VOZOTO ACHUMI Vs. STATE OF NAGALAND

JUDGEMENT

(1.) The present habeas corpus petition has been filed in the matter of detenue Vitoshe Sema, son of lale Solhozu, village - Old Shena, District - Zunheboto, Nagaland, challenging the order of detention dated 27.9.96 (Annexure-'4' to the petition) passed under subsections (I) and (2) of Section 3 of the National Security Act, 198G,(hereinafter referred to as 'the Act').

(2.) 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 detenue, and Mr. Pradip Khataniar, learned Additional Senior Government Advocate, appearing for (he 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 the delivered on 22.11.96. On 22.11.96, the case was taken up in the chamber as the Bench wanied certain clarifications from the learned counsel for [he petitioner/detenue who had made a statement that no bail application on behalf of the detenue 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 vita! 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 this fact was pointed out to Mr. D.K. Misra, learned counsel appearing for the petitioner and the detenue, 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 delenue and Mr. A.R. Barlhakur, 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 Nos. (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 detenue, on instruction obtained from the State of Nagaland, Mr. A.R. Bartfiakur, 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 detenue 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 detenue, 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 II 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 10 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 detenue, 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 deienue in Case No. 0188/96 under Sections 120B/121A/122/I24 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 detenue has made any hail application or not. the initial stage, a statement was made by the counsel appearing for the petitioner and the vdetenuethaht in the aforesaid criminal case no bail application had been moved by the deten ue but the learned Advocate General has made a categorical statement that a bail application has been moved but no categorical statement has come as to whether the bail application has been deals with by the Court concerned. The Court, therefore, ordered the record of the bail application moved before the Deputy Commissioner (Judicial), Dimapur 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.

(3.) On 5.12,96, at the very outset, the learned counsel appearing for the petitioner and the detenue, Mr. D.K. Misra, has made a statement that somehow on wrong instruction he had made the statement that bail application has not been moved but now on further inquiry, he made a statement before us that hail 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, lhat 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 parties again as the earlier arguments on one of the legal questions had proceeded on wrong assumption that the detenue 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 aEso fixed on 3.10.96; but the hearing had not been concluded, and the bail application on behalf of detenue is in fact pending before the competent Court.