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 illegal.

JUDGMENT :

Nelson Sailo, J.

Heard Mr. Limawapang, learned counsel for the petitioner, Mr. E. Thiba Phom, learned State counsel for the State respondent Nos. 1 to 4 and Mr. Yangerwati, learned CGC for the respondent/Union of India.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner prays for issuance of writ in the nature of habeas corpus for setting the detenue detained in Central Jail, Dimapur, Nagaland, at liberty. Be it stated herein above that the instant petitioner is the wife of the detenue.

3. It is the case of the petitioner that pursuant to the Report submitted by the Deputy Commissioner of Police, Chumukedima, Nagaland, to the Commissioner of Police, Dimapur, on 24.07.2023, the detention of the detune was recommended under Section 3(1)&(2) of the National Security Act (NSA). The detenue was arrested in connection with Sovima P.S. Case No. 0014/23 under Section 120B IPC read with Section 25(1A)(1AA) Arms Act read with Rule 7/8 NSR wherein a large amount of prohibited ammunition was recovered by the Police. Accordingly, the Commissioner of Police vide Order dated 31.08.2023, in exercise of the powers conferred by Section 3(3) of the NSA ordered the detention of the detenue in Central Jail, Dimapur, Nagaland. The Commissioner of Police then sought the approval of the State Government vide his Communication dated 31.08.2023 and accordingly, the State Government, vide Order dated 11.09.2023, in exercise of the powers conferred under Section 3(2) of the NSA on being satisfied that the detention of the detenue was necessary directed his detention for initial period of three (3) months w.e.f. the date of detention till 30.11.2023 and that the detention will be reviewed as per the NSA.

4. The detenue, through the Superintendent of Police of the Central Jail, Dimapur, filed his representation to the State Government in the Home Department and also to the Joint Secretary, Internal Security-II Division, Ministry of Home Affairs, New Delhi, amongst others. The representation was received by the Special Secretary to the Government of Nagaland, Home Department, Political Branch, on 18.09.2023 itself, and thereafter put up before the State Government. Consequently, the representation was rejected vide Order dated 29.09.2023 under the signature of the Chief Secretary to the Government of Nagaland and the Special Secretary to the Government of Nagaland, Home Department. Likewise the representation to the Ministry of Home Affairs was also rejected vide communication dated 13.10.2023. The Chief Secretary to the Government of Nagaland thereafter on 17.11.2023, passed the Confirmation Order in exercise of the powers conferred by Section 12(1) NSA and directed that he be detained for another three (3) months w.e.f. 01.12.2023 till 28.02.2024 and that his detention will be reviewed as per the provision of the NSA.

5. Mr. Limawapang, learned counsel for the petitioner submits that the detenue was detained vide Order dated 31.08.2023 purportedly on the subjective satisfaction of the Commissioner of Police but however, instead of the Commissioner of Police, it is the Principal Secretary to the Government of Nagaland, Home Department, who has filed the affidavit-in-opposition, against the writ petition. Referring to paragraph No. 8 of the affidavit-in-opposition the learned counsel submits that the Principal Secretary has stated that he was well aware that the detenue was in judicial custody and was fully satisfied with the materials placed on record, and after thorough application of mind, the Detention Order was passed directing the detenue to be detained under Section 120B IPC read with Section 25(1A)(1AA) of the Arms Act read with Section 7/8 NSR. The learned counsel for the petitioner submits that the said statement is not only misconceived as the Principal Secretary to the Government of Nagaland, Home Department, could not have expressed subjective satisfaction on behalf of the Commissioner of Police