & 202, dated 4.2.2017, in exercise of his powers conferred by sub-section 3(3) of the NSA, 1980, ordered that the detenues/petitioners be detained and kept in Central Jail, Dimapur. While they were in judicial custody, the District Magistrate, Mon, on 04.02.2017, vide his orders No. CON/NSA/2017/197, 177, 207, 187, 162, 182, 192, 172, 167 & 202, dated 4.2.2017, in exercise of his powers conferred by sub-section 3(3) of the NSA, 1980, ordered that the detenues/petitioners be detained and kept in Central Jail, Dimapur. Immediately, thereafter, he also sent his proposal to the Government of Nagaland, through the Special Secretary, Home Department, Political Branch, vide his letters No. CON/NSA/2017/197, 177, 207, 187, 162, 182, 192, 172, 167 & 202, dated 04.02.2017, requesting for approval of the detention orders as required under section 12 of NSA, 1980. On 01.03.2017, that is almost after a month's time the Chief Secretary, Government of Nagaland, vide Orders No. CON/NSA/GEN/2017/35, 36, 37, 38, 39, 40, 41, 41, 42, 43 & 44, dated 01.03.2017, conveyed that the detention orders are not approved on technical ground, therefore, the State Government, in exercise of the powers conferred under section 14(1)(a) of the NSA, 1980, has revoked all the detention orders passed by the District Magistrate, Mon, in respect of the detenus/petitioners. After a gap of 30 days, thereafter, the Superintendent of Police, Mon, vide his letter No. MON/DP/CB-13/2016-17/3853, dated 31.03.2017, addressed to the Deputy Commissioner/District Magistrate, Mon, submitted a "re-proposal" for detention of the detenus/petitioners under section 3 of NSA, 1980, on the same facts and grounds. Following the proposal, the District Magistrate, Mon, on the same day vide his Orders No. CON/NSA/2017/36, 20, 16, 12, 04, 40, 24, 28, 08 & 32, dated 31.03.2017, once again ordered that all the detenus/petitioners be detained and kept in Central Jail, Dimapur, in exercise of his powers conferred under sub-section (2) of section 3 of the NSA, 1980. The grounds of detention along with the schedule were communicated to the detenus/petitioners. On the same day, the District Magistrate, Mon also submitted a proposal vide his letter No. CON/NSA/2017/03, dated 31.03.2017, to the Government of Nagaland, through Special Secretary, Home Department, Political Branch for confirmation of the orders. On 11.04.2017, vide orders No. CON/NSA/06/2017/58, 66, 67, 68, 64, 71, 63, 70, 69 & 65, dated 11.04.2017, the Chief Secretary, Government of Nagaland, ordered detention of all the detenus/petitioners until further order in exercise of powers conferred under section 3(2) of NSA, 1980. On 11.04.2017, vide orders No. CON/NSA/06/2017/58, 66, 67, 68, 64, 71, 63, 70, 69 & 65, dated 11.04.2017, the Chief Secretary, Government of Nagaland, ordered detention of all the detenus/petitioners until further order in exercise of powers conferred under section 3(2) of NSA, 1980. Thereafter, on 20.05.2017, the Chief Secretary, Government of Nagaland, vide his letters No. CON/NSA/06/2017/95, 99, 100, 101, 97, 104, 96, 103, 102 & 98, dated 20.06.2017, confirmed the detention orders of the detenus/petitioners in pursuance of the advice of the Advisory Board constituted under the NSA for a period upto 30.03.2018. 3. Aggrieved by the detention orders issued by the District Magistrate, Mon, in respect of all the detenus/petitioners, the approval orders and the confirmation orders issued by the State Government, the detenus/petitioners has approached this Court by filing separate petitions praying for quashing and setting aside the said detention orders and confirmation orders mainly on three grounds. The first ground raised by the petitioners counsel is that the detention orders are violative of the provisions to section 14 of NSA, 1980, particularly proviso to sub-section 2 of the same. Proviso to sub-section-2 of section 14 of NSA, 1980, reads as follows;- "Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance to the subsequent detention order shall, in no case, extend beyond the expiry of a period of twelve months from the date of detention under the earlier detention order". It is submitted by the learned counsel that no fresh ground or facts were given by the detaining authorities while passing the second detention orders, therefore, the detention orders are violative of the above provision of NSA, as such, deserves to be quashed and set aside. The second ground as submitted by the learned counsel is that the earlier detention orders were passed on 04.02.2017, therefore, the period of detention in the second detention orders should end on 03.02.2018. However, the period of detentions as mentioned in the second detention orders are to continue till 30.03.2018. Therefore, the detention orders cannot be sustained in law as they are violative of the proviso of sub-section-2 of section 14 of NSA, 1980. However, the period of detentions as mentioned in the second detention orders are to continue till 30.03.2018. Therefore, the detention orders cannot be sustained in law as they are violative of the proviso of sub-section-2 of section 14 of NSA, 1980. In support of his submissions, the learned counsel for the petitioners drew my attention to para-7, 8 & 9 of the judgment and order, dated 31.03.1998, passed in Civil Rule Nos. (HC) 28, 29 and 31 of 1997, by a Division Bench of this High Court in the case of Rose Shimray & Ors. Vs. District Magistrate, Ukhrul & Ors., reported in 1999 (1) GLT 341. The contents of the paragraphs are given here below;- "7. Further, proviso to sub-section (2) of section 14 has to be considered in the light of law laid down by the Apex Court in a catena of decisions. Subsequent detention order passed on non-existence of the fresh facts has been held to be bad by the Supreme Court. In this connection, Shri Nilamani Singh has referred to the following decisions of the Supreme Court. 8. In Chagan Bhagwan Kahar, petitioner V.N.L. Kalna and others, Respondents AIR 1989 SC 1234 , it was pointed out by the Supreme Court as under:- "Even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order". 9. In Abdul Razak Abdul Wahab Shaikh, Petitioner Vs. S.N. Singha, Commissioner of Police, Ahmedabad and another, respondents, AIR, 1989 SC 2265, it was pointed out by the Apex Court that: "There was nothing to show from the grounds of detention nor any fresh facts have been disclosed after earlier detention order passed against the detenu was set aside by the Advisory Board" In the instant case, as already said that the earlier detention order passed by the Nagaland Government on 1.10.96 has been quashed by the Division Bench of this Court on 27.2.97. Thereafter, subsequent detention orders has been passed by the Manipur Government on 22.7.97 and 7.8.97 respectively. We have been taken to the grounds of detention on the basis of which the detaining authority formed an opinion to detain the detenues. No fresh facts have been disclosed in the grounds of detention warranting the subsequent detention of the detenues. Thereafter, subsequent detention orders has been passed by the Manipur Government on 22.7.97 and 7.8.97 respectively. We have been taken to the grounds of detention on the basis of which the detaining authority formed an opinion to detain the detenues. No fresh facts have been disclosed in the grounds of detention warranting the subsequent detention of the detenues. In fact, going through the grounds of detention of the offences alleged to have been committed by the detenues are relating to 1989, 1993 and 1996. This would show that no fresh facts have been arisen in between the revocation of the earlier detention order that is 15.3.97 and the subsequent detention order. Therefore, the petitioners succeeded on this point". The learned counsel also drew my attention to the paragraph-7 & 8 of the judgment and order, dated 20.03.2008, passed in W.P.(Crl.) No. 37 of 2007, which is also passed by a Division Bench of this High Court in the case of Anjana Dhekial Phukan Vs. Union of India & Ors., reported in 2008(3) GLT964. The contents of the two paragraphs are also reproduced here below;- "7. On the challenge made to the order of detention on the ground that second detention order cannot be passed when the first order is quashed by the Court, we find that Section 14(2) of the NSA makes it clear that there is no bar to making of another detention order against the same person on expiry or renovation of an earlier detention order. But this submission is resisted by the learned Government Advocate by submitting that the quashing of the first order was on a technical ground and not on merit. Interpreting a similar provision like Section 14(2) of NSA but under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the Supreme Court in Ibrahim Bachu Padhiyar Vs. State of Gujarat & Ors. reported in (1985) 2 SCC 24 have held that where an earlier order of detention is quashed by a court in exercise of extra ordinary jurisdiction, the power of making a fresh order is not available to be exercised. State of Gujarat & Ors. reported in (1985) 2 SCC 24 have held that where an earlier order of detention is quashed by a court in exercise of extra ordinary jurisdiction, the power of making a fresh order is not available to be exercised. In this decision of the Supreme Court, no distinction has been made of quashing of detention order by the Court on merit of the relevant material or on some technical ground of breach of some procedural safeguard like not informing the detenu of his right to make a representation against the detention order specifically to the detaining authority. In view of the aforesaid Supreme Court decision in Ibrahim Bachu Padhiyar (supra), we cannot accept the contention raised on behalf of the State that since the earlier quashing order was on the ground of not mentioning of the right of the detenu to make a representation to the detaining authority himself, the second detention order is permissible. Accordingly we are constrained to hold that since this court had quashed the first detention order dated 11.09.2007, the second detention order gets vitiated in law in view of the ratio laid down by the Supreme Court in Ibrahim Bachu Padhiyar (supra). 8. The challenge made to the detention order on the ground of absence of fresh material we find that under the provisions of section 14(2) of the NSA, although it is permissible to pass a subsequent detention order, it is clearly laid down that the materials which prompted the authority to pass the first detention order ought not to be made the basis for passing the second detention order. If the earlier materials are relied upon by the detaining authority, the detention order would get vitiated in law. The learned counsel for the petitioner has relied upon the decision of the Supreme Court reported in (1989) 2 SCC 318 , Chhagan Bhagwan Kahar Vs. N.L. Kalna & Ors. to also submit that there must be absolutely fresh materials, for passing a second detention order and even some part of the earlier material along with some fresh materials cannot be made the basis for the second detention order, because once the court strikes down a earlier order it nullifies the entire order. N.L. Kalna & Ors. to also submit that there must be absolutely fresh materials, for passing a second detention order and even some part of the earlier material along with some fresh materials cannot be made the basis for the second detention order, because once the court strikes down a earlier order it nullifies the entire order. In the instant case on examination of the materials on record which were made the basis for passing the impugned 2nd detention order, the detaining authority had also taken into account in substance the earlier materials, which were taken into account to pass the 1st detention order dated 11.09.2007. This was clearly impermissible in view of the ratio laid down by the Supreme Court in Chhagan Bhagwan Kahar (supra). Reliance on even a portion of the earlier materials by the detaining authority to make the second detention order, would vitiate the subsequent detention order and accordingly on this ground also the impugned detention order dated 13.12.2007 is liable to be interfered with. The competence of the State to pass a second detention order on the basis detention on the basis of fresh material cannot be disputed but while making such fresh order, the detaining authority must take into account only fresh materials and not be influence by the earlier available materials which were relied upon to pass an earlier detention order which came to be quashed by court." Mr. K. Wotsa, learned Sr. Government Advocate submits that after the first detention orders were passed copies of the same along with the necessary annexures could not be serve to the detenus/petitioners due to severe law and order situation prevailing in the State at that time, therefore, the same were revoked by the order dated 01.03.2017. As such, the detention orders have to be treated as non est and not executed. The learned counsel further submitted that once the earlier orders are treated as non est the second orders of detention have to be treated as first detention orders, and in that case, the proviso of section 14(2) will not be attracted. Mr. Yangerwati, learned CGC appearing on behalf of the Union of India submits that he is in agreement with the submission of the learned Sr. Government Advocate, Mr. K. Wotsa. Mr. Mr. Yangerwati, learned CGC appearing on behalf of the Union of India submits that he is in agreement with the submission of the learned Sr. Government Advocate, Mr. K. Wotsa. Mr. Limawapang, learned counsel for the petitioners at this juncture placed a copy of the order No. CON/NSA/2017/201, dated 04.02.2017, passed by the District Magistrate, Mon, which directed to shift/transfer Shri Asing, one of the detenus/petitioners from District Sub-Jail, Mon to Central Jail, Dimapur, with immediate effect in view of the detention order. The learned counsel on placing the said order also submitted that similar orders were also passed in respect of all the other detenus/petitioners. After having submitted the said order, the learned counsel further submitted that this document shows that the earlier detention orders had been executed and the detenus/petitioners have been detained under the earlier detention orders passed by the District Magistrate, Mon. Besides, what has been submitted by the learned counsel which shows that the earlier detention orders were given effect to, I have also referred to the date on which the earlier detention orders were passed by the District Magistrate, Mon, i.e., dated 04.02.2017, and the date on which the orders were revoked by the order passed by the Chief Secretary, Government of Nagaland, which is 01.03.2017. From these two dates it can be concluded that the earlier-orders of detention passed by the District Magistrate, Mon, in respect of the detenus/petitioners have been given effect to and the detenus/petitioners had been detained in the Central Jail, Dimapur. Therefore, with due respect, I am unable to accept the submission of the learned Sr. Government Advocate and the learned CGC. On perusal of the earlier detention orders and the second detention orders, I find that the grounds of detention in the two sets of detention orders are same. Further, in the second detention orders which are under challenge herein, the period of detention has been given upto 30.03.2018. This is in excess of 12 months if the period is counted from 04.02.2017 i.e. the date on which the earlier detention orders were passed. It is mandated under section 14(2) proviso of NSA, 1980 that the detention period in a subsequent detention order cannot be beyond 12 months counting from the date of the earlier detention order. This is in excess of 12 months if the period is counted from 04.02.2017 i.e. the date on which the earlier detention orders were passed. It is mandated under section 14(2) proviso of NSA, 1980 that the detention period in a subsequent detention order cannot be beyond 12 months counting from the date of the earlier detention order. In view of the law settled by the Hon'ble Supreme Court and followed by ibis Court in the above cited cases and what has been stated above, I am of the opinion that the detention orders under challenge are illegal and they can be quashed and set aside on these two grounds alone. 4. The third ground on which the detenus/petitioners challenged the detention orders is that the detention orders of the District Magistrate, Mon, and the subsequent orders of the State Government, approving and confirming the detention orders did not mention that the detenus/petitioners were already in judicial custody at the time of passing the orders and also did not mention any cogent reason or ground based on which the detaining authorities arrived at the conclusion that the detenus/petitioners are likely to release on bail. Hence, the detention orders under challenged are in violation of the principle of law settled by the Hon'ble Supreme Court and followed by the High Courts of this Country including this High Court till today. In support of his submission, the learned counsel cited paragraph-7 & 8 of the judgment and order, dated 14.03.2017, passed in W.P.(Crl.) No. 22(K) of 2016, by this High Court in the case of Mhasimhalie Mathew Yhome Vs. State of Nagaland & Ors., reported in 2017 (2) GLT 385. The contents of the two paragraphs are reproduced here in below;- "7. In recent time also the same principle has been followed in the case of Union of India Vs. Paul Manickam & Anrs., reported in (2003) 8 SCC 342 . The relevant portions of the said judgment are also given herein below;- "14. So far as this question relating to the procedure to be adopted in case the detenue is already in custody is concerned, the matter has been dealt with in several cases. Paul Manickam & Anrs., reported in (2003) 8 SCC 342 . The relevant portions of the said judgment are also given herein below;- "14. So far as this question relating to the procedure to be adopted in case the detenue is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such person on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenue is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenue was likely to be released on bail, the order would be vitiated. The point was gone into detail in Kamarunnissa v. Union of India. Where the detention order in respect of a person already in custody does not indicate that the detenue was likely to be released on bail, the order would be vitiated. The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail. 15. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement." The writ has been described as a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right." 8. As stated above, on perusal of the detention orders passed by the District Magistrate, Kohima no mentioned is made of the fact that he was aware that the detenu was already in jail in connection with a case and he has cogent reasons to believe that he is likely to be released on bail. In view of this principle of law enunciated by the Hon'ble Supreme Court which still holds the ground, I am of the opinion that the detention order has failed to meet the requirement of law, hence, it deserves to be quashed. In view of this principle of law enunciated by the Hon'ble Supreme Court which still holds the ground, I am of the opinion that the detention order has failed to meet the requirement of law, hence, it deserves to be quashed. As such, the detention order 04.07.2016, approval order dated 08.07.2016 and confirmation order dated 18.08.2016 are quashed and set aside". The learned counsel also referred to paragraph-11 of the judgment and order dated 20.09.2011, passed in W.P.(Crl.) No. 46 of 2010 in the case of Yumnam Ongbi Mary Jones Vs. State of Manipur & Ors., reported in 2011 (4) GLT 898. The contents of the paragraph is also reproduced here below;- "11. Thus, we have carefully gone through the impugned detention order, grounds of detention furnished to the detenu along with the materials which formed the grounds of detention, pleadings of the petitioner as well as the counter affidavit filed by the respondents in order to satisfy ourselves whether the alleged satisfaction of the detaining authority mentioned in paragraph No. 4 of the impugned detention order is based on cogent materials or not. Except the statement made in paragraph No. 4 of the impugned detention order, we do not find any materials either in the grounds of detention or on the materials which formed the grounds of detention to justify the conclusion of the detaining authority that the detenu was likely to be released on bail in the near future by the normal criminal courts as bails were granted in similar cases by the criminal courts. No details of any similar case in which bail was granted by the normal criminal courts has been mentioned either in the impugned detention order or in the grounds of detention. In the absence of any supporting materials on record, we are of the considered view that the statement made in paragraph No. 4 of the impugned detention order is a mere Ipse dixit of the detaining authority". Against the above submission Mr. K. Wotsa, learned Sr. Government Advocate submits that the schedules appended to the detention orders passed by the District Magistrate, Mon, contents statements stating that the detenus/petitioners were under judicial custody and they were likely to be released on bail. Therefore, the submission of the learned counsel for the petitioners is not factually correct. Against the above submission Mr. K. Wotsa, learned Sr. Government Advocate submits that the schedules appended to the detention orders passed by the District Magistrate, Mon, contents statements stating that the detenus/petitioners were under judicial custody and they were likely to be released on bail. Therefore, the submission of the learned counsel for the petitioners is not factually correct. It is true that in the schedules appended to the detention orders it was mentioned as submitted by the learned Sr. Government Advocate. However, no mention was made by the District Magistrate, Mon, as to how he came to the conclusion that the detenus/petitioners were likely to be released on bail. It is clear from the judgment of the Hon'ble Supreme Court as cited in the paragraph-7 of the first judgment referred to by the learned counsel for the petitioners that such detention orders to be valid in law must also mention the basis or reasons based on which the detaining authority arrived at the conclusion that the detenus/petitioners are likely to be released on bail. Since the detaining authority did not mention any basis based on which he came to the conclusion that the detenus/petitioners were likely to be released on bail the detention orders cannot be sustained in view of the principle of law settled by the Hon'ble Supreme Court. In view of the above discussions and conclusions arrived at in the preceding paragraphs, I am of the opinion that the second detention orders which are under challenge are violative of the proviso to sub-section-2 of section 14 of the NSA, 1980, and the principle of law laid down by the Hon'ble Apex Court. Therefore, they cannot be sustained. Accordingly, they are quashed and set aside. In consequence, it is directed that the detenus/petitioners namely; (i) Asing, (ii) Winson, (iii) Thangmeiso, (iv) M. Ngatriinpam, (v) Keina, (vi) Changam, (vii) Thingwang, (viii) Nathong, (ix) Nali, (x) Hamwang, all be set at liberty forthwith unless, they are wanted in any other case or cases. With these, the writ petitions are disposed.