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2017 DIGILAW 308 (GAU)

Mhasimhalie Mathew Yhome v. State of Nagaland

2017-03-14

SONGKHUPCHUNG SERTO

body2017
JUDGMENT & ORDER : Heard Mr. E. Thiba Phom, learned counsel who appears on behalf of the petitioner and also heard Mr. K. Wotsa, learned Senior Government Advocate who appears on behalf of the State respondents and Mr. Yangerwati, learned CGC who appears on behalf of the respondent No. 3 i.e. Union of India. 2. This is a petition under Article 226 of the Constitution of India filed by elder brother of the detenue praying for released of the detenu namely, Mhasibeituo Moses Yhome who has been under detention as per order dated 04.07.2016 of the District Magistrate, Kohima which was approved and confirmed by the State Government vide order dated 08.07.2016 and 18.08.2016 respectively. 3. The background under which the detention order for detaining the detenu was passed in brief is as follows:- On 21.06.2016 at about 8:00 A.M., the personnel of 9th Assam Rifles arrested the detenu on the suspicion that he was a member of NSCN-K and was involved in collection of tax for the organization. At the time of his arrest, a mobile phone, a sum of Rs. 3,400/- along with tax collection-cash receipt were stated to have been found in his possession and seized. On the next day, he was handed over to Kohima North Police Station, and Kohima North P.S registered Case No. 0048/16, U/S 384/511 IPC and thereafter, produced him before a Magistrate who remanded him to the judicial custody. On 04.07.2016, the District Magistrate, Kohima based on the report submitted by the Sr. Superintendent of Police, Kohima dated 30.06.2016 passed the detention order detaining the detenu in Central Jail, Dimapur. Thereafter, on 08.07.2016 an order approving the detention order of the District Magistrate, Kohima was issued by the State Government and on 18.08.2016, the same was confirmed by the State Government on the advice of the Advisory Board constituted under the National Security Act, 1980. Since then, the detenu has remained under detention under NSA. 4. Thereafter, on 08.07.2016 an order approving the detention order of the District Magistrate, Kohima was issued by the State Government and on 18.08.2016, the same was confirmed by the State Government on the advice of the Advisory Board constituted under the National Security Act, 1980. Since then, the detenu has remained under detention under NSA. 4. The learned counsel for the petitioner/detenu submitted that he is challenging the detention order on two grounds only;- The first ground submitted by him is that the State Government under section 3(3) of the National Security Act, 1980 is empowered to pass detention order only for 3(three) months but in violation of the said provision of law had passed the order dated 08.07.2016 detaining the detenu for a period of detention as 1(one) year, therefore, the detention order is illegal and deserves to be set aside. Secondly, the learned counsel submitted that the detenu was not given an opportunity of being heard before the Advisory Board when his matter was taken up for consideration, therefore, the right of the detenu under Article 22(5) of the Constitution of India has been violated. Therefore, the order of detention is vitiated and deserves to be quashed and set aside. 5. Mr. K. Wotsa, learned Sr. Government Advocate submitted that though in the approval order issued by the State Government approving the detention order issued by the District Magistrate mentioned the period of detention as 1(one) year it was made subject to confirmation of the National Security Advisory Board, therefore, there is no infirmity or illegality in the order. Mr. K. Wotsa also submitted that the representation of the detenu was forwarded in time to the Advisory Board as per the office note and the same was considered by the Advisory Board. Therefore, there is no question of having not given the opportunity of being heard to the detenu. 6. I have considered the grounds on which the petitioner has sought for release of his younger brother and I have also considered the submission of the learned Sr. Government Advocate Mr. K. Wotsa. Therefore, there is no question of having not given the opportunity of being heard to the detenu. 6. I have considered the grounds on which the petitioner has sought for release of his younger brother and I have also considered the submission of the learned Sr. Government Advocate Mr. K. Wotsa. According to the principle of law which has been laid down by the Hon’ble Supreme Court if a detention order under NSA is to be passed for detention of a person who is already in judicial custody, in connection with a case, the District Magistrate or the detaining authority must record in his order that he is aware of that fact and thereafter, he must also record that he has cogent reason or reasons to believe that the person is likely to be released on bail. Further, the District Magistrate/detaining authority must also record that because of the activities of the person in the approximate past which were prejudicial to public order and security of the State his detention is necessary to prevent him from acting in that manner for maintenance of public order and security of the State. The reason given by the Apex Court is that there is no need of passing a detention order against a person who is already in jail or who is judicial custody, unless there is reasonable and compelling reason or reasons. This principle of law was enunciated in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan and the same has been consistently followed by the Hon’ble Supreme Court and the High Courts in the Country. The relevant portion of the judgment is given herein below:- In the case of N. Meera Rani Vs. State of Tamil Nadu & Anrs., reported in (1989) 4 SCC 418 . “12. The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reasonable basis for making the detention order and serving it on the detenu during his custody? 13. We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan1. 13. We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan1. All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by benches comprised of lesser number of judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw case, (1964) 4 SCR 921: AIR 1964 SC 334 : (1964) 1 CrLJ 257. 14. The detention order in Rasmeshwar Shaw case1 was made and also served on the detenu while he was in jail custody. The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of criminal complaint against him. The Constitution Bench considered the effect of the detenu’s subsisting detention at the time making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release. It was indicated that the detenu’s subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order. 15. The position of law was summarised by their Lordships as under: (SCR pp. 929-31) ''As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person 10 jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona rule satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in a such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. The question which still remains to be considered is: can a person in jail custody, like the petitioner, be served with an order of detention whilst he is in such custody? .... We have already seen the logical process which must be followed by the authority in taking action under Section 3(1)(a). The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. .... We have already seen the logical process which must be followed by the authority in taking action under Section 3(1)(a). The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by Section 3(1)(a) and is outside its purview.” (emphasis supplied)” 7. In recent time also the same principle has been followed in the case of Union of India Vrs- Paul Manickam & Anrs., reported in (2003) 8 SCC 342 . The relevant portion of the said judgment is also given herein below:- “14. In recent time also the same principle has been followed in the case of Union of India Vrs- Paul Manickam & Anrs., reported in (2003) 8 SCC 342 . The relevant portion of the said judgment is 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 order 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. Accordingly, it is directed that the detenu namely, Mhasibeituo Moses Yhome be set at liberty forthwith unless, he is wanted in any other case or cases. 9. Petition is allowed. No costs.