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2021 DIGILAW 431 (GAU)

Mughali v. State of Nagaland

2021-07-09

SONGKHUPCHUNG SERTO

body2021
JUDGMENT : Songkhupchung Serto, J. 1. This is a petition under Article 226 of the Constitution of India praying for quashing and setting aside the detention order dated 29.09.2020 issued by the Commissioner of Police & District Magistrate, Dimapur by which the petitioner's husband namely, Mr. Hokheto Zhimomi (who shall hereafter be referred to as the detenu) was detained under NSA and the orders dated 09.10.2020 and dated 27.11.2020, issued by the Chief Secretary, Government of Nagaland approving and confirming the detention order respectively. 2. Heard Mr. P.B. Paul, learned counsel appearing for the petitioner assisted by Mr. Pfosekho and also heard Mr. K. Angami, learned P.P. appearing for the State of Nagaland. On 04.09.2020, the detenu was arrested in connection with SBN P.S. C/No./83/2020, u/s. 384 IPC read with S. 7 NSR following a complaint lodged by a Police personnel which stated as follows : "To, The Officer in-charge Sub-Urban Police Station, Dimapur Sub:- FIR Sir, I have the honour to state that on 04.09.2020 at around 11:30 Hrs, while doing surveillance duty at GS Road area, information was received from reliable sources about some miscreants collecting yearly tax in the name of UG faction. In this regard, AET Zone II team members swung into action and while surveying, one person was apprehended from GS road area namely; (i) Hokheto Zhimomi (Leacy, UT-I; NSCN-U). Upon frisking, the following items were recovered from their possession namely (i) Handbook (dairy) containing datas on amount collected from shops within Dimapur Town, (ii) Cash amounting to Rs. 29,660, (iii) One mobile phone (1 Nos.) and, (iv) Assignment order slips- 3 Nos. and (v) Gypsy-white (UR), (vi) Ignition key and vehicle documents Initially, upon further interrogation, he denied of having any involvement with any of the actions but upon checking the P.O. another vehicle (Gypsy-white) was also recovered. Upon checking the vehicle thoroughly, assignment order slips (3 Nos.) belonging to GPRN were also recovered from the vehicle (Gypsy-white colour), which was used by the miscreants for the commission of crime). In the event of the above, I therefore request your kind authority to kindly take necessary action as per provision of the law. Dated: 04.09.2020 Dimapur, Nagaland Sd/- (ABC Abel Angami) Anti-Extortion Team, Zone II Dimapur : Nagaland Ph. No. 9856449748." After the Police remand period was over, on 08.09.2020, he was remanded to judicial custody. In the event of the above, I therefore request your kind authority to kindly take necessary action as per provision of the law. Dated: 04.09.2020 Dimapur, Nagaland Sd/- (ABC Abel Angami) Anti-Extortion Team, Zone II Dimapur : Nagaland Ph. No. 9856449748." After the Police remand period was over, on 08.09.2020, he was remanded to judicial custody. Soon after his remand to judicial custody, the Deputy Commissioner, Zone-II Dimapur submitted a proposal to the Commissioner of Police & District Magistrate, Dimapur for detaining him under section 3(1) and (2) of the NSA in order to prevent him from acting in any manner which is prejudicial to the security of the State of Nagaland and maintenance of public order. Being satisfied with the proposal submitted, the Commissioner of Police & District Magistrate, issued the detention order No. CP/DMR/CB-19/2020-21/2217, dated 29.09.2020, by which he was detained under Section 3(2) of NSA and kept him in Central Jail at Dimapur. Thereafter, the Chief Secretary to the Government of Nagaland, vide his order No. CON/NSA/66/2020/353, dated 09.10.2020 approved the detention order issued by the Commissioner of Police & District Magistrate, Dimapur. The petitioner submitted representations as per the provisions of the NSA, however they did not yield the desired result. The NSA Advisory Board, constituted by the Government of Nagaland under section 9 of NSA, 1980 thereafter, considered the case of the detenu but they also came to the conclusion that there are sufficient causes for detaining him under NSA, and accordingly recommended his detention. Following the recommendation of the NSA Advisory Board, the State Government, in exercise of its powers conferred by Sub-section (1) of section 12 of NSA, confirmed the detention order of the detenu and to that effect the Chief Secretary to the Government of Nagaland, issued the confirmation order No. CON/NSA/66/2020/612, dated 27.11.2020. Being aggrieved by the detention order, issued by the Commissioner of Police & District Magistrate, Dimapur and the approval and confirmation orders issued by the Chief Secretary to the Government of Nagaland, the petitioner has come before this court through the instant writ petition praying for quashing and setting aside of the orders and release of her husband-the detenu. 3. The case of the petitioner as submitted by her learned counsel Mr. Paul is based on two grounds and they are as given here below; 3.1. 3. The case of the petitioner as submitted by her learned counsel Mr. Paul is based on two grounds and they are as given here below; 3.1. That, as per the settled principle of law, when a person who is already in custody is sought to be detained under NSA the order issued to that effect must first contained two things; Firstly, an acknowledgment that the person is already in judicial custody. And secondly that, he is likely to be released on bail and his detention is necessary to maintain peace and tranquility and, public order. However, in this case, the detention order dated 29.09.2020 passed by the Commissioner of Police & District Magistrate, Dimapur and the orders passed subsequently thereto by the authority which approved and confirmed the same did not mention or include any of the above. Therefore, the orders are illegal and hence are liable to be quashed and set aside. Mr. Paul, submitted that in the documents, based on which the detention order and the subsequent orders were passed, there was no material by which a conclusion could have been drawn or at least a reasonable apprehension could have been formed by the detaining authority that the detenu was likely to be released. As such, the detention order, approval and confirmation orders are illegal. In support of his submission, Mr. Paul referred to paragraph-4, 5, 6, 7, 12 & 13 of the judgment passed by the Manipur High Court in the case of Ningthoujam Yamba Singh versus State of Manipur & Others, reported in 2017 (5) GLT (MN) 59. The above paragraphs referred to in the judgment cited by the learned counsel are reproduced here below; "4. Being aggrieved by the detention order passed by the District Magistrate, the instant writ petition has been filed by the detenu on the inter-alia grounds that the detention order has been passed mechanically without any material and in other words, the detention order has been passed without application of mind and that the sponsoring authority has not placed before the detaining authority sufficient materials on the basis of which he could arrive at his subjective satisfaction that the detenu was likely to be released on bail. The stand of the District Magistrate as reflected in his affidavit, is that the detention order was passed by him on the basis of materials and documents furnished by the Superintendent of Police, Bishnupur. It has also been stated in his affidavit that after applying his judicious mind and after having arrived at his subjective satisfaction based on the said materials, he passed the detention order to the effect that there was a high possibility of releasing the detenu on bail in the near future and in that event, he was likely to continue to indulge in activities prejudicial to the security of the State and maintenance of public order as well. An affidavit-in-opposition has been filed on behalf of the Union of India wherein it has been stated that since no allegation is made against it, there is no need of giving any reply thereto. 5. In exercise of power conferred under the provisions of the National Security Act, 1980, the order of detention has been passed by the detaining authority on the basis of his subjective satisfaction. It is well settled that the Court cannot go into the correctness of the decision of the detaining authority but can look into the decision-making process. In other words, the court can scrutinize the materials relied upon by the detaining authority in coming to his conclusion. While examining the correctness of the decision-making process, two issues are required to be considered by the Court-one whether there are materials on which reliance was placed by the detaining authority in passing the detention order and two, the detaining authority was justified in arriving at a finding based on the said materials that the detenu be detained without any trial. Since a person can be detained on suspicion, the procedural safeguards are to be strictly observed in order to prevent misuse of the law of preventive detention. It is also well settled that a person while in custody can also be detained under the provisions of the National Security Act, 1980. But the principle laid down by the Hon'ble Supreme Court in this regard is no longer res integra. It is also well settled that a person while in custody can also be detained under the provisions of the National Security Act, 1980. But the principle laid down by the Hon'ble Supreme Court in this regard is no longer res integra. In Union of India vs. Paul Manickam And Anr., reported in (2003) 8 SCC 342 , the Hon'ble Supreme Court recorded the requirements to be made by the detaining authority while passing the order of detention when the detenu is in custody, the relevant para of which is reproduced here below; 14. So far as this question relating to procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in Jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. ordinarily, it is not needed when detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied on cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging such prejudicial activities the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu : : Dharmendra Suganchand v. Union of India:). The point was gone into detail in Kamarunnissa v. Union of India. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu : : Dharmendra Suganchand v. Union of India:). The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows. Even in the case of a person in custody, a detention order can be validly passed (1) If the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him; (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show awareness of custody and/or possibility of release on bail. 6. Keeping in mind the aforesaid principle, this court proposes to examine as to whether the procedural safeguards have been observed by the detaining authority while passing the order of detention or not. In the order of detention, it is stated that the District Magistrate, after examining the police report with supporting document, was satisfied that the detenu had carried out prejudicial activities in the proximate past and was likely to continue to indulge in such activities and was further satisfied that the detenu was likely to be released on bail in the near future unless the provisions of Section 3(2) of the National Security Act, 1980 were invoked by him. The satisfaction of the detaining authority is based on the materials furnished by the Superintending Officer vide its letter dated 01.02.2017 and on perusal thereof, it is clearly seen that no material was placed before the detaining authority by the police to show that the detenu was likely to be released on bail nor was a copy of the bail application supplied by the police. Although the detenu himself has stated in his petition that he has moved an application for bail, the details thereof have not been placed on record as to whether the same was filed prior to the passing of the order of detention or not and what was the outcome thereof. But the fact remains that the detaining authority while passing the order of detention was not aware of the fact that the detenu had filed an application for bail. Therefore, the detention order which was not based on materials, is not sustainable in law and is liable to be quashed and set aside. 7. Moreover, in an identical case which arose the State of Manipur, the Hon'ble Supreme Court had the occasion to go into the materials which are similar to that of the present case and are relied upon by the detaining authority, to determine the validity of the order of detention. The Hon'ble Supreme Court, after the perusal of the grounds of detention and the documents relied upon by the detaining authority, came to the conclusion that they were not sufficient to form the subjective satisfaction by the detaining authority. The said decision has been rendered by the Hon'ble Supreme Court in Pabam Ningol Miko Devi Vs. State of Manipur & Others, reported in (2010) 9 SCC 618 and para 27 thereof wherein the materials have been enumerated, is as under;- 27. In light of these decisions, to determine the validity of the detention order, it is necessary to go into the materials relied on by the detaining Authority in passing the detention order. The documents relied upon by the District Magistrate, West Imphal, as mentioned in the Grounds for Detention dated 28/09/2009 are: a) The statement of the detenu given before the I.O. on 18/09/2009. b) Statement of S.I.T. Khogen Singh of CDO/I.W. Recorded under S. 161 Cr.P.C. in connection with F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the Unlawful Activities (Prevention) Act, 1967. c) Statement of Rfm. No. 15007038 L. Rajen Singh of CDO/I.W. recorded under S. 161 Cr.P.C. in connection with F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the Unlawful Activities (Prevention) Act, 1967. d) Statement of C/No. 0601193 S. Khomei Singh recorded under S. 161 Cr.P.C. in connection with F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the Unlawful Activities (Prevention) Act, 1967. d) Statement of C/No. 0601193 S. Khomei Singh recorded under S. 161 Cr.P.C. in connection with F.I.R. No. 183 (9) 09 SJM-P.S. under S. 17/20 of the Unlawful Activities (Prevention) Act, 1967. e) Copy of arrest memo dated 17/09/2009. f) Copy of seizure memo dated 17/09/2009. g) Copy of Manipur Local daily "the Poknapham" dated 08/03/1999. h) Copy of Notification under No. S.O. 1922 (E), dated 13/11/2007. After examining the aforesaid materials, the Hon'ble Supreme Court held;- 28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the discretion of the court and it is the subjective satisfaction of the detaining authority which is implied. However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid. 29. Keeping in view these well settled legal principles, we have perused the grounds of detention and the documents relied on by the detaining authority while passing the order of detention. In our considered view, the grounds on which detention order is passed has no probative value and were extraneous to the scope, purpose and the object of the National Security Act. This Court in the case of Mohd. Yousuf Rather Vs. State of Jammu & Kashmir and Ors. AIR (1979) SC 1925 has observed that under Article 22(5), a detenu has two rights (1) to be informed, as soon as may be, of the grounds on which his detention is based and (2) to be afforded the earliest opportunity of making a representation against his detention. The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first right and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second right. No distinction can be made between introductory facts, background facts and 'grounds' as such; if the actual allegations were vague and irrelevant, detention would be rendered invalid.. In so far as the documents on which reliance is placed, in our opinion, none of these documents provide any reasonable basis for passing the detention order. The primary reliance has been on the accused's own statement made to an Investigating Officer. In so far as the documents on which reliance is placed, in our opinion, none of these documents provide any reasonable basis for passing the detention order. The primary reliance has been on the accused's own statement made to an Investigating Officer. This cannot be said to be sufficient to form the subjective satisfaction of the detaining Authority. Statements under Section 161, Code of Criminal Procedure, 1973, (hereinafter Cr.P.C.) cannot be taken as sufficient grounds in the absence of any supportive or corroborating grounds. Section 161 statements are not considered substantive evidence, but can only be used to contradict the witness in the course of a trial. The same is clear from the wording of Section 162(1) of the Cr.P.C. and has been so held time and again by this Court.12. This is not the first occasion where this Court had dealt with such habeas corpus petitions challenging detention orders passed under the National Security Act, 1980 based on non application of mind as regards the satisfaction of the detaining authority that the detenu is likely to be released on bail in near future. In the past, on similar ground, the detention orders had been set aside and the Court directed release of the detenues. In many petitions, similar issue was raised by the detenu that there was no material before the detaining authority to arrive at the satisfaction that the detenue who was already in custody is likely to be released on bail in the near future. Some of such petitions where the detention orders were set aside on the aforesaid ground are listed here below (the list is not exhaustive);................... 13. It may be noted that most of the decisions for quashing the detention orders were based on the decisions of the Hon'ble Supreme Court rendered in Union of India Vs. Paul Manickam, (2003) 8 SCC 342 , 2004 SCC (Cril.) 239. In the case of Paul Manickam (supra), it has been held that; "14..... Where detention orders are passed in relation to persons who are already in Jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on ball. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. ordinarily, it is not needed when detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied on cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging such prejudicial activities the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu: : Dharmendra Suganchand v. Union of India:). The point was gone into detail in Kamarunnissa v. Union of India. The principles ware set out as follows. Even in the case of a person in custody, a detention order can be validly passed (1) If the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him; (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show awareness of custody and/or possibility of release on bail. The aforesaid decision was followed in Rekha Vs. State of Tamil Nadu & Others, reported in (2011) 4 SCC 260 , in which the Hon'ble Supreme Court held that; 26. In the case at hand the order of detention and grounds of detention show awareness of custody and/or possibility of release on bail. The aforesaid decision was followed in Rekha Vs. State of Tamil Nadu & Others, reported in (2011) 4 SCC 260 , in which the Hon'ble Supreme Court held that; 26. It was held in Union of India Vs. Paul Manickam and another, (2003) 8 SCC 342 , that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. The said principle was followed in the decision in Huidrom Konungjao Vs. State of Manipur & Others, (2012) 7 SCC 181 . In the case of Huidrom Konungjao (supra), it has been held that if such detention order is challenged, detaining authority ought to satisfy the Court the following facts; (i) the detaining authority was fully aware of the fact that detenu was actually in custody; (ii) there was reliable materials before the said authority on the basis of which it could have reasons to believe that there is reliable possibility of released on bail and further on being released, he would probably indulge in activities which are prejudicial to the public order." Mr. Paul, in support of his submission stated above also referred to para-9 of the judgment of the Hon'ble Supreme Court passed in the Huidrom Konungjao Singh versus State of Manipur & Others, reported in (2012) 7 SCC 181 . The contents of the para-9 of the judgment are 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 detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which it 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 the aforesaid settled legal proposition." 3.2. The second ground on which the case of the petitioner is based is that, before passing the detention order the detaining authority must have subjective satisfaction that if the detneu is released on bail there is a likelihood of him being engaged in activities that are detrimental to the maintenance of peace and tranquility and public order and, to come to such conclusion inference must be drawn from objective data. But in this case, there is no material in record by which inference can be drawn that in the proximate past the detenu was involved in committing extortion(s) for NSCN (U) and at the time of his arrest also he was found committing such crime. Therefore, there is no reasonable basis or ground to form a subjective satisfaction that the detainu is likely to commit any prejudicial act which will be detrimental to the peace and tranquility and public order in the state. Therefore, there is no reasonable basis or ground to form a subjective satisfaction that the detainu is likely to commit any prejudicial act which will be detrimental to the peace and tranquility and public order in the state. The learned counsel for the petitioner submitted that at the time of the arrest or even thereafter, there was no complaint or statement from anybody that the detenu had extorted money from him or her. Therefore, the allegation that he was extorting money and he is likely to continue in such activities if he is released are conclusions drawn without any basis or material. The learned counsel also submitted that the money and the vehicle seized from the detenu belongs to him and seizure of such does not support the charge. Lastly, the learned counsel submitted that the documents alleged to be seized from the detenu which is stated to be a letter of authority, authorizing him to collect illegal tax from the people also does not support the charge that he was extorting money from the shopkeepers because, it is only an authority to deal with the waste mobile oil dealers. In support of his submission, Mr. Paul referred to the paragraph-11, 12, 13, 14 & 15 of the judgment passed by the Hon'ble Supreme Court in the case of Rajesh Gulati versus Government of NCT of Delhi & Another, reported in (2002) 7 SCC 129 . The contents of the paragraphs are reproduced here below; "11. We are of the view that the High Court erred in accepting the respondents' submissions and rejecting the appellant's writ application. This Court has repeatedly held that the law permitting preventive detention must be meticulously followed both substantively and procedurally by the detaining authority. [See: Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983 ; Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334 , 1345; Hem Lall Bhandari v. State of Sikkim, AIR 1987 SC 762 , 766; Ayya @ Ayub v. State of U.P., AIR 1989 SC 364 , 367]. The facts of this case show a breach of both. 12. It cannot be over emphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. The facts of this case show a breach of both. 12. It cannot be over emphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3(1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on the detaining authority's emotions, beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. 13. In this case, the detaining authority's satisfaction consisted of two parts-one: that the appellant was likely to be released on bail and two: that after he was so released the appellant would indulge in smuggling activities. The detaining authority noted that the appellant was in custody when the order of detention was passed. But the detaining authority said that "bail is normally granted in such cases". When in fact the five applications filed by the appellant for bail had been rejected by the Courts (indicating that this was not a 'normal' case), on what material did the detaining authority conclude that there was "imminent possibility" that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the 'normal' rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. [See: in this context Ramesh Yadav v. District Magistrate, AIR 1986 SC 315 , 316. 14. Assuming that by some method of prescience the detaining authority foresaw the order of bail which was granted to the appellant on his sixth application, the question still remained, would the appellant again resort to smuggling goods into the country? It was not the detaining authority's case that the appellant was a diehard smuggler. 14. Assuming that by some method of prescience the detaining authority foresaw the order of bail which was granted to the appellant on his sixth application, the question still remained, would the appellant again resort to smuggling goods into the country? It was not the detaining authority's case that the appellant was a diehard smuggler. In fact in the impugned detention order, the detaining authority noted that: "Though Shri Deepak Dhembla the proprietor of M/s. B.D. Denim had denied any association in that case, yet from the statement of Shri Rajesh Gulati i.e. you it is clearly evident that Shri Dhembla was the brain behind the smuggling of mobile phones through your help and he was arranging for your ticket and other expenses for executing the process of smuggling of mobile phones in clandestine manner". 15. In other words according to the detaining authority the prime mover for the smuggling activity was the proprietor of M/s. B.D. Denim. The appellant at the worst was a pawn in the hands of another. The likelihood of the appellant indulging in smuggling activities by the appellant was in any case effectively foreclosed by the retention of his passport by the customs department. The detaining authority noted that the appellant's passport was with the customs department and yet he said " but you are likely to travel clandestinely for the purpose of smuggling". Now none of the instances of smuggling by the appellant as stated in the impugned detention order describe the appellant as having travelled without a passport for the purpose of smuggling. The conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation on the part of the detaining authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issues raised by the appellant." 4. Mr. K. Angami, learned P.P. appearing on behalf of the State of Nagaland at the very outset objected the submission of the learned counsel of the petitioner on the first ground, stating that, the same was beyond the pleadings given in the petition, therefore it cannot be taken into account. Mr. K. Angami, learned P.P. appearing on behalf of the State of Nagaland at the very outset objected the submission of the learned counsel of the petitioner on the first ground, stating that, the same was beyond the pleadings given in the petition, therefore it cannot be taken into account. Thereafter, the learned P.P. proceeded by referring to the affidavit-in-opposition and submitted that at the time of the detenu's arrest a document authorizing him to collect taxes was seized from his possession, therefore there is a strong prima facie that he was indulging in extorting money from the public. Mr. K. Angami further submitted that in a situation like in Nagaland there is nobody who will come out and complaint that extortion has been committed against him or her. Therefore, it would be unreasonable to expect anybody to lodge a complaint or give a statement against the detenu. The ld. PP also submitted that there is no denying the fact that the detenu is a member of an underground organization which is engaged in talk with the Central Government, therefore there is every likelihood that he was involved in extortion activities and he is likely to be involved in such activities if he is released. 5. I have considered the submissions of the learned counsels and I have also perused the record placed before me. As for the first ground raised by the learned counsel of the petitioner is concerned it is true that the pleadings in the petition did not cover the same. However, when the violation of law or any principle of law is so apparent, court cannot look the other way just because there was no specific pleading on the same. Because, to do so would amount to ignoring the settled principles of law, for which administration or upholding Courts are established. There is no doubt that the rule of pleadings requires the parties in a dispute to plead all the facts and grounds on which their respective cases are based. One of the reasons for this is to give the other party a chance of refuting or denying the same in case the same is not admitted. For it would be unfair for the opposite party not to be given a chance of doing so. One of the reasons for this is to give the other party a chance of refuting or denying the same in case the same is not admitted. For it would be unfair for the opposite party not to be given a chance of doing so. However, in this case, the claim of the petitioner that the detaining authorities did not have any reason or basis in the record to come to the conclusion that the detenu is likely to be released on bail, can be discern from the materials available in the record and moreover, the principle of law relied upon by the ld. Counsel of the petitioner is a settled principle which has been followed for a long time by the courts in this country. Therefore the same cannot be ignored just because it has not been pleaded specifically by the petitioner in her petition. Moreover, law or principle of law need not be pleaded in a petition. In that view of the matter I proceed to examine as to whether the submission of the ld. Counsel of the petitioner is supported by the settled principle of law and by the materials on record. But before I go any further the settled principle of law on the subject is briefly stated as follows; As it has been rightly submitted by the ld counsel of the petitioner, when a person who is already in custody is intended to be detained under NSA. The fact that he is under custody must be reflected in the order and also the fact that there is strong apprehension that he is likely to be released on bail and in the event of his release he is most likely to commit acts which are prejudicial and detrimental in the maintenance of peace and tranquility and public order in the state should also be stated. The later part is dependent on the subjective satisfaction of the authority who issued the detention order but the same must have reasonable basis discernable from the record. This is a settled principle of law and it has been continually followed would be seen from the relevant paragraphs of the judgments passed in the following cases which have been reproduced herein above; Union of India Vs. Paul Manickam & Anr.; N. Meera Rani Vs. Government Of Tamilnadu; Pabam Ningol Miko Devi Vs. State of Manipur and Rekha Vs. This is a settled principle of law and it has been continually followed would be seen from the relevant paragraphs of the judgments passed in the following cases which have been reproduced herein above; Union of India Vs. Paul Manickam & Anr.; N. Meera Rani Vs. Government Of Tamilnadu; Pabam Ningol Miko Devi Vs. State of Manipur and Rekha Vs. State of Tamil Nadu. The list of cases given above is not exhaustive though, they are only few among the many judgments passed by the Hon'ble Supreme Court and the High Courts in which the same principle of law has been followed. On perusal of the detention order, approval order and confirmation order though it can be seen that there is an acknowledgement that the detenue was arrested in connection with an FIR case but the fact that he was under custody and there are materials to believe that he is likely to be release on bail was not mentioned at all. Further, though it is mentioned in the 3 orders that the authorities making the decision for detaining the detenue were satisfied that his detention under NSA is required to prevent him from being at large and acting in any manner prejudicial to the security of the State of Nagaland and maintenance of public order, but the basis or materials from which the authorities drew their conclusion was not stated anywhere in the 3 orders. In fact there is no material in the record from which one can conclude that he was likely to be released on bail. In the absence of such reasons supported by materials which will form the basis for requiring the detenue to be detained, the orders of detention are illegal and they cannot be sustained as per the principle of law stated in the cases mentioned above. The power of detention under NSA though is extraordinary one and it can be exercised only when there is a basis for doing so. In other words there should be a basis for forming the decision to detain a person and the power conferred under the Act is not unbridled. In view of what has been stated above even on the first ground alone, the detention order can be quashed and set aside. 6. In other words there should be a basis for forming the decision to detain a person and the power conferred under the Act is not unbridled. In view of what has been stated above even on the first ground alone, the detention order can be quashed and set aside. 6. Now coming to the second ground raised by the petitioner, it cannot be denied that as per the settled principle of law the decision to detain a person under the provision of NSA must be supported by materials on record. The petitioner/detenu as per the record was arrested following a complaint or report submitted by a Police personnel and at the time of his arrest the following articles were seized; (i) Handbook (dairy) containing datas on amount collected from shops within Dimapur Town, (ii) Cash amounting to Rs. 29,660, (iii) One mobile phone, (iv) three numbers of assignment order slips and (v) vehicle (Gypsy-white colour) with ignition key and vehicle documents. But none of the articles except the so called authorization letter which authorized the detenu to deal with people dealing in used mobil oil have been produced. This document also does not bear any seal or identification mark by which it can be ascertained as to who issued the same. Therefore, one cannot conclude straight away that the authorization letter was issued by the authorities of Government of "People's Republic of Nagaland". Secondly, even if one assumes that such letter was issued by the authority concerned of the Government of "People's Republic of Nagaland", there is no complaint or statement from anybody that the detenu had collected tax or committed extortion from any person. Therefore, there is no material on record to support that the detenu was extorting money from the public. If extortion had been committed by the detenu, at least, there would have been a complaint or statement of a witness or two. In the absence of such complaint or statement, to conclude straight away that the detenu was collecting illegal tax or was committing extortion at the time of his arrest would be unreasonable. At the cost of repetition but for the sake of clarity it may again be stated herein that the powers under the NSA are extraordinary ones, therefore, while invoking the same, the authorities so empowered should strictly adhere to all the settled principles of law relating to and the procedures prescribed therein. At the cost of repetition but for the sake of clarity it may again be stated herein that the powers under the NSA are extraordinary ones, therefore, while invoking the same, the authorities so empowered should strictly adhere to all the settled principles of law relating to and the procedures prescribed therein. That is to say, the authorities empowered under the Act must see that there is or there are materials in record by which a conclusion can be drawn that the person proposed or intended to be detained is likely to indulge in such activities which would disturb peace and tranquility or public order in the State, if he is at large. To come to such a conclusion, there must be materials in the record to show that, in the proximity pass, the person proposed to be detained had committed such offence or was involved in such activities. In this case, the facts and circumstances and the materials in the records show nothing which would even indicate that the detenu had committed such offence in the proximate past or on the date of his arrest. Therefore, to conclude that he is likely to commit such offence if he is to set at large cannot be accepted as a reasonable and acceptable conclusion. It is true that under NSA, a person can be detained on the subjective satisfaction of the authority who is empowered to pass such order of detention, but such power can be exercised only if there are basis to form such subjective satisfaction. In the absence of any basis, such subjective satisfaction cannot be sustained. As stated above, the materials in the record based on which the detaining authority formed their subjective satisfaction has no basis. Lastly, in none of the orders i.e. first detention order, the approval order and the confirmation order, the reasons or basis on which the subjective satisfaction was formed was mentioned. It is settled principle of law that any order passed under such stringent law should be justified by reason or reasons and the same should be stated in the order itself or the record should speak for itself. It is settled principle of law that any order passed under such stringent law should be justified by reason or reasons and the same should be stated in the order itself or the record should speak for itself. Considering the facts and circumstances, and the law pronounced by the Hon'ble Supreme Court which are cited by the learned counsel of the petitioner, and keeping in view the discussions and the conclusions drawn herein above, I am of the view that the detention order dated 29.09.2020, the approval order dated 09.10.2020 and the conformation order dated 27.11.2020 are without material support therefore, they are illegal. As such, they 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 other Court. Registry to prepare release order and put up. With this, the petition stands disposed.