Gauhati High Court
Shri Ngachanbam Kasar vs The State Of Nagaland & Ors on 3 April, 2017
Author: S. Serto
Bench: S. Serto
IN THE GAUHATI HIGH COURT
(THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
W.P.(Crl) No.20 (K) of 2016
Shri Ngachanbam Kasar,
S/o Suisa Kasar,
R/o Kachai village,
District- Ukhrul, Manipur. (Presently lodged at Central Jail, Dimapur)
............Petitioner
-Versus-
1. The State of Nagaland represented by the Chief Secretary,
Nagaland, Kohima.
2. The Special Secretary to the Government of Nagaland,
Home Department,
Nagaland, Kohima.
3. The Deputy Commissioner and District Magistrate,
Wokha, Nagaland.
4. The Superintendent of Jail,
Central Jail, Dimapur, Nagaland.
5. The Union of India through the Secretary to the Govt. of India,
Ministry of Home Affairs,
Government of India, New Delhi.
............. Respondents
BEFORE THE HON'BLE MR JUSTICE S. SERTO Advocates:
For the Petitioner : Mr.Imti Longjem,
Ms. Esther
Ms. Vinitoli, Advs.
For State respondents :Mr.K.Wotsa, Sr. Govt. Advocate.
For the respondent No.3, Union of India : Mr. Yangerwati, C.G.C.
W.P.(Crl) No.20(K)/2016 Page 1 of 14
Date of hearing & Judgment : 03/04/2017
JUDGEMENT & ORDER (Oral)
This is an application under Article 226 of the Constitution of India praying for issuance of a writ of Habeas Corpus and/or any other appropriate writ, order or direction of the like nature directing the respondents to release the petitioner/detenue namely Ngachanbam Kasar who has been under detention as per the detention order of the District Magistrate Wokha vide order No.Judl-61/NSA/2015-16/917-24 dated 22/8/2016 passed under section 3 (3) of the NSA, 1980.
2. Heard Mr. Imti Longjem, learned counsel appearing for the petitioner. Also heard Mr. K. Wotsa, learned Sr. Government Advocate for the State respondents and Mr. Yangerwati, learned C.G.C. representing the Union of India.
3. From both the submissions of the learned counsels and what is stated in the petition and the affidavit-in-opposition, it transpires that the petitioner/detenue was arrested by Wokha Police on 12/8/2016 after receiving information that he was indulging in extortion and his arrest was followed with registration of Wokha P.S. Case No.0032/16 under section 384 IPC read with section 7 NSR. Thereafter, he was remanded to police custody and eventually remanded to judicial custody by the learned Judicial Magistrate First Class, Wokha vide his order dated 13/8/2016. While he was under judicial custody, the District Magistrate, Wokha passed the detention order dated 22/8/2016 under section 3(3) of the NSA, 1980 mentioned above ordering his detention. The detention order passed by the District Magistrate is reproduced herein below:-
"GOVERNM ENT OF NAGALAND OFFICE OF THEDEPUTY COM M ISSIONER W OK HA: NAGALAND No. Judl-61/NSA/2015-16/917-24 Dated Wokha thw 22nd Aug 2016 OR DER W.P.(Crl) No.20(K)/2016 Page 2 of 14 Where, Shri. Ngachanbam Kasar S/O Suisa Kasar, PO/PS Chingai, P/Address- Thongbo Brigade was arrested on 12/08/16 in connection with Wokha PS C/No.0032/16U/S384 IPC R/W7NSR Act.
And whereas, the District Magistrate Wokha is satisfied that with a view to prevent Shri. Nagachanbam Kasar S/O Suisa Kasar from acting in any manners prejudicial to the security of the State of Nagaland and maintenance of public order, it is necessary to detain him under Section 3(2) of the National Security Act, 1980.
Now, therefore, in exercise of the power conferred by the State Government under Section 3(3) NSA, 1980, I Shri Wezope Keny, District Magistrate, Wokha hereby order that Shri. Ngachanbam Kasar S/O Suisa Kasar, be detained under the National Security Act and be kept at Central Jail, Dimapur.
Enclosed:-
1. Ground of Detention
2. Schedule to Ground of Detention Sd/-
WEZOPE KENYE District Magistrate Wokha Nagaland.
No.Judl-61/NSA/2015-16 Dated Wokha the 22nd Aug. 2016 Copy to:-
1. The Home Commissioner, Nagaland Kohima.
2. The Addl. Chief Secretary & Commissioner, Nagaland Kohima.
3. The Superintendent of Police Wokha Nagaland.
4. The Sr. Superintendent of Jail, Central Jail, Dimapur, Nagaland.
5. The Superintendent District Jail Wokha.
6. Shir. Ngachanbam Kasar S/O Suisa Kasar c/o Superintendent, District Jail Wokha.
7. Office Copy.
WEZOPE KENYE District Magistrate Wokha Nagaland."
W.P.(Crl) No.20(K)/2016 Page 3 of 144. Since then, the petitioner/detenue has remained under detention at Central jail, Dimapur. After the detention order was passed, he was served the grounds of his detention informing of his right to make a representation before appropriate authority if he so desires. Besides the detention order, he was furnished with the following documents:-
i) Order No.CON/NSA/41/2016/297 dated 24.08.2016 by which the detention order dated 22.8.16 passed by the District Magistrate Wokha was approved by the State Government and the petitioner was detained for a period of 1 year w.e.f.22.8.16.
(ii) Letter No.Judl-61/NSA/2003 dated 22.08.16 by the District Magistrate Wokha to the Special Secretary, Home Department for approval of the detention of the petitioner.
(iii) Order No. Judl-61 NSA/2015-16/917-24 dated 22.08.16 passed by the District Magistrate Wokha detaining the petitioner under the Act.
(iv) Schedule bearing No.Judl-61/NSA/2003.
(v) Grounds of Detention bearing No.Judl-61/NSA/2003.
(vi) Letter No.WDP/CP/WKA/PS/C/NO.0032/16/567 dated 19.08.16 by the Superintendent of Police Wokha to the District Magistrate, Wokha proposing the detention of the petitioner under the Act.
(vii) FIR dated 12.08.16.
(viii) A complaint dated 12.8.16 purportedly by one Shri Khyolamo Lotha.
(ix) Arrest/Court Surrender memo dated 12.08.16.
(x) Seizure Memo dated 12.08.16.
(xi) Purported statements of the petitioner under Section 161 Cr.PC.
(xii) Purported Joint Interrogation of the petitioner.
5. It is submitted by the learned counsel for the petitioner that the offence charge against the detenue are something that can be effectively dealt with normal laws therefore, invoking of special law like NSA is uncalled for. In support of his submission the learned counsel for the petitioner cited the case of R ekha vs State of Tam il Nadu reported in (2011) 5SCC 244 W.P.(Crl) No.20(K)/2016 Page 4 of 14 paragraph 14,15, 16, 17, 29, 30, 33, 34, 35. The relevant portion of the judgment is given here below:-
"14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India.
15. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer.
16. The importance of a lawyer to enable a person to properly defend him has been elaborately explained by this Court in A.S. Mohammed Raft v. State ofT.N.9 and in Mohd. Sukur Ali v. State of Assam 10. As observed by Mr Justice Sutherland of the US Supreme Court in Powell v. Alabama') (USp. 69), "[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law", and hence, without a lawyer he may be convicted though he is innocent.
17. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory.
29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3) (b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.W.P.(Crl) No.20(K)/2016 Page 5 of 14
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha cases5 that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on a fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.
34. Hence, the observation in SCC para 34 in Haradhan Saha cases5 cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law.
35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a "jurisdiction of suspicion" (vide State of Maharashtra v. Bhaurao Punjabrao Gawande12, SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive. detention has W.P.(Crl) No.20(K)/2016 Page 6 of 14 to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital."
6. Secondly, the learned counsel for the petitioner submitted that as per the grounds of detention served to the petitioner, it was mentioned at the last paragraph of the same that the petitioner can claim a personal hearing before the Advisory Board constituted by the State Government but he was not informed that he can be assisted by a friend. The learned counsel further submitted that the chance of being heard is not a mere formality, it has to be an opportunity of representing one's case effectively and that requires an assistance of a friend but in this case since he was not informed of his right, he did not know about it therefore, he was deprived of his precious right of being represented by a friend. This is violative of Article 22 of the Constitution of India. In support of his submission, the learned counsel cited the case of Jutika Chakraborty vs State of Nagaland & ors reported in 2013 (5) GLT 785 , paragraph 7. The relevant portion is given here below:-
"7. After hearing the learned counsel for the parties and on perusal of the records produced by Mr. K. Wotsa, it appears that the authorities acted in a routine manner in informing the ground of detention of the detenue. After having come to a finding on the basis of material that the petitioner was not involved in any outlawed organization in any manner, the trial of the petitioner under the India Penal Code for alleged extortion of money would have been sufficient. Materials warranting application of Section 3 of the National Security Act are not discernible on records. At least materials did not make out nexus of the detention order with the purported opinion that there is a threat on the security of the State and or defence of India and or apprehension in regard to maintenance of public order. All or any of these ingredients of Section 3 had to be based on at least some materials on record for curtailing the right to liberty of a citizen. Coming to the fact of this case, the detaining authority failed to inform the detenue that he has the right of being represented by next friend before the Advisory Board, a requirement held by the Division Bench W.P.(Crl) No.20(K)/2016 Page 7 of 14 of this Court to be necessary for meaningful compliance or the provisions of the Act. The order dated 5.7.2013 passed by the appropriate Government approving detention of the petitioner for a period of 12 months having been passed prior to opinion of the Advisory Board, the same is unauthorized being violative of Section 14 A of the Act which has empowered the appropriate Government to pass detention order for a period not exceeding 3 months unless the Advisory Board recommends. Moreover, even if the order dated 5.7.2013 is construed to be a one under Section 12 of the Act, the same having been passed before obtaining the opinion of the Advisory Board, the confirmation order is also unauthorized. Thus on totality of circumstances, I have no other alternative but to allow this application setting side the detention order."
7. The learned counsel for the petitioner also submitted that the order dated 24/8/2016 issued by the Special Secretary, Government of Nagaland approving the detention order of the District Magistrate, Wokha is illegal because before the Advisory Board could examine and recommend detention of the detenue for a period of 1 year the order has already specified the period of 1 year for detention of the detenue w.e.f.22/8/2016. According to the learned counsel, this is violative of Article 22 clause 4 of the constitution of India. The learned counsel further submitted that the State Government can detain a person only for a period of 3 months until the Advisory Board examine and give its advice for the detention of the detenue for a period more than 3 months.
8. Mr. K. Wotsa, learned Sr. Government Advocate submits that there is nothing wrong in the order dated 24/8/2016 of the Government of Nagaland issued by the Special Secretary to the Government of Nagaland approving the detention order passed by the District Magistrate, Wokha because, though the period of detention is mentioned as one year, it is qualified by the word 'subject to' therefore, the period of detention of one year is given subject to the confirmation of the Advisory Board. The learned Sr. Government Advocate also submitted that the detenue was arrested with so many W.P.(Crl) No.20(K)/2016 Page 8 of 14 coupons of different transport organizations when he was arrested and there was hue and cry from the public at the time of his arrest and because of that he was shifted to Kohima jail immediately for his own safety. The learned Government Advocate also submitted that because of rampant extortion by different organizations at that time, peace and tranquility of public was disturbed therefore, to say that detention of the detenue under NSA was not required would be wrong given the prevailing situation at that time.
9. Mr. Yangerwati, learned C.G.C. submitted in support of what the learned Sr. Government Advocate stated on behalf of the State of Nagaland.
10. Considering the charge against the accused in the FIR and the facts and circumstances under which the detenue was arrested, I am of the opinion that the detenue could have been dealt with effectively under the normal laws if the investigating agency is serious and sincere enough to do so. It may be true that rampant extortion by different unlawful organizations might have disturbed the peace and tranquility of the individuals by and large but such situation cannot be described as disturbance of public order. The law enforcing machineries would do better if they tighten their belts and act to the call of their duties.
11. I also agreed with the submission of the learned counsel for the petitioner that while informing the detenue about the grounds of his detention, he should also have been informed of his right to be represented by a friend before the Advisory Board so that effective representation of his case could have been made. As stated in the judgment cited by the learned counsel for the petitioner detention under NSA is preventive detention therefore, to prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguard, however technical, is, mandatory and vital. Preventive detention is an exception to the right of being produce before a Magistrate within 24 hours where the accused has the chance of being heard and being assisted by a lawyer of his choice. Therefore, the detenue must be given all the required information including his right so that he has the opportunity and chance of representing his case effectively.
W.P.(Crl) No.20(K)/2016 Page 9 of 1412. Further, on perusal of the detention order, I find no mention being made of the fact that the detenue was already in jail in connection with Wokha P.S. Case No. 0032/16 and there is/are reasonable reasons to believe that he is likely to be released on bail, therefore, his detention under NSA is required to prevent him from committing offence/offences which will disturb public order and also security of the State. This is a requirement as per the law enunciated by the Hon'ble Supreme Court in the case of Rameshwar Shaw vs District Magistrate, Burdwan and the same has been consistently followed by the Hon'ble Supreme Court and High Courts in the country.
In the case of N. M eera R ani -Vrs- State of Tam il Nadu & Anrs., reported in (1989) 4 SCC 418 , the Hon'ble Supreme Court followed the same principle of law and the relevant portion of the judgment is given here below:-
"12. The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reasonable basis for making the detention order and serving it on the detenu during his custody?
13. We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of a Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan1. All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by benches comprised of lesser number of judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw case1.
14. The detention order in Rasmeshwar Shaw case1 was made and also served on the detenu while he was in jail custody. The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of W.P.(Crl) No.20(K)/2016 Page 10 of 14 criminal complaint against him. The Constitution Bench considered the effect of the detenu's subsisting detention at the time making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release. It was indicated that the detenu's subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order.
15. The position of law was summarised by their Lordships as under:
(SCR pp. 929-31)
1. (1964) 4 SCR 921: AIR 1964 SC 3341964) 1 Cri LJ257 ''As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail;
but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person 10 jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the W.P.(Crl) No.20(K)/2016 Page 11 of 14 said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona rule satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in a such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
The question which still remains to be considered is: can a person in jail custody, like the petitioner, be served with an order of detention whilst he is in such custody? .... We have already seen the logical process which must be followed by the authority in taking action under Section 3(1)(a). The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an W.P.(Crl) No.20(K)/2016 Page 12 of 14 order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by Section 3(1)(a) and is outside its purview." (emphasis supplied)"
7. In recent time also the same principle has been followed in the case of Union of India Vrs- Paul M anickam & Anrs., reported in (2003) 8 SCC 342 . The relevant portion of the said judgment is also given herein below;-
"14. So far as this question relating to the procedure to be adopted in case the detenue is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such person on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenue is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the W.P.(Crl) No.20(K)/2016 Page 13 of 14 detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenue was likely to be released on bail, the order would be vitiated. The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.
15. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude.
The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement." The writ has been described as a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right."
13. In view of what has been discussed above, this Court finds the detention order dated 22/8/2016 along with approval order dated 24/8/2016 and confirmation order dated 28/9/2016 wanting in meeting the requirements of law, therefore, they are set aside and quashed. Accordingly, it is directed that the petitioner/detenue namely, Ngachanbam Kasar be released forthwith if he is not required in any other case or cases pending against him.
JUDGE chasie W.P.(Crl) No.20(K)/2016 Page 14 of 14