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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT KOHIMA BENCH
DEVASHIS BARUAH, J.
Herot Chang – Petitioner
Versus
State of Nagaland and Others – Respondents
W.P. (Crl.) Nos. 16, 17 of 2021
Decided On : 01-03-2022
Indian Penal Code, 1860 – Section, 384 – Constitution of India, 1950 – Article, 226,21, 22, 22(5) – Information Technology Act, 2000 – National Security Act, 1980 – Section, 3, 8(1) – Acts done by several persons in furtherance of common intention – Power of High Courts to issue certain writs – Protection of life and personal liberty No person shall be deprived of his life or personal liberty – No person who is arrested shall be detained in custody without being informed, as soon as may be, of grounds for such arrest – When any person is detained in pursuance of an order made under any law providing for preventive detention – This is a petition under Article of Constitution of India praying for issuance of a writ of habeas corpus to quash and set aside Detention Order passed by Commissioner of Police and District Magistrate, bearing Approval Order passed by Chief Secretary to Government of Nagaland bearing and Confirmation Order – Held, Affidavit of State Respondents, more particularly, paragraph shows that representation was received by Home Department via India Post – Communication of representation submitted has to be made in fastest possible means and as such this Court is of opinion that not sending representations to authorities who could revoke Order of Detention, by Respondent herein, through fastest mode permissible under law interferes with rights of petitioner under Article of Constitution of India – If State Authorities could have taken the matter seriously, said representation could have been taken up for consideration by Home Department as well as Central Government and other authorities at an early date – Above discussion, therefore, decides the issues – Petition disposed.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. Sarif Ahmed, learned counsel for the petitioner; Mr. Moa Imchen, learned Senior Government Advocate appearing on behalf of the State Respondents and Mr. Yangerwati, learned CGC, appearing on behalf of the Central Government.
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 passed by the Commissioner of Police and District Magistrate, Dimapur, bearing No. CP/DMR/CB- 19/2021-22/2132 dated Dimapur, 27.09.2021; the Approval Order passed by the Chief Secretary to the Government of Nagaland bearing No. CON/NSA/16/2021/111 dated 06.10.2021 and the Confirmation Order dated CON/NSA/16/2021/188 dated 24.11.2021.
3. The petitioner’s case is that on 17.09.2021 the petitioner along with another were picked up by the 5th Assam Rifle in Chekiye Village, Dimapur. Thereafter, they were taken to the 5th Assam Rifle’s Camp and brutally assaulted and threatened them to admit the seized items belonged to them. The petitioner along with another were handed over to the Diphupar P.S. Dimapur, Nagaland and an FIR was lodged by one RFM S.K. Laxana of the 5th Assam Rifle and on the basis thereof the Officer-in-charge registered a Diphupar P.S. Case No. 0063/2021 u/s 25(1B)(a) Arms Act read with Section 384 of the IPC read with 7/8 of the Nagaland Security Regulation (NSR). The petitioner was, thereafter, produced before the Magistrate on 18.09.2021 with a prayer for 72 (seventy-two) hours Police remand which the Magisterial Court granted and directed the Investigating Officer to produce the petitioner along with another before the Court on 21.09.2021. Thereupon, on 21.09.2021 when the petitioner along with another were produced before the Magisterial Court, the said Court sent the petitioner on judicial remand to the Central Jail, Dimapur and the petitioner still continues to be under judicial custody.
4. While the petitioner was in the judicial custody an order of detention was passed by the Commissioner of Police and District Magistrate, Nagaland (the Respondent No. 3 herein) on 27.09.2021 (The said Order dated 27.09.2021 is hereinafter referred to as ‘the Detention Order’) purportedly in exercise of powers conferred by sub-section (3) of Section 3 of the National Security Act, 1980 (Hereinafter referred to as the Act). It is the further case of the petitioner that certain papers were served upon the petitioner on 01.10.2021, which were:
(ii) forwarding letter bearing No. CP/DMR/CB-19/2021-22/2131, dated 27.09.2021 for approval by the State Government.
(iii) letter bearing No. CP/DMR/CB-19/2021-22/2133, dated 27.09.2021 addressed to the detenue informing him of the right to make a representation to the authority as prescribed under Article 22(5) of the Constitution of India.
It is the case of the petitioner that apart from the above documents no other documents were furnished to the petitioner.
5. As stated herein above the petitioner contends that on 01.10.2021, the said documents were furnished; however, the petitioner, who admittedly does not know how to read or write the English language, was not explained as regards the above mentioned said documents while handing over to the petitioner. It was only on 05.10.2021 when the petitioner’s advocate visited the jail that the petitioner could realize that he was booked under The Act and the following papers were handed to him:
(ii) Detention Order dated 27.09.2021 stating the grounds of detention.
(iii) a Schedule.
(iv) information for grounds of detention and the petitioner’s right to fi
The main legal point established in the judgment is that the detenue, being illiterate, must have the grounds of detention explained to him in a language he understands, as mandated by Article 22(5) ....
Detention orders under preventive laws must communicate grounds in a language understood by the detainee; failure to do so violates constitutional rights under Article 22(5).
Preventive detention requires a clear link between past conduct and future risk; failure to communicate grounds in an understandable language violates constitutional rights.
The Detaining Authority must express subjective satisfaction for detention, and the delay in disposing of the representation without adequate explanation can render the detention impermissible and il....
The detention order was quashed due to procedural violations and lack of connection between the detenu's past conduct and the necessity for detention under the National Security Act.
The detention orders under the National Security Act, 1980 must be based on valid subjective satisfaction, and the delay in disposing of representations must be explained.
The grounds for preventive detention must be communicated in a language the detenu understands to ensure the right to make effective representation, as mandated by Article 22(5) of the Constitution.
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