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2025 DIGILAW 650 (GAU)

Smti. K. Athiphro D/o Kokho v. State of Nagaland

2025-04-11

DEVASHIS BARUAH, L.S.JAMIR

body2025
JUDGMENT AND ORDER : D. Baruah, J. Heard Mr. Imti Longjem, the learned counsel appearing on behalf of the petitioner. Mr. Veto V. Zhimomi, the learned Government Advocate appears on behalf of the respondent Nos. 1, 2 and 3 and Mr. Z.N. Ngullie, the learned CGC appears on behalf of the respondent No. 4. 2. The petitioner who is detained under the provisions of Prevention of Illicit Traffic in Narcotic and Psychotropic Substances Act, 1988 (hereinafter referred to as, “the Act of 1988”) has challenged the Detention Order passed by the respondent No. 2 bearing No. CON/PITNDPS/03/2025/38 dated 04.02.2025 (herein after referred to as, “the Detention Order”) under Section 3(1) of the Act of 1988. 3. The facts involved in the instant case is that the petitioner herein was arrested by an Special Operation Team from her rented residence at Naga Colony, Burma Camp, Dimapur on 07.09.2024 along with another person namely Shri Kashiprii Rakuyio. Thereupon, the petitioner was produced before the Dimapur East Police Station wherein a Suo-Moto FIR dated 07.09.2024 was lodged. It was alleged in the said FIR that during the search operation of the rented house of the petitioner along with Shri Kashiprii Rakuyio at Burma Camp, Dimapur, 7 (seven) soap cases containing suspected heroin weighing 80 (eighty) grams approximately were recovered. It was alleged that subsequent to the arrest Shri Kashiprii Rakuyio revealed that he had concealed 20 (twenty) more soap cases containing suspected heroin in his Alto white colour vehicle bearing No. NL H01 6964. Pursuant to the lodging of the FIR a case was registered being Dimapur East P.S. Case No. 00146/24 under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the Act of 1985”) read with Section 3(6) of the Bharatiya Nyaya Sanhita, 2023 (for short, “the BNS”). 4. The petitioner was remanded to judicial custody on 13.09.2024. The petitioner thereupon continued to remain in judicial custody. The materials on record further reveal that the petitioner filed a bail application before the learned Court of the Special Judge, NDPS, Dimapur which was registered and numbered as I.A. No. 12/2025 seeking bail. Vide an order dated 23.01.2025, the bail application was rejected on the ground that the quantity involved was a commercial quantity and the rigors of Section 37 of the Act of 1985 squarely applied. 5. Vide an order dated 23.01.2025, the bail application was rejected on the ground that the quantity involved was a commercial quantity and the rigors of Section 37 of the Act of 1985 squarely applied. 5. While the petitioner was in judicial custody the Additional Director General of Police (L&O) and Chairman Screening Board, PITNDPS Act, Nagaland submitted a proposal on 22.01.2025 to the respondent No. 2 that the petitioner be detained under Section 3(1) of the Act of 1988 so as to prevent her from indulging repeatedly in illegal trafficking of Narcotic Drugs and Psychotropic Substances. The grounds of detention mentioned in the said proposal are reproduced herein under: “1. The accused admitted to illegal trafficking of Narcotic Drugs & Psychotropic Substances marketing the same substances in and around Dimapur town confirming to acts under section 2(e) of PITNDPS, Act 1988. 2. The State of Nagaland lies within the area of high vulnerable to illicit traffic in narcotic drugs and psychotropic substances as mentioned under section 10(v)(c) of the PITNDPS Acts 1988 and it is pertinent to mention here that the accused admitted the seized contraband recovered from house and vehicle was brought from Senapati to Dimapur by her to be sold to one person from Assam with contact No. 6009335779, which indicates that the accused has an inter-state linkage spreading across states of Manipur-Nagaland-Assam. 3. That, if at large, the accused will be a threat to the peace and security of the State of Nagaland and there is likelihood of the accused committing act endangering the lives of many innocence, peaceful existence of citizens and may warrant law and order problems in the state. 4. There has been a huge public outcry concerning illicit drug in the state which is causing problems of abuse & addiction of all age groups especially that of teenage school children. 5. It is suspected that the arrested are involved directly in intra & inter-state network of smuggling and trafficking of illicit drugs, narcotic and psychotropic substances whereby luring youngsters to addiction resulting in them becoming carriers for easy earnings to cover the cost of their consumption/addiction. 6. It is further seen that on the basis of the said proposal dated 22.01.2025, the Detention Order bearing No. CON/PITNDPS/03/2025/38 dated 04.02.2025 was passed by the Special Secretary to the Government of Nagaland, the respondent No. 2 herein against the petitioner. 6. It is further seen that on the basis of the said proposal dated 22.01.2025, the Detention Order bearing No. CON/PITNDPS/03/2025/38 dated 04.02.2025 was passed by the Special Secretary to the Government of Nagaland, the respondent No. 2 herein against the petitioner. The said Detention Order was served upon the petitioner on 08.02.2025 along with the Grounds of Detention in Annexure-A; the Information to the Detainee in Annexure-B along with the police report and other supporting documents to the case. The records so produced by Mr. Veto V. Zhimomi, the learned Government Advocate further shows that the petitioner was informed about the contents of the Detention Order and its enclosures which were explained to him in Nagamese in presence of the witnesses. The Grounds of Detention are reproduced herein under: “1. That you Mrs. K. Athiphro had admitted to illegal trafficking of Narcotic drugs and Psychotropic substances marketing the same in and around Dimapur town, confirming to acts under Sec 2(e) of PITNDPS Act, 1988. 2. That the State of Nagaland lies within an area highly vulnerable to illicit traffic in narcotic drugs and psychotropic substances as mentioned under section 10(v)(c) of the PITNDPS Act 1988 and it is pertinent to mention here that you have admitted to bringing the seized consignment from Senapati to Dimapur for selling it to a customer from Assam which indicates that you have an inter-state linkage spreading across the states of Manipur- Nagaland-Assam. 3. That if you Mrs. Athiphro are kept at large, you will be a threat to the peace and Security of the State of Nagaland and there is likelihood of you committing acts endangering the lives of many innocent people, peaceful existence of citizens and may warrant law and order problems in the State. 4. That there has been a huge public outcry concerning illicit drugs in the State which is causing problems of abuse and addiction of all age groups especially that of teenage children. 5. That you are suspected to be directly involved in inter-intra state network of smuggling and trafficking of illicit drugs, narcotic and psychotropic substances whereby luring youngsters to addiction resulting in them becoming carriers for easy earnings to cover the cost of their consumption/addiction. 6. That, you are presently under judicial custody. 5. That you are suspected to be directly involved in inter-intra state network of smuggling and trafficking of illicit drugs, narcotic and psychotropic substances whereby luring youngsters to addiction resulting in them becoming carriers for easy earnings to cover the cost of their consumption/addiction. 6. That, you are presently under judicial custody. On the basis of material placed before me, I am satisfied that you are likely to indulge in similar prejudicial activity unless you are prevented from doing so by an appropriate order of preventive detention.” 7. It is further seen from the materials on record that the petitioner had submitted respective representations to 1) The Central Government 2) The Chief Secretary, Government of Nagaland, 3) The Chairman PITNDPS, Advisory Board and 4) The Special Secretary (Home), Government of Nagaland all dated 20.02.2025. The representation made by the petitioner was rejected by the Detaining Authority vide the order dated 21.02.2025. The Chief Secretary to the Government of Nagaland rejected the representation vide an order dated 25.02.2025. Nothing appears from the record so produced, as to whether, the Advisory Board as well as the Central Government had disposed of the representation. 8. Being aggrieved, the petitioner has filed the instant writ petition on 04.03.2025. This Court vide an order dated 06.03.2025 had issued notice and the respondents who were duly represented, were also furnished the copies of the writ petition. The writ petition was listed on 18.03.2025. Time was again granted to file reply. The respondent Nos. 1, 2 and 3 through the respondent No. 2 who is the Detaining Authority have filed an affidavit-in-opposition on 02.04.2025. The respondent No. 4 however has not filed the affidavit-in-opposition, in spite having had the opportunity to do so. On 09.04.2025 when the matter was listed before this Court, Mr. Veto V. Zhimomi, the learned Government Advocate, produced the records. Taking into account, that a case of preventive detention is required to be dealt with utmost urgency, the instant writ petition was heard on the basis of the materials available before us. 9. In the backdrop of the above facts, let this Court take note of the submissions so made by the learned counsels for the parties. 10. Mr. Imti Longjem, the learned counsel appearing on behalf of the petitioner submitted that the petitioner has been in judicial custody since 13.09.2024 till date after being arrested on 07.09.2024. 9. In the backdrop of the above facts, let this Court take note of the submissions so made by the learned counsels for the parties. 10. Mr. Imti Longjem, the learned counsel appearing on behalf of the petitioner submitted that the petitioner has been in judicial custody since 13.09.2024 till date after being arrested on 07.09.2024. He submitted that a perusal of the proposal so submitted by the Additional Director General of Police (L&O) & Chairman Screening Board PITNDPS Act, Nagaland as well as the Grounds of Detention enclosed to the Detention Order in respect to the petitioner do not in any manner show that the Detaining Authority had duly taken into consideration that the petitioner was already in judicial custody since 13.09.2024 and there were cogent materials to support that the petitioner was likely to be released on bail. The learned counsel for the petitioner therefore submitted that this is a case of complete non-application of mind for which the Detention Order which is assailed in the present writ petition is required to be interfered with. In that regard, the learned counsel referred to the judgment of the Supreme Court in the case of Huidrom Konungjao Singh Vs. State of Manipur and Others reported in (2012) 7 SCC 181 as well as the judgment and order dated 12.12.2024 passed by the Coordinate Bench of this Court in the case of Shri Gurmej Singh Batth Vs. State of Nagaland and 3 Others [W.P.(Crl.) No. 20/2024] 11. Per contra, Mr. Veto V. Zhimomi, the learned Government Advocate appearing on behalf of the State of Nagaland submitted that the Detention Order was made in view of the fact that during the course of investigation, it revealed that the preventive detention of the petitioner was required in the greater interest of the State so that the petitioner could be stopped to indulge in similar prejudicial activity of trafficking of Narcotic Drugs. The learned Government Advocate further submitted that the Detaining Authority was in the knowledge that the petitioner was in judicial custody and that if out on bail/kept at large, the petitioner will indulge in similar prejudicial activities, therefore the need for preventive detention under the Act of 1988. 12. Mr. Z. N. Ngullie, the learned CGC submitted that the Union of India would require a further opportunity to file their reply. 13. 12. Mr. Z. N. Ngullie, the learned CGC submitted that the Union of India would require a further opportunity to file their reply. 13. On the basis of the materials on record and the submissions so made by the parties, the point for determination which arises for consideration before us is as herein under: Whether in the facts of the instant case, the Detention Order can be interfered with on the ground of not reflecting the existence of cogent materials that the petitioner was likely to be released on bail? 14. The contours of judicial review upon the legality of an order of preventive detention that can be examined by a Constitutional Court was observed by the Supreme Court in the case of Ameena Begum Vs. State of Telengana and Others reported in (2023) 9 SCC 587 . Paragraph Nos. 28 and 29 of the said judgment being relevant are quoted herein under: “28. In the circumstances, of a given case, a constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine whether: 28.1 The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied; 28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute; 28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires; 28.4. The detaining authority has acted independently or under the dictation of another body; 28.5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case; 28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate; 28.7. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate; 28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale; 28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject matter of the inquiry in respect whereof the satisfaction is to be reached; 28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and 28.10. The timelines, as provided under the law, have been strictly adhered to. 29. Should the Court find the exercise of power to be bad and/or to be vitiated applying any of the tests noted above, rendering the detention order vulnerable, detention which undoubtedly visits the person detained with drastic consequences would call for being interdicted for righting the wrong.” 15. From the above quoted paragraphs, it would be seen that an order of preventive detention is based upon the requisite subjective satisfaction of the Detaining Authority and in the absence of such satisfaction as to the existence of a matter of fact or law upon which validity of exercise of power is predicated would be the sine qua non for exercise of the power not being satisfied. It was further observed that in reaching such requisite subjective satisfaction, the detaining authority has to apply its mind to all relevant circumstances and the same cannot be based on materials extraneous to the scope and purpose of the statute. It was also observed that the ground on which the order of preventive detention rests should not be vague but should be precise, pertinent and relevant which with sufficient clarity inform the detenu the satisfaction for the detention giving him the opportunity to make a suitable representation. It was also observed that the ground on which the order of preventive detention rests should not be vague but should be precise, pertinent and relevant which with sufficient clarity inform the detenu the satisfaction for the detention giving him the opportunity to make a suitable representation. It was categorically observed that if a Constitutional Court finds that the exercise of the power to be bad and/or to be vitiated applying any of the tests so laid down in sub paragraphs of Paragraph No. 28 of the said judgment, it renders the detention order vulnerable and such detention order is required to be interfered with. 16. In the backdrop of the above, let this Court now take up the point for determination which has been formulated herein above. 17. The point for determination which arises in the instant proceedings is as to whether the petitioner who continues to remain in judicial custody can be detained under the detention laws without cogent materials showing that the petitioner was likely to be released on bail. In the case of Dharmendra SuganChand Chelawat Vs Union of India reported in (1990) 1 SCC 746 , it was observed that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that: (i) The detaining authority was aware of the fact that the detenue was already in detention; and (ii) There were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The Supreme Court further clarified the expression “compelling reasons” in the context of making an order for detention on a person already in custody to mean that there must be cogent materials before the Detaining Authority on the basis of which it may satisfy that: a) The detenue is likely to be released from custody in near future; and b) Taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. 18. 18. We further find it relevant to take note of another judgment of the Supreme Court in the case of Amrit Lal Vs Union of India reported in (2001) 1 SCC 341 , wherein an issue arose as regards the legality of the subjective satisfaction of the Detaining Authority for passing an order of detention under the Act of 1980 in view of the fact that the person who was already in jail was going to move a bail application. The Supreme Court observed in the case of Amrit Lal (Supra) that although in the grounds of detention it has been mentioned that there was a likelihood of the detenu moving an application for bail, for which the detention was necessary but there must be cogent materials before the authority passing the Detaining Order that there was likelihood of the detenu being released on bail. 19. It is also pertinent to take note of the judgment of the Supreme Court in the case of Geetha Vs State of Tamil Nadu reported in (2006) 7 SCC 603 wherein the Supreme Court observed that the Detaining Authority should be aware that the detenue is already in custody and is likely to be released on bail. The conclusion that the detenue may be released on bail cannot be ipsi dixit of the Detaining Authority. 20. Further to the above, we find it apt to note the judgment in the case of Huidrom Konungjao Singh (supra) wherein the Supreme Court culled out the three propositions as to when a person, who is in jail can be detained under the detention laws. Paragraph 9 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. (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.” 21. In the said judgment, i.e. in the case of Huidrom Konungjao Singh (Supra) , the Supreme Court also observed that merely because somebody else in similar cases had been granted bail, there could be no presumption that in that case also if the detenu applied for bail could have been released on bail.Paragraph 15 of the said judgment being relevant is reproduced herein below: “ 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. 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. ” 22. In the backdrop of the above propositions of law as settled, we would like to revert to the facts already delineated supra. The proposal so submitted to the Detaining Authority by the Additional Director General of Police (L & O) & Chairman Screening Board, PITNDPS Act, in the case of the petitioner do not in any manner state that there were reliable materials on the basis of which one could have reasons to believe that there was a real possibility of the petitioner to be released on bail and further on being released the petitioner would probably indulge in activities which are prejudicial to public order. The Detention Order dated 04.02.2025 passed by the Detaining Authority and the Grounds of detention so enclosed as Annexure-A to the said Detention Order do not in any manner mention that there were materials available with the authorities on the basis of which it had reasons to believe that there was a real possibility of the petitioner being released on bail. In the Grounds of Detention, though the Detaining Authority acknowledges that the petitioner was under judicial custody but there is no mention of cogent materials on the basis of which the Detaining Authority had reasons to believe that the petitioner had a likelihood of being released on bail. In fact the Detaining Authority completely failed to take into account that the petitioner had applied for bail which was rejected on 23.01.2025 by the learned Special Judge, NDPS, Dimapur on the ground of Section 37 of the Act of 1985. The said rejection of the bail application was just prior to issuance of the Detention Order. 23. We further find it relevant to take note of the representations so submitted by the petitioner to the various authorities wherein in clear and categorical terms, it was mentioned that the petitioner was in judicial custody and both the Detaining Authority as well as the Chief Secretary did not consider the said aspect while rejecting the said representations. From the records so produced as well as the manner in which the representations have been rejected by the aforesaid authorities clearly shows that there was no application of mind. 24. We have perused the records so produced before us and there is also no material on record to show that the Detaining Authority had any cogent materials that at the time of making the Detention Order there was a likelihood of the petitioner being released on bail. 25. We further find it very relevant to take note of that from a perusal of the FIR dated 07.09.2024, it is seen that the allegations contained therein involved the provisions of Section 21(c) of the Act of 1985 and as such the offence related to commercial quantity. We further find it relevant to take note of Section 37(1)(b) of the Act of 1985 which imposes stringent conditions for a person to be released on bail in respect to offences involving commercial quantity. 26. We further find it relevant to take note of Section 37(1)(b) of the Act of 1985 which imposes stringent conditions for a person to be released on bail in respect to offences involving commercial quantity. 26. We further take note of Section 36A(4) of the Act of 1985 which stipulates that in respect to persons accused of offence punishable for offences involving commercial quantity, the reference in Sub-Section(2) Section 167 of the Code of Criminal Procedure, 1973 shall be construed as 180 days. Further to that, the proviso to Sub-Section (4) of Section 36A of the Act of 1985 stipulates that if it is not possible to complete the investigation within the said period of 180 days, the Special Court may extend the said period up to 1 (one) year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the said period of 180 days. 27. All these aspects were not at all considered by the Detaining Authority as well as the other authorities to whom the representations have been submitted. 28. Accordingly, we dispose of the present writ petition with the following observations and directions: (i) The Detention Order against the petitioner Smt. K. Athiphro is set aside and quashed. (ii) All consequential order(s) on the basis of the Detention Order are set aside and quashed. 29. The records which were produced by Mr. Veto V. Zhimomi, the learned Government Advocate are returned herewith.