NAGAHO AYEMI Vs. STATE OF NAGALAND

JUDGEMENT

(1.) Heard Mr. Imti Longjem, learned counsel for the petitioner/detenue as well as Mr. K. Wotsa, learned Senior Government Advocate appearing for the State respondents. None appears for the respondent No. 5 i.e Union of India.

(2.) The petitioner/detenue was arrested on 26-12-2014 and was implicated in connection with Dimapur East P.S Case No. 269/14 under Sections 463/120 (B) IPC read with Section 5 of the Explosive Substance Act. Thereafter, the District Magistrate, Dimapur passed the detention order dated 04-01-2015, detaining the petitioner/detenue under Sub-section (1) and (2) of Section 3 of the National Security Act, 1980 and was kept in the Central Jail, Dimapur. Along with the detention order dated 04-01-2015, the petitioner/detenue was also furnished with the grounds of detention, schedule attached thereto, letter dated 04-01-2015 informing the petitioner/detenue to make representation to the appropriate authority and also the letter dated 04-01-2015 addressed to the Principal Secretary, Home, Nagaland, Kohima by the District Magistrate, Dimapur for approval of the detention of the petitioner/detenue. The said documents were served on the petitioner/detenue on 06-01-2015 while he was under police remand. Thereafter, the petitioner submitted representation dated 16-01-2015 against his detention and the said representation was forwarded by the Jail Authority by forwarding letter dated 17-01- 2015 to the Central Government along with copy endorsed to the State Government. Thereafter, by an order dated 04-02-2015, the representation submitted by the petitioner/detenue was not acceded to by the State Government.

(3.) Mr. Imti Longjem, learned counsel for the petitioner/detenue submits that no affidavit has been filed by the District Magistrate explaining his subjective satisfaction before this Court. He submits that only one affidavit has been filed by the Chief Secretary on behalf of all the respondents wherein, he has tried to explain the subjective satisfaction of the District Magistrate. He, therefore, submits that the affidavit of the Chief Secretary can in no way explain the subjective satisfaction of the District Magistrate and the same is also not permissible in law. It is also submitted that the basis of the subjective satisfaction of the District Magistrate is based wholly on the statements made by the petitioner/detenue before the police under Section 161 Cr.PC. This could not have formed the basis for the subjective satisfaction on the part of the District Magistrate and therefore, on this ground also, the impugned detention order deserves to be set aside and quashed. Thirdly, the learned counsel for the petitioner/detenue submits that the District Magistrate also formed an opinion that the petitioner/detenue is presently under judicial custody but there is likelihood of being released on bail and in the event of his release, he is likely to indulge in similar prejudicial activities unless an effective alternative measures is called for. Such an opinion was taken by the Detaining Authority without any material basis and the same is therefore not maintainable in law. Lastly, the learned counsel for the petitioner/detenue submits that the petitioner/detenue has not been informed about his right to be represented by his next friend which has become a requirement in law.