Shri. Kedingulie Keretsu v. The State of Nagaland and 3 Ors

ORDER Date : 27-07-2023

JUDGMENT AND ORDER (ORAL) (Kardak Ete, J) Heard Mr. Hisinlo, learned counsel for the peti-tioner. Also heard Ms. Inaholi, learned Government Advocate and Mr. Yangerwati, learned C.G.C.

¶2This writ petition has been instituted by one Shri Kedingulie keretsu who claims to be the brother-in-law of the accused Ruokuodilhou Liezietsu (detenue) assailing the impugned detention order No.CON/PITNDPS/01/2023/01 dated 22/2/2023 passed by the Special Secretary, (Home), Government of Nagaland Kohima the impugned order No.- CON/PITNDPS/01/2023/12 dated 24/3/2023 rejecting the rep-resentation of the detenue and the impugned confirmation order No.CON/PITNDPS/01/2023/24 dated 9/5/2023 passed by the Chief Secretary, Government of Nagaland confirming the detention of the detenue on the ground of violation of Arti-cle 21 and 22(5) of the Constitution of India and Section 3(1) of the Prevention of Illicit Traffic under NDPS Act 1988 (here-inafter referred to as PITNDPS Act).

¶3The case of the petitioner is that on 24/1/2023 at around 6.00 hours, the Police including the STF, Narcotoc Cell and Crime Branch raided the residence of the detenue and ar-Page No.# 3/28 rested him on the allegation of involvement in suspected Nar-cotic and Arms and illegal trafficking of considerable quantity of Narcotic drugs and Psychotropic substance and engaged in marketing the same to gullible people of Nagaland. Further al-legation is that the detenue had recruited several persons to trade in Narcotic drugs and psychotropic substance in and around Kohima town and is suspected to be a member of Un-der Ground group. The police recovered suspected Narcotic drugs and Psychotropic substance and arms from the resi-dence of the detenue and accordingly FIR dated 24/1/2023 by Narcotic Cell PS PHQ Nagaland Kohima was registered being Case No.003/2023 u/s 21(a)/60 of the NDPS Act r/w 25(1B) Arms Act and 7 NSR Act. During the raid the following items were recovered from the residence of the detenue:-

¶17 grams (Approx) of suspected heroin

¶2Cash amounting to Rs.10110/-

¶3Few handmade pipe/apparatus

¶4Two Nos. of country made pistol.32 pistols and .22 pistols along with 15 live round.

¶4After the arrest the detenue was transferred to the judicial custody at the district Jail Kohima and then transferred to Dimapur Central Jail. The Addl. DGP (L & O) Nagaland sent a proposal letter to the Special Secretary (Home) for detention of the detenue under section 3(1) of the PITNDPS Act,1988 vide order No.PHQ/IGP/CID/NAR-D/81A/2022/148 dated 10/2/2023. Thereafter, the impugned detention order No.CON/PITNDPS/01/2023/01 dated 22/2/2023 was passed by the Special Secretary to the Government of Nagaland, Kohima Page No.# 4/28 along with the grounds of detention for initial period of 3 months w.e.f. the date of detention till 21/5/2023 by directing the detenue to be detained.

¶5The detenue being aggrieved of the detention or-der dated 22/2/2023 has submitted representation against the impugned detention order dated 22/2/2023 through the Su-perintendent Central Jail, Dimapur Nagaland and the same was forwarded and received on the same day. Thereafter, vide Order No.CON/PITNDPS/01/2023/12 dated 24/3/2023, the Special Secretary (Home) to the Government of Nagaland con-sidered and rejected the representation of the detenue. By or-der No.CON/PITNDPS/01/2023/24 dated 9/5/2023, the Chief Secretary Government of Nagaland, on basis of report of the Advisory Board had confirmed the detention of the detenue and further extended the detention period for another period of 3(three) months wef 22/5/2023 till 21/8/2023.

¶6By memorandum No.F.NO.U-11013/38/2023-PIT-NDPS dated 16/5/2023, the Central Government through the Under Secretary to the Government of India had informed that the representation of the detenue has been examined and considered along with material facts on record by Secretary (Revenue) on behalf of the Central Government and the same was rejected. On being aggrieved by the detention order as well as the rejection of the representation by the State and Central Government and also the confirmation order dated 9/5/2023, the present petition has been file principally on 2 grounds: "GROUNDS Page No.# 5/28

(i) For that the impugned Detention Order dated has been passed by the Special Secretary to the Govt. of Nagaland, mechanically and without any application of mind, in that , the detenue having been arrested on 24.01.2023 was for-warded for Judicial Custody on 02.02.2023. That at the time of passing of impugned detention order the detenue was under judicial custody at District Jail, Kohima, that the detaining authority (Special Secretary) has failed to con-sider the fact. It is settled principal that when a person is in judicial custody, the authority who is passing the detention order must first acknowledge and reflects in his order the fact that the person intended to be detained is under cus-tody and there are reasonable and cogent reasons to be-lieve that the detenue may act prejudicial if released on bail. However, no such justification was mentioned/re-flected in the impugned detention order, as such without any subjective satisfaction passing of detention order is il-legal, injustice and unacceptable in the eye of the law. Hence, there as in fact no subjective satisfaction as the sat-isfaction was based purely on assumed suspicion and bas-ing on the proposal for detention passed by the Addl. Di-rector General of Police (L&O) without there being any ma-terial evidence to support the suspicion. As such, the im-pugned detention orders dated 22.02.2023 is liable to be quashed and set aside on the sole ground alone.

(ii) That the detenue submitted his representation on

13.03.2023 and the same was received and forwarded on

13.03.2023 to the State and central government through Superintendent of Central Jail, Dimapur, Nagaland. Accord-ingly, the State Government disposed the detenue repre-sentation on 24.03,2023 which was served to the detenue only on 28.03.2023, as such there is a unreasonable and unexplained inordinate delay of 16(sixteen) days in consid-ering the representation submitted by the detenue. Whereas, the central govt. consider representation of the detenue on 16.05.2023 which was served to the detenue on 17.05.2023. As such there is unreasonable and unex-plained inordinate delay of 66 days by the central govern-ment in considering and rejection of the detenue's repre-sentation. The inordinate delay of 16 days in consideration of the petitioner's representation by the State Government and 66 days by the central government has made the con-Page No.# 6/28 tinued detention of the detenue illegal and which is clearly violation of Article 22(5) of the Constitution of India, ren-dering the order of detention liable to be quashed and set aside and the detenue be set at liberty."

¶7Mr. Hisinlo, learned counsel for the petitioner sub-mits that the detenue having being arrested on 24/1/2923 was forwarded to judicial custody on 2/2/2023. At the time of pass-ing the impugned detention order dated 22/2/2023, the de-tenue was in judicial custody at district Jail Kohima. He sub-mits that it is a settled principle that when a person is in judi-cial custody, the authority who is passing the detention order must first acknowledge and reflect in his order the fact that the person intended to be detained is under custody and there are reasonable and cogent reason to believe that the detenue may act pre-judicial if release on bail. However, no such justifi-cation was mentioned in the impugned detention order and as such, the same has been passed without any subjective satis-faction and without any application of mind. He further sub-mits that there is no subjective satisfaction as the satisfaction was passed purely on assumed suspicion and based on the proposal for detention by the Addl. DGP (L & O) without there being any material evidence to support the suspicion.

¶8The learned counsel for the petitioner submits that the detenue has submitted his representation on 13/3/2023 and the same was received and forwarded on the same day to the State Government and the Central Government through the Superintendent of Jail, Dimapur. The State Government disposed of the representation of the detenue on 24/3/2023 which was served to the detenue only on 28/3/2023. As such Page No.# 7/28 there is unreasonable and unexplained inordinate delay of 16 days in disposing of the representation of the detenue. He fur-ther submits that the Central Government has rejected the representation of the detenue on 16/5/2023 which was served to the detenue on 17/5/2023 as such there is unreasonable and unexplained inordinate delay of 66 days on the part of the Central Government. Delay in considering/disposing of the rep-resentation of the detenue is violation of Article 22(5) of the Constitution of India which rendered the order of detention untenable. Therefore, he prays that the impugned detention order dated 22/2/2023 and the consequential other orders may be set aside and quashed and the detenue Shri Ruokuodilhou Liezietsu be set at liberty.

¶9In support of his submission, the learned counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in the case of Huidrom Konungjao Singh vs State of Manipur & Others in Criminal Appeal No.840 of 2012, dated 17/5/2012 which is reproduced herein below :- "9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detain-ing authority has to satisfy the Court the following facts:

(1) The authority was fully aware of the fact that the detenu was actually in custody.

(2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

(3) In view of the above, the authority felt it necessary to pre-vent him from indulging in such activities and therefore, de-tention order was necessary. Page No.# 8/28 In case either of these facts does not exist the detention order would stand vitiated."

¶10The learned counsel further relied on the judgment of this Court dated 23/2/2023 in the case of Babul Ahmed vs Union of India & Others in W.P(Crl) 25/2022. The same is re-produced herein below:- "9. The law in this respect has been settled by the Hon'ble Supreme Court in its pronouncement in Rashid Ka-padia –vs-Medha Gadgil and others, reported in (2012) 11 SCC 745, wherein in paragraph 13 it had been provided as ex-tracted:- "13. It is well settled that the right of a per-son, who is preventively detained, to make a representa-tion and have it considered by the Authority concerned as expeditiously as possible, is a Constitutional right un-der Article 22(5). Any unreasonable and unexplainable delay in considering the representation is held to be fatal to the continued detention of the detenu. The proposi-tion is too well settled in a long line of decisions of this Court. We do not think it necessary to examine the au-thorities on this aspect, except to take note of a couple of Judgments where the principle is discussed in detail. They are; Mohinuddin alias Moin Master v. District Magistrate, Beed and Ors.[1] and Harshala Santosh Patil v. State of Maharashtra[(2006) 12 SCC 211 : (2007) 1SCC (Cri) 680."

¶10A reading of the afore-extracted propositions of the Hon'ble Supreme Court in Rashid Kapadia (supra) makes it discernible that when a detenu under preventive de-tention makes a representation, it has to be considered by the authority concerned as expeditiously as possible as it is a con-stitutional right under Article 22(5) of the Constitution of India and any unreasonable and unacceptable delay in considering the representation would have to be held to be fatal to the continued detention of the detenu.

¶11In the matter that was before the Hon'ble Supreme Court in Rashid Kapadia (supra), there the authori-ties took about one month to dispose of the representation of Page No.# 9/28 the detenu concerned and even the period of one month taken by the authority to dispose of the representation was viewed by the Hon'ble Supreme Court to be beyond the expe-ditious disposal as required in case of a preventive detention."

¶11Ms. Inaholi, learned Government Advocate appear-ing on behalf of the State respondent Nos. 1,2 and 3 while re-ferring to the affidavit-in-opposition filed by the State respon-dents submits that there are grounds for detention of the de-tenue under PITNDPS Act, 1988. The proposal substantiated by established facts and circumstances of the case was for-warded to the Detaining Authority by the Addl. DGP (L & O). The FIR of the Police report is documents containing the ac-tual facts and circumstances of the case. The grounds of de-tention has been formulated by the Detaining Authority in line with the established facts and circumstances of the case. The Detaining Authority while considering the detention of the de-tenue under the Act had written a letter dated 17/2/2023 to the Sponsoring authority to ascertain the facts as to whether the accused person namely Shri Ruokuodilhou Liezietsu has moved any bail application before the competent authority or already enlarged on bail. A reply was received from the Spon-soring authority on 18/2/2023 informing that the detenue has not applied for bail till then. She submits that having satisfied that the detenue was still in judicial custody in the district jail Kohima, the Special Secretary (Home) Department passed the detention order on dated 22/2/2023 against the detenue. The fact that the Detaining authority was aware that the detenue was in judicial custody at the time of passing the detention or-der is reflected in ground No.4 of the grounds of detention Page No.# 10/28 communicated to the detenue. The Detaining authority passed the detention order after careful examination of the case on good and valid ground.

¶12The learned Government Advocate submits that the representation dated 13/3/2023 was also received by the Detaining authority via India Post on 23/3/2023 (AN) as for-warded by the concerned Jail authority which was put up for consideration of the Detaining authority on 24/3/2023. The Detaining authority carefully examined the points raised in the representation and having found no merit in the representa-tion has rightly rejected the representation. The detenue was informed vide order dated 24/3/2023. The representation dated 13/3/2023 addressed to the Chief Secretary, Govern-ment of Nagaland on receipt by the Home Department was put up for consideration of the State Government on 27/3/2023. The State Government authority examined the points raised in the representation and also all the relevant record including the materials by which the Detaining authority was satisfied to direct the detention of the detenue. Accord-ingly, having found no merit in the representation, the State Government authority has turned down the representation. The detenue was accordingly informed by order dated 9/5/2023. As such, there is no delay in disposing of the repre-sentation of the detenue from the date of receipt of the same either by the Detaining authority or the State Government au-thority. The learned Government Advocate further submits that the case of the detenue was forwarded to the PITNDPS Advi-sory Board on 4/3/2023 for its independent examination. The Page No.# 11/28 Board after personal hearing of the detenue and after taking into consideration the facts and circumstances of the case found sufficient cause for detention of the detenue in its report dated 01/5/2023 submitted to the State Government. Accord-ingly, the confirmation order of detention dated 9/5/2023 was issued on the basis of the report of the Advisory Board submit-ted to the State Government wherein the detention period of the detenue was extended for another period of 3(three) months w.e.f. 22/5/2023 till 21/8/2023.

¶13In support of her submission, the learned State counsel has relied on the judgment of the Apex Court in the case of Baby Devassy vs Union of India reported in (2013) 4 SCC 531 which is reproduced herein below:- "13) In a series of decisions, this Court has held that it is the subjective satisfaction of the Detaining Authority whether a person has to be detained for a particular period of time or not. In the impugned grounds of detention, the De-taining Authority has narrated all the reasons for passing the detention order detaining the appellant with a view to prevent him from abetting the smuggling of goods in future. 14) With regard to non-application of mind, Mr. K.K. Mani, learned counsel for the appellant pointed out that on the date of passing of the detention order, i.e., 03.05.2005, the detenu was in prison though he was granted bail on 12.04.2005, he had not availed the same and continued in prison on the date of order. According to him, this aspect was not reflected in the detention order which, according to him, vitiates the detention on the principle of non-application of mind. It is true that though the detenu was granted bail on 12.04.2005, for the reasons best known to him, he did not avail such benefit and continued to be in jail on the date of the detention, i.e.,

03.05.2005. It is true that this aspect has not been mentioned in the detention order, however, on the other hand, it is not in dispute that the grounds of detention which forms part of the Detention Order dated 03.05.2005 clearly mention the details Page No.# 12/28 about the bail order dated 12.04.2005 and non-availing of the same on the date of detention order, i.e., 03.05.2005.

¶17For the same reason, the other contention, namely, that no compelling necessity to pass the order of detention is to be rejected. As a matter of fact, learned counsel for the De-taining Authority took us through various grounds/details/ma-terials adverted to in the impugned order and we are satisfied that it cannot be claimed that there was no compelling neces-sity to pass the order of detention. We have already pointed out that it is the subjective satisfaction of the Detaining Au-thority whether the order of detention is to be invoked or not. Accordingly, we reject the above contention also."

¶14The learned Government Advocate also relied in the case of Ankit Ashok Jalan vs Union of India and Others re-ported in (2020) 16 SCC 127 at paragraph 14.8 which is repro-duced herein below:- After considering the relevant decisions on the point, including Pankaj Kumar Chakrabarty18, Jayanarayan Sukul15, Haradhan Saha16 and Frances Coralie Mullin21 this Court observed:- "15. In Frances Coralie Mullin case, the de-tenu's representation was received by the detaining au-thority on December 26, 1979. Without any loss of time copy of the representation was sent to the customs au-thorities for their remarks which was obviously neces-sary because the information leading to the order of de-tention was collected by the customs authorities. The facts were undoubtedly complex since the allegations against the detenu revealed an involvement with an in-ternational gang of dope smugglers. The comments of the customs authorities were received on January 4, 1980. The Advisory Board was meeting on January 4, 1980 and so there could be no question of the detaining authority considering the representation of the detenu before the Board met, unless it was done in a great and undue haste. After obtaining the comments of the cus-toms authorities, it was found necessary to take legal advice as the representation posed many legal and con-stitutional questions, so, after consultation with the Sec-Page No.# 13/28 retary (Law and Judicial) Delhi Administration, the repre-sentation was finally rejected by the Administrator on January 15, 1980. It was held that if there appeared to be any delay it was not due to any want of care but be-cause the representation required a thorough examina-tion in consultation with investigation agencies and ad-visers on law.

¶16We agree with the observations in Frances Coralie Mullin case. The time imperative for con-sideration of representation can never be absolute or ob-sessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is Writ Petition (Crimi-nal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors. referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the rep-resentation must also be forwarded to the Advisory Board along with the case of the detenu. The represen-tation may be received after the case of the detenu is referred to the Board. Even in this situation the repre-sentation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of considera-tion of the representation before the receipt of report of the Advisory Board. Nor it could be said that the govern-ment has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the government after considering the representation could revoke the de-tention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the government con-siders the representation in the aforesaid two situations Page No.# 14/28 only after the receipt of the report of the Board. If the representation is received by the government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and dis-posed of by the government as early as possible."

¶15Mr. Yangerwati, learned C.G.C appearing for the Union of India, the respondent No.4 submits that the repre-sentation dated 13/3/2023 was received by the Ministry from the State Government of Nagaland through Post on 17/3/2023. Subsequently para wise comments on the repre-sentation was forwarded to the Ministry by the State Govern-ment through email dated 27/3/2023. The State Government by email dated 29/3/2023 informed that the case of the de-tenue has been referred to the Advisory Board on 4/3/2023 and that the report of the Advisory Board was awaited. Ac-cordingly, the matter was kept in abeyance. In terms of the judgment and order of the Hon'ble Supreme Court in the case of Ankit Ashok Jalan vs Union of India reported in (2020) 16 SCC 127 wherein Hon'ble Supreme Court has observed that the representation addressed to the Central Government would continue to be considered and disposed of either before a reference made to the Advisory Board or after the receipt of Advisory Board opinion and not during the pendency of the matter before the Advisory Board. Subsequently, the confirma-tion order dated 9/5/2023 issued by the State Government was received by the Ministry on 9/5/2023 by email. Thereafter, the representation of the detenue was examined along with the facts of the case and relevant materials provided by the Page No.# 15/28 State Government and was submitted to the competent/appro-priate authority i.e. Secretary(Revenue) on 10/5/2023 who on behalf of the Central Government carefully considered the ma-terial facts on record and disposed of the representation by re-jecting the same and was duly conveyed to the detenue by Memorandum dated 16/5/2023 and sent to the Jail authority by email dated 17/5/2023. Therefore, there is no delay in dis-posing of the representation of the detenue.

¶16We have considered the submissions of the learned counsel for the parties.

¶17The genesis of the matter emanates from the pro-posal dated 10/2/2023 from the Addl.DGP (L&O) Nagaland to the Special Secretary (Home) Government of Nagaland for passing appropriate order of detention under the provisions of PITNDPS Act which are reproduced here below:- " GOVERNMENT OF NAGLAND OFFICE OF THE DIRECTOR GENERAL OF POLICE NAGALAND KOHIMA NO.PHQ/IGP/CID/NAR-D/81A/2022/148

Dated. Kohima the 10th Feb,2023 To, The Special Secretary(Home) Home Department Government of Nagaland Nagaland Kohima. Sub:- PROPOSAL FOR DETENTION OF ACCUSED RUOKUODILHOU LIEZIETSU (M) 37 YRS,S/O LT.KEVIMESE LIEZIETSU V/O KOHIMA,PS,NORTH KOHIMA UNDER SECTION 391) OF THE PITNDPS ACT,1988. Ref.Nar(c) PS. C No.03/2023 U/S 21(a)/60 NDPS R/W 25(1B) Arms Act R/W 7 NSR Sir, Page No.# 16/28 Please find enclosed herewith a proposal along with relied upon documents for the detention of accused Ruokuodilhou Liezietsu (M) 37 yrs, S/O Kevimese Liezietsu un-der section 3(1) of the Prevention of Illicit Traffic in narcotic Drugs and Psychotropic Substance Act, 1988 (PITNDPS Act 1988). The proposal for detention of the above accused in Crime No.3/2023 dated 24/01/2023 of Narcotic Police Station was submitted by the I.O of the case through the Superinten-dent of Police (Narcotic and Prohibition) before the Screening Board, PHQ constituted for the purpose of recommendation of the detention of the accuse under the provisions of the PIT-NDPS Act 1988. The Screening Board has perused the pro-posal and relevant case documents placed before it. The brief facts of the case in Narcotic Police Station Crime No.003/2023 dated 24/01/2023 registered under section 21

(c) & 60 NDPS Act.

¶5Based on credible information received to the effect that one Mr. Ruokuodilhou Liezietsu S/O Kevimese Liezietsu member of UG group residing below Chakhesang Baptist Church, Kitsubozou colony, Kohima Sadan along with his associates are involved in illegal trafficking for con-siderable quantity of Narcotic drugs & Psychotropic sub-stance and are also engaged in marketing the same to gullible people of Nagaland is recruiting several persons to trade in Narcotic Drugs & Psychotropic substance in and around Kohima town a raid was conducted at the suspected accused residence and search carried out. The following items were recovered and sized from his possession (1) Around 7 grams (Approx) of suspected heroin (2) Cash amounting to Rs.10110/- (3)Few handmade pipe/apparatus

(4)Two Nos. of country made pistol.32 pistols and .22 pis-tols along with 15 live round of 22 and other incriminating items as mentioned in seizure list. In this connection Nar-cotic Cell PS Case No.03/2023 U/S 21(a)/60 NDPS R/W 25(1B) Arms Act R/W 7 NSR was registered on 21/01/2023. Ruokuodilhou was apprehended. Further, based on the information another suspected person Vizakhono (female), D/O Vedesul, V/O Viswema P.s Khuzama, Kohima, who is an acquaintance of the accused person was also ap-prehended from Agri colony Kohima. Presently the caser is under active investigation. Page No.# 17/28 During the course of investigation, the accused person was arrested under proper Arrest Memo and items in his possessions were seized through the proper Seizure Memo. The accused person was forwarded to the Hon'ble Court on 25/01/2023 and obtained police remand for a pe-riod of 8(eight) days w.e.f.25 jan 2023, for thorough inter-rogation. Presently, he is in judicial custody. Current Activity indicating indulgence in drug trade and technical in-vestigation:

¶1The statement of the accuse/proposed detainee given to the IO and the seizure Memo seizing the contraband reveals the indulgence of the accused in illicit traffic of Narcotic Drugs. He was procuring the contrabands from parties in Manipur and selling it to people in and around Kohima. In his statement to the I.O, he stated that he has been to Senapati for more than 10(ten) times to purchase drugs and the latest being on 14/01/2023. The statement of the accused corroborates with CDR/call records and Bank Transaction statement of the ac-cused-Ruokuodilhou Liezietsu with other suspects.

¶2The accused-Ruokuodilhou Liezietsu, has also stated that he is presently a member of an underground group NSCN (IM), Angami region, and admitted the ownership of the seized arms and ammunitions (seized ID card enclosed) Status of the accused: Presently, the accused is in judicial cus-tody at District Jail, Kohima w.e.f.02.02.2023. Status of previous cases: The accused-Ruokuodilhou Liezietsu is an accused in Kohima North PS. FIR NO.01 19/2021, dated 17/12/2011. The proposed detainee was convicted vide judg-ment order of the District & Session Judge, Kohima in GR 266/2011, dated 06/02/2015 u/s 304 part 1 IPC, section 6 NSR and Arms Act. He was sentenced to undergo simple Imprison-ment for 5 years and a fine of Rs.5000/- and in default to un-dergo simple imprisonment for 1 year. Grounds for detention:

¶1The accused-Ruokuodilhou Liezietsu is both a consumer and trafficker of NDPS and has admitted to illegal trafficking and marketing of Narcotic Drugs & Psychotropic substance in and around Kohima town confirming to acts under Sec 2(c) of PIT-NDPS Act 1988.

¶2The accused intermittently visits Senapati to purchase drugs. He has been to Senapati for more than 10(ten) times to pur-chase drugs and the latest being on 14/01/2023. Page No.# 18/28

¶3That, during the course of the investigation, analysis of the call records the Bank Account of the accused person-Ruokuodilhou Liezietsu and some suspected person from Senapati, with whom the accused person made financial transaction reveals the suspected existence of a vast intra and interstate network involved in smuggling and trafficking of il-licit drugs, Narcotic and psychotropic substances.

¶4The accused Ruokuodilhou Liezietsu is a member of under-ground group NSCN (IM) and is in illegal possession of arms and ammunitions. He being a member of UG faction is in a position to threaten the witnesses and also alarm the drug peddlers from whom he is purchasing the drugs. This would hamper the investigation of the case and be detrimental to the case.

¶5He has a history of crime. He is convicted in a murder case. With this background, he is in all likelihood could be a threat to the witnesses in the case and hence his continuation in pre-ventive detention is necessary in the interest of the case.

¶6That, the State of Nagaland lies within the area highly vulner-able to such illicit traffic as explained U/S 10(v) (c) of PIT-NDPS Act 1988. Conclusion: Illegal traffic in narcotic drugs and psychotropic sub-stances pose serious threat to people's health and welfare, and the activities of persons engaged in such illegal traffic have a deleteri-ous effect on the national economy and youth. The Government in the centre and State are constantly working towards the prevention of illicit traffic of NDPS. Nagaland being a transit route for illicit traf-ficking of the NDPS from Maynmar and Manipur to the other States in the country, prevention, detection, investigation and prosecution of the NDPS activities and cases is of importance. In this particular case, there are strong grounds for plac-ing the accused in preventive detention as in evident from the grounds mentioned above. The investigation of the case is in the initial stage. There are confidential reports which points towards a large network of supply and demand chain that is being investigated into. The accused is a member of UG faction in possession of the arms and ammunition, is an ex-convict, and is part of large network. In view of the above, the quantity of the seizure of contraband from the accused possession in the case is immaterial. If the competent authority, wishes to peruse reports of confidential nature, the de-partment undertakes to produce the same in the future. Therefore, in view of the above mentioned facts and the grounds/reasons men-Page No.# 19/28 tioned, it is strongly recommended to consider the proposal for pre-vention detention of accused Ruokuodilhou Liezietsu under se3ction 3(1) of the PITNDPS Act 1988. Enclosed:

¶1Proposal by I.O along with list of documents.

¶2Documents in Annexure 'A' to 'M'."

¶18To appreciate the matter we would refer to the im-pugned detention order No. No.CON/PITNDPS/01/2023/01 dated 22/2/2023 along with grounds which are quoted herein below:-GOVERNMENT OF NAGALAND HOME DEPARTMENT : POLITICAL BRANCH ORDER Dated Kohima, the 22nd Feb-ruary, 2023. NO.CON/PITNDPS/01/2023:: Whereas, the Addl. DGP (L&O), Nagaland has sent a proposal for detention of Mr. Ruokuodilhou Liezietsu, s/o Lt. Kevimese Liezietsu; Village: Kohima; PO/PS: North, Kohima; District: Kohima; State: Naga-land; P/Add: H/No. 4, Below Chakhesand Baptist Church, Kit-subozou, Kohima under PITNDPS Act, 1988 along with records under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. And whereas, on perusal of records as submitted by the Addl.DGP (L&O), Nagaland it appears that Mr. Ruokuodilhou Liezietsu, s/o Lt. Kevimese Liezietsu,; Village: Kohima; PO/PS: North, Kohima; District: Kohima; State; Naga-land:P/Add: H/No.4, Below Chakhesang Baptist Church Kitsub-ozou, Kohima was involved in the following case:-

(i) Narcotic P.S. C/No. 03/2023 U/S 21(a)/60 NDPS Act R/W 25 (1B) Arms Act R/W 7 NSR. And whereas, Addl. DGP (L&O), Nagaland has proposed to prevent Mr. Ruokuodilhou Liezietsu, s/o Lt. Kevimese Liezietsu; Village: Kohima; P/O/PS: North, Kohima; District: Kohima; State: Nagaland: P/Add: H.NO. 4, Below Chakhesang Baptist Church, Kitsubozou, Kohima from continuing his harmful and prejudicial activity by engaging in illicit traffic in narcotic drugs and psuchotropic substances which poses a serious threat to the public health and welfare of the people and the activities Page No.# 20/28 of him engaged in such illicit traffic have a deleterious effect on the national economy. And whereas, I. S.R. Saravanan, Special Secretary

(Home), Nagaland, specially empowered under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psy-chotropic Substances Act, 1988 (as amended) am satisfied on careful examination of the proposal of Addl. DGP (L&O), Naga-land and other supporting documents, found sufficient grounds for detention of Mr. Ruokuodilhou Liezietsu and being satisfied that with a view of preventing him from engaging in illicit traffic in NDPS, it is necessary to detain him. Now, therefore, the undersigned, in exercise of powers conferred by sub-section (1) of Section 3 of the Pre-vention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 has hereby issue this order directing Mr. Ruokuodilhou Liezietsu, s/o Lt. Kevimese Liezietsu; Village: Kohima; P/O/PS: North, Kohima; District: Kohima; State: Na-galand: P/Add: H.NO. 4, Below Chakhesang Baptist Church, Kitsubozou, Kohima be detained and kept in Central Jail, Dimapur for an initial period of three months w.e.f. the date of detention till 21.05.2023. Given under my hand and seal of the office on this 22nd day of February, 2023. (S.R.SARAVANAN) IPS Special Secretary to the Govt. of Nagaland. NO. CON/PITNDPS/01/2023 Dated Kohima, the 22nd February, 2023 Copy to:-

¶1The Joint Secretary, (PITNDPS/COFEPOSA), Govt. of India, Ministry of Finance, Department of Revenue, Central Eco-nomic Intelligence Bureau, 5th Floor 'B' Wing, Janpath, Bhawan, Janpath, New Delhi-110001

¶2The Dy. Secretary to Chief Secretary, Nagaland, Kohima

¶3The Director General of Police, Nagaland, Kohima

¶4The Director General of Prison, Nagaland, Kohima.

¶5The ADGP(L&O), , Nagaland, Kohima

¶6The Inspector General of Police (INT), Nagaland, Kohima

¶7The Inspector General of Police (CID), , Nagaland, Kohima

¶8The Superintendent of Police, Narcotics, Nagaland. Page No.# 21/28

¶9The Superintendent of Jails, Central Jail, Dimapur, Naga-land.

¶10Mr. Ruokuodilhou Liezietsu, c/o Superintendent of Jails, Central Jail, Dimapur, Nagaland.

¶11Office copy

(S.R.SARAVANAN) IPS Special Secretary to the Govt. of Nagaland. GROUNDS OF DETENTION To, Mr. Ruokuodilhou Liezietsu, S/o Lt. Kevimese Liezietsu; Village: Kohima PO/PS: North P.S. Kohima District: Kohima State: Nagaland P/add: H/No.4, below CBCK, Kitsubozou, Kohima Subject: Communication of Grounds of Detention under Sec-tion 3(1) of the PITNDPS Act, 1980 Whereas, the undersigned has made detention or-der against you under the provision of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 on the following grounds:

¶1You, Mr. Ruokuodilhou Liezietsu, is both a consumer and trafficker of NDPS and has admitted to illegal trafficking and marketing of Narcotice Drugs & Psychotropic Sub-stances in and around Kohima town confirming to acts under section 2 (e) of PITNDPS Act, 1988.

¶2That you have been regularly procuring narcotic drugs from dealers in Senapati District, Manipur and that you have been to Senapati more than 10 times, the latest being 14.01.2023, to purchase drugs with the intention to sell it to potential clients as evident in the material before me. This reflects that you had knowingly en-gaged yourself in illicit traffic of narcotic drugs.

¶3That, during the course of investigation, analysis of your call records and band accounts and some suspected per-sons from Senapati, with whom you have made financial transaction reveals the existence of vast intra and inter-Page No.# 22/28 state network involved in smuggling and trafficking of il-licit drugs, narcotis and psuchotropic substances.

¶4That you are presently under judicial custody w.e.f.

02.02.2023. On the basis of material placed before me, I am satisfied that you are likely to indulge in similar prej-udicial activity unless you are prevented from doing so by an appropriate order of preventive detention. Taking into account the nature of your antecedent activities, it is likely that after your release from custody you will in-dulge in prejudicial activities and it is necessary to de-tain you in order to prevent you from engaging in such activities.

¶5That, the State of Nagaland lies within the area highly vulnerable to such illicit traffic of Narcotic Drugs and Psychotropic Substances. Therefore, keeping in view your prosperity and inclination to indulge in such activi-ties it is necessary to detain you in order to prevent you from illicit traffic in narcotic drugs in future. In light of the above facts an d circumstances, I have no hesi-tation in arriving at the conclusion that you, Mr. Ruokuodilhou Liezietsu, through your above acts engaged yourself in pos-session and transportation of narcotic drugs, therefore, a fit case for detention under the PITNDPS Act, 1988. Enclosures: Police Report and all supporting documents to the case. (S.R.SARAVANAN) IPS Special Secretary to the Govt. of Nagaland

¶19On the bare perusal of the proposal and the deten-tion order dated 22/2/2023 along with the grounds of deten-tion we find that the grounds for detention of the detenue un-der section 3(1) of the PITNDPS Act 1985 are sufficient and cogent. We noticed that at ground No.4, it is clearly stated that the detenue is in judicial custody w.e.f. 2/2/2023. Accord-ing to the Detaining authority the materials placed before him supports that the detenue is likely to indulge in similar pre ju-Page No.# 23/28 dicial activities unless the detenue is prevented from doing so by passing an appropriate order of preventive detention. It also clearly states that taking into the nature of antecedent ac-tivities of the detenue, it is likely that after release of the de-tenue from custody he would indulge in pre judicial activity for which it was necessary to detain the detenue in order to pre-vent from engaging in such activities.

¶20We take note that the detenue has submitted his representation before the approprtaite authority through the Superintendent of Jail Dimapur Nagaland against the detention order dated 22/2/2023 and the same was forwarded to the Special Secretary (Home) Department, Government of Naga-land on the same day i.e. 13/3/2023. We have perused the record. The materials available on record reveals that the rep-resentation was received by the Detaining authority by India Post on 23/3/2023 and after consideration of the representa-tion it was disposed of on 24/3/2023 by the Detaining author-ity. The rejection of the representation was communicated by the authority through the Superintendent of Central Jail, Dima-pur on 28/3/2023. The representation dated 13/3/2023 ad-dressed to the Chief Secretary Government of Nagaland and received by the Home Department was put up for considera-tion of the State Government on 27/3/2023 which was also re-jected which was for revocation of the detention order dated 22/2/2023 and was also rejected by the State Government by order dated 4/4/2023.

¶21The case of the detenue was referred to the PIT-NDPS Advisory Board on 4/3/2023. The Advisory Board after Page No.# 24/28 personal hearing of the detenue has considered and found suf-ficient ground for detention of the detenue vide report dated 1/5/2023. Accordingly, confirmation order of detention was is-sued vide confirmation order dated 9/5/2023 by extending the period of detention for another 3(three) months w.e.f. 22/5/2023 till 21/8/2023.

¶22The report under section 3(2) of the PITNDPS Act 1988 in connection with the detention order dated 22/2/2023 was sent on 22/2/2023 to the Joint Secretary Government of India, Ministry of Finace, Department of revenue, New Delhi.

¶21We deemed it appropriate to refer to the provisions of the PITNDPS Act,1988 which are reproduced herein below:-"3. Power to make orders detaining certain persons-

(1) The Central Government, or a State Government, or any officer of the Central Government, not below the rank of a joint Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satis-fied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

(2) When any order of detention is made by a State Govern-ment of by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Cen-tral Government a report in respect of the order.

(3) For the purposes of clause (5) of article 22 of the Constitu-tion, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional cir-cumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."

¶23On reading of the aforesaid provision, it is clear that the purpose of clause 5 of Article 22 of the Constitution, Page No.# 25/28 the communication to the person detained in pursuance of the detention order of the grounds on which order has been made shall be made as soon as may be after the detention, but ordi-narily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention.

¶24We find that in the present case the order of de-tention along with the grounds dated 22/2/2023 was commu-nicated on 28/2/2023 within 6 days which we find that there is no unreasonable delay by the Detaining authority as excep-tional circumstances has been shown as State Assembly Elec-tion. The representation of the detenue was disposed of on 24/3/2023 which was received by the Detaining authority on 23/3/2023 therefore, we are of the view that there is no delay in disposing the representation much less unreasonable or in-ordinate delay.

¶25We also takes note that the report in respect of the detention order by the State Government was forwarded to the Central Government on 22/2/2023 on which date the de-tention order was issued. As per the record we find that the representation dated 13/3/2023 was received by the Ministry on 17/3/2023 and the para wise comments was received on 27/3/2023 from the State Government and it was also in-formed that the case of the detenue was referred to Advisory Board on 4/3/2023. The representation was disposed of on 10/5/2023 by the Central Government after proper considera-tion of the material facts on record. Thereafter, the same was duly conveyed to the detenue through the Jail authority by Page No.# 26/28 Memorandum dated 16/5/2023 by email dated 17/5/2023. During the intervening period the reference of Advisory Board was pending. The confirmation order dated 9/5/2023 was re-ceived by the Ministry on the same day. Accordingly, we find no unreasonable delay in disposing of the representation even by the respondent No.4.

¶26On examination of the materials available on record, we find that the materials or vital facts was placed be-fore the Detaining authority and the same has been duly con-sidered by the Detaining authority from where the Detaining authority has derived its subjective satisfaction. The materials available on record reveals that requisite subjective satisfac-tion, the formation of which is a condition precedent in pass-ing of detention order has been duly considered as the materi-als or vital facts which had bearing and weighed on the issue of the satisfaction of the Detaining authority are neither with-held or suppressed by the sponsoring authority and the same has been duly considered by the Detaining authority before passing the detention order.

¶27We are not oblivious of the fact that the preventive detention is a serious invasion of personal liberty and in nor-mal methods upon the person charged with commission of of-fence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained. As held by the Hon'ble Supreme Court, in preventive detention ju-risprudence whatsoever little safeguard the Constitution and the enactment authorizing such detention assumes outmost importance and must strictly adhered to. In the present case, Page No.# 27/28 on careful examination of the materials on record, we are of the view that the authorities had duly complied with the provi-sion of law in passing the detention order dated 22/2/2023. We also find that the disposals of the representation by the authorities, as noted above, have been after fair consideration of the representation of the detenue within a reasonable time.

¶28On consideration of the judgment relied by the learned counsel for the parties referred to herein above, we find that the proposition laid by the Hon'ble Supreme Court are consistent and observation and decision have been ren-dered on the attending facts and circumstances of those par-ticular cases.

¶29In view of what we have discussed above, we are of the view that the two grounds urged on behalf of the de-tenue particularly the subjective satisfaction or non application of mind in passing the impugned detention order dated 22/2/2023 and unreasonble delay in disposing of the represen-tation by the Detaining authority/State Government and the Central Government are unacceptable.

¶30On examination of the materials available on record we also find that there is sufficient and cogent reason in the proposal for preventive detention of the detenue. As noted herein above, on examination of the materials available on record, the detention order passed by the Detaining au-thority is supported by sufficient ground and there is no infir-mity in passing the detention order and the respondent au-thorities have duly complied with the requirements of law in passing the detention order. Therefore we hold that the dis-Page No.# 28/28 posals of the representation are within reasonable time in the present facts and circumstances of the case and the authori-ties have acted in accordance with the provision and require-ment provided under the law.

¶31In view of above conclusion, we find no merit in the writ petition. Accordingly, the writ petition is dismissed and the detention order dated 22/2/2023 and confirmation order dated 9/5/2023 are affirmed.

¶32No order as to cost.

Sd/- Sd/- JUDGE JUDGE Comparing Assistant

Page No.# 1/28 GAHC020001962023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : W.P.(Crl.)/2/2023 SHRI. KEDINGULIE KERETSU AGED ABOUT 50 YEARS, PRESENTLY RESIDING AT LERIE COLONY, KOHIMA, NAGALAND VERSUS THE STATE OF NAGALAND AND 3 ORS REPRESENTED BY THE CHIEF SECRETARY, NAGALAND, KOHIMA 2:THE SPECIAL SECRETARY TO THE GOVERNMENT OF NAGALAND (HOME) HOME DEPARTMENT NAGALAND KOHIMA 3:THE DIRECTOR GENERAL OF POLICE NAGALAND KOHIMA. 4:THE UNION OF INDIA THROUGH THE JOINT SECRETARY(PITNDPS/COFEPOSA), GOVERNMENT OF INDIA,MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ERCONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, 'B' WING, BHAWAN, JANPATH, NEW DELHI - 110001 Advocate for the Petitioner : HISINLO HIMB Advocate for the Respondent : P.P, NAGALAND Page No.# 2/28 BEFORE HON'BLE MR. JUSTICE KAKHETO SEMA HONBLE MR JUSTICE KARDAK ETE