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2018 DIGILAW 1553 (GAU)

Kusum Beggum v. State of Nagaland

2018-10-24

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. P.B. Paul, learned counsel for the petitioner as well as Mr. K. Wotsa, learned Senior Government Advocate appearing for the State respondents and Mr. K.A. Rongmei, learned ASGI appearing for the respondent No. 5. 2. The petitioner is challenging the detention of her husband. The further challenge in the present writ petition is the detention order dated 09.08.2018 passed by the Commissioner of Police, Dimapur, Nagaland by which the said authority, having been satisfied, had exercised powers u/s. 2 and 3 of the National Security Act, 1982 (NSA) and ordered the detention of the petitioner's husband in Central Jail, Dimapur to prevent the petitioner's husband from acting in any manner detrimental to the security of the State of Nagaland and maintenance of public order. Also, in challenge is the order dated 5.1.2018 passed by the Chief Secretary to the Government of Nagaland, regarding his satisfaction with the view taken by the Commissioner of Police to prevent the petitioner's husband from acting in any manner prejudicial to the security of the State of Nagaland by approving the detention order passed by the Commissioner of Police in exercise of powers u/s. 2 and section 3 of the NSA, 1980. The further challenge in this petition is the confirmation order dated 06.03.2018 passed by the Chief Secretary to the Government of Nagaland on the basis of the opinion of the Advisory Board that there is sufficient cause for the detention of the petitioner's husband under NSA, 1980 and, as such, in exercise of powers under sub section 1 of section 12 of the NSA, 1980, the husband of the petitioner was confirmed for his detention from 08.01.2018. Also in the challenge is the wireless message dated 21.03.2018 by the Minister of Home Affairs by which the request of the petitioner for revocation of the detention order had not been accepted by the Central Government. 3. The learned counsel for the petitioner has referred to the FIR dated 06.12.2017 wherein it is stated that on 05.12.2017, based on satisfactory information regarding persons of armed cadre of NSCN (I-M) doing extortion in the general area Supermarket, Dimapur, the troops of 32 Assam Rifles alongwith the local representatives launched an operation. 3. The learned counsel for the petitioner has referred to the FIR dated 06.12.2017 wherein it is stated that on 05.12.2017, based on satisfactory information regarding persons of armed cadre of NSCN (I-M) doing extortion in the general area Supermarket, Dimapur, the troops of 32 Assam Rifles alongwith the local representatives launched an operation. As per the FIR, the extortionist, on finding himself trapped, tried to flee in his vehicle and he was chased and intercepted near Durga Mandir at 00:00 hours and on search, the following items were recovered from the petitioner: (a) .32 mm Pistol (Country Made) Regd. No. 159104353 1 No (b) Magazine .32 mm Pistol 2 Nos (c) Ammunition live round of .32 mm Pistol 12 Nos (d) Arms licence .32 mm Pistol (Licence 7009/NL/DMR) 1 No (e) Assignment Order NSCN (IM) dated 24 April 2017 1 No (f) Vehicle Hyundai i-20 with key, Regd. No. AS-01-BW-4803 (White colour) 1 No (g) Indian Currency - Total Rs.5,59,000/- (Rs Five lakh) fifty-nine thousand only) (i) Rs.2000x155 = Rs. 3,10,000/- (Rs Three lakh ten thousand only) (ii) Rs. 500x490 = Rs. 2,45,000/- (Rs Two lakh forty-five thousan only) (iii) Rs. 1000x40 = Rs. 4,000/- (Rs Four thousand only) 4. Accordingly, on 06.12.2017, the FIR was lodged as East P.S. Case No. 235/2017 u/s. 384 IPC, r/w 7/8 Nagaland Security Regulation (NSR). Thereafter, on 8.1.2018, the proposal for detention of the petitioner's husband was made u/s. 3(1) and (2) of the NSA. 5. The learned counsel for the petitioner has submitted that the grounds on which the petitioner's husband was proposed to be detained under NSA were as follows: "Grounds on which the arrested person may be detained under NSA. 1. The subject is an active member of NSCN (IM) faction who was appointed as tax collector in Hazi park and Super market Dimapur who has been threatening and collecting taxes particularly from Non-Local amounting to Rs. 4,00,000/- every month to be submitted to NSCN (IM) Organization since 2010. 2. In the year 2011, he arrested in connection with West PS C/No. 88/2011 U/S 272/273/188 IPC and was sent to jail. 3. Again in the year 2013, he was arrested in connection with East PS C/No. 119/2013 U/S 385 IPC where he convicted and awarded punishment as well as imposed cash fine by Hon'ble court of Chief Judicial Magistrate, Dimapur. 4. 3. Again in the year 2013, he was arrested in connection with East PS C/No. 119/2013 U/S 385 IPC where he convicted and awarded punishment as well as imposed cash fine by Hon'ble court of Chief Judicial Magistrate, Dimapur. 4. The Non-Locals engaged in business in Dimapur who opposed his demand were repeatedly threatened and warned to eliminate them by showing them fire arms. Further they were threatened to close their business or leave Dimapur if his demands were not met. 5. The arrested accused had treated the competent authority and had procured license and fire arms at the age of 13 by submitting forged documents which is not permissible and contradict with the existence of Arms Act. Accordingly application was submitted to the competent authority and his arms license has been cancelled by C.P. Dimapur vide order No. CP/DMR/SB-09/ARMS/CELL-12/2017/1054 dated 15.12.2017." 6. It is further submitted by the learned counsel for the petitioner that the based on the proposal for detention, the Commissioner of Police without applying his independent mind, had passed the detention order dated 09.01.2018 and had reproduced the grounds containing the proposal for detention. It is also submitted that the approval by the Commissioner of Police by order dated 09.01.2018 was also mechanical and the order dated 15.01.2018 by the Chief Secretary is also vitiated on the same ground of non application of mind. 7. The learned counsel for the petitioner has further submitted that in his representation submitted on 01.03.2018, the husband of the petitioner had explained the purpose of carrying a licensed arms and also justified the money he was carrying. It is submitted that upon one Police inquiry, except for a sum of Rs. 89,000/-, all other money was fully accounted for and the persons from which he had borrowed money had admitted the monetary transaction and, as such, the learned Chief Judicial Magistrate, being satisfied had given zimma of the seized money amounting to Rs. 5,59,000/- as well as vehicle of the husband of the petitioner. It is submitted that the husband of the petitioner had denied any involvement with NSCN(IM) and it is further submitted that the said Organization is currently undertaking a peace negotiation with the Union and its State authorities and, as such, it was not a banned organization. 5,59,000/- as well as vehicle of the husband of the petitioner. It is submitted that the husband of the petitioner had denied any involvement with NSCN(IM) and it is further submitted that the said Organization is currently undertaking a peace negotiation with the Union and its State authorities and, as such, it was not a banned organization. Hence, by linking the husband of the petitioner with the said Organization, the order of detention was manufactured for the sole purpose of his illegal detention without any active involvement in extortion although there was no instance of any disturbance to the public peace and tranquility and the public order. It is further submitted that there has been no instance of any persons coming forward to accept that any money was extorted by the husband of the petitioner and, as such, the order of detention was on account of total non application of judicial mind and it was mechanically passed. It is further submitted that the offence, if any, can be easily tried under the Indian Penal Code and the provisions of the Arms Act, 1959 and, as such, as there was no instance of any unlawful activity by the husband of the petitioner, merely by assuming that he is a member of the banned Organization, the detention of the husband of the petitioner was not sustainable and the same is illegal and liable to be set aside and quashed. It is further submitted that there was no threat to the public by the husband of the petitioner warranting his detention. In support of his contention, the learned counsel for the petitioner has placed reliance on the case of Arup Bhuyan Vs. State of Assam, reported in 2011 (3) GLT (SC) 1 and the case of Koko Lamkang Vs. State of Nagaland& Ors. reported in 2011 (2) GLT 700. 8. Per contra, the learned Senior Government Advocate has submitted that in the proposal for detention as well as the order of detention, the past criminal antecedent records of the husband of the petitioner has been referred. State of Nagaland& Ors. reported in 2011 (2) GLT 700. 8. Per contra, the learned Senior Government Advocate has submitted that in the proposal for detention as well as the order of detention, the past criminal antecedent records of the husband of the petitioner has been referred. It has submitted that the husband of the petitioner was earlier arrested in connection with West PS C/No. 18/2011 u/s. 384 IPC r/w 7/8 NSR 1962 and thereafter, he was caught red-handed while collecting tax by issuing demand notice of NSCN(IM), which was found in his possession, and the crime was registered as East PS C/No. 119/2013 u/s. 385 IPC. He has submitted that the demand notice were issued on behalf of NSCN (IM) and the husband of the petitioner was convicted and punished in connection with East PS C/No/119/2013. It is further submitted that after the arrest of the husband of the petitioner, on ascertaining the arms license, it was found that by way of forgery and falsehood, the husband of the petitioner has been able to procure arms license when he was only about 13 (thirteen) years of age. It is further submitted that the grounds on which the husband of the petitioner was proposed to be detained was that the non-locals engaged in business in Dimapur who opposed his demand were reportedly threatened and warned of elimination by showing them fire arms and these people were threatened to close their business or leave Dimapur if his demands were not met. It is further submitted that from the seized articles, a document which is an assignment order of NSCN(IM) dated 24.4.2017 was seized and it is submitted that according to his instructions, the said assignment order was an authority on behalf of the NSCN (IM) to collect tax from the business establishments in Dimapur. He has further submitted that out of the money seized, a sum of Rs. 89,000/- could not be accounted for and, as such, the authorities had reasonable apprehension that the money was collected by the husband of the petitioner by way of extortion. By producing the records pertaining to the detention of the husband of the petitioner, it is submitted that the representation submitted by the husband of the petitioner on 01.03.2018 was duly addressed and the rejection of the prayer for revocation of detention was duly communicated to the husband of the petitioner. 9. By producing the records pertaining to the detention of the husband of the petitioner, it is submitted that the representation submitted by the husband of the petitioner on 01.03.2018 was duly addressed and the rejection of the prayer for revocation of detention was duly communicated to the husband of the petitioner. 9. Having considered the submissions made by the learned counsels for both sides and from the materials available on record as well as from the records produced by the learned Senior Government Advocate that the order of detention of the petitioner's husband who was arrested on 05.12.2017 and proposal for detention of the accused was made on 08.01.2018, wherein the Commissioner of Police has recorded that the petitioner's husband had collected around Rs. 3 to 4 Lakh and submitted to the NSCN(IM) and received a sum of Rs. 30,000/- for his own expenses and that in the year 2012, the husband of the petitioner was given the rank of Regional Security Informer by the said Organization; and on the date he was apprehended he was carrying a .32 mm Pistol with 2 (two) Magazines and 12 (twelve) live rounds alongwith cash of Rs. 5,59,000/-, all of which were handed over to the police. Amongst the seized articles stated above is the letter of assignment by NSCN(IM) dated 24.04.2017. It is seen that the Commissioner of Police had applied his mind for passing of his detention for maintenance of public order. The detention of the detenue was approved on 09.01.2018. The records produced by the learned Senior Government Advocate reveals that the Advisory Board constituted under National Security Act, had heard the matter on 19.02.2018 and the detenue was heard in person. As per the proceedings, the husband of the petitioner had admitted his earlier involvement with NSCN(IM) by projecting that he has disassociated himself with the NSCN(IM) since 2014. However, the Advisory Board had held that the detention of the detenue under NS A on the grounds of (a) Security of State of Nagaland and (b) maintenance of public order was justified. Thereafter, the detention of the detenue was confirmed. 10. In the opinion of this Court, the recovery of a letter of assignment of NSCN(IM) at the time when the detenue was apprehended gives credence to the satisfaction of the authorities for passing of the order of preventive detention. 11. Thereafter, the detention of the detenue was confirmed. 10. In the opinion of this Court, the recovery of a letter of assignment of NSCN(IM) at the time when the detenue was apprehended gives credence to the satisfaction of the authorities for passing of the order of preventive detention. 11. Coming to the case of Arup Bhuyan (supra) cited by the learned counsel for the petitioner, it is seen that an appeal was filed before the Hon'ble Apex Court against the judgment passed by the designated Court, Assam in TADA Case No. 13/1991. Therefore, this was not a case of a preventive detention in the said case, the Hon'ble Supreme Court was of the view that it was not proved that the accused therein was an active member of a banned Organization and, as such it was held that a mere membership of a banned Organization would not make the person a criminal unless he resorts to violence or incites violence or creates public disorder. Therefore, on facts, the present case is distinguishable because when the husband of the petitioner was apprehended, he was carrying with him a letter issued by the NSCN(IM) and he was found with arms and ammunitions and money out of which the sum of Rs. 89,000/- could not be accounted for. The case of Koko Lamkang(supra) cited by the learned counsel for the petitioner is also found distinguishable on facts because in the said case the order of detention was not found to be sustainable on the ground that there was no response by the authorities on the representation made by the defence and the ground of rejection was not communicated to the detenue therein and further, it was held that the decision by the Advisory Board was also not communicated coupled by non communication of the representation by the Central Government, which are the grounds on which this Court had interfered with the detention order by holding the same to be illegal. 12. In view of the materials produced by the State respondents, this Court finds that authorities had applied their mind in passing the order for preventive detention of the husband of the petitioner. 12. In view of the materials produced by the State respondents, this Court finds that authorities had applied their mind in passing the order for preventive detention of the husband of the petitioner. Therefore, as the preventive detention order was only for the purpose of preventive detention and is not a punishment of any offence committed, this Court is not inclined to make observations insofar as the part of the accusations against the husband of the petitioner is concerned and this Court, as per the materials available on record, is of the considered opinion that because of the previous criminal antecedents coupled with the fact that the detenue was carrying arms, money and an assignment letter from NSCN(IM), which is sufficient to show that the preventive detention of the husband of the petitioner was required to maintain public peace and tranquility and public order. This Court does not find any procedural lapses in the passing of the impugned detention order and consequent approval of the detention. The order of detention is sustainable in the eye of law. Accordingly, this writ petition fails as the authorities have recorded their satisfaction and the grounds based on which the order of detention was passed was duly communicated to the detenue and the rejection of his representation by the State and Central Government was also duly communicated to the detenue. 13. Therefore, this writ petition stands dismissed.