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2021 DIGILAW 425 (GAU)

Kusata Phese v. State of Nagaland

2021-06-29

S.HUKATO SWU

body2021
JUDGMENT : S. Hukato Swu, J. 1. This is a writ petition under Article 226 of the constitution of India for issuance of writ of habeas corpus. The detenue was apprehended on 14.10.2020 and was produced on 15.10.2020 before the South Police Station, Kohima by the 3rd Naga Hills Battalion Assam Rifles. The petitioner was arrested along with 3 other co-accused in general area of Jail Colony on allegation of extortion from shops in the colony. The Assam Rifles produced the accused before Police Station along with 3 other co-accused. On investigation, it was revealed that the accused persons Rakovoyi Kheso, SS Sergeant Major NNC Non-Accordist, Yota Venyo, Army No. 1526, NNC Non-Accordist, Runuta Dozo, NNC Non-Accordist and Kusato Phese, NNC Non-Accordist were found to have involved in extortion. 1 No. of .32MM Pistol with 6 live rounds of .32 mm one magazine and 5 extortion slips of NNC Non-Accordist was seized from accused Rakavou Kheso. 16 Nos. of extortion slips were recovered from accused Yota Venyo, 20 extortion slips were recovered from Renuda Lozo and 1 No of extortion pad Office of Naga Army National Peoples Government of Nagaland, Naga National Council, Oking Nagaland and 20 extortion slips of NNC Non-Accordist (NA) was recovered from Kusato Phese. On examination of the accused, all the accused along with the present petitioner admitted that they were from NNC (NA) faction. Altogether there were five of them in the group however co-accused Yolhuyi Chakhesang escaped. The accused had on 13.10.2020 placed demand slips to about 20 shops in jail colony. The demand slips were yearly tax which were for Rs. 2,000/- and some for Rs. 3,000/- each on the basis of the size of shops. Total amount of Rs. 7,000/- approximately was taken by Rakavou Kheso and Yolhuyi Chakhesang (escapee). On 14.10.2020, they had again gathered in the jail colony to issue further demand slips however they were arrested by the Assam Rifles. 2. With the above background, proposal for detention under NSA was forwarded to the District Magistrate on 20.10.2020 by the Superintendent of Police, Kohima. On considering the proposal, the District Magistrate by an order dated 31.10.2020 passed the detention order of the accused petitioner under Section 3 (3) of the NSA, 1980. The detention order was approved by the Government on 05.11.2020. On considering the proposal, the District Magistrate by an order dated 31.10.2020 passed the detention order of the accused petitioner under Section 3 (3) of the NSA, 1980. The detention order was approved by the Government on 05.11.2020. On the same day i.e. 05.11.2020 in compliance of the provision of Section 3 (5) of the NSA, 1980, report was submitted to the Ministry of Home Affairs. Again on the same day, Special Secretary to the Government of Nagaland directed the Superintendent of Police, Kohima for execution of the detention order of the 4 accused persons and obtain receipt from them certifying that the contents of the detention order be explained to them in language understood to them by the accused person in the presence of at least two independent witnesses and that they received 1 each set of the detention order and its enclosures. It was further directed that the detention order and its enclosures in respect of the detenue with the signature of the concerned detenue on each page be returned before 19.11.2020 for further course of action. The acknowledgement certificate by the accused person Kusato Phese is attached with the records. Thereafter, the Home Department, Political Branch by letter No. CON/NSA/55/97 dated Kohima, the 13th November, 2020 in pursuance of Section 10 of the NSA, 1980 referred the matter to NSA Advisory Board. The NSA Advisory Board sit on 08.12.2020 and submitted its report on 11.12.2020 wherein, it was of the opinion that there is sufficient cause for the detention of the detenue. The accused petitioner Kusato Phese continued to be under NSA detention. Home Department, Political Branch issued confirmation order on the opinion furnished by the Advisory Board by letter No. CON/NSA/76/2020/622 dated 17.12.2020 confirmed the detention order which was to be continued up to 30.10.2021. The accused petitioner continues to languish in jail till date. 3. Learned counsel Ms. Khriekethonuo appears for the petitioner and has challenged the decision of the State respondents for the preventive detention order passed by the State respondents on several grounds which shall be discussed in seriatim. Learned counsel submits that the accused petitioner is not an active member of the NNC (NA). He had taken training only for about an hour prior to his assignment for collecting tax within the jail colony area. Learned counsel submits that the accused petitioner is not an active member of the NNC (NA). He had taken training only for about an hour prior to his assignment for collecting tax within the jail colony area. The petitioner being a mere member of non State actor who joined NNC (NA) during the pandemic taking just one hour of training cannot be given a tag of an active member. This tag against the petitioner cannot lead to an inference that the petitioner resorts to engaging activity which will create disorder or disrupt the security of the whole State of Nagaland. No arms and ammunition was found from the possession of the petitioner. The seizure of one extortion pad and 20 nos. of extortion slips allegedly from the petitioner cannot be construed to be such incriminatory nature which would pose any threat to the defense of India, security of the State of Nagaland and maintenance of public order. Therefore, the detention order deserves to be revoked outright. 4. The procedure of arrest by the Assam Rifles was also in violation of the provision of the Criminal Procedure Code. After the arrest by the Assam Rifles, the petitioner along with 3 co-accused were detained overnight at the Army Headquarter for more than 24 hours and under no special circumstances had subjected them to different form of custodial violence and torture to coerce the petitioner along with the co-accused to make extra judicial confession before the army personnel which is violation of Article 21 of the Constitution. The detention of the petitioner for more than 24 hours before being produced before the nearest Magistrate is also violation of Section 56, 57 and 167 of the Cr.P.C. There was illegal detention. 5. The learned counsel also argues that there was delay of 5 days in approving the preventive detention order passed by the District Magistrate on 31.10.2020. There is delay of 5 days as the approval by the Government was passed only on 05.11.2020. Therefore, it amounts to illegal detention. Furthermore, the representation of the petitioner was arbitrarily postponed by 17 days by the respondent The petitioner had filed representation against the preventive detention order passed by the District Magistrate on 31.10.2020 by a letter dated 28.11.2020 however, the same was postponed to a later date i.e. 15.12.2020 behind the back of the petitioner. Therefore, it amounts to illegal detention. Furthermore, the representation of the petitioner was arbitrarily postponed by 17 days by the respondent The petitioner had filed representation against the preventive detention order passed by the District Magistrate on 31.10.2020 by a letter dated 28.11.2020 however, the same was postponed to a later date i.e. 15.12.2020 behind the back of the petitioner. There is unexplained delay of 17 days in not sending the petitioner's representation to the Government expeditiously and such unexplained delay vitiates the order of detention. The petitioner was not given earliest opportunity of filing representation to the Government against the detention order and this has violated the provision of Section 8 NSA 1980 and Article 22 (5) of the Constitution. Section 8 of the NSA requires the authority making detention order to communicate to the detenue the grounds of his detention. The communication has to be made as soon as may be not later than 5 days from the date of detention in ordinary circumstances, and not later than 10 days from the date of detention, in exceptional circumstances (with reasons to be recorded for the delay). The Section also requires the detaining authority to give the detenue the earliest opportunity to make a representation against the detention order to the appropriate Government Also Article 22 of the Indian Constitution imposes a dual obligation on the authority making the order of preventive detention; (1) to communicate to the person detained as soon as may be the grounds on which the detention order has been made (2) to afford the person detained earliest opportunity of making representation against the order of detention. The NSA, 1980 confers extra ordinary power on the executive to detain a person without recourse to ordinary law and trail by Court Therefore, such law needs to be strictly followed, the violation of which the detention order would be liable to be set aside and quashed. The learned District Magistrate has passed the preventive detention order without subjective satisfaction that the petitioner would indulge in activities which would be prejudicial to the maintenance of public order, if the petitioner is released. There has been no record in the past that the petitioner had violated the law and under the circumstances, the District Magistrate could not form subjective satisfaction that the petitioner would indulge in illegal activities in the future, if released on bail. There has been no record in the past that the petitioner had violated the law and under the circumstances, the District Magistrate could not form subjective satisfaction that the petitioner would indulge in illegal activities in the future, if released on bail. Therefore, there was no subjective satisfaction by the District Magistrate while issuing the order of detention dated 31.10.2020 and the same is liable to be quashed and set aside. 6. For all the above irregularities and violation of the provisions under the Indian Constitution read with the provisions of NSA, 1980, the detention order dated 31.10.2020 deserves to be quashed and set aside and the petitioner be released forthwith. 7. Learned Government Advocate Mr. V. Zhimomi appearing on behalf of the State respondents submits that FIR was lodged on 15.10.2020 and the accused were produced before the Magistrate on 16.10.2020. Therefore, there was no delay in producing the accused before the Magistrate. There is no violation of Section 56, 57 or 167 Cr.P.C. 8. The allegation that there was 5 days delay in approval of the detention order by the State Government is also incorrect. Detention order was passed on 31.10.2020 and the approval order was passed on 5.11.2020. Section 3 (4) of the NSA, 1980 provides when any order is made under this section by an officer mentioned in Section 3 (3) he shall forthwith report the fact to the Government to which he is subordinate together with grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force more than 12 days after making thereof unless, in the meantime, it has been approved by the State Government: provided that where under Section 8 the grounds of detention are communicated by the officer making the order after 5 days but not later than 10 days from the date of detention, this sub-section shall apply subject to the modification that, for the words 12 days the words 15 days shall be substituted. The above being the provision of law, it is clear that the detention order passed by the executive authorities under the NSA would remain operative for 12 days and not beyond. The above being the provision of law, it is clear that the detention order passed by the executive authorities under the NSA would remain operative for 12 days and not beyond. In the instant case, the Government has approved the detention order after 5 days which is well within the prescribed period contained under Section 3 (4) of the NSA, 1980. Therefore, the contention that there is the delay of 5 days is not in terms of the provision of law. 9. The issue that representation was filed on 28.11.2020 however the concerned authority at the back of the petitioner had delayed it by 17 days showing that the petition was received on 15.12.2020 is also belied by the records available. The representation filed by the accused petitioner is clearly dated 15.12.2020 and the Jail Authority received the representation on the same date. Therefore, all the arguments forwarded by the learned counsel suggesting that there is manipulation of records and that there was unexplained delay of addressing the representation is also not found to be correct per records available. The argument is unacceptable. The representation was received by the Home Department on 16.12.2020 and the petitioner was informed that his representation was not accepted on 19.12.2020. Therefore, the argument that there was manipulation in the records which is of a serious nature of allegation and not proved on records cannot be accepted. 10. The subjective satisfaction of the District Magistrate is also clearly discernable from the grounds of detention. The grounds of detention for the sake of clarity along with its schedule is reproduced herein-below: “Grounds of Detention Kusata Phese (24) years SS Pvt. NNC (NA) S/o Verato Phese, Vill-Runguza, PO/PS Chozuba, P/Add-Seluophe, Dimapur District. Ref: Kohima South PS C/No. 0019/20 U/s 384/34 IPCR/W 25 1(A) Arms Act R/W 7 and 8 NSR-62. Whereas the undersigned has made detention order against you under the provision of the National Security Act, 1980 under following grounds: 1. You (Kusata Phese) are an active member of NNC (NA) in the rank of SS. Pvt. 2. You admitted to extorting money with demand slips from the Shop-Keepers at Jail colony Kohima in the name of NNC (NA) which proves your involvement in extortion activities in and around the State Capital 3. You (Kusata Phese) are an active member of NNC (NA) in the rank of SS. Pvt. 2. You admitted to extorting money with demand slips from the Shop-Keepers at Jail colony Kohima in the name of NNC (NA) which proves your involvement in extortion activities in and around the State Capital 3. You are involved in extortion activities in an around Kohima and also within the State of Nagaland, which is direct contravention to the wishes and aspirations of the citizens of the State 4. There has been a huge public outcry regarding rampant extortion by various underground groups in the State and your activities are detrimental to the economy, security and peace in the society 5. Your at large (if bailed) will be a threat to the peace and security of the State of Nagaland, and there is likelihood of you committing breach of peace and tranquility of the State thereby endangering the peaceful existence of the citizens. Now, therefore, in pursuance of the said Act, the undersigned hereby inform you that the said detention order has been made against you for disturbing the maintenance of public safety and order under: (a) Security of the State of Nagaland. (b) Maintenance of public safety and order. The particulars made against you are specified in the Schedule attached. You are also informed that you have a right to make a representation to the detaining authority, Central Government and State Government through the concerned Jail Authorities. You also have a right to claim a personal hearing before the Advisory Board constituted by the State Government under the aforesaid Act. Enclosures: All relevant documents to the case. Signed on 31.10.2020 (Mohammed Ali Shihaba) IAS District Magistrate, Kohima: Nagaland Kusata Phese (24) years SS Pvt. NNC (NA) S/o Verato Phese, Vill-Runguza, PO/PS Chozuba, P/Add-Seluophe, Dimapur District. Ref: Kohima South PS C/No. 0019/20 U/s 384/34 IPC R/W 25 1(A) Arms Act R/W 7 and 8 NSR-62. Enclosures: All relevant documents to the case. Signed on 31.10.2020 (Mohammed Ali Shihaba) IAS District Magistrate, Kohima: Nagaland Kusata Phese (24) years SS Pvt. NNC (NA) S/o Verato Phese, Vill-Runguza, PO/PS Chozuba, P/Add-Seluophe, Dimapur District. Ref: Kohima South PS C/No. 0019/20 U/s 384/34 IPC R/W 25 1(A) Arms Act R/W 7 and 8 NSR-62. On 15.10.20 a W/FIR was received from 37836 W/O Phool Chand 3 (NH) B/N Assam Rifles to the effect that on 14.10.2020 at 1245 hrs an MVCP was launched by (3 Naga Hill) Battalion in general area Jail Colony and apprehended four persons namely (1) SS Sergeant Najor Rakovoyi Kheso (47 yrs) of NPGN/NNC (Non-Accordist) (2) Yota Venyo (44 yrs) of NPGN/NNC (Non-Accordist) (3) Kusato Phese (24 yrs) of NPGN/NNC (Non-Accordist) and (4) Runuta Dozo (36 yrs) of NPGN/NNC (Non-Accordist) along with recovered/ Seized items (1) 01 No of .32 Pistol along with one magazine (2) 06 Nos. of Live rounds (3) One extortion pad of NNPG/NNC (NA) and (4) 61 Nos. of extortion slips of NNPG/NNC (NA). In this connection a regular case vide Kohima South PS C/No. 0019/2020 U/S 382/34 IPC r/w 25 (1A) Arms act R/W 7/8 NSR'62 was registered for investigation. The seized arms and live rounds were recovered from the possession namely Runuta Dozo. Accused Kusata Phese (24 years) Ss Pvt. NNC (NA), S/o Verato Phese Vill. Runguza Po/ps Chozuba, P/Add-Seluophe, Dimapur District stated that he is still a bachelor and have two elder brothers and two elder sisters. He studied upto class VII after that he left the school. He joined the UG faction NNC (NA) in the month of June 2020 without the consent of his parents. His friend convinced him to join the faction. He took mere training at new land Dimapur only for one hour how to give salute to the superior officers as emergency. On 13.10.20 himself, Rukovoyi Kheso, Yota Venyo ad Yolhuyi went to jail colony area in the morning to issue demand slip as yearly tax of Rs. 3,000/- from big shops and Rs. 2000/- from small shops. They issued the demand slip to around 15 to 20 shops at jail colony and some shops owner immediately handed over the cash. They had collected some amount of money on that day but was not sure the exact amount as the cash was taken over by Rukovoyi Kheso and Yolhuyi Ckg. 2000/- from small shops. They issued the demand slip to around 15 to 20 shops at jail colony and some shops owner immediately handed over the cash. They had collected some amount of money on that day but was not sure the exact amount as the cash was taken over by Rukovoyi Kheso and Yolhuyi Ckg. On 14.10.2020 morning four of them along with Runuta Dozo altogether five of them garnered at Jail colony Kohima for issuing the demand slip to the remaining shops and while issuing the demand slip the Assam Rifle personnel came and apprehended them however Yolhuyi Ckg managed to escape from the scene. In the light of the above facts and circumstances, keeping the accused at large (if bailed) is likely to endanger the safety and security of the State and the Union of India and also to prevent him from further indulging in activities, highly prejudicial to the maintenance of public security, peace and order, the accused person namely, Shri Kusata Phese has been considered a fit case for detention under Sub-Section (2) of Section 3 of the National Security Act 1980. Signed on 31.10.2020 (Mohammed Ali Shihaba) IAS District Magistrate, Kohima: Nagaland.” 11. From the above records it is clear that the District Magistrate has satisfied himself of subjectively considering the matter. There is the menace of tax collection from various underground factions which is resented by each and everyone in the society. If the collection of tax which is forced upon the citizen is not regarded as prejudicial to the maintenance of public order then what can be termed so? The fact that arms were seized from the accused persons and also tax slips and extortion pad from the possession of the accused persons is reason enough for subjective satisfaction that the accused along with the co-accused were indulging in tax collection and would be indulging in the collection in future also and if not prevented from such activity they would resort to forceful extortion by use of arms. They were equipped with arms. They all have confessed that they are members of the NNC (NA). It is admitted fact that NNC (NA) are spread all over the State not only in the district of Kohima. They were equipped with arms. They all have confessed that they are members of the NNC (NA). It is admitted fact that NNC (NA) are spread all over the State not only in the district of Kohima. Therefore, the explanation and the argument forwarded by learned counsel relying upon the case of Ajay Dixit NSA vs. State of U.P. wherein the learned counsel for the petitioner has tried to differentiate between what is public order and what is security of the State what is law and order and what is public order loses its meaning. The faction since spread all over the State their activity would certainly bring about law and order situation all over the State. In the instant case, the accused persons have admitted that they were trained from Niuland which is Sub-Division of Dimapur district and not Kohima district. This fact alone would suggest that there is all possibility of the accused indulging in activities in other districts as well. There was good reason for the District Magistrate to be apprehensive about the repetition of the offence in future by the petitioner and the accused persons. There was obviously the subjective satisfaction considered by the District Magistrate prior to the passing of the detention order and there is no reason why the detention order has to be set aside. 12. I have considered the arguments forwarded by the learned counsel for the petitioner and also the Government Advocate. 13. On considering the arguments raised by the petitioner almost all the issues contained therein has been appropriately answered by the learned Government Advocate Mr. V. Zhimomi. Contention that the accused petitioner is not a member of the underground organization NNC (NA) is belied by the records placed before the Court. All the accused have admitted so. The contention that there was delay in approval of the detention order is also not in conformity with the laws under the NSA, 1980 which clearly provides that the detention order issued by the concerned authority would be effective for 12 days till such approval of the State Government. Considering that the detention was approved on 05.11.2020 there is no delay. There is also the contention that the representation filed by the accused petitioner was postponed by 17 days. Considering that the detention was approved on 05.11.2020 there is no delay. There is also the contention that the representation filed by the accused petitioner was postponed by 17 days. Representation is claimed to have been filed on 28.11.2020 however, it has been reflected that the representation was filed on 15.12.2020 by the petitioner. The records were placed before this Court and was examined and it was ascertained that the signature of the accused petitioner is dated 15.12.2020. The representation in its original form and a comparative signatures of the accused petitioner was observed in different papers placed before the Court and this Court finds that there is no reason to doubt that there was manipulation on the part of the State respondents. Therefore the argument that there was manipulation of records is not accepted. The plea raised by the learned counsel for the petitioner that the petitioner was not given due opportunity as contemplated under Section 8 of the NSA, 1980 for a representation is also found to be incorrect as per records. Special Secretary to the Government of Nagaland by Letter No. CON/NSA/55/2000/592 dated Kohima the 5th November, 2020 has specifically requested the Superintendent of Police, Kohima for execution of detention order under the National Security Act, 1980. On the same date of approval of the detention order that the detenues have to be explained the contents of the detention order in the presence of two independent witnesses. It was also directed that the accused detenues should certify that they have received one set each of the detention order and its enclosures. There is acknowledgement certificate which is signed by the accused petitioner dated 09.11.2020 acknowledging the receipt of detention Order No. CON/NSA/76/2020/588 dated 5th November, 2020 duly signed by the accused petitioner. There is no ground to allege that the accused petitioner was not given the opportunity to file representation on time. The State respondents through its Special Secretary has discharged its duty as contained under Section 8 of the NSA, 1980. 14. Furthermore, the District Magistrate has clearly notified the petitioner in the grounds of detention that the accused petitioner has the right to represent to the Government and also to be heard before the Advisory Board in person. The State respondents through its Special Secretary has discharged its duty as contained under Section 8 of the NSA, 1980. 14. Furthermore, the District Magistrate has clearly notified the petitioner in the grounds of detention that the accused petitioner has the right to represent to the Government and also to be heard before the Advisory Board in person. All these documents were handed over to the accused petitioner the day the detention order was passed and the receipt of the enclosures are signed by the accused petitioner. 15. The issue of “subjective satisfaction” of the District Magistrate, there are reasonable grounds to be apprehensive about the accused indulging in illegal activities in the future is well established from the facts presented. The accused petitioner along with other co-accused had issued demand slips on 13.10.2020 to different shops in Jail Colony, Kohima and again they were gathered in the Jail Colony with the intention of further issuing demand slips. They were arrested before they could indulge in the same activity. This is clear indication that they would continue to indulge in the activity in future as well. The possession of extortion pad, demand slips from the accused petitioner clearly suggest that the same was meant to be used for future purpose for demanding tax. Therefore, there was clearly subjective satisfaction by the District Magistrate while issuing the preventive detention order. The act of demanding tax by carrying arms to unwilling tax payers is obviously an act which would be termed as prejudicial to maintenance of public order and is a subject of preventive detention under Section 3 of the NSA, 1980. 16. The matter was also referred to the Advisory Board on 13.11.2020 and the Advisory Board furnished its report on 11.12.2020 opining that there is sufficient cause for the detention of the detenue. Thereafter, the Home Department by Letter No. CON/NSA/76/2020/622 dated 17th December, 2020 confirmed the detention order of the accused petitioner. There is no illegality or delay observed as provided under the NSA, 1980. It is found that the detention order dated 31.10.2020 passed by the District Magistrate was in accordance with the law and in conformity with the procedures laid down. There is no delay in referring the matter for opinion by the Advisory Board as contemplated under Section 10 of the NSA, 1980. It is found that the detention order dated 31.10.2020 passed by the District Magistrate was in accordance with the law and in conformity with the procedures laid down. There is no delay in referring the matter for opinion by the Advisory Board as contemplated under Section 10 of the NSA, 1980. The opinion of the Advisory Board is also within 7 weeks from the detention of the person concerned as contemplated under Section 11 of the NSA, 1980. 17. The State respondents have not violated any procedures mandated under Section 3, 8, 10, 11 of the National Security Act, 1980. There was also valid reasons for subjective satisfaction by the District Magistrate that the preventive detention was required to avert the imminent future indulgence in illegal activities which is prejudicial to the public order if the accused petitioner is released on bail. 18. With the above findings, there is no ground to set aside the detention order passed by the District Magistrate or the confirmation order dated 17.12.2020 passed by the Special Secretary to the Government of Nagaland. 19. With the above findings, the writ petition stands dismissed.