Vuzoto Achumi vs State of Nagaland and Others

V.K. Khanna, C.J.—The present habeas corpus petition has been filed in the matter of detenu Vitoshe Sema, son of rate Solhozu, village - Old Shena, District - Zunheboto, Nagaland, challenging the order of detention dated 27.9.96 (Annexure-�4� to the petition) passed under Sub-sections (1) and (2) of Section 8 of the National Security Act, 1980, (hereinafter referred to as ''the Act'').

At the very outset, it may be mentioned that on 21.11.96, we had heard Mr. D.K. Misra, learned Counsel appearing for the Petitioner and the detenu, and Mr. Pradip Khataniar, learned Additional Senior Government Advocate, appearing for the State of Nagaland. The original records were also produced on that day and after hearing the learned Counsel for the parties, we had reserved the judgment to be delivered on 22.11.96. On 22.11.96, the case was taken up in the chamber as the Bench wanted certain clarifications from the learned Counsel for the Petitioner/detenu who had made a statement that no bail application on behalf of the detenu had been moved. But that averment having not been made in the Civil Rule, no reply had come in the affidavit-in-opposition filed on behalf of the State of Nagaland. As the aforesaid fact had a vital bearing on one of the legal questions which was being raised in the case, it was posted on 26.11.96 as because of the bereavement in the family of Mr. D.K. Misra, he had not come to the Court. The case was again taken up on 26.11.96 and his fact was pointed out to Mr. D.K. Misra, learned Counsel appearing for the Petitioner and the detenu, that the aforesaid fact had not been mentioned in the Civil Rule and thus no reply had come in the affidavit-in-opposition, Mr. Pradip Khataniar, learned Additional Senior Government Advocate, Nagaland, sought time till the next day for obtaining instruction on the aforesaid point. The case was, thereafter, taken on 27.11.96, and Mr. Misra, learned Counsel appeared for the Petitioner and the detenu and Mr. A.R. Barthakur, learned Advocate General, assisted by Mr. Pradip Khataniar, learned Additional Senior Government Advocate, appeared for the State of Nagaland. Mr. D.K. Misra on that day made a statement that the questions arising in this case also arise in Civil Rules No. (HC) 48/96, 59(G)/96, 60(G)/96, 61(G)/96 and 62(G)/96 and all these cases may be heard together. The cases were thereafter ordered to be placed before us as unlisted on 28.11.96.

2-A. Even though, at the initial hearing, Mr. D.K. Misra had made a statement that no bail application had been moved on behalf of the detenu, on instruction obtained from the State of Nagaland, Mr. A.R. Barthakur, learned Advocate General, made a statement that according to information received by him on telephone from the Deputy Superintendent of Police, Dimapur, a bail application on behalf of the detenu had been moved on 6.9.96 before the Deputy Commissioner (Judicial), Dimapur which was fixed for hearing on 3.10.96. but till now no order has been passed on that bail application and it is pending for disposal. Thereafter, we heard Mr. D.K. Misra, learned Counsel appearing for the Petitioner and the detenu, and Mr. Misra also raised a new point which was not raised that the period of 7 (seven) weeks for submission of report by the Advisory Board as contemplated by Section 11 of the National Security Act has expired and thus the detention order has become invalid on that ground. Learned Advocate General, Mr. A.R. Barthakur, was therefore required to furnish information to this Court as to whether the Advisory Board has submitted its report within the statutory period prescribed by the National Security Act as according to Mr. D.K. Misra, learned Counsel appearing for the Petitioner and the detenu, this information should now be given to the Court by the State of Nagaland. After hearing the arguments, we were of the opinion that in connection with the adjudication of other points in this case, the record of the investigation into the charges levelled against the detenu in case No. 0188/96 Under Sections 120B/12A/122/124 and 10/11, U.A. (P) Act registered at Dimapur West Police Station will also be produced before us. We have made it clear that one of the questions which arose in this case was whether the detenu has made any bail application or not. At the initial stage, a statement was made by the counsel appearing for the Petitioner and the detenu that in the aforesaid criminal case no bail application had been moved by the detenu, but the learned Advocate General has made a categorical statement lint a bail application has been moved bill no categorical statement has come as to whether the bail application has been dealt with by the Court concerned. The Court, therefore, ordered the record of the bail application moved before the Deputy Commissioner (Judicial), Dinupur to be procured and produced on the next date of hearing and the case was accordingly ordered to be listed before us on 5.12.96 as a fixed item as the first case.

On 5.12.96, at the very outset, the learned Counsel appearing for the Petitioner and the detenu, Mr. D.K. Misra, has made a statement that somehow on wrong instructions he had made the statement that bail application has not been moved; but now on further inquiry, he made a statement before us that bail application in this case has, in fact, been moved on 28.9.96, and the same is pending and has not been disposed of as yet. The aforesaid fact was also corroborated by Sri A.R. Barthakur, learned Advocate General appearing for the State of Nagaland, that in this case in fact a bail application has been moved on 28.9.96 and the hearing was fixed on 3.10.96 but the hearing has not been concluded and the bail application is still pending for disposal. It is in these circumstances, we heard the learned Counsel for the panics again as the earlier arguments on one of the legal quest ions had proceeded on wrong assumption that the detenu had not moved any bail application which fact, as has been stated above was found to be incorrect, the bail application having been moved on 28.9.96 and the hearing was also fixed on 3.10.96, but the hearing had not been concluded, and the bail application on behalf of detenu is in fact pending before the competent Court.

It may be mentioned that Mr. D.K. Misra, learned Counsel appearing for the Petitioner/detenu, as has been stated above, on 27.11.96 had also prayed that other Civil Rules, that is, Civil Rules No. (HC) 48/96, 59/(G)/96, 60(G)/96, 61(G)/96 and 62(G)/96, be also heard along with this Civil Rule, It may also be mentioned that in connection with the aforesaid Civil Rules, Mr. Misra, has filed before us five (5) orders passed by the Deputy Commissioner, (Judicial), Dimapur lo show that in the aforesaid five Civil Rules also bail applications had been moved on behalf of the detenus and the aforesaid bail applications have been rejected by live separate orders dated 31.5.96. The aforesaid orders have been taken by us on the records of each of these Civil Rules and formed part of the record.

One of the crucial facts in the present Civil Rule No. (HC) 53/96 is different from the other five Civil Rules in the sense mat in the present Civil Rule the bail application has been moved but the same has not been disposed of, but in the other I five Civil Rules, bail applications had been moved on behalf of the five detenus and rejected by the Deputy Commissioner (Judicial) by live separate orders dated 31.5.96. We therefore propose to dispose of the present Civil Rule separately and the order five (5) Civil Rules by a common judgment. It may also be mentioned that the fact that in the other five Civil Rules bail applications on behalf of the five detenus have been rejected by the Deputy Commissioner (Judicial), Dimapur on 31.5.96 has not been denied by Mr. A.R. Barthakur, learned Advocate General, State of Nagaland.

The relevant facts pertinent to this habeas corpus petition are that the detenu Vitoshe Sema was arrested by the Army on 10.9.96 and was handed over to the police at Dimapur and the officer-in-charge, Dimapur West P.S. registered a case being Case No. 0188/96 Under Sections 120D/121/121A/122/124A of the I.P.C. along with Sections 10/13 of the Unlawful Activities (P) Act. While the detenu was in judicial custody in connection with the aforesaid case, according to the Petitioner, an order of detention dated 27.9.96 issued by Sri L. Colney, Additional Chief Secretary, Govt. of Nagaland, was served on 4.10.96 on the detenu.

At the out-set, it may be mentioned that the original records pertaining to this case have been produced before us by the State of Nagaland.

Sri D.K. Misra, learned Counsel appearing for the detenu has urged before us three points. It has been firstly urged that there has been non-application of mind by the detaining authority while passing the detention order under the Act inasmuch as the detenu was in judicial custody in connection with Dimrpur West PS Case No. 0188/96 Under Sections 120(B). 121, 121(A), 122 & 124(A), IPC, read with Sections 10 and 13 of the U.A. (P) Act. It has been strenuously urged that the detenu was already in custody in connection with the criminal cases at the time of making detention order and the detention order read along with its Annexures nowhere indicated that the detaining authority apprehended the likelihood of the detenu being released on bail in the criminal case and considered the detention order necessary. Reliance has been placed on the case of N. Meera Rani Vs. Government of Tamil Nadu and Another,

Secondly, it has been urged that the detention order was neither prepared nor signed by the competent authority who is authorised on that behalf on behalf of the State Government under the Act and on that ground the impugned detention order dated 27.9.96 is liable to be set aside as the Deputy Secretary who has communicated the order is not competent authority to communicate the order u/s 3 of the Act unless the same is signed by the competent authority, i.e., the Respondent No. 2.

Thirdly, it has been urged that the representation to the State Government against the detention order was filed on 4.10.96 and the same was not disposed of within the reasonable time (disposed of on 2.11.96) and there has been delay in disposal of the representation and on this ground also the detention order is liable to be quashed as the delay in disposing of the representation has not been explained.

Lastly, it has been urged that the period of seven (7) weeks for submission of report by the Advisory Board as contemplated by Section 11 of the National Security Act has expired and the report having not been submitted within the prescribed period, the detention order is liable to be quashed on that ground also, In connection with this ground, we may mention that Mr. A.R. Barthakur has placed before us the report of the Advisory Board dated 9.11.96 whereby the Advisory Board gave the opinion that there are good and sufficient reasons for continued detention of the detenu in order to prevent him from further indulging in activities prejudicial to the defence of India, security of the State of Nagaland and maintenance of public order. The Board also considered the representation submitted by the detenu to the Additional Chief Secretary to the Govt. of Nagaland (Home) and after consideration of the same found no meat in the representation. The aforesaid report of the Advisory Board also forms part of the record of this case.

As far as the first ground raised by the learned Counsel Mr. D.K. Misra, i.e., non-application of mind by the detaining authority as the detenu was already in jail and the detaining authority had not recorded its satisfaction about the likelihood of the detenu being released on bail is concerned, it will be worthwhile to first note the admitted facts of this case.

It has not been disputed that the detenu was in custody at the time of service of detention order in connection with the criminal case, i.e., West PS Case No. 0188/96 Under Sections 120(B)/121/121(A)/122/124(A), IPC, read with Sections 10 and 13, Unlawful Activities (Prevention) Act. This fact is also borne out from the report for detention sent by the Superintendent of Police on 16.9.96 to the Deputy Commissioner, Kohima, which forms part of Annexure-''A'' to the Civil Rule, that is, the order of detention, grounds of detention and the Schedule to it. The report clearly mentions that the detenu was apprehended by the Secrity Forces on 10.9.96 and handed over to West PS on 14.9.96 at 10.10 p.m. and the case was registered in the West PS vide Case No. 0188/96 under Sections 120(B)/121/121(A)/122/124(A), Indian Penal Code, read with Sections 10 and 13 of the Unlawful activities (Prevention) Act, which is under investigation.

In paragraph-10 of the Civil Rule, it has been mentioned that neither the order of detention nor the grounds of detention discloses as to whether the detaining authority applied its mind to the fact that the detenue having already been in custody Why the order of detention under the Act was required to be passed and the (Impugned detention order is accordingly liable to be quashed.

An affidavit-in-opposition has been filed by the Deputy Secretary (Home), Govt. of Nagaland, in which, it has been stated that the detaining authority was aware of the fact that the detenu was under judicial custody in connection with Dimapur West PS Case No. 0188/96 Under Sections 120(B)/121A/122/124-A, IPC/10 & 13, U.A.(P) Act. However, the detaining authority was of the view that those sections were not sufficient to detain him and the detaining authority considered necessary to detain the detenu under the Act considering the gravity of the offence and the activities of the detenu which were prejudicial to the defence of India, security of the State and maintenance of public order.

As we have stated above, from the admitted facts it is clear that the detenu has moved a bail application on 6.9.96 before the Deputy Commissioner, (Judicial), Dimapur which was fixed for hearing on 3.10.96 but has not been disposed of uptill now.

The Apex Court in the case of N. Meera Rani (supra), has reiterated all the authorities of the Apex Court including (he decision of the Constitution Bench in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, and has held:

...14. The detention Order in Rameshwar Shaw case was made and also served on the detenu while he was in jail custody. The detenue 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 a criminal complaint against him. The Constitution Bench considered the effect of the detenu''s subsisting detention at the time of 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.

The position of law was summarised by their Lordships as under : (SCR pp. 929-31). 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 in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested dial 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 lime 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 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 fide satisfied that such detention is necessary, he can make a valid order of detention a few days be fore 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 as 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 u/s 3(1)(a). The first stage in the process is to examine the material adduced against a person to show cither 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 dial, 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, lie 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 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 u/s 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.

A recent decision on the point is Shashi Aggarwal Vs. State of U.P. and Others, in which also the settled principle is reinterated and it is pointed out that the ultimate decision depends on the facts of a particular case, the test to be applied remaining the same, as indicated in Rameshwar Shaw case. It was also pointed out in this decision that the earlier decisions of the Supreme Court in Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, do not run counter to the decision in Alijan Mian Vs. District Magistrate, Dhanbad and Others, In each of these cases the conclusion was reached on the facts of the particular case, the test applied being the same. Similarly, in this decision it was once again pointed out that the detenu being already in jail, the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detenu would indulge, in activities prejudicial to the maintenance of public order in case of his release on bail. The detention order in that case had been made merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. It was, therefore, held that the mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of preventive detention in the absence of any material on the record to show that if released on bail he was likely to commit activities prejudicial to the maintenance of public order. The detention order in that case was quashed on the ground that the requisite material to entertain such an apprehension reasonably was not present. The conclusion reached therein, on the facts and circumstances of the case, is as under : (SCC P. 440, Para 12).

In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of being bailed out. We do not think that the order of detention could be justified only on that basis.

A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw case. The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw case for the obvious reason that all subsequent decisions were by benches comprised of lesser number of judges. We have dealt with, the matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw case.

We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already is custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and lake that factor into account while making the order; but even so, if the detaining authority is reasonably satisfied on cogent material 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 detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position.

It is, therefore, clear that law has been summarisd by the Apex Court in para-22 in the case of N. Meera Rani (supra), and we have thus to see as to whether (i) the detaining authority was aware, of the fact of subsisting custody of the detenu; (ii) in case it was aware of the aforesaid fact has it taken into account that factor while making the detention order; and (iii) the detaining authority was reasonably satisfied on cogent material that there was likelihood of the detenu''s release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent the detenu from indulging in such prejudicial activities.

From the report dated 16.9.96 seal by the Superintendent of Police, Dimapur, it is clear that the aforesaid material was before the Deputy Commissioner that the detenu was in custody in connection with Dimapur West PS Case No. 0188/96, under Sections 120(B)/121/121(A)/122/124(A), IPC, read with Sections 10/13 of the U.A. (P) Act.

We are reproducing the order of detention which was passed by the Additional Chief Secretary to the Government of Nagaland dated 27th September, 1996, which runs as follows:

Whereas the State Government of Nagaland is satisfied that with a view to prevent SS. Secy. Judicial Finance Vitoshe Sema NSCN (I/M) s/o Sulhozu Sema Shena Old Village Zunheboto district from acting in any manner prejudicial to the defence of India, Security of the State of Nagaland and maintenance of public order. It is necessary to detain him under Sub-sections (1) and (2) of Section 3 of the National Security Act, 1980.

Now therefore in exercise of powers conferred by Sub-sections (1) and (2) of Section 3 of the said Act, the State Government hereby orders that Sri Vitoshe Sema be detained and kept in Central Jail Dimapur.

Sd/-L. Colney Addl. Chief Secretary to the Govt. of Nagaland.

The aforesaid order is also accompanied by the grounds of detention which runs as follows:

.... ....

Whereas the State Government of Nagaland have made detention orders against you under Sub-section (1) and (2) Section 3 of the National Security Act, 1980.

Now, therefore, in pursuance of the provision of Section 8 of the said Act, the State Government do hereby inform you that the said detention order has been made against you on the following grounds:

Defence of India.

The Security of the State of Nagaland.

The maintenance of public order.

The particulars which have a bearing on the matter are specified in the Schedule attached.

You have a right to make a representation to the State Government against the above said order. You have also a right to claim a personal hearing before the Advisory Board.

Sd/-A.M. Patton 27.9.96 Deputy Secy to the Government of Nagaland.

There is also a Schedule attached to the aforesaid detention order which contains the report of the Superintendent of Police, Dimapur, dated 16.9.96. The first paragraph mentions about the apprehension of the detenu by the Security Forces and handing over the detenu to the Dimapur Police Station along with incriminating documents besides a pistol with 5 rounds of. 303 BDR ammunition seized from his possession.

To the Deputy Commissioner, on 16.9.96, the Superintendent of Police has also forwarded the report for detention of the detenu in which brief history of the person sought to be detained has been mentioned and also the grounds on which the person is sought to be detained, which runs as follows:

SS. Secretary (Judicial) Vitoshe Soma and former Sections Dy. Finance Secretary of the NSCN (IM) was apprehended by the Security Forces on 10th September, 1996 from LRC Colony, Nutun Basti, Dimapur and handed over to the West Police Station on 14th September, 1996 at 10.10 P.M. The Security Forces also handed over a number of incriminating documents and a pistol with 5 rounds of 303 BDR ammunition seized from his person.

A case to this effect was registered in the West Police Station vide Case No. 0188/96 u/s 120(B)/121/121(A)/122/124(A)/10/13 UA(P) Act and is presently under investigation.

BRIEF HISTORY OF THE PERSON SOUGHT TO BE DETAINED:

SS Secretary (Judicial) Vitoshe Sema s/o Sulhozu Sema of Shena old village under Zunheboto District of Sataka area was born in 1954 and had his early education from Zunheboto and did his graduation from Kohima college in 1983. He gave up his studies after joining in M.A. (previous) in English to join as Headmaster in Saptika High School under Sataka Sub-division. He left the school in 1986 and went on deputation as Joint Block Development officer in the Rural Development Department (Govt. of Nagaland) and served in that post till 1990. In March 1990 he deserted his Govt. job and voluntarily joined in the NSCN (IM) faction. In 1991 he was appointed as the SS personal secretary to the Regional Chairman of U.T.I. In the following year he was appointed again as the SS Central political organiser and held this appointment till 1993. He was elevated to the post of SS Deputy Secretary, Finance in 1993 and was in that capacity till 1995 in which capacity he has extorted money from the Govt. departments and from the innocent public of Dimapur to the tune of Rs. 10 crores within the short span of his tenure as the SS. Dy. Finance Secretary. Three receipt booklets of the NSCN (IM) proving his guilt were also seized from his possession at the time of his apprehension. In 1995, he was appointed as SS Secretary (Judicial) and was in that post till his apprehension on 10.9.96 from Dimapur by the Section Fs.

GROUNDS ON WHICH THE PERSON IS SOUGHT TO BE DETAINED:

That SS Secy (Judl.) Vitoshe Sema is a hard-core and a very high ranking officer of the banned NSCN (IM) organisation taking active part in the large scale extortion of money from the Govt. Departments and from the general public for the secessionist cause of the NSCN (IM) thereby affecting maintenance of public order in Dimapur police District.

That the individual''s commitment for the cause of the organisation and the furtherence of its object is undisputed from the very fact that he could give up a very important post of the Govt. of Nagaland and joined in the banned organisation holding the most important and crucial assignment of SS Dy. Finance Secretary besides other assignments thereby acting against the security of the State of Nagaland and Defence of India.

That SS Secy (Judl,) Vitoshe Sema illegally crossed the international border of India and actively took part in the deliberation of all the higher ranking officers of the banned organisation held at Dhaka in Bangladesh in 1995 for purchase of contraband arms and ammns for its cadres to wage an armed war against the Govt. of India as by law established thereby jeopardising the defence of India.

That the subject is responsible for all kinds of extortion in Nagaland for NSCN (IM). He had also despatched Rs. Two crores to Bangkok for purchase of contraband arms and ammns through the direction of the NSCN (IM) SS President Isak Chisi Swu in March 1995 which were to be used for activities detrimental to the Security of the State of Nagaland and defence of India.

In view of the above reasons, SS Secretary (Judicial) Vitoshe Sema of NSCN (IM) be booked under National Security Act with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, security of the State of Nagaland and the defence of India. It is, therefore requested that necessary orders for the detention of SS Secretary (Judicial) Vitoshe Sema of NSCN (IM) u/s 3(1) and (2) of the National Security Act 1980 be issued.

Sd/- Investigating officer of West PS Case No. 0188/96 u/s 120(B)/ 121/121(A)/122/124(A)/R/W 10/ 13 UA(P)Act.

The original records pertaining to this case, have been produced before us along with the note-sheets and we have carefully perused the same, and from the perusal of the original records, we do not find dial the detaining authority had at all applied its mind for reaching the conclusion that it was reasonably satisfied on cogent material that there was likelihood of the detenu''s release and in view of his antecedent activities wich are proximate in point of time he must be detained in order to prevent the detenu from indulging in such prejudicial activities as laid down in the case of N. Meera Rani (supra).

It may be mentioned that it is only in the affidavit-in opposition which has not been filed by the detaining authority, mat is the Additional Chief Secretary (Home), that now the ground has been taken that the detaining authority was of the view that the sections under which the criminal case had been registered against the detenu were not sufficient to detain him and the detaining authority considered it necessary to detain the detenu under the National Security Act considering the gravity of the offence and the activities of the detenu which were prejudicial to the defence of India, security of the State and maintenance of public order. There is not even an iota of evidence that the detaining authority was of the view that the sections under which the criminal case had been registered against the detenu were not sufficient to detain him, which is now being set up in para-13 of the affidavit-in-opposition which has been filed by the Deputy Secretary Smti B.P. Chetri (who is not the detaining authority). We have even otherwise looked into the original records, offences with which the detenu has been charged, materials which are existing on the original record and also the orders passed by the Deputy Commissioner (Judicial), Dimapur, dated 31.5.96 by which the bail applications of the five other detenus of the above-referred five Civil Rules had been rejected. The Deputy Commissioner (Judicial) has recorded a finding that after perusal of the F.I.R. and other connected papers, the allegation made against the accused is serious and the sections under which the accused are charged are non-bailable sections and, therefore, rejected the bail applications.

Let us now examine the probability of the case being correct which is now set up by the Deputy Secretary to the Government of Nagaland in the affidavit-in-opposition which has been filed in this case and a specific case has been set up in para-13 of the aforesaid affidavit that the sections with which the detenu was charged were not sufficient to detain him and, there fore, the detaining authority considered it necessary to detain the detenu under the National Security Act considering the gravity of the offers.

We have examined the aforesaid question from the point of view as to whether any prudent detaining authority could come to that conclusion on the materials which were before it, especially as mentioned above, in the absence of any express material existing on the record corroborating the facts which are being stated in paragraph-13 of the Affidavit-in-opposition. We have looked into the sections in connection with which the detenu has been arrested and the materials which have been existing on the record and also the forwarding report of the Superintendent of Police and the F.I.R. Without expressing any opinion on the merit, prima facie, we are of the opinion that on the basis of the materials which were existing on the original records before the detaining authority, it could not have possibly come to the conclusion that the section in connection with which he has been arrested are not sufficient to detain him in custody. We have stated above that Mr. D.K. Misra, learned Counsel appearing for the Petitioner and the detenu wanted the aforesaid five Civil Rules, namely Civil Rule Nos. (HC) 48/96, 59(G)/96, 60(G)/96, 61(G)/96 and 62(G)/96 to the (sic, be) heard together with the present Civil Rule. In those Cases charges levelled against the detenus are of similar nature, and we find that bail applications moved on behalf of the five detenus involved in the aforesaid five Civil Rules have been rejected by the Deputy Commissioner, (Judicial) by his order dated 31.5.96 after recording the finding that the allegation made against the accused is serious and the sections under which the accused are charged are non-bailable sections. These five orders have been passed on 31.5.96, that is, much before the detention order was passed in case of the present detenu. On the basis of the aforesaid materials which are before us, we are not prepared to believe the version which has been put forward by the Deputy Secretary to the Govt. of Nagaland (who is admitted not the detaining authority) in paragraph-13 of the affidavit-in-opposition tat the detaining authority was reasonably satisfied on cogent material that there was likelihood of the detenu''s release. In fact, we are of the opinion that the detaining authority has not at all applied its mind to this important factor while passing the detention order knowing fully well that the detenu was already in custody.

As has been held in the case of N. Meera Rani (supra), we are also of the opinion that the detention order read with its annexures indicates the detaining authority''s awareness of the fact of detenu''s jail custody at the time of the making of the detention order. However; there is no indication therein or in the original record that the detaining authority considered it likely that the detenu could be released on bail. As has been held by the Supreme Court regarding detenu''s complicity in the Bank dacoity, we are of the opinion in this case that there was ample material to prove the detenu''s complicity in the offences for which he has been charged. We are, therefore, of the opinion that the order of detention passed in the present case dated 27.9.96 by the Additional Chief Secretary to the Government of Nagaland is clearly invalid since the same was passed when the detenu was already in jail custody for the serious offences for which he was charged with no prospect of his release. We thus hold the detention order dated 27.9.96 to be invalid for this reason alone and express no opinion on merit about other grounds raised before us.

For the reasons stated above, the aforesaid order of detention dated 27.9.96 passed by the Additional Chief Secretary, Govt. of Nagaland, is quashed. This order will however not affect the detenu''s custody in connection with the Criminal case No. 0188/96 under Sections 120B 121/121A/l 22/124-A of the Indian Penal Code, read with Sections 10 and 13 of the Unlawful Activities (Prevention) Act. We would also clarify that in case at any point of lime the detaining authority on the materials available before it is reasonably satisfied on cogent material that there is likelihood of the detenu''s release and in view of his antecedent activities which are proximate in point of lime he must be detained in order to prevant the detenu from indulging in such prejudicial activities, it will be open for the detaining authority to pass fresh detention order in accordance with law. We may further clarify that in case the detenu is released in the criminal case No. 0188/96 under Sections 120(B)/121/121(A)/122/124(A), IPC, read with sections 10 & 13 of the Unlawful Activities (Prevention) Act, the question of preventive detention under the National Security Act on the above material may be reconsidered by the appropriate authority in accordance with law and this judgment passed by us shall not be construed as an impediment for that purpose.

Subject to the aforesaid observations, the writ petition is allowed. However, looking to the entire facts and circumstances of the case, we leave the parties to bear their own costs.