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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Nelson Sailo, Budi Habung, JJ.
Shri Thingbam Shimrah S/o Late Siaring Shimrah – Petitioner
Versus
The State Of Nagaland Through The Chief Secretary an ors. – Respondents
W.P.(Crl.)/14, 10, 13 of 2023
Decided On : 16-02-2024
Habeas Corpus - National Security Act, 1980 - Section 120(B) of the IPC, Section (1A)/25(1AA) of the Arms Act, 1959, Regulation 7/8 of the Nagaland Security Regulation (NSR) - Summary of the acts and sections referenced and discussed by the court.
Fact of the Case:
The three writ petitions were filed under Article 226 of the Constitution of India by the wives of the detenue seeking issuance of writ in the nature of Habeas Corpus for setting aside the detention orders of their husbands under the National Security Act, 1980 (NSA) and for a direction to the respondent authorities to set them at liberty.
Finding of the Court:
The court found that the detention orders were based on erroneous subjective satisfaction, the delay in disposing of the representations was not explained, and the Principal Secretary to the Government of Nagaland could not have explained the subjective satisfaction of the Detaining Authority. The court also found that the detention orders were not sustainable and were set aside, directing the detenues to be set at liberty.
Issues: The issues included erroneous subjective satisfaction, delay in disposing of the representations, and the authority of the Principal Secretary to explain the subjective satisfaction of the Detaining Authority.
Ratio Decidendi: The detention orders were not sustainable due to erroneous subjective satisfaction, unexplained delay in disposing of the representations, and the lack of authority of the Principal Secretary to explain the subjective satisfaction of the Detaining Authority.
Final Decision: The impugned Orders were set aside and the detenues were directed to be set at liberty.
JUDGMENT :
Nelson Sailo, J.
This Order will dispose of all the three (3) cases since common issues are involved and they are covered by the registration of a common Police case.
2. The three (3) writ petitions are filed under Article 226 of the Constitution of India by the respective wives of the detenue seeking issuance of writ in the nature of Habeas Corpus for setting aside the detention orders of their husbands under the National Security Act, 1980 (NSA) and for a direction to the respondent authorities to set them at liberty.
3. Heard Mr. Sarif Ahmed, learned counsel for the petitioner in WP(Crl) No. 14/2023, Mr. P.B. Paul, learned counsel for the petitioner in WP(Crl) No. 10/2023, Mr. M. Kasar, learned counsel for the petitioner in WP(Crl) No. 13/2023, Mr. E. Thiba Phom, learned State Counsel for the State respondents in all the cases and Mr. Yangerwati, learned CGC for the respondent Union of India in all the cases.
4. The case of the petitioner in WP (Crl) No. 14/2023 is that her husband (detenue) was arrested on 11.07.2023 pursuant to the Suo Moto FIR filed on 10.07.2023 before the Office-in-Charge, Sovima Police Station, Chumukedima wherein, it was stated that information was received from Intelligence Input about trafficking of ammunition at Sovima village and based on which one suspected vehicle Bolero bearing registration No. AS 01 BY 9559 was intercepted at Sovima village and huge amount of ammunitions comprising of 1500 numbers of 7.62mm and 980 numbers of 5.56mm ammunitions packed inside three (3) rice bags were recovered from the vehicle. The two (2) occupants of the vehicle were arrested and the vehicle seized. Later on, based on the preliminary investigation, one (1) more person namely, Elizabeth Zingkhai was also arrested. Sovima P.S Case No. 0014/2023 under Section 120(B) of the IPC read with Section (1A)/25(1AA) of the Arms Act, 1959 (Arms Act) and Regulation 7/8 of the Nagaland Security Regulation (NSR) was registered and investigated into. At the time of arrest of the detenue, the properties seized from his possession were one (1) Maruti Suzuki Zen car bearing registration No. WB 02 V 2232, cash amount of Rs. 29,450/-, one (1) wrist watch, one (1) mobile phone and one (1) handbag. Apart from these items, no illegal item whatsoever was seized from his possession. By orders dated 12.07.2023 and 17.07.2023, the Chief Judicial Magistrate (CJM), Dimapur granted police remand of the detenue on the prayer made by the Investigating Officer (I/O). Thereafter, on 19.07.2023, the I/O forwarded the detenue before the CJM, Dimapur with a prayer for judicial remand.
5. Mr. Sarif Ahmed submits that while the detenue was under judicial custody in Central Jail, Dimapur, one (1) police personnel visited the Central Jail, Dimapur on 01.09.2023 and handed over five (5) documents to the detenue. The documents were Detention Order dated 31.08.2023, Grounds of Detention, Letter of Approval for Detention dated 31.08.2023, Schedule and Letter of Information dated 31.08.2023. Apart from these documents, no other documents were supplied to the detenue. According to the detenue, at the time of handing over of these documents, the police personnel did not explain to the detenue the contents of the documents and it was only on 02.09.2023 that the detenue came to know the reason for his detention when the lawyer representing him visited the Central Jail, Dimapur informing him that he was booked under the NSA by the Order dated 31.08.2023 by the Commission of Police and District Magistrate, Dimapur for a period of three (3) months. The detenue then on 11.09.2023 submitted a representation through the respondent No. 5 to all the respondents. The detenue then was served with the approval of his detention vide Order dated 11.09.2023 on 15.09.2023, which was for initially a period of three (3) months from the date of his detention till 30.11.2023. At the time of handing over the said approval order, the documents attached to the said order incl
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 detention orders under the National Security Act, 1980 (NSA) must be based on the Detaining Authority's subjective satisfaction, and the representations of the detenues must be disposed of withou....
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....
Unexplained delays in addressing a detainee's representation for release render ongoing detention unconstitutional, affirming the necessity for prompt action by authorities.
Point of Law : It is, thus, settled that the subjective satisfaction of the detaining authority has to be based on objective material and any non-existent or misconceived or irrelevant consideration,....
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