W.P.(Crl.) 20(K)/2016. Gauhati High Court

Case NumberW.P.(Crl.) 20(K)/2016
Judgement DateApril 03, 2021
CourtGauhati High Court

I N THE GAUHATI HI GH COURT

(THE HI GH COURT: ASSAM: NAGALAND: MI ZORAM AND ARUNACHAL PRADESH)

W.P.( Crl) No.20 ( K) of 2016

Shri Ngachanbam Kasar,

S/ o Suisa Kasar,

R/ o Kachai village,

District- Ukhrul, Manipur. (Presently lodged at Central Jail, Dimapur)

…………Petitioner

-Versus-

  1. The State of Nagaland represented by the Chief Secretary, Nagaland, Kohima.

  2. The Special Secretary to the Government of Nagaland,

    Home Department,

    Nagaland, Kohima.

  3. The Deputy Commissioner and District Magistrate,

    Wokha, Nagaland.

  4. The Superintendent of Jail,

    Central Jail, Dimapur, Nagaland.

  5. The Union of I ndia through the Secretary to the Govt. of I ndia, Ministry of Home Affairs,

    Government of I ndia, New Delhi.

    …………. Respondents

    BEFORE

    THE HON’BLE MR JUSTI CE S. SERTO

    Advocates :

    For the Petitioner : Mr.I mti Longjem,

    Ms. Esther

    Ms. Vinitoli, Advs.

    For State respondents :Mr.K.Wotsa, Sr. Govt. Advocate.

    For the respondent No.3, Union of I ndia : Mr. Yangerwati, C.G.C.

    W.P.(Crl) No.20(K)/2016 Page 1 of 14

    Date of hearing & Judgment : 03/ 04/ 2017

    JUDGEMENT & ORDER ( Oral)

    This is an application under Article 226 of the Constitution of I ndia praying for issuance of a writ of Habeas Corpus and/ or any other appropriate writ, order or direction of the like nature directing the respondents to release the petitioner/ detenue namely Ngachanbam Kasar who has been under detention as per the detention order of the District Magistrate Wokha vide order No.Judl-61/ NSA/ 2015-16/ 917-24 dated 22/ 8/ 2016 passed under section 3 (3) of the NSA, 1980.

  6. Heard Mr. I mti Longjem, learned counsel appearing for the petitioner. Also heard Mr. K. Wotsa, learned Sr. Government Advocate for the State respondents and Mr. Yangerwati, learned C.G.C. representing the Union of I ndia.

  7. From both the submissions of the learned counsels and what is stated in the petition and the affidavit-in-opposition, it transpires that the petitioner/ detenue was arrested by Wokha Police on 12/ 8/ 2016 after receiving information that he was indulging in extortion and his arrest was followed with registration of Wokha P.S. Case No.0032/ 16 under section 384 I PC read with section 7 NSR. Thereafter, he was remanded to police custody and eventually remanded to judicial custody by the learned Judicial Magistrate First Class, Wokha vide his order dated 13/ 8/ 2016. While he was under judicial custody, the District Magistrate, Wokha passed the detention order dated 22/ 8/ 2016 under section 3(3) of the NSA, 1980 mentioned above ordering his detention. The detention order passed by the District Magistrate is reproduced herein below:-

    ”GOVERNMENT OF NAGALAND OFFI CE OF THEDEPUTY COMMI SSI ONER

    W OKHA: NAGALAND

    No. Judl-61/ NSA/ 2015-16/ 917-24 Dated Wokha thw 22nd Aug 2016

    ORDER

    W.P.(Crl) No.20(K)/2016 Page 2 of 14

    Where, Shri. Ngachanbam Kasar S/ O Suisa Kasar, PO/PS Chingai, P/ Address- Thongbo Brigade was arrested on 12/ 08/ 16 in connection with Wokha PS C/ No.0032/ 16U/ S384 IPC R/ W7NSR Act.

    And whereas, the District Magistrate Wokha is satisfied that with a view to prevent Shri. Nagachanbam Kasar S/ O Suisa Kasar from acting in any manners prejudicial to the security of the State of Nagaland and maintenance of public order, it is necessary to detain him under Section 3(2) of the National Security Act, 1980.

    Now, therefore, in exercise of the power conferred by the State Government under Section 3(3) NSA, 1980, I Shri Wezope Keny, District Magistrate, Wokha hereby order that Shri. Ngachanbam Kasar S/ O Suisa Kasar, be detained under the National Security Act and be kept at Central Jail, Dimapur.

    Enclosed:-

  8. Ground of Detention

  9. Schedule to Ground of Detention

    Sd/ -

    WEZOPE KENYE

    District Magistrate

    Wokha Nagaland.

    No.Judl-61/ NSA/ 2015-16 Dated Wokha the 22nd Aug. 2016 Copy to:-

  10. The Home Commissioner, Nagaland Kohima.

  11. The Addl. Chief Secretary & Commissioner, Nagaland Kohima.

  12. The Superintendent of Police Wokha Nagaland.

  13. The Sr. Superintendent of Jail, Central Jail, Dimapur, Nagaland.

  14. The Superintendent District Jail Wokha.

  15. Shir. Ngachanbam Kasar S/ O Suisa Kasar c/ o Superintendent, District Jail Wokha.

  16. Office Copy.

    WEZOPE KENYE

    District Magistrate

    Wokha Nagaland.”

    W.P.(Crl) No.20(K)/2016 Page 3 of 14

  17. Since then, the petitioner/ detenue has remained under detention at Central jail, Dimapur. After the detention order was passed, he was served the grounds of his detention informing of his right to make a representation before appropriate authority if he so desires. Besides the detention order, he was furnished with the following documents:-i) Order No.CON/ NSA/ 41/ 2016/ 297 dated 24.08.2016 by which the detention order dated 22.8.16 passed by the District Magistrate Wokha was approved by the State Government and the petitioner was detained for a period of 1 year w.e.f.22.8.16.

    (ii) Letter No.Judl-61/ NSA/ 2003 dated 22.08.16 by the District Magistrate Wokha to the Special Secretary, Home Department for approval of the detention of the petitioner.

    (iii) Order No. Judl-61 NSA/ 2015-16/ 917-24 dated 22.08.16 passed by the District Magistrate Wokha detaining the petitioner under the Act.

    (iv) Schedule bearing No.Judl-61/ NSA/ 2003.

    (v) Grounds of Detention bearing No.Judl-61/ NSA/ 2003.

    (vi) Letter No.WDP/ CP/ WKA/ PS/ C/ NO.0032/ 16/ 567 dated 19.08.16 by the Superintendent of Police Wokha to the District Magistrate, Wokha proposing the detention of the petitioner under the Act.

    (vii) FI R dated 12.08.16.

    (viii) A complaint dated 12.8.16 purportedly by one Shri Khyolamo Lotha.

    (ix) Arrest/ Court Surrender memo dated 12.08.16.

    (x) Seizure Memo dated 12.08.16.

    (xi) Purported statements of the petitioner under Section 161 Cr.PC. (xii) Purported Joint I nterrogation of the petitioner.

  18. I t is submitted by the learned counsel for the petitioner that the offence charge against the detenue are something that can be effectively dealt with normal laws therefore, invoking of special law like NSA is uncalled for. I n support of his submission the learned counsel for the petitioner cited the case of Rek h a vs St at e of Tam il Nadu reported in ( 2 01 1) 5SCC 244

    W.P.(Crl) No.20(K)/2016 Page 4 of 14

    paragraph 14,15, 16, 17, 29, 30, 33, 34, 35. The relevant portion of the judgment is given here below:-

    “14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and...

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