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2022 DIGILAW 235 (GAU)

Shenungcha v. State of Nagaland

2022-03-07

DEVASHIS BARUAH

body2022
JUDGMENT : Devashis Baruah, J. 1. Heard Mr. P. Surien, learned counsel for the Petitioner and Mr. V. Zhimomi, learned Government Advocate appearing on behalf of the State. 2. This is petition under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to quash and set aside the Detention Order passed by the Commissioner of Police and District Magistrate, Dimapur, vide No. CP/DMR/CB-19/2021-22/2204, dated 04.10.2021; the Approval Order vide No. CON/NSA/20/2021/118, dated 08.10.2021 and the Confirmation Order vide No. CON/NSA/20/2021/192, dated 24.11.2021 and for a direction, that the Respondents immediately release the Detenue. The case of the Petitioner in brief is that, on 29.09.2021, at around 00:30 hrs, a search operation was launched by the 7th Assam Rifles, alongwith Police representatives at the house of the Detenue (the husband of the Petitioner) which allegedly led to the recovery of one .32 pistol, one magazine and two rounds of .32 pistol. On the basis thereof, the Detenue was apprehended on allegation of illegally possessing the seized items. On the same date, i.e. on 20.09.2021, Nb/Sub Dalbir Singh lodged an FIR with the Chumukedima Police Station and handed over the Detenue to the Chumukedima Police. On the basis of the said FIR, a case was registered against the Detenue vide Chumukedima P.S. Case No. 0063/2021 under Section 25(1B)(a) of the Arms Act, read with 7/8 of the Nagaland Security Regulation (NSR). In respect to the said arrest of the Detenue and on the basis of a prayer made by the Investigating Officer, the Detenue was put to 72 hours Police remand vide order of the Magistrate. Subsequently, after the expiry of the 72 hours, when the Detenue was produced he was forwarded to judicial custody for 15 days. It is the specific case of the petitioner that the Detenue is still in judicial custody. 3. While in judicial custody in the Central Jail, Dimapur, the facts as would further reveal from a perusal of the record, is that, Respondent No. 3, i.e. the Commissioner of Police and District Magistrate, Dimapur, had passed the Detention Order vide No. CP/DMR/CB-19/2021/22/2204 dated 04.10.2021. The said Order for the sake of convenience is hereinafter referred to as the Detention Order. The said Order for the sake of convenience is hereinafter referred to as the Detention Order. At this stage, it may be relevant to mention that a perusal of the Detention Order dated 04.10.2021 do not in any manner reflect that the Detaining Authority had taken into consideration that the Detenue was in judicial custody and he is likely to be released on bail and if he is released on bail, he would indulge in activities which are prejudicial to public interest. Even the Grounds of Detention also does not take into consideration the said aspect of the matter. In the Schedule to the said Grounds of Detention, though it has been reflected that the Detenue is presently under judicial custody at Central Jail, Dimapur, but there is no mention whatsoever, that there are reliable materials before the said authority on the basis of which it could have reasons to believe that there was a real possibility of the Detenue to be released on bail and further on being released he would probably indulge in activities which are prejudicial to public order. 4. The record further reveals that on 08.10.2021, the Chief Secretary to the Government of Nagaland had vide an Order No. CON/NSA/20/2021/118 dated 08.10.2021 approved the Detention Order with a direction that the Detenue be kept in judicial custody for an initial period of three months w.e.f. the date of detention till 03.01.2022, and within which period the Detention would be reviewed as required under the provisions of the National Security Act, 1980. The said Order is hereinafter referred to as the Approval Order. A perusal of the said Approval Order do not in any manner reflect that the Approving Authority had taken into consideration that the Detenue was in judicial custody and there was reliable material before the authority on the basis of which it could have reasons to believe that there was a real possibility of the Detenue being released on bail and further, on being released, he would probably indulge in activities which are prejudicial to public order. It seems from a perusal of the Approval Order that the same has been passed in a routine manner. 5. It seems from a perusal of the Approval Order that the same has been passed in a routine manner. 5. The record further reveals that the Detenue had submitted his representation on 22.10.2021 which after the Detention Order being approved by the Chief Secretary to the Government of Nagaland, the said representation of the Detenue was rejected vide Order bearing No. CON/NSA/20/2021/178 dated 10.11.2021, by the Chief Secretary to the Government of Nagaland. 6. Further to that, vide another Order bearing No. CON/NSA/20/2021/192 dated 24.11.2021, the Chief Secretary to the Government of Nagaland confirmed the Order of Detention and further ordered that the Detenue shall be detained for another period of three months w.e.f. 04.01.2022 till 03.04.2022, and within which period his detention will be reviewed as required under the provisions of the National Security Act, 1980. The said Order dated 24.11.2021 is hereinafter referred to as the Confirmation Order. 7. The wife of the Detenue, as Petitioner, has filed the instant Petition under Article 226 challenging the said Detention Order, Approval Order and the Confirmation Order, as well as also praying that the Detenue be released forthwith. 8. The Respondent Nos. 1 and 2 had filed an Affidavit-in-Opposition, through the Special Secretary to the Department of Home, Kohima, Nagaland, wherein at paragraph No. 8, it has been stated that the Detaining Authority was of the fact that the Detenue is already under detention when the Detention Order was passed. It was also mentioned that an Order of Detention can be validly passed against a person in custody. The said paragraph 8 which will be relevant for the purpose of adjudication of the instant Petition is quoted herein-below: “8. That the averments made in paragraph 9 of the writ petition is denied. The deponent states that the detaining authority in Para-4 of the schedule attached to the grounds of detention has clearly mentioned that the detenue, Retsuthong Yimchunger is presently under judicial custody at Central Jail, and not as claimed by the petitioner. The detaining authority was very much of the fact that the detenue is already under detention when the detention order was passed. In this regard, it noteworthy to point as also observed by the Apex Court in Dharmendra Suganchand Chelawat vs. The Union of India, an order of detention can be validly passed against the person in custody.” 9. The detaining authority was very much of the fact that the detenue is already under detention when the detention order was passed. In this regard, it noteworthy to point as also observed by the Apex Court in Dharmendra Suganchand Chelawat vs. The Union of India, an order of detention can be validly passed against the person in custody.” 9. The Respondent No. 3, who is the Detaining Authority, had filed an Affidavit-in-Opposition which is a verbatim reproduction of the Affidavit-in-Opposition filed by the Respondent Nos. 1 and 2. 10. I have heard the learned counsels for the parties and given my anxious consideration to the matter. Although there had been various grounds alleged in the petition, this Court is of the opinion that the instant petition can be disposed of on a short point, taking into consideration as to whether the Detention Order, the Approval Order, as well as the Confirmation Order, take into consideration that the Detenue is in judicial custody and inspite thereof, there is a requirement to pass such orders. For dealing with the said issue, it will be relevant to take note of two judgments. First is the judgment rendered in the case of Huidrom Konungjao Singh vs. State of Manipur and Others, (2012) 7 SCC 181 as well as the judgment of this Court in the case of Pangsha Yingle vs. State of Nagaland, (2021) 4 GLT 103. The Supreme Court had in the case of Huidrom Singh (Supra) had dealt with the question as to whether a person who is in jail can be detained under the detention laws. The Supreme Court referred to various earlier judgments and observed in paragraph no. 9 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 a criminal case. The Supreme Court referred to various earlier judgments and observed in paragraph no. 9 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 a criminal case. However, it was observed that if the detention order is challenged, the detaining authority has to satisfy the Court that the authority was fully aware of the fact that the detenue was already in custody; that there were reliable material before the said authority on the basis of which it could have reasons to believe that there was a real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order for which the authority felt it necessary to prevent him from indulging in such activities and therefore the detention order was made. It was further observed that in case either of the facts does not exist the detention order would stand vitiated. Paragraph no. 9 and paragraph no. 15 of the said judgment being relevant is quoted herein-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. 15. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of the Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eye of the law.” 11. This Court had also in the case of Pangsha Yingle (Supra) was called upon to decide a similar question and this Court having seen that there was failure on the part of the Detaining Authority to satisfy the Court in terms with the principles laid down in the case of Huidrom Singh (Supra) had declared that the detention order was illegal and quashed the same. Paragraph no. 8 of the said judgment being relevant is quoted herein-below: “8. From the contents of the judgment of the Hon'ble Supreme Court given above, it can be concluded that the principle of law regarding detention of a person who is already under judicial custody has been settled that is; when an authority seeks to detain a person who is already in custody- that fact must be first acknowledged in the detention order, and secondly that, his detention under the NSA is required as he is likely to be released on bail along with such reasons or basis or material from which the authority draws its conclusion must also be stated in the order itself. Failure to do so would make the detention order vitiated and therefore illegal. By going through the record placed by the learned Sr. Government Advocate and the order passed by the District Magistrate Kohima dated 24.9.2020 and the order of the Chief Secretary to the Government of Nagaland dated 1.9.2020 approving the said order and the order dated 15.10.2020 of the same Chief Secretary confirming the detention order of the detenue for the period upto 23.8.2021 are against the settled principle of law, hence they are illegal and as such, are quashed and set aside. Accordingly it is hereby ordered that the detenue be released forthwith if he is not required to be in custody in connection with any case or any order passed by any Court.” 12. In the backdrop of the above, this Court would like to take into consideration the Detention Order, the Approval Order, the Confirmation Order, as well as the affidavit filed by the Respondents, as admittedly the Detenue is in judicial custody. A perusal of the Detention Order dated 04.10.2021 though acknowledges that the criminal case being Chumukedima P.S. Case No. 0063/2021 under Section 25(1B)(a) of the Arms Act, read with 7/8 of the Nagaland Security Regulation (NSR) has been registered but does not take into consideration that the Detenue is in judicial custody. Even in the grounds of Detention there is no mention whatsoever that the authority had taken into consideration that the Detenue was in judicial custody. In the Grounds of Detention it is also not reflected that there were reliable material before the said Authority on the basis of which it could have reasons to believe that there was a real possibility of the Detenue being released on bail and further on release he would probably indulge in activities which are prejudicial to public order. In the Schedule to the Detention Order there is only mention that the Detenue is presently under judicial custody and nothing beyond that has been mentioned in the said Schedule. In the Approval Order dated 08.10.2021, there is no mention whatsoever that the Authority concerned had taken into consideration that the Detenue was in judicial custody and there was a real possibility that the Detenue would be released on bail. Same as in the case of the Order dated 10.11.2021 whereby the State Government had rejected the representation. The Confirmation Order dated 24.11.2021 is also absolutely silent on that aspect. In the backdrop of the above if this Court further looks into the Affidavit-in-Opposition filed by the Respondents more particularly paragraph 8 as quoted hereinabove that the Detaining Authority was very much of the fact that the Detenue is already under detention when the Detention Order was passed, and the judgment of the Supreme Court in the case of Dharmendra Suganchand Chelawat vs. The Union of India was referred to, to contend that an order of detention can validly be passed against a person in custody. 13. 13. There is no quarrel with the proposition that an order of detention can be validly passed against a person in custody as would be seen from the judgments quoted hereinabove but however, the Detention Order should take into consideration that there is a reasonable likelihood that the Detenue would be released on bail. The said material as to whether the Detenue is likely to be released on bail is to be taken into consideration in forming the subjective satisfaction while passing the Detention Order. As the Detention Order, the Approval Order, as well as the Confirmation Order did not take into consideration that there were reliable materials before the Authority on the basis of which it could have reasons to believe that there was a real possibility of the Detenue's release on bail and further on being released he would probably indulge in activities which are prejudicial to public order, all the three Orders, i.e. the Detention Order, the Approval Order, as well as the Confirmation Order are in violation to Article 22(5) of the Constitution as the same appears to be passed on mere ipse dixit statements on the Grounds of Detention and therefore cannot be sustained in law. 14. Accordingly in view of the above, this Court is of the opinion that the rights of the Detenue under Article 22(5) of the Constitution have been violated and consequently, the Detention Order, the Approval Order, as well as the Confirmation Order of detention of the Detenue are set aside and quashed. 15. The Writ Petition accordingly stands disposed.