Quashed

Shri. Tovika K. Sumi v. the State of Nagaland and 4 Ors.

Gauhati HC8 Apr 2022W.P.(Crl.)/18/2021

Case brief

AI extract

What is this about?

The Gauhati High Court quashed a preventive detention order and subsequent approvals under the National Security Act, 1980. The court held that the seven-day intimation to the Central Government under Section 3(5) was violated and that the detention, passed while the person was in judicial custody, lacked independent application of mind and relevant material satisfying the requirement to show like

What did the court decide?

The detention order dated 27.09.2021, the approval dated 06.10.2021, and all subsequent extension orders are set aside and quashed; the detinue is directed to be released forthwith.

Shri. Tovika K. Sumi Vs the State of… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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Page No.# 1/16

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GAHC020006362021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : W.P.(Crl.) 18/2021

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1:SHRI. TOVIKA K. SUMI

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S/O KIVIKHE SUMI, R/O H/NO.499, BLOCK - 4, CHEKIYE VILLAGE, DIMAPUR, NAGALAND

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VERSUS

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1:THE STATE OF NAGALAND AND 4 ORS

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REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF NAGALAND, KOHIMA

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2:THE PRINCIPAL SECRETARY(HOME) GOVT. OF NAGALAND KOHIMA

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3:THE SPECIAL SECRETARY(HOME) GOVT. OF NAGALAND KOHIMA

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4:THE COMMISSIONER OF POLICE DIMAPUR DISTRICT - DIMAPUR NAGALAND

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5:THE UNION OF INDIA REPRESENTED THROUGH THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS DEPARTMENT OF INTERNAL SECURITY NORHT BLOCK NEW DELHI - 11000

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Advocate for the Petitioner : P. B. PAUL

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Advocate for the Respondent : GOVT ADV NL

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Page No.# 2/16

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

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For the Petitioner : Mr. P.B.Paul, Advocate.

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For the respondents : Ms. Livika, Govt. Advocate, Nagaland. Mr. Yangerwati, CGC.

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Date of hearing : 31.03.2022

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Date of Judgment & Order Order: 08.04.2022

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JUDGMENT/ORDER (CAV)

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Heard Mr. P. B. Paul, the learned counsel for the petitioner. Also heard Ms. Livika, the learned Government Advocate, Nagaland and Mr. Yangerwati, the learned CGC.

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By way of the present writ petition, the petitioner challenges the orders of detention of his brother namely Mr. Otoka @ Otto Zhimo (in short detinue) and continuation of same, whereby the detinue was put under detention in exercise of power under the provision of the National Security Act, 1980 ( in short NSA).

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The brief facts leading to the filing of the present petition are as under:-

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(i) The detinue was arrested on 08.09.2021 in connection with Dimapur East PS Case No. 00179/2021 registered under Sections 384/506/511 IPC read with section 7 of NSR. Such FIR was lodged by one Mr. Botoho Kappo, inter alia alleging that 08.09.2021 one unknown person

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Page No.# 3/16 called the informant several times demanding yearly tax through mobile phone number 70052-59255. Thereafter, according to the informant, one unknown person came and shutdown his shop and took away the keys.

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(ii) While under judicial custody in connection with the Dimapur East P.S. Case No. 00179/2021, the Deputy Commissioner of Police, Zone-I, Dimapur (in short DCP), by communication dated 24.09.2021, initiated a proposal for detention of brother of the petitioner under Sections 3(1) and 3(2) of the NSA and requested the Commissioner of Police, Dimapur (in short CP) for necessary action. Such proposal was initiated on the basis of the FIR dated 08.09.2021 and recovery of six numbers of demand notice from the possession of the detinue.

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(iii) It is the case of the DCP that during the investigation of the complaint, one white coloured Bolero vehicle driven by the detinue was intercepted and on search and physical frisking, six numbers of demand letter with letter heads of NNC (Parent Body) was recovered from him and the detinue was arrested. According to the DCP, the detinue admitted that he went to the place of the informant on 08.09.2021 and that he demanded yearly tax and also admitted shutting the shop.

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(iv) The ground of detention so proposed, as reflected in the proposal of DCP dated 24.09.2021, is that the detinue is an active member of armed organization NNC (Parent Body), he is part of a large extortion syndicate and extorting money in the name of armed organization and such activity is leading to price rise of essential commodities and services and thus the detinue is acting in a manner prejudicial to maintenance of supplies and services essential to the communities. The further ground of detention is that the demand letter recovered from the possession of the detinue

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Page No.# 4/16

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indicates that the detinue is acting in a manner prejudicial to the maintenance of public order and security of the State.

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The said proposal contained a copy of the FIR, the Arrest Memo, the Seizure Memo, Photograph of the accused, detailed report of the I.O. and the joint interrogation.

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(v) Thereafter, the CP cum District Magistrate, Dimapur vide its communication dated 27.09.2021, forwarded the same to the Special Secretary, Home for approval. The said communication recites the facts as described by the DCP in his proposal and the CP expressed his satisfaction that the case is fit for detention of the accused under Section 3(2) of the NSA.

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(vi) Thereafter, the CP issued the order of detention dated 27.09.2021 in exercise of power under Section 3 (3) of NSA on the ground that detention is necessary under Section 3(2) of NSA.

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(vii) The ground of detention is stated to be security of the State of Nagaland and maintenance of public orders. The said order contains the ground of detention as Annexure B, Annexure C Schedule. The said order of detention was served upon the detinue on 29.09.2021.

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(viii) Subsequently, the Chief Secretary to the Government of Nagaland issued an order dated 06.10.2021, in exercise of his power conferred by Section 3(2) of NSA, ordering detention of the detinue and further directing him to be kept in Central Jail, Dimapur for a initial period of three months with effect from the date of detention i.e. till 26.12.2021.

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(ix) Thereafter on 11.10.2021, the detinue submitted a representation before the Special Secretary, Home, Nagaland requesting revocation of

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Page No.# 5/16 detention order. The Chief Secretary to the Government of Nagaland, by order dated 25.10.2021 rejected the prayers made in such representation on the ground that the Government is satisfied with the detention and there is no merit in the said representation.

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(x) In the meantime, the petitioner also filed a representation before the Union of India, Department of Home on 11.10.2021 which was rejected by Wireless Message dated 03.11.2021.

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(xi) Thereafter, in exercise of power under Section 12(1) of NSA, the Chief Secretary, confirmed the detention order and further extended the period of detention till 26.03.2022.

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(xii) When the matter was taken up for hearing on 31.03.2022, it was contended by the learned counsel for the petitioner that the detention has not been extended beyond 26.03.2022 and as such the subsequent detention is illegal. Situated thus, this Court requested the learned State Counsel, Ms. Livika to obtain instruction during the course of hearing. On instruction Ms. Livika submitted that the detention order was extended by another order dated 25.03.2022, however, the same was not served upon the petitioner due to network issues. However, during the course of hearing, on instruction, it was submitted that the same has been served upon the detinue on 31.03.2022 during the course of the hearing. A copy of the said order dated 25.03.2022 is kept on record and marked as document “X”.

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Mr. P. B. Paul, the learned counsel representing the petitioner submits:-

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(i) There is violation of Section 3(5) of the NSA, inasmuch as the detention order was made on 27.09.2021 and same was intimated to the

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Page No.# 6/16 Central Government on 06.10.2021 and therefore the period of seven days has been breached and accordingly the detention order is liable to be set aside.

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(ii) There is total non application of mind, the same is reflected from the proposal dated 27.09.2021 which proposes the detention on the basis of Section 3(1) and Section 3(2) of NSA inasmuch as no ground whatsoever is cited under Section 3(1)(a) and (b) of NSA. The detention order dated 27.09.2021 issued by the CP is the replica of the proposal and no independent application of mind is discernable from such order of DCP. Same is the case relating to the order dated 06.10.2021 of the Chief Secretary approving the detention order.

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(iii) The satisfaction of the detaining authority while issuing the order of detention is based on no cogent material and same has been issued only on the basis of the FIR, the Arrest Memo, the Seizure Memo and Report of I.O. Therefore, the detention order is result of total non application of mind.

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Ms. Livika, the learned State Counsel representing the State of Nagaland while relying on the affidavit filed by the State respondents submits the following:-

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(i) There is no procedural lapse while issuing the detention orders/approval challenged in the present writ petition. The detention order was duly served upon the detinue within the period prescribed and explaining his right of representation.

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(ii) There is no violation of Section 3(5) of the NSA as the State Government approved the detention order on 06.10.2021 through its Chief

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Page No.# 7/16

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Secretary and the same was intimated to the Central Government on the same date i.e. on 06.10.2021.

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(iii) The detention orders including the proposal for detention and the order of approval by the State Government reflects subjective satisfaction for the detention based on material available on record. Therefore, the writ court in exercise of its jurisdiction Article 226 of the Constitution of India may not like to re-appreciate such material to come into a different conclusion and substitute the subjective satisfaction of the detaining and approving authorities.

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Mr. Yangerwati, the learned CGC adopts the argument advanced by Ms. Livika, the learned State Counsel and further submits that the Central Government acted promptly on the receipt of the communication of the Chief Secretary dated 06.10.2021 and also replied to the representation preferred by the detinue within time. Therefore, there is no procedural lapse on the part of the Central Government and there is no violation of any Constitutional right of the detinue.

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I have heard the learned counsel for the parties. Perused the materials available on record including the record of the Home Department, Political Branch relating to the detention of the detinue as produced by Ms. Livika, the learned State Counsel.

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By now, the law is well settled that generally procedural requirement are the only safeguard available to the detinue since the Court is not expected to go behind the subjective satisfaction of detaining authority until and unless, the same is a result of non application of mind or detention order is issued on the basis of irrelevant materials and facts. It is also well settled that since the power of preventive detention is an extra ordinary power, the same need be exercised

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Page No.# 8/16

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strictly in accordance with the provision of the Constitution and the law in this regard.

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The Right to the life and personal liberty is placed on a much higher pedestral and whenever there is any deprivation of such rights, the authority who deprives such rights of a citizen must thoroughly justify the Court that it has acted in accordance with law. The Constitutional court of India have always regarded personal liberty as the most precious possession of mankind. The burden of showing that the detention is in accordance with the procedure established by law, is always on the detaining authority inasmuch as Article 21 of the Constitution of India mandates for the same.

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The law of preventive detention has empowered the administrative authorities a kind of discretionary power to order preventive detention and there is very little scope for judicial review of subjective satisfaction of the detaining authority. However, as the preventive detention affects the most precious right of human being i.e. the right of life and liberty, therefore, the court must jealously safeguard such rights and must see whether such discretionary power has been used within the parameters prescribed by law.

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11. The Scheme of NSA and Procedural Safeguard :

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The procedural safeguard necessary for determination of the present case can be summarized in the following manner:-

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(i) Section 3(3) of the NSA vests power upon the District Magistrate or Commissioner of Police to pass detention order when it is satisfied with the existence of condition(s) as enumerated under Section 3(2) of the NSA. The period of detention needs to be specified in the order. However, in the first instance it should not exceed three months. The proviso to Section 3(3) of

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Page No.# 9/16

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the NSA, mandates that the State Government may after satisfaction extend such order for such period not exceeding three months at a time.

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(ii) Section 3(4) of the NSA mandates that, when an order is made under Section 3(3) of the NSA, the Officer passing the order shall forthwith report the fact to the State Government along with the ground on which the detention order was made, including other particulars having a bearing on the matter.

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(iii) The order of detention passed under Section 3(3) of the NSA shall have a life for twelve days from the date of the order unless approved by the State Government. This twelve days can be extended upto fifteen days if circumstances as mandated under Section 3(4) of the NSA exists.

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(iv) Section 3(5) of the NSA mandates that the order of detention or order of approval needs to be reported to the Central Government within seven days from date of issuance.

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(v) Section 8 of the NSA mandates that the grounds of order of detention be disclosed to the detinue, as soon as possible but not later than five days. Such time can be extended upto ten days from the date of detention in exceptional circumstances and for reason to be recorded in writing. The detinue is given a liberty to make representation against the order of detention to the appropriate Government.

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(vi) Section 9 of the NSA provides for Constitution of Advisory Board and the Advisory Board is empowered to scrutinize the detention order and the representation of the detinue.

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(vii) Section 10 of the NSA dictates that the appropriate Government need to place the detention order along with the representation made by

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Page No.# 10/16

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the detinue and the ground on which the detention order was passed within three weeks from the date of order of detention.

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(viii) Sections 11 and 12 of the NSA prescribes the procedure of Advisory Board.

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From the above, it is clear that the NSA mandates certain stages of decision making process with time limit.

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13 Whether there is any procedural lapse on the part of the State:

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(I) In view of the aforesaid mandate of NSA, now let this Court look into the facts of the case on the basis of the pleadings of the parties, documents annexed with the writ petition as well as by the respondents in their counter and on the basis of the records made available to this Court. From the aforesaid materials, the following undisputed fact emerges.

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08.09.2021	Detinue was arrested in connection with Dimapur East P.S. Case No. 00179/2021. Continued to bepolice custody.
24.09.2021	DCP initiated proposal for detention under Section 3(1),(2)of NSA.
27.09.2021	CP cum DM forwards the proposal to the Home Department.
27.09.2021	CP cum DM issues the detention order under Section 3(3)of NSA.
29.09.2021	Detention order dated 27.09.2021 served upon the detinue.

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Page No.# 11/16

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06.10.2021	Chief Secretary issues order und 3(2)of the NSA.	er Section
06.10.2021	Intimates the Central Governm Section 3(5)of the NSA.	ent under
10.10.2021	Detention order dated 06.10 served upon the detinue.	.2021 is
11.10.2021	Detinue submits representation State Government as well as th Government.	before the e Central
25.10.2021	State Government reject representation of the detinue.	ed the
27.10.2021	Central Government receiv representation of the detinue.	ed the
03.11.2021	Detinue received rejecti	on of
	representation by the Government.	Central

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(II) From the aforesaid, it is clear that time and procedure as mandated and as discussed aforesaid provided under Sections 3(3) & 3(4), 8, 9 and 10 of NSA has duly been complied with while issuing the detention order.

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(III) The detention order was made on 27.09.2021 and same was approved by the Chief Secretary on 06.10.2021 and report of the fact of detention was reported to the Central Government by the Chief Secretary on 06.10.2021.

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(IV) Such information is required to be given to the Central Government within

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seven days from any order of detention is made or from such detention order is approved by the State Government. Therefore, in the case in hand, there is a gap of 10 (ten) days from the order of detention made on 27.09.2021 by CP cum DM and intimation was given to the Central Government on 06.10.2021, though intimation was made on the date of approval of the State Government i.e. on 06.10.2021.

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(V) The language of Section 3(5) of the NSA makes it crystal clear that intimation is to be made within seven days either when any order of detention is made under Section 3(3) of the NSA or when the order of detention is approved by the State Government under Section 3(4) of the NSA. Therefore, in the considered opinion of this Court, the provisions of Section 3(5) of the NSA, has not been adhered to by the detaining authority and non compliance of such mandatory provision renders the detention illegal.

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14. Subjective satisfaction and application of mind:

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(I) As stated hereinabove, it is settled proposition of law that it is not mandatory for the detaining authority to record its subjective satisfaction in the detention order but such subjective satisfaction cannot be based on irrelevant materials and grounds. Application of mind in mechanical manner and subjective satisfaction derived from such application of mind can always be judicially reviewed by the Constitutional Courts. The duty of the sponsoring authority is to collect the relevant materials and place it before the detaining authority. The detaining authority is to apply its own mind to arrive at its subjective satisfaction on the basis of materials placed before it. Though sufficiency of materials placed before the authority cannot be judicially reviewed but relevancy of material can be seen by the Courts while making judicial review of the detention order.

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(II) In the case in hand, while the order of detention was passed the detinue

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Page No.# 13/16 was already in custody. Therefore, the detaining authority must have a satisfaction that if the detention order is not passed and if the detinue is released on bail, the detinue may act in a prejudicial manner inasmuch as the detinue cannot jail custody act in a prejudicial manner as described in NSA. Therefore, there must be some material before the detaining and approving authority to that effect.

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(III) In the case of Huidrom Konungjao Singh -vs- State Of Manipur & Ors reported in 2012 7 SCC 181 , the Hon’ble Apex Court dealt with the question under what circumstances an order of preventive detention can be passed when a person was already in custody. While holding that there is no prohibition in law to pass detention order in respect of a person who had already been in custody in some criminal cases, it was clarified that if such detention is challenged, the detaining authority is to satisfy the Court of its knowledge of custody of the detinue and that there were cogent material before it on the basis of which it is having a satisfaction that there is real possibility of detinue released on bail and on such release the detinue will involve himself/herself in prejudicial activities.

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(IV). In the case in hand, the record reveals that there is no material except the F.I.R., Seized documents and Report of the I.O. The proposal dated 24.09.2021, the detention order dated 27.09.2021 and dated 06.10.2021 are replicas of the Report of the I.O. The Report of the I.O. is also based on the same materials i.e. the FIR, the Seized Document, expect a statement that detinue is under judicial custody and in the event of his release in bail, he will act prejudicially, no other materials are available. The office note dated 04.10.2021 of the Special Secretary (Home), preceded by the order of detention dated 06.10.2021, reflects his knowledge of custody of the detinue. But the record reveals no material or any independent application of mind except the documents annexed

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Page No.# 14/16 with the proposal of detention dated 24.09.2021 and detention order dated 27.09.2021. No independent application of mind and no material to suggest such satisfaction is available on record.

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(V) The materials and satisfaction required as mandated by the Hon’ble Apex Court at paragraph 9 of the judgment in Huidrom Konungjao Singh (supra), which is quoted herein below, are not discernable and available on the record except a statement of the Special Secretary (Home). Therefore, on this count also the detention order is also liable to be interfered with. The paragraph 9 of the Huidrom (supra) are as follows:-

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“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:

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(1) The authority was fully aware of the fact that the detenu was actually in custody.

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(2) There was reliable material before the said authority on the basis of which he 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.

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(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.

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In case either of these facts does not exist the detention order would stand vitiated”.

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(VI) In the case of Mrs. T. Devaki vs Government Of Tamil Nadu And Ors reported in 1990 SCC 456 , it was held that merely making averments in the grounds of detention that as a result of an offence in public, fear and insecurity was generated in the minds of people and thereby the detinue could be said to have acted in a manner prejudicial to the maintenance of public order, was not sufficient.

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(VII) Section 3 of NSA empowers the authority to detain a person without formal charge and without any trial and such detention is made with an object

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to prevent detinue from acting prejudicially against the interest of the State. It empowers the authority to deprive a citizen of his right under Article 21 of Constitution of India. Therefore, it is important for the detaining authority and for the Courts to strike a proper balance between the interest of the State and precious right of a citizen of his life and liberty. Therefore, in considered opinion of this Court, the detaining authority is to satisfy itself before passing an order of detention that the particular incident or incidences is / are of such a nature that the detention under preventive law is the only answer and prosecution under the normal criminal law will not be sufficient

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(VIII) In the case in hand, the material available on record reflects that the detention was proposed on the basis of the findings during the investigation of the Dimapur East P.S. Case No. 00179/2021, the Special Report of I.O. and the proposal of DCP are replicas of each other. The materials reflect that the basis of such satisfaction of detention is recovery of six numbers of demand letters of one organization namely NNC (Parent Body) and that the detinue demanded tax from the complainant. Except repetition of what has been described in the FIR nothing more is discernable from the proposal. The record also reveals that the Special Secretary (Home) Nagaland, Kohima has relied only on FIR and the recovery of demand note and no other independent material or independent application of mind by the CP is discernable from the record. The same is the case relating to approval by the Chief Secretary.

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(IX) In the case in hand as observed hereinabove, there is no material either to have such satisfaction or any reflection of availability of such material is discernable from the orders and the records placed before this Court. Therefore, this Court is of the considered opinion that the detention order has been passed mechanically and in a casual and routine manner, which cannot be permitted.

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In view of the aforesaid discussion, decisions and reasons, the detention order dated 27.09.2021 and the approval dated 06.10.2021 and all other subsequent orders extending the detention of the detinue are set aside and quashed. The detinue be released forthwith, if he is not under custody in any other proceeding.

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The case record furnished by Ms. Livika, the learned Government Advocate is returned to her.

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JUDGE

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Comparing Assistant

Shri. Tovika K. Sumi v. the State of Nagaland and 4 Ors.

Case brief

What is this about?

What did the court decide?

Shri. Tovika K. Sumi v. the State of Nagaland and 4 Ors.

Case brief

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