The Detaining Authority must be aware of the detenu's custody status and there must be compelling reasons justifying detention despite the detenu being in custody.

JUDGMENT :

D. Baruah, J.

Heard Ms. Mika H. Aye, learned counsel appearing on behalf of the Petitioner and Ms. S. Mere, learned Government Advocate appearing on behalf of the State Respondents.

2. The present writ petition has been filed by the Petitioner who is the uncle of one Mr. Eshenthung Jami (hereinafter referred to as the “detenu”) challenging the Detention Order No.DCP/CON/PT-1/88-89 dated 21.07.2023 (for short “the Detention Order”) and the Approval Order bearing No.CON/NSA/03/2023/36 dated 31.07.2023 issued by the Chief Secretary to the Government of Nagaland (for short “the Approval Order”) and further sought for a direction that the detenu be released from detention forthwith.

3. It reveals from a perusal of the writ petition that on 05.07.2023, an F.I.R. was lodged before the Officer-in-Charge, Phek Police Station that on the said date, an information was received from the PHQ that a person travelling in a sumo taxi from Phek to Dimapur was arrested by personnels of Kezocha Police Station for possessing of illegal ammunition numbering to 200 live rounds. On being interrogated, it was ascertained that the ammunitions were bought from the detenu, who was the Armorer of Phek DEF. Thereupon, the detenu was detained at Phek Police Station for further investigation. It was also alleged in the said F.I.R. that the detenu admitted to have sold the ammunitions. The Phek Police Personnel’s also searched the detenu’s residence and recovered 20 (twenty) live rounds of 7.62 x 39 mm, 2 (two) live rounds of 9 x 19 mm, 7.62 x 51 mm 4 (four) live rounds, 9 x 19 mm bullet head 6 (six) nos., 7.62 x 51 mm bullet head 2 (two) nos. and 7.62 x 39 mm bullet head 1 (one) no. Further, 500 currency notes amounting to Rs.26,000/-was also recovered. On the basis of the said F.I.R. so filed, a case was registered being Phek P.S. Case No.0004/23 under Section 381/409/120B of the Indian Penal Code read with Section 25(1)(a) & (h) of the Arms Act, 1959.

4. The detenu thereupon filed a bail application before the Judicial Magistrate, First Class, Phek. The said bail application was allowed vide an order dated 12.07.2023 and the detenu was granted bail. We have perused the said bail order dated 12.07.2023 which is enclosed as Annexure-B to the writ petition. It appears from the said order that though the detenu was granted bail but as the detenu was unable to produce the sureties, he was remanded back to the judicial custody for 15 days.

5. The record further reveals that an application was filed by the Public Prosecutor under Section 437(5) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) praying for cancellation of the bail order dated 12.07.2023. The learned Judicial Magistrate, First Class, Phek vide an order dated 18.07.2023 cancelled the bail so granted in favour of the detenu. The detenu thereafter filed an application before the District and Sessions Judge, Phek challenging the order of cancellation of the bail as well as seeking bail. The learned District and Sessions Judge, Phek vide an order dated 20.07.2023 in Misc. Application (Bail) No.35/2023 rejected the said application filed by the detenu.

6. While the above proceedings were going on, on 13.07.2023, the Superintendent of Police, Phek submitted a proposal for detention of the detenu under the provisions of Section 3(1) and (2) of the National Security Act, 1980. In the said proposal, the grounds for detention were mentioned which being relevant for deciding the writ petition are reproduced hereinunder:

“Grounds for detention

1. Subject sold ammunitions to Talimbo Zeliang who originally hails from State of Manipur, where current public order and law and order situation is grave. Criminal conspiracy regarding smuggling of restricted ammunition is still under investigation, therefore such act possess great threat to national security and maintenance of public order.

2. Criminal investigation against the accused and his co-suspects is still ongoing and his at large may hamper/effect