KUSATA PHESE Vs. STATE OF NAGALAND

JUDGEMENT

(1.) This is a writ petition under Article 226 of the constitution of India for issuance of writ of habeas corpus.

(2.) With the above background, proposal for detention under NSA was forwarded to the District Magistrate on 20.10.2020 by the Superintendent of Police, Kohima. On considering the proposal, the District Magistrate by an order dated 31.10.2020 passed the detention order of the accused petitioner under Section 3 (3) of the NSA, 1980. The detention order was approved by the Government on 05.11.2020. On the same day i.e. 05.11.2020 in compliance of the provision of Section 3 (5) of the NSA, 1980, report was submitted to the Ministry of Home Affairs. Again on the same day, Special Secretary to the Government of Nagaland directed the Superintendent of Police, Kohima for execution of the detention order of the 4 accused persons and obtain receipt from them certifying that the contents of the detention order be explained to them in language understood to them by the accused person in the presence of at least two independent witnesses and that they received 1 each set of the detention order and its enclosures. It was further directed that the detention order and its enclosures in respect of the detenue with the signature of the concerned detenue on each page be returned before 19.11.2020 for further course of action. The acknowledgement certificate by the accused person Kusato Phese is attached with the records. Thereafter, the Home Department, Political Branch by letter No.CON/NSA/55/97 dated Kohima, the 13th November, 2020 in pursuance of Section 10 of the NSA, 1980 referred the matter to NSA Advisory Board. The NSA Advisory Board sit on 08.12.2020 and submitted its report on 11.12.2020 wherein, it was of the opinion that there is sufficient cause for the detention of the detenue. The accused petitioner Kusato Phese continued to be under NSA detention. Home Department, Political Branch issued confirmation order on the opinion furnished by the Advisory Board by letter No.CON/NSA/76/2020/622 dated 17.12.2020 confirmed the detention order which was to be continued up to 30.10.2021. The accused petitioner continues to languish in jail till date.

(3.) Learned counsel Ms. Khriekethonuo appears for the petitioner and has challenged the decision of the State respondents for the preventive detention order passed by the State respondents on several grounds which shall be discussed in seriatim. Learned counsel submits that the accused petitioner is not an active member of the NNC (NA). He had taken training only for about an hour prior to his assignment for collecting tax within the jail colony area. The petitioner being a mere member of non State actor who joined NNC (NA) during the pandemic taking just one hour of training cannot be given a tag of an active member. This tag against the petitioner cannot lead to an inference that the petitioner resorts to engaging activity which will create disorder or disrupt the security of the whole State of Nagaland. No arms and ammunition was found from the possession of the petitioner. The seizure of one extortion pad and 20 nos of extortion slips allegedly from the petitioner cannot be construed to be such incriminatory nature which would pose any threat to the defense of India, security of the State of Nagaland and maintenance of public order. Therefore, the detention order deserves to be revoked outright.