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2021 DIGILAW 412 (GAU)

Pongsha Yingle v. State of Nagaland

2021-06-16

SONGKHUPCHUNG SERTO

body2021
ORDER : 1. This is a petition under article 226 of the Constitution of India praying for issuance of a writ of habeas corpus and an order setting at liberty the detenue Shri L. Ali Fhom who has been under detention since 24.8.2020 under NSA. 2. Heard Mr. Hisinlo, learned counsel appearing for the petitioner who is stated to be the wife of the detenue and also heard Mr. K. Wotsa, learned semior Government advocate appearing for the State of Nagaland and Mr. Yangerwati, learned C.G.C. appearing on behalf of the Union of India. 3. On 16.7.2020, the detenue was arrested by the State Crime Police Station in connection with SCPC Case No. 04/2020, registered under section 384/385/506/120 B/34 of IPC. Thereafter, he was remanded to police custody till 23.7.2020. On expiry of the police custody period he was remanded to judicial custody on 23.7.2020 by the Chief Judicial Magistrate, Kohima. While he was under judicial custody, the S.P.(Crime) Nagaland submitted a proposal to the Deputy Commissioner, Kohima for detaining him under NSA for the reasons that; if he is released he is likely to continue with his extortion activities and, there are chances also that he will influence the relevant witnesses and tamper with the evidence. On receiving the proposal of the S.P.(Crime), the District Magistrate, Kohima issued a detention order dated 24.8.2020 in exercise of his powers conferred under section 3(3) of the NSA wherein it was directed that the accused be detained and kept in Central Jail in Dimapur but, without mentioning the period of detention. On 1.9.2020, the Chief Secretary to the Government of Nagaland issued an order approving the order of detention issued by the District Magistrate Kohima until further orders. On the same day, the Under Secretary to the Government of Nagaland vide his letter No. CON/NSA/55/2000, requested Superintendent of Police (Crime) to serve a copy of the detention order along with its enclosures to the detenue and to explain to him the contents thereof in the language he understands, in the presence of at least 2 independent witnesses and at the same time to obtain a receipt thereof. After receiving the detention order along with its enclosures, the petitioner made a representation to the Special Secretary to the Government of Nagaland, Home Department (Political Branch) through the Sr. Superintendent of Jail, Centred Jail Dimapur. After receiving the detention order along with its enclosures, the petitioner made a representation to the Special Secretary to the Government of Nagaland, Home Department (Political Branch) through the Sr. Superintendent of Jail, Centred Jail Dimapur. The State Government, after considering the representation rejected the same and to that effect the Chief Secretary to the Government of Nagaland issued an order No. CON/NSA/63/2020/32, dated 28.9.2020. Thereafter, the detention of the detenue was referred to the NSA Advisory Board constituted by the Government of Nagaland under section 9 of the NSA, 1980. The Advisory Board, after going through the records came to the conclusion that the detention of the detenue under NSA is necessary. Thereafter, the State Government formed the opinion that the detention of the detenue should continue for the period upto 23.8.2021. Accordingly, the Chief Secretary to the Government of Nagaland issued the confirmation order No. CON/NSA/63/2020/365, dated 15.10.2020 ordering that, detention of the detenue should continue for the period upto 23.8.2021. Being aggrieved by the detention order and the subsequent orders of approval and confirmation mentioned above, the petitioner is here before this court, challenging the same and praying for issuance of a writ of habeas corpus and an order directing that the detenue be set at liberty. 4. The main contention of the petitioner is that, since the detention order nowhere mentiones that the detenue is likely to be released on bail in connection with the FIR case as such, his detention under the provision of NSA is required, the same is vitiated and illegal. According to the petitioner, when a detenue is already under judicial custody, the authority passing the detention order must first acknowledge that fact in his order and, secondly state that he is likely to be release on bail along with the basis on which he comes to that conclusion. Unless this is done, the order is illegal. Mr. Hisinlo, learned counsel for the petitioner submitted that, the detenue in this case was already under judicial custody in connection with an FIR case but even a bail application have not been filed for his release. Therefore, there was no basis to draw the conclusion that he is likely to be released. Mr. Hisinlo, learned counsel for the petitioner submitted that, the detenue in this case was already under judicial custody in connection with an FIR case but even a bail application have not been filed for his release. Therefore, there was no basis to draw the conclusion that he is likely to be released. The learned counsel further submitted that though it is true that the District Magistrate has the power to issue such detention order under certain facts and circumstances even though an accused is under judicial custody, however, while passing such order it must be mentioned that the accused is already under judicial custody and there are reasons to believe that he is likely to be released. Besides, the reasons or the basis on which such conclusion is drawn must also be reflected in the order. However, in this case the order of detention did not mention any of such facts and apprehensions and the basis there of. Therefore, the order of detention is illegal. In support of his submission, the learned counsel referred to the judgment of the hon'ble Supreme Court passed in the case of Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181 . Paragraph 9 of the judgment specifically referred to, is reproduced here below “9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the court the following facts: (1) The authority was fully aware of the fact that the detenue was actually in custody. (2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and, therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of aforesaid settled legal proposition.” 5. Mr. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and, therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of aforesaid settled legal proposition.” 5. Mr. K. Wotsa, learned senior Government advocate, submitted that before passing the detention order the District Magistrate had considered all those facts and factors for which detention of the detenue is required, therefore, the detention order cannot be faulted on the ground submitted by the learned counsel of the petitioner. Mr. K. Wotsa also submitted that the detenue was involved in extortion activities and if he was released on bail he would have continued in such activities, as such, the detention order was passed to prevent him from continuing in such activities. Therefore, this court may not interfere with the order of detention. 6. Mr. Yangerwati, learned C.G.C. submitted that the petition is mainly directed against the orders passed by the State machineries, therefore, there is nothing much the Union of India would be required to say. 7. The principle of law stated in the case of Huidrom Singh as given above is only a reiteration of the principle already settled, as may be seen in paragraphs 6, 7 and 8 of the same judgment. The contents of the paragraphs are also reproduced here below for easy reference:— 6. Whether a person who is in jail can be detained under detention law has been a subject-matter of consideration before this court time and again. The contents of the paragraphs are also reproduced here below for easy reference:— 6. Whether a person who is in jail can be detained under detention law has been a subject-matter of consideration before this court time and again. In Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746 : AIR 1990 SC 1196 , this court while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334 ; Masood Alam v. Union of India, (1973) 1 SCC 551 : AIR 1973 SC 897 ; Dulal Roy v. District Magistrate, Burdwan, (1975) 1 SCC 837 : AIR 1975 SC 1508 ; Alijan Mian v. District Magistrate, Dhanbad, (1983) 4 SCC 301 : AIR 1983 SC 1130 ; Ramesh Yadav v. District Magistrate, Etah, (1985) 4 SCC 232 : AIR 1986 SC 315 ; Suraj Pal Sahu v. State of Maharashtra, (1986) 4 SCC 378 : AIR 1986 SC 2177 ; Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : AIR 1986 SC 2090 ; Smt Shashi Aggarwal v. State of U.R., (1988) 1 SCC 436 : AIR 1988 SC 596 , and came to the following conclusion: “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 7. In Amrital v. Union Government through Secretary, Ministry of Finance, (2001) 1 SCC 341 : AIR 2000 SC 3675 , similar issue arose as the detaining authority recorded his satisfaction for detention under the Act, in view of the fact that the person, who was already in jail, was going to move a bail application. In the grounds of detention it had been mentioned that there was “likelihood of the detenue moving an application for bail” and, hence, detention was necessary. This court held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. 8. This court while deciding the case in A. Geetha v. State of Tamil Nadu, (2006) 7 SCC 578 : AIR 2006 SC 3053 , relied upon its earlier judgments in Rajesh Gulati v. Govt. of NCT of Delhi, (2002) 7 SCC 129 : AIR 2002 SC 3094 ; Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64 ; and Senthamilselvi v. State of T.N., (2006) 5 SCC 676 , and held: “10. [T]hat the detaining authority should be aware that the detenue is already in custody and is likely to be released on bail. The conclusion that the detenue may be released on bail cannot be ipse dixit of the detaining authority.” Its subjective satisfaction based on materials, normally, should not to be interfered with.” 8. From the contents of the judgment of the hon'ble Supreme Court given above, it can be concluded that the principle of law regarding detention of a person who is already under judicial custody has been settled that is; when an authority seeks to detain a person who is already in custody — that fact must be first acknowledged in the detention order, and secondly that, his detention under the NSA is required as he is likely to be released on bail along with such reasons or basis or material from which the authority draws its conclusion must also be stated in the order itself. Failure to do so would make the detention order vitiated and, therefore, illegal. By going through the record placed by the learned senior Government advocate and the order passed by the District magistrate Kohima by which the petitioner's husband was detained, I find no mention of what has been stated above. Failure to do so would make the detention order vitiated and, therefore, illegal. By going through the record placed by the learned senior Government advocate and the order passed by the District magistrate Kohima by which the petitioner's husband was detained, I find no mention of what has been stated above. Therefore, the order of detention issued by the District Magistrate, Kohima dated 24.8.2020 and the order of the Chief Secretary to the Government of Nagaland dated 1.9.2020 approving the said order and the order dated 15.10.2020 of the same Chief Secretary confirming the detention order of the detenue for the period upto 23.8.2021 are against the settled principle of law, hence, they are illegal and as such, are quashed and set aside. Accordingly it is hereby ordered that the detenue be released forthwith if he is not required to be in custody in connection with any case or any order passed by any court. Let a release order be prepared and put up. 9. The writ petition is disposed of. 10. Return the record of the Home Department through Mr. K. Wotsa, learned senior Government advocate.