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2021 DIGILAW 430 (GAU)

Khesheli v. State of Nagaland

2021-07-05

S.HUKATO SWU

body2021
JUDGMENT : S. Hukato Swu, J. 1. The present habeas corpus under Article 226 of the Constitution is filed against the detention Order No. CP/DMR/CD-19/2020-21/2211 dated Dimapur, the 29th September, 2020 issued by the Commissioner of Police/District Magistrate Dimapur, Nagaland under Section 3 (3) of the National Security Act, 1980 against the detenue and also the approval of the detention order under Letter No. CON/NSA/65/2020/352 dated Kohima, the 9th October, 2020 and the rejection of the representation by the State Government vide order No. CON/NSA/65/2020/585 dated Kohima the 31-10-2020. The petitioner is the mother of detenue a resident of 4th Mile House No. 152 Dimapur, Nagaland who is represented by learned counsel Mr. Chingmei Konyak. 2. Facts leading to the present case is that on 07-09-2020 at about 12:30 P.M. information was received by the ND Extortion Team Zone-2 that extortion activities are being carried out at G.S. Road Dimapur. The Anti-Extortion Team apprehended the present detenue from a shop, namely, Plasto Provision Shop. There was recovery of Rs. 2,000/- from the possession of the detenue. It is alleged that the accused had demanded an amount of Rs. 5,000/- as yearly tax which was refused and after a while he was asked to arrange the said money and keep ready. The proprietor of Plasto Provision Shri Sanawas Ansari who is the main witness stated that the accused detenue came to his shop claiming himself to be from NSCN-K (Khango). On 07-09-2020 the same person came to his shop and demanded the money as yearly tax. After some negotiation, he had handed over Rs. 2,000/- to him, meanwhile, the police personnel came from behind and apprehended the detenue. Accused Akavi Awomi, the detenue admitted that he belonged to NSCN-K (Khangao) and was serving in the rank of Tatar. The Dimapur SBN PS registered case No. 0084/2020 under Section 384 IPC read with Section 7 NSR. The Commissioner of Police/District Magistrate, Dimapur issued detention order on 29-09-2020 which is reproduced herein-below: “GOVERNMENT of NAGALAND OFFICE of THE COMMISSIONER OF POLICE DIMAPUR: NAGALAND No. CP/DMR/CB-19/2020-212211 Dated Dimapur, the 29th September 2020 ORDER: Whereas, S.S. Tatar of NSCN-K (Khango)/Akavi Awomi (34 years), S/o Tovikhe Awomi, V/O- Aiche Saghemi, PO/PS-Suruhoto, District-Zunheboto, P/Add-H/No. 219, Diphupar ‘B’ 5th Mile, Dimapur, was arrested in connected with Dimapur SBN PS C/No. 084/2020 U/s. 384 IPC R/W 7 NSR. Whereas, I, the Commissioner of Police, Dimapur, Shri. Rothihu Tetseo (IPS), is satisfied that with a view to prevent the above said accused person from acting in any manner prejudicial to Security of the State of Nagaland and maintenance of public order, it is necessary to detain him under sub-section (2) of section 3 of NSA 1980. Now, therefore in exercise of the power conferred by sub-section (3) of Section 3 of the said act, I, Shri, Rothihu Tetseo (IPS), Commissioner of Police, Dimapur, do hereby order that the above mentioned accused person shall be detained and kept in Central Jail, Dimapur. (TOTHIHU TETSEO) IPS Commissioner of Police and District Magistrate Dimapur, Nagaland.” The grounds of detention as communicated to the detenue is also reproduced as below: GROUND of DETENTION S.S. Tatar of NSCNO-K (Khango)/Akavi Awomi (34 years) S/o Tovikhe Awomi, V/o Aiche Saghemi, PO/PS-Suruhoto, District Zunheboto, P/Add-H/No. 219, Diphupar ‘B’ 5th Mile, Dimapur. Whereas the under signed has made detention order against you under the provision of the National Security Act, 1980. Now therefore, in pursuance of Section 5 of the said act, the undersigned hereby informs you that the said detention order has been made against you on the following grounds: (a) Security of the State of Nagaland. (b) Maintenance of public order. The particulars which have a bearing on the above two matters are specified in the schedule attached. You are also informed that you have a right to make representation to the detaining authority, Central Government and State Government through the concerned jail authorities. You also have the right to claim a personal hearing before the Advisory Board Constituted by the State Government under the aforesaid Act. (TOTHIHU TETSEO) IPS Commissioner of Police and District Magistrate Dimapur, Nagaland.” 3. In the Schedule 2 to the detention order, it is mentioned that “that the subject Akavi Awomi is presently under judicial custody at Central Jail Dimapur. If he is not detained he is likely to indulge in similar prejudicial activities unless and effective alternative measure is called for. On examination of the report forwarded by the sponsoring authority, the subject is found fit to be booked under the National Security Act, 1980. If he is not detained he is likely to indulge in similar prejudicial activities unless and effective alternative measure is called for. On examination of the report forwarded by the sponsoring authority, the subject is found fit to be booked under the National Security Act, 1980. Hence, in order to prevent him from indulging in activities prejudicial to the security of the State of Nagaland and maintenance of public order, the undersigned has ordered the detention of the subject under the said Act.” The same was approved by the Home Department, Political Branch by an order dated 09-10-2020 which is reproduced below: “GOVERNMENT of NAGALAND HOME DEPARTMENT: POLITICAL BRANCH ORDER Dated Kohima, the 9th October, 2020 No. CON/NSA/65/2020/352: Whereas, Shri Akavi Awomi, SS Tatar, NSCN-K (KHango) S/o Tovikhe Awomi, Village: Aiche Saghemi; PO/P.S. Suruhoto: District: Zunheboto: State: Nagaland; P/Add: H/No. 219, Diphupar-B, 5th Mile, Dimapur was arrested in connection with Dimapur SBN P.S. Case No. 0084/2020 U/S. 384 IPC R/W 7 NSR. Whereas, the Commissioner of Police, Dimapur in exercise of the powers conferred by the State Govt. under Sub-Section (3) of Section 3 NSA, 1980 ordered Shri Akavi Awomi, SS Tatar, NSCN-K (Khango), S/o Tovikhe Awomi be detained under the National Security Act, 1980 with a view to prevent him from acting in any manner prejudicial to the security of the State of Nagaland and maintenance of public order w.e.f. 29.09.2020. Whereas, the State Government of Nagaland is satisfied with the view taken by the Commissioner of Police, Dimapur to prevent Shri Akavi Awomi, SS Tatar, NSCN-K (Khango), S/o Tovikhe Awomi; Village; Aiche Saghemi; PO/PS: Suruhotoo: District: Zunheboto: State: Nagaland: P/Add: H. No. 219, Diphupar-B, 5 Mile, Dimapur from acting in any manner prejudicial to the security of the State of Nagaland and maintenance of public order, it has approved the detention order of the Commissioner of Police, Dimapur to detain Shri Akavi Awomi, SS Tatar, NSCN-K (Khango) in Central Jail, Dimapur. Now, therefore, in exercise of powers conferred by Section 3 (2) of the said Act, the State Government of Nagaland hereby orders Shri Akvai Awomi, SS Tatar, NSCN-K (KHango) be detained and kept in Central Jail, Dimapur until further orders. By order and name of the Governor of Nagaland. Sd/- Chief Secretary to the Govt. of Nagaland.” 4. Now, therefore, in exercise of powers conferred by Section 3 (2) of the said Act, the State Government of Nagaland hereby orders Shri Akvai Awomi, SS Tatar, NSCN-K (KHango) be detained and kept in Central Jail, Dimapur until further orders. By order and name of the Governor of Nagaland. Sd/- Chief Secretary to the Govt. of Nagaland.” 4. Being aggrieved with the above orders of detention and approval of the detention the petitioner is before this Court on several grounds assailing the validity of the preventive detention order and the approval order. 5. Learned counsel Mr. Chingmei Konyak has questioned the validity of the detention order on the ground that there were no compelling reasons for detaining the detenue who was already in the custody. He has relied upon the ruling of the Apex Court in the case of Huidrom Konungjao Singh vs. State of Manipur and Others, (2013) 1 SCC (Cri) 956. 6. In the above referred ruling, the Apex Court has made the judicial pronouncement that detention order could be passed against an accused who is already in the custody. However, it is subject to the subjective satisfaction by the detaining authority which has been laid out in paragraph 6 of the said judgment: “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 and Another vs. Union of India and Others, this Court while considering the same issue has reconsidered its earlier judgments on the point in Rameshwar Shaw vs. District Magistrate, Burdwan and Another.” 7. 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 detenu 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. (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. 8. From the above decision of the Apex Court, it is clear that there is absolutely no subjective satisfaction shown on records by the detaining authority that: (1) the detenue is likely to be released from custody in the near future (2) there is likelihood of the detenue to indulge in prejudicial activities if released on bail taking into account nature of antecedent of the detenue and it was necessary to exercise the preventive detention. 9. Learned counsel has also relied upon the case of Rameshwar Shaw vs. District Magistrate, Burdwan and Another, AIR 1964 SC 334 . In the above referred judgment, the prior events showing tendency or inclination from where inference can be made that he is likely to act in a manner prejudicial to maintenance of public order must be shown on records to pass preventive detention order. In our case, there is absolutely no previous records by which inference can be made that the accused would indulge in activities which is prejudicial to the maintenance of public order. 10. The detention order has been solely based on the statement to the police under Section 161 Cr.P.C. which has influenced the passing of the detention order which cannot be taken as a basis to form an opinion. The learned counsel referred the case of Rajendra Singh vs. State of U.P. and Another, Criminal Appeal No. 1019 of 2007. The Apex Court has in the above referred case pronounced that: “6. The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 Cr.P.C. the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime.” 11. In view of the above ruling, it would be most inappropriate to depend on the statement recorded under Section 161 of the Cr.P.C. to curtail the liberty of citizen. Furthermore, the learned counsel has argued that whenever there is an issue of preventive detention law which is challenged, the question that the Court must pose is whether the ordinary law of the land was sufficient to deal with the situation? The Apex Court has dealt with the issue in the case of Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244 . The Apex Court has pronounced the judgment pertaining to this issue in Para-34 which reads as under: “Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.” 12. Even if the allegation brought against the detenue is found to be correct the issue can be easily taken care of by the application of general law. The matter could have been easily addressed in the normal criminal court without invoking preventive detention order. 13. There was seizure of only Rs. Even if the allegation brought against the detenue is found to be correct the issue can be easily taken care of by the application of general law. The matter could have been easily addressed in the normal criminal court without invoking preventive detention order. 13. There was seizure of only Rs. 2,000/- from the possession of the accused detenue, no arms was seized from the possession of the petitioner, there was no extortion notes or any documentary evidences such as extortion slips, pads nor demand notes found in the possession of the detenue, nor any other evidences which shows that there was demand of extortion from other shops in and around where the detenue was arrested. The whole record is totally silent about the antecedent of the detenue having indulged in extortion activities in the near past. The only agitating aspect of the matter is that the detenue is a member of NSCN-K (Khango) group. It is also to be reminded of us that the NSCN-K (Khango) group is in active ceasefire with the Government of India for settlement of the Naga issue. The fact that the detenue is a member of the underground outfit therefore does not deserve the extraordinary step which is the preventive detention to curtail the freedom of the detenue. Learned counsel has submitted that the detention order and the approval order impugned does not stand the test of law as pronounced by the Apex Court in the catena of judgments. The impugned orders therefore must be quashed and set aside and the detenue should be released forthwith. 14. Learned Government Advocate for the State respondents Mr. Thiba Phom appears. The learned Government Advocate submits that the detention order was passed by District Magistrate/Commissioner of Police, Dimapur who has meticulously considered the records of the investigation by the Anti-Extortion Team Zone-2 and found that there were sufficient materials and accordingly passed the preventive detention order. In the Schedule 2, the grounds of detention wherein, it has been recorded that the accused detenue voluntarily joined NSCN-K group in June 2006 in the rank of Khapur and underwent basic training at Vihoku Transit Camp Niuland, for 5 ½ months and after which he was promoted to the rank of Deputy Secretary, Sumi Region. He worked of NSCN-K organization till March, 2017 however, owing to his health condition he was discharged on 15-03-2017. He worked of NSCN-K organization till March, 2017 however, owing to his health condition he was discharged on 15-03-2017. After recovering, he joined the organization again but the NSCN-K outfits split into two groups, NSCN-K (Yung Aung) and NSCN-K (Khango) he joined NSCN-K (Khango) in the rank of tatar and has been an active member till date. SBN Police Station received complaint on 07-09-2020 and a case has been registered as SBN PS Case No. 084/2020 under Section 384 IPC read with 7 NSR. The covert, illegal, criminal activities/collection of illegal tax carried out by the accused detenue is a matter of great concern for the security of the State which contributes to the increase in the price of all essential commodities in the State. The detenue was arrested for carrying out extortion in the name of NSCN-K (Khango) outfit. The detenue also violated the cease fire ground rules by indulging in extortion and not confining to designated camp. This activities of the detenue has caused fear and insecurity in the mind of the people. The detenue was also caught red-handed while he collected cash amounting to Rs. 2,000/- only from Plasto Provision Shop as yearly tax in the name of NSCN-K (Khango). The learned Government Advocate has submitted that in the face of all these records, there was subjective satisfaction that the detenue being from an organization would be released on bail in the near future and also there was sufficient apprehension that he would continue in the illegal activities of collection of taxes. Preventive detention order passed by the District Magistrate/Commissioner of Police, Dimapur by its order dated 29-09-2020 was therefore justified and the approval of the detention order passed by the Home Department on 09-10-2020 are as per the provision and procedure laid down by the law. The learned Government Advocate therefore contends that there is no grounds to quash the detention and the approval order passed by the Commissioner of Police and the Home Department and the petition be dismissed. 15. Learned C.G.C. Mr. Z.N. Ngullie for the Union of India appears and submits that he adopt the argument forwarded by the learned Government Advocate Mr. Thiba Phom. 16. I have considered the submissions made by the learned counsels for the petitioner, the learned Government Advocate and also the learned C.G.C. for the Union of India. 17. 15. Learned C.G.C. Mr. Z.N. Ngullie for the Union of India appears and submits that he adopt the argument forwarded by the learned Government Advocate Mr. Thiba Phom. 16. I have considered the submissions made by the learned counsels for the petitioner, the learned Government Advocate and also the learned C.G.C. for the Union of India. 17. The facts presented before this Court is that the detenue was arrested on 07-09-2020 by the Anti-Extortion Team Zone-2 for extorting Rs. 2,000/- from a shop Plasto Provision and was thereafter booked under Section 384 IPC read with 7 NSR. The detenue is a member of the NSCN-K (Khango) group. It is alleged that he was collecting yearly tax. On considering that there is rampant extortion by UG factions which destabilizes the market price and also pose threat to the business community detention order dated 29-09-2020 under Letter No. CP/DMR/CP-19/2020-21 was passed under Section 3 (3) of the NSA 1980 by the Commissioner of Police and District Magistrate, Dimapur, Nagaland. Thereupon, the Special Secretary to the Government of Nagaland, Home Department Political Branch by order dated 09-10-2020 in letter No. CON/NSA/65/2020/352 confirmed the detention order. Issues raised by the learned counsel for the petitioner is that there is no subjective satisfaction by the detaining authority. On examining the records it is found that there is no ground which has been shown by the detaining authority that there was apprehension that the detenue would be released or was likely to be released in terms of the records presented before this Court. There was no bail petition presented before any Court nor any other ground that the detenue would be released on bail so that the necessity for preventive steps was a compelling circumstance to justify the detention order. This Court has also found no grounds elaborated by the detaining authority that the detenue would be indulging in the prejudicial activities which would bring about instability and which are prejudicial to public order. The only narrative that can be seen in the schedule annexed in the grounds for detention is that the detenue was a member of the NSCN-K since 2006 and when the NSCN-K group split into two factions NSCN-K (Yung Aung) and NSCN-K (Khango) group, the detenue joined the NSCN-K (Khango) group as tatar for which he is an active member till date. There is no narrative of his past showing that the detenue was involved in extortion in the name of the UG faction to which he is affiliated to nor is there any reflection that he has indulged in any criminal activity in the near past which would bring disharmony and prejudicial to public order. The mere fact that the detenue is a member of underground set up is not enough to record subjective satisfaction of the detaining authority. As mentioned by the learned counsel for the petitioner the NSCN-K (Khango) is under the active peace process. Violation of cease fire ground rules is also mentioned in the schedule however, this could not be considered as constituent component that satisfy the concept of subjective satisfaction which is propounded by the Apex Court in their catena of judicial pronouncements. There must be facts evidences and materials which should suggests that the detenue had negative records relatable to the charges for which he has been detained in the present so that it may be considered as a case where detaining authority may develop a presumption that the detenue would indulge in such illegal activities in the future if released on bail. In the absence any such revelations, this Court is of the view that there was no subjective satisfaction. A good instance would have been possession of demand notes, extortion slips which could influence the detaining authority to presume that these demand notes and extortion slips would be used for future demands which could have been relevant. However, no such materials are on records. We must also take into consideration that there was no arm seized from the possession of the detenue which would give rise to inference that there was element of threat upon the victim of forced tax payers or business community. The detenue was an unarmed cadre. Therefore, one could not presume that there was fear put in the mind of the tax payers. The records also suggests that only one shop in the name and style of Plasto Provision was called on to pay yearly tax and there is no records to show that shops in the colony were also served with such demand. It was an isolated case which could not in the mind of this Court pose threat to the whole community as such. It was an isolated case which could not in the mind of this Court pose threat to the whole community as such. The Court is also aware that rampant tax collection is going on which has a bearing on the economy of our people in the State and that this needs to be checked and also punish. However, the present case is a category which can be dealt with by application of ordinary law as pronounced by the Apex Court in the case of Rakha vs. State of Tamil Nadu. 18. From the above findings, this Court is of the view that there was no subjective satisfaction for a preventive detention. The matter can be addressed by application of ordinary law. There was therefore no necessity to take recourse to harsher measure of the preventive detention curtailing the fundamental right of the detenue. 19. In the light of the discussions made above, the preventive detention order passed by the Commissioner of Police/District Magistrate CP/DMR/CP-19/2020-21 dated 29-09-2020 and the approval order of the State Government by Letter No. CON/NSA/65/2020 dated 9th October, 2020 approving the detention of detenue Shri Akavi Awomi SS. Tatar NSCN-K (Khango) is hereby quashed and set aside. Accused be released forthwith if not wanted in any other case. 20. Petition is allowed and stands disposed of.