SHRI KRISHNA BAHADUR CHETRI v. STATE OF NAGALAND AND 3 ORS

Heard the learned counsel for the petitioner Mr. Toshitemjen Pongener as well as Mr. V. Zhimomi, learned Government Advocate for the respondent Nos. 1 to 3 and Mr. Z.N. Ngullie, learned C.G.C for the respondent No.4.

2. This is a 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 No.CON/PITNDPS/ 01/2025/16 dated

15.01.2025 passed by the Special Secretary to the Government of Nagaland under section 3(1) of the Prevention of Illicit Traffic in Narcotics, Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act for short), detaining the mother of the petitioner under the said Act.

3. The petitioner has also assailed the confirmation order No. CON/PITNDPS/01/2025 dated 16.04.2025, confirming the detention Page No.# 3/12 order dated 15.01.2025 pursuant to the report of the Advisory Board by which the detention order has been extended from 18.04.2025 till

17.07.2025.

4. The petitioner has also assailed any consequential orders passed subsequently. Therefore, it is not disputed at the Bar that the order No. CON/PITNDPS/01/2025/173 dated 14.07.2025, extending the detention period from 18.07.2025 till 17.10.2025 is also under challenge.

5. The petitioner is the son of the detenue who is presently detained under the PITNDPS Act and lodged at District Jail, Dimapur and has been duly authorized by the detenue to file the present petition.

6. The petitioner’s case is that an FIR was lodged on

07.12.2024 at Govt. Railway Police Station and was registered as GPRS Case No.014/2024 under section 18(b) NDPS Act. And in connection with this case, the detenue was arrested on 07.12.2024. It is further stated while the detenue was in judicial custody, a proposal for detention was communicated by the Addl. DGP(Adm) to the Special Secretary, Home Department, Government of Nagaland by letter dated

19.12.2024 for detaining the detenue under the PITNDPS Act, 1988.

7. Consequently, by the impugned order dated 15.01.2025 in exercise of power under section 3(1) of the PITNDPS Act, the detenue has been detained for a period of 3 months. It is stated in the order dated 15.01.2025 that the detenue has been detained with a view to prevent her from engaging in illicit traffic under NDPS. The detenue was also informed that she has to make her representation as early as Page No.# 4/12 possible. Accordingly, the detenue submitted her representation vide letter dated 14.02.2025. Upon perusal of the representation, the respondent No.2 vide letter dated 17.02.2025 rejected the representation of the detenue on the ground that there are no justified ground to revoke the order of detention.

8. The respondent No.4, the Central Government has also rejected the representation of the detenue by memorandum dated

17.04.2025 on the ground that no merit was found in the contentions made in the representation.

9. Subsequently basing on the opinion of the Advisory Board that there is sufficient cause for detention of the detenue under the PITNDPS Act, the State Government vide confirmation order dated

16.04.2025 confirmed the detention of the detenue and further ordered that the detenue be detained for another period of 3 months w.e.f.18.04.2025 till 17.07.2015. Thereafter vide order dated

14.07.2025, the detention was further extended by another 3 months w.e.f 18.07.2025 till 17.10.2025.

10. The learned counsel for the petitioner has assailed the detention order and the confirmation orders on the following grounds:- (i) that the ground of detention have not been communicated and explained to the detenue in the language she understands. The detenue has studied only upto 4th standard and she cannot read or write or understand English language. She understands only Nepali and Manipuri language and therefore, on this ground alone the impugned detention order is liable to be set aside. Page No.# 5/12 (ii) that the impugned confirmation order dated

16.04.2025 bears no reference about the report of the Advisory Board which cast serious doubt as to whether the matter was actually placed before the Advisory Board for consideration. (iii) that the respondent No.2 did not reflect in the impugned detention order dated 15.01.2025 that the detenue is under judicial custody and is likely to be released on bail or acquitted or discharged from the case. Moreover, there is not even a whisper in the detention order that there is subjective satisfaction of the detaining authority or compelling reasons for passing such detention orders against the detenue. (iv) another ground is that the ground of detention at para 3,4, and 5 alleges that the detenue if kept at large or on bail is likely to breach peace and tranquility of the State and likely to indulge in prejudicial activities if not prevented from doing so by an appropriate order of preventive detention is baseless and unsubstantiated. But the detaining authority does not have any materials to show that there is possibility of the detenue being released on bail as no bail petition was even filed. (v) That the Central Government had disposed of the representation of the detenue only after a delay of 2 (two) months thus violating the provisions of the Act. The learned counsel for the petitioner has relied on the case of Huidrom Konungjao Singh vs State of Manipur & Others reported in (2012) 7 SCC 181 in support of his contentions. Page No.# 6/12

11. In view of the submissions made hereinabove, the learned counsel for the petitioner prays that the impugned detention order dated 15.01.2025, confirmation order dated 16.04.2025 and the extension order dated 14.07.2025 may be quashed and set aside.

12. The learned Government Advocate Mr. V. Zhimomi appearing on behalf of the State respondents has submitted that the sponsoring authority had proposed the detention of the detenue under the PITNDPS Act taking into account the various aspects of the case which had necessitated her preventive detention in the greater interest of the State. All the documents relating to the case of the detenue were placed before the detaining authority and only after careful examination of all the established facts and circumstances of the case, the detaining authority was satisfied that the detenue was a trafficker in narcotics and drugs and likely to indulge in similar activities unless prevented from doing so by appropriate orders of preventive detention. As such, the detention order was passed after following all the procedures and with full application of mind.

13. The learned Government Advocate also submits that in compliance of section 3(2) of the PITNDPS Act, the detention order dated 15.01.2025 was served to the detenue on 18.01.2025 and hence, the actual date of detention of the detenue is 18.01.2025 and therefore, the confirmation order was issued and served to the detenue on 16.04.2025 itself one day before the expiry of the detention period. The representation of the detenue was also communicated to the Central Government without any delay. The learned Government Advocate also submits that the detention order Page No.# 7/12 dated 15.01.2025 along with the grounds of detention and all relevant documents were served to the detenue and receipt acknowledged by her on 18.01.2025 indicating that the documents have been explained to her in Nagamese, the language she understands.

14. Further, the detenue was heard in person on 22.02.2025 by the Advisory Board and the entire proceeding was carried out in Nagamese. Therefore, the claim that the detenue could not understand the contents of the detention order and the grounds is an attempt to mislead the Court.

15. The learned Government Advocate further submits that in the grounds of detention, the State respondents have clearly written that “if kept at large or bailed you are likely to commit breach of peace and tranquility”. This shows that the detaining authority was aware of the fact that the detenue was likely to be released on bail. The detaining authority at paragraph 5 of the grounds of detention has also clearly mentioned that the detenue was under judicial custody. Further, the rights and privileges of the detenue has not been interfered in any manner since her preventive detention has been issued as per procedure established by law. As such, the question of non application of mind by the detaining authority does not arise. Learned Govt Advocate therefore prays that that the petition may be dismissed being devoid of merit.

16. The learned C.G.C Mr. Z.N. Ngullie submitting on the basis of his affidavit-in-opposition filed on behalf of the respondent No.4 submits that the representation of the petitioner was received on

15.02.2025. However, the said representation addressed to the Central Page No.# 8/12 Government was kept in abeyance awaiting the report of the State Advisory Board as mandated in the case of Ankit Ashok Jalan vs Union of India & Ors in W.P(Criminal) No.362/2019. Thereafter, the representation was rejected by the Memorandum dated

17.04.2025.

17. We have given due consideration to the submissions made by the learned counsel for the parties and perused the pleadings as well as the record produced by the learned Government Advocate.

18. Basing on the submissions of the counsels for the parties, the following issues arise for consideration:- (i) Whether the detention order as well as the grounds of detention were communicated to the detenue in the language she understands as mandated by Article 22(5) of the Constitution of India. (ii) Whether the detention order and the subsequent confirmation orders without reflecting that there is likelihood of the petitioner being released on bail is bad in law. (iii) Whether delay by the Central Government in disposing of the representation of the petitioner renders the detention order void or illegal. (iv) Whether the matter was placed before the Advisory Board for consideration.

19. Upon going through the affidavit-in-opposition of the State respondents, it is seen that the detenue appeared before the Advisory Board on 22.04.2025. The Report of the Advisory Board dated

22.04.2025 is annexed in the affidavit-in-opposition wherein it is Page No.# 9/12 specifically stated that the detenue was heard in person in Nagamese and she had confirmed before the Board that she was provided with the grounds of detention along with enclosed papers and she had made a representation to the State Government with respect to her detention. The detenue gave a statement before the Advisory Board that she understands Nagamese as she stays in Super Market area in Dimapur, Nagaland. She has a house there where her family stays consisting of herself and one daughter. She also stated that she has studied till Class 5 at Dimapur at a private English Medium School. In the acknowledgement certificate which is at Annexure-C to the Government affidavit, the detenue has put her signature in the English script acknowledging that the detention order and its enclosures have been explained to her in the language she understands which is Nagamese. Therefore, it is confirmed that the detention order as well as the grounds of detention were communicated to the detenue in Nagamese which is the language she understands. The allegation that the matter was not placed before the Advisory Board for consideration is also negated by the Report dated 22.04.2025.

20. We have also examined the affidavit of the Union of India and found that there has been no delay in disposing of the representation of the detenue as the Central Government had to await the report of the Advisory Board before disposing of the same.

21. The Court has further examined the impugned detention order dated 15.01.2025 in detail and find that there is no mention in the detention order that the detenue is in custody or that there is likelihood of the detenue being released on bail. Even in the grounds Page No.# 10/12 of detention as well as in the detention order, there is no mention that there was a real possibility of the petitioner being released on bail and that further on release she would probably indulge in offences pertaining to the NDPS Act. In the case of Huidrom Konungjao Singh (supra), the Supreme Court observed that if the detention order is challenged, the detaining authority has to specify to the Court that the authority was fully aware of the fact that the detenue was already in custody and that there was 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 passed. The Supreme court held: “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. Page No.# 11/12 (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”.

22. Further, in the case of Rekha Vrs State of Tamil Nadu reported in (2011)5 SCC 244, the Supreme Court held that:

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”.

23. Similarly, in the present case, there is no mention whatsoever as regard the requirement as laid down by the Supreme Court in the judgment of Huidrom Konungjao Singh (supra). Moreover, the petitioner has specifically stated that the detenue had not filed any bail application which is not denied by the respondents.

24. Without going into the other grounds raised by the petitioner, this Court is therefore of the view that the impugned detention order dated 15.01.2025, confirmation order dated

16.04.2025 and the extension order dated 14.07.2025 cannot stand the test of law in view of the judgment of the Supreme Court as aforementioned and are accordingly quashed and set aside. Page No.# 12/12 The writ petition is allowed. Registry is directed to return the records to the learned

26. Government Advocate. JUDGE JUDGE Comparing Assistant