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2018 DIGILAW 1556 (GAU)

Easter v. State of Nagaland

2018-10-25

KALYAN RAI SURANA

body2018
ORDER : KALYAN RAI SURANA, J. 1. Heard Mr. Limawapang, learned counsel for the petitioner as well as Mr. K. Wotsa, learned Senior Government Advocate for the respondent Nos. 1 to 4 and Mr. K.A. Rongmei, learned ASGI for the respondent No. 5. 2. By the habeas corpus petition filed under Article 226 of the Constitution of India, the petitioner who is the wife of the detenue, namely Kabir Ahmed, is seeking setting aside and quashing of the impugned orders dated (i) 12.01.2018, (ii) 17.01.2018, (iii) 6.3.2018, and (iv) 21.03.2018, and to set the detenue at liberty. 3. The U.B.I. of Crime Branch, C.I.D. Dimapur lodged an FIR before the Government Railway Police, Dimapur on 11.11.2017 that at around 5:00 A.M. on 11.11.2017, while on surveillance duty, two persons, namely, (1) 'S.S.' Kajapeyu Kabir Ahmed, (2) Nazmul Islam was arrested for collecting tax in the name of NSCN (IM) from truckers at Dimapur Railway Station. It was stated that on random interrogation, Kabir Ahmed, one of the apprehended person is a cadre of NSCN (IM) collecting illegal taxes in and around Dimapur city for NSCN (IM) with small arms intimidating tax payers who pay unwillingly. He was taken to his residence and during search (1) one .32 mm Pistol with 05 (five) live rounds with license B/R No. 7179 NL/DMR, (2) 2580 Nos. of Spasmo Proxyron Capsule were seized from possession of Kabir Ahmed and it was further stated that (1)2 two Nos. of Duplicate Receipt issued to several truckers, (2) Cash demand and receipt list were recovered and seized from possession of Nazrul Islam. On receipt of FIR, a case being GRPS Case No. 0020/07 u/s. 385/506/511/34 and u/s. 25(1-B) Arms Act, u/s. 13 DC Act r/w 7 NSR was registered. 4. of Duplicate Receipt issued to several truckers, (2) Cash demand and receipt list were recovered and seized from possession of Nazrul Islam. On receipt of FIR, a case being GRPS Case No. 0020/07 u/s. 385/506/511/34 and u/s. 25(1-B) Arms Act, u/s. 13 DC Act r/w 7 NSR was registered. 4. In the proposal for detention of the detenue dated 11.01.2018, the Deputy Commissioner of Police had proposed the detention of the accused on the ground that he was an active member of the NSCN(IM) faction who was recruited as Regional Security Informer in Civil Wing and was promoted to 'S.S.' Rajupeyu and had been collecting illegal taxes from the business establishments, particularly, non-locals in and around Dimapur area and that the seized pistol with 5(five) live rounds clearly indicates that the detenue has been using the same for threatening the non-locals businessmen to pay tax to NSCN (IM) Organization and further that the recovery and seizure of 2580 Nos. of Spasmo Proxyron Capsules proves that the detenue is habitual prime drug trafficker in and around Dimapur area and, as such, the said authority was of the opinion that the proposed detenue was required to be detained u/s. 3(1) and (2) of the National Security Act (NSA in short) to prevent the accused from further acting in any manner which is detrimental to the maintenance of public safety, order and security of the State and to safeguard the sovereignty of the nation. Accordingly, the Commission of Police, by order dated 12.01.2018 gave his approval for detention of the detenue u/s. 3(1) and (2) of NSA on the ground that the detenue was arrested for carrying out criminal activates which involved extorting money from the public and business community in the name of armed underground Organization NSCN (IM) and he was a habitual prime drug trafficker in and around Dimapur area. Pursuant to the approval, the Commissioner of Police had issued the order of detention of the detenue under sub-section 2 of Section 3 of NSA, 1980, ordering him to be detained and kept in Central Jail, Dimapur. The detention of the detenue was approved by the State Government by order dated 17.01.2018 passed by the Chief Secretary to the Government of Nagaland u/s. 3(2) of the NSA, 1980 by directing the detenue to the detained and kept in Central Jail, Dimapur. 5. The detention of the detenue was approved by the State Government by order dated 17.01.2018 passed by the Chief Secretary to the Government of Nagaland u/s. 3(2) of the NSA, 1980 by directing the detenue to the detained and kept in Central Jail, Dimapur. 5. The detenue had submitted his representation dated 1.3.2018 to the Principal Secretary to the Government of Nagaland, Home Department, Political Branch through the Superintendent of Central Jail, Dimapur. In the meanwhile, the Government of Nagaland through the Home Department, Political Branch issued a confirmation order for detention of the detenue in exercise of powers under sub-section 1 of Section 12 of NSA, 1980 directing the detenue shall be detained for a period up to 11.01.2019. In the meanwhile, the Section Officer, Ministry of the Home Affairs, Government of India, New Delhi by wireless message issued under F. No. II/15024/03/2018-NSA dated 21.03.2018 did not accede to the request for revocation of the detention order on the basis of the report by the said authorities that the detenue had joined the NSCN (IM) in 2012 and was inducted as Regional Security Informer and he was involved in illegal tax collection, extortion and was also a habitual drug trafficker and his activities have caused fear and insecurity in the minds of the people and is a threat to public security and peace and that the activities of the detenue are prejudicial to the security of the State and maintenance of public order. 6. By referring to the above, the learned counsel for the petitioner has submitted that the authorities had acted mechanically without any application of mind because there was no record of any previous criminal acts by the husband of the petitioner. It is also submitted that at the time of his arrest, the detenue was not carrying any arms or drug and that the detenue had explained the reasons for which he was present at the place from where he was arrested. It is submitted that after his arrest, he had applied for regular bail before the Trial Court and he was released on bail on 23.11.2017 and that the gun alongwith the arms license was released to his after two to three days of his release. It is submitted that after his arrest, he had applied for regular bail before the Trial Court and he was released on bail on 23.11.2017 and that the gun alongwith the arms license was released to his after two to three days of his release. It is further submitted that as directed by the police, he was regularly visiting the Government Railway Police Station and he had recorded his statement before the Dimapur East Police Station and on one occasion, while attending the Police Station daily, he was instructed to appear before the Dimapur Police Station on 8.1.18 where he was detained upon appearance. It is also submitted that from the date of his arrest till the date he was formally arrested again and detained, the husband of the petitioner was never found to have indulged in any criminal activity and, as such, there was no good grounds for detaining the detenue by invoking the provisions of NSA, 1980. 7. The learned Senior Government Advocate supports the order of detentions by referring to the materials on record and has produced the records pertaining to the detention of the detenue. 8. The learned ASGI has made submissions in support of the detention order. 9. On the perusal of the materials available on record, this Court does not find any material to show that the detenue was actively involved in underground activity. There is also no record of any involvement of the detenue in any previous police case concerning the offence of extortion or adverse activities detrimental to the interest of the State. The records also reveal that the detenue was not carrying any arms when he was arrested and at the time of his arrest, and he was also not carrying any banned drugs and further there is no records of any unaccounted money seized from him so as to invoke suspicion that the detenue was involved in any extortion activity. 10. On a perusal of the further materials on records as produced by the learned Senior Government Advocate, the records do not contain any statement by any alleged victim of extortion by the detenue. There is also no record to any statement recorder by any security personnel/police regarding unlawful activities carried out by the detenue. 10. On a perusal of the further materials on records as produced by the learned Senior Government Advocate, the records do not contain any statement by any alleged victim of extortion by the detenue. There is also no record to any statement recorder by any security personnel/police regarding unlawful activities carried out by the detenue. Office note reveal that the representation by the detenue was put up before the authorities on 07.03.2018 and on the same date, the authorities had expressed their opinion that the representation may be turned down. 11. The Ministry of Home Affairs had communicated the reason for the detention of the detenue by wireless message dated 21.3.18 which was served on the detenue on 28.3.18 and thereafter on 17.04.2018, the present writ petition was filed. 12. Therefore, from the above discussion, it is seen that while the detenue was initially arrested on 11.11.2017, he was formally detained on 08.01.2018 and that in a gap of around one and a half months, while the detenue was outside jail, as per the statement given before the Advisory Board constituted under NSA, he was visiting the Police Station daily and co-operate with the investigation. It has already been stated herein before that the arms and the drugs were not seized from his possession at the time of his arrest but his licensed arms and the drugs were found at his residence. 13. This Court is conscious that whether the grounds stated in the order of detention is sufficient reason, is not within the ambit of the discretion of the Court. However, from the materials available on record, this Court does not find any substantive evidence to link the detenue with the banned drugs and as such, there is no document available to substantial the involvement of the detenue in unlawful activities as alleged in the detention order. As per the records, there is no previous record of arrest of the detenue in any unlawful activity or for dealing in drugs. The record reveal that there was a delay on 6 (six) days in forwarding the representation dated 1.3.2018 to the competent authority which was received by the competent authority only on 7.3.2018 and the decision of the authorities of the Central Government on the representation was communicated only on 28.3.18. The said delay has not been explained. The record reveal that there was a delay on 6 (six) days in forwarding the representation dated 1.3.2018 to the competent authority which was received by the competent authority only on 7.3.2018 and the decision of the authorities of the Central Government on the representation was communicated only on 28.3.18. The said delay has not been explained. The Hon'ble Apex Court in the case of Pebal Ningol Mikoi Devi Vs. State of Manipur reported in 2010 (5) GLT (SC) 41 had laid down that even a delay of 7 (seven) days in forwarding the representation, remaining unexplained was a sufficient ground to quash the order of preventive detention. In the said case the Hon'ble Supreme Court had also held that: "in light of the fact that none of the documents relied on by the detaining in passing the detention order can be deemed to be pertinent, and the fact that the delay has remained unexplained, there is sufficient ground made out in order to quash the order of preventive detention made against the accused." In light of the discussion above, this Court has no hesitation in holding that the detaining authority had passed the order of detention on the basis of surmises and conjectures, without any document on record showing the involvement of the detenue in any unlawful activity, which will be prejudicial to the public order and national security and there is no evidence of any previous illegal activity by the detenue and, as such, this Court is unable to agree with the submissions made by the learned Senior Government Advocate for the State of Nagaland. Resultantly, the order of detention No. CP/DMR/CB-19/2017-18 dated 12.01.2018, the approval by the State Government for the detention of the detenue by order No. C1/NSA/02/2018/06 dated 17.1.2018, the confirmation order No. CON/NSA/02/2018/36 dated 06.03.2018 and the rejection by the Central Government of the request for revocation of detention order vide wireless message bearing F. No. II/15024/03/2018-NSA dated 21.03.2018 are set aside. 14. The writ petition succeeds and, as such, the detenue, namely Kabir Ahmed, is entitled to be set at liberty if not wanted in any case. 15. It is made clear that this order shall not prejudice any parties in the trial of the detenue of any offence.