Hotovi Sema v. State of Nagaland and others). In the instant case also, the leg ality of
Case Details
WA 141/2013 BEFORE HON’BLE MR. JUSTICE T.VAIPHEI HON’BLE DR. (MRS.) JUSTICE I SHAH To say the least, this case is depressingly familiar to us. On perusing the mate rials on record and after hearing both Mr. A. Das, the learned counsel for the a ppeal and Ms T. Khro, the learning Standing Counsel for the State of Nagaland, w e have no difficulty in saying that this case is squarely covered by the order d ated 04.11.2011 passed by the Division Bench of this Court In WP (Crl.) 25/2011 (Hotovi Sema v. State of Nagaland and others). In the instant case also, the leg ality of the order dated 02.11.2012 issued by the District Magistrate, Dimapur, Nagaland (respondent No. 2) under Section 3 of National Security Act, 1980 ( (cid:28)the Act (cid:29) for short) detaining the appellant namely Shri Wapang Merem Jamir to preve nt him from acting in any manner prejudicial to the defense of India, the securi ty of the State of Nagaland and the maintenance of public order. The detention o rder was approved by the State Government on 9-11-2012 vide Annexure-4 whereas t he detention was confirmed by the State Government on the recommendation of the Advisory Board by the order dated 9-11-2012. Before proceeding further, the dete ntion order of the District Magistrate is reproduced herein below: (cid:28) O R D E R Dated Dimapur the th Nov. 2012 No. JUD-19/2001-DCD/Pt-11/ / Whereas, SS Tatar Wapang Merem Jamir (GPRN/ NS CN) s/o Karimayang, Village :- Kukidolong, Po/Ps:- Medziphema, District:- Dimapu r, State Nagaland, who was arrested on 30.10.12, in connection with Dimapur, Med ziphema Ps Case No. 19/12 U/S 25 (1) (1-A) Arms Act R/W 7/8 NSR.
Legal Reasoning
And whereas the District Magistrate Dimapur, Smt. N Hushili Sema IAS is satisfie d that with a view to prevent the above said accused persons from acting in any manner prejudicial to the defence of India Security of the State of Nagaland and maintenance of public order, it is necessary to detain him under sub section (1 ) and (2) of section 3 of NSA 1980. Now, therefore in excise of power conferred by sub Section (3) of Section 3 of t he said Act. I, Smt. N. Hushili Sema IAS, District Magistrate Dimapur, hereby or der that the above mentioned accused person be detained and kept in Central Jail Dimapur. No. JUD-19/2001-DCD/Pt-11/14794-800 dtd. Dimapur the 2nd Nov., 2012 (cid:29) (N. Hushili Sema, IAS) District Magistrate. Dimapur, Nagaland 2. ter appreciation of the controversy: We may refer to the relevant portion of the grounds of detention for bet GROUND OF DETENTION S.S. TATAR WAPANG MEREN JAMIR (GPRN/NSCN) S/O KARIMAYANG, VILLAGE:- KUKIDOLONG, PO/PS:- MEDIZIPHEMA, DISTRICT:- DIMAPUR, NAGALAND. Whereas the under signed has made detention order against you under the provisio n of the National Security Act, 1980. Now, therefore, in pursuance of Section 5 of the said act, the undersigned hereb y informs you that the said detention order has been made against you on the fol lowing grounds:- a. Defence of India b. c. The particulars which have a bearing on the above three matters are specified in Security of the State of Nagaland, and Maintenance of public order. the schedule attached. Your are also informed that you have a right to make representation to the detai ning authority, Central Government and State Government through the concerned ja il authorities. You also have the right to claim a personal hearing before the A dvisory Board Constituted by the State Government under the aforesaid Act. (N. HUSHILI SEMA, IAS) District Magistrate. Dimapur Nagaland (cid:29) 3. The contention of Mr. A Das, the learned counsel for the appellant is th at the impugned order has been passed mechanically and, therefore, suffers from the vice of non-application of mind and as such the impugned order is liable to be quashed even on this ground alone. However, he also contends that when the ap pellant never file any application for bail in the jurisdictional criminal court , the question of the likelihood of his being release bail does not arise. Accor ding to the learned counsel for the appellant, the manner in which the grounds o f detention are prepared by the respondent No. 2, i.e. by merely reproducing the proposal of the Superintendent of Police, Dimapur, did indicate that the detain ing authority had as if she is the rubber stamp of the Superintendent of Police: this tantamounts to abdication of authority by the detaining authority. In any view of the matter, contends the learned counsel, the infirmities pointed out by him hereinabove cannot be simply cured as this is an infraction of the fundame ntal rights of the appellant guaranteed under Article 22 of the Constitution of India. He, therefore, submits that the detention order is illegal and unconstitu tional and cannot be sustained in law. 4. Ms. T. Khro, the learned standing counsel for the respondent authorities submits that the appellant is a hardcore terrorist belonging to NSCN (K) from w hose possession arms and ammunitions such as one AK 47 Rifle with two Magazines and 89 live rounds, one 9 mm pistol and 1 magazine. 5 live rounds and one 7.65mm pistol with one magazine and 3 live round, his release from custody will pose g rave threat to the security of the State and maintenance of public order. She fu rther contends that he was apprehended with considerable difficulties by the 20 Assam Rifles with the afore-mentioned arms and ammunition, and if he is released from detention, the efforts of the security forces to combat terrorism in the S tate of Nagaland will be seriously compromised. She, therefore, strenuously urge s this Court to dismiss the appeal and allow the appellant serve out his period of detention. 5. In Hotovi Sema case (supra), which is on all fours with instant case, th e following observations of this Court over virtually similar order, are found t o be quite, and this is what it said: (cid:28)From a perusal of the Schedule it seems to us that the detaining author ity did not apply her mind to the documents. This is clear from the grounds of d etention which mention that all the relevant documents relevant to the case are (cid:28)to be enclosed (cid:29). This appears to be a direction from the District Magistrate to the subordinate authority to enclose whatever documents are relevant to the cas e. It is for the detaining authority to apply its mind to all documents and sift out the irrelevant documents, and then formulate the grounds of detention of th e basis of the relevant documents. This exercise does not seem to have been carr ied out by the detaining authority. (cid:29) 6. In the subsequent part of the judgment, this Court further observed: (cid:28)It is difficult to understand how the detaining authority came to the conclusi on that the detenue is in judicial custody as mentioned in paragraph 4 of the Sc hedule. There is no document to support this. In this context, in paragraph 3 of the Schedule, it is stated that the detenue was remanded to police custody. Bot h situations cannot exist simultaneously. From the above, it is clear that the d etaining authority did not apply it mind when the order of preventive detention was made. Perhaps, the proposal put forward before the detaining authority was a cted upon in a routine manner and the petitioner was preventively detained for t he alleged offence of extortion of money. 7. In the instant case, when the detention order and the grounds of detenti on minus the Schedule there are couched in the same language, we find force in t he contention of the learned counsel for the appellant that the impugned detenti on order betrays non-application of mind by the detaining authority. Moreover, a t paragraph 3 of the Schedule, the detaining authority stated that (cid:28) &, the subje ct are presently under judicial custody but there is a likelihood of they being released on bail and in the event of their release they are likely to indulge i n similar prejudicial activities unless an effective alternative measure is call (sic) for. Though the impugned detention order is issued against one person only , the detaining authority in the aforesaid paragraph always referred to more tha n one person, which cannot be a typographical mistake: this demonstrates that th e detaining authority did not even know how many persons were under his consider ation for preventive detention under the Act. In that view of the matter, the in ference is irresistible and the conclusion inevitable that the detaining authori ty did not apply her mind to the materials on record before issuing the impugned detention order. We are constrained to observe that the detaining authority has apparently chosen to act as the post office between the Superintendent of Polic e and Jail, which is impermissible in law. There is also no evidence to suggest that the appellant was furnished with all the documents upon which the impugned detention order was based. In this way, the appellant has been deprived of an op portunity to make effective representation against the detention order, which fa lls foul of his fundamental right guaranteed under Article 22(5) of the Constitu tion. The approach of the learned Single Judge in upholding the impugned detenti on order is, therefore, equally fallacious and is not sustainable in law. 8. That apart, the law is now well-settled that when a detention order is s erved on a person already in jail, there should be a real possibility of release of a person on bail who is already in custody provided he has moved a bail appl ication which is pending. It follows logically that if no bail application is pe nding, then there is no likelihood of the person in custody being released on ba il, and hence the detention order will be illegal. However, there can be an exce ption to this rule, that is, where a co-accused whose case stands on the same fo oting had been granted bail. In such cases, the detaining authority can reasonab ly conclude that there is likelihood of the detenue being released on bail even though no bail application of his is pending, since most courts normally grant b ail on this ground. However, details of such alleged similar cases must be given , otherwise the bald statement of the authority cannot be believed.? (See a thre e-Judge Bench decision of the Apex Court in Rekha v. State of Tamil Nadu and oth ers, (20110 5 SCC 244). In the instant case also, the aforesaid tests laid down by the Apex Court are not satisfied by the detaining authority in coming to the conclusion that the detenue is like to be released on bail unless he is preventi vely detained under the NSA.
Decision
For what has been stated in the foregoing, this appeal shall have to be 9. allowed and, accordingly, succeeds. The impugned judgment is hereby set aside. C onsequently, the impugned detention order dated 02.11.12 and the order dated 09. 11.12 approving the detention of the appellant are hereby quashed. The appellant is set at liberty forthwith unless he is required in some other case or cases.