HC says not conceivable why letter from Central Jail took 9 days to reach Kohima
DIMAPUR, MARCH 2: Another day in Court and another embarrassment for Nagaland Government as the Kohima Bench of Gauhati High Court on March 1 ruled that State authorities have violated the rights provided under Article 21 and 22 (5) of the Indian Constitution through procedural lapses while arresting and detaining a resident of Dimapur in September last year.
Article 21 states that no person shall be deprived of his life or personal liberty, except according to procedure established by law; while Article 22 (5) provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
In his ruling, Justice Devashis Baruah stated that the State authorities violated those rights, and thus, set aside and quashed the Detention Order, the Approval Order, as well as the Confirmation Order issued against the petitioner (accused person).
AR, Arms Act and arrest
As per Court document, the petitioner Herot Chang, a resident of Thilixu Village, and another person were picked up from Chekiye Village on September 17, 2019, by personnel of 5th Assam Rifles who “brutally assaulted and threatened them to admit that the seized items belonged to them”.
They were later handed over to Diphupar Police Station where a case was registered against them basing on an FIR filed by the AR under Section 25 (1B) (a) of Arms Act, Section 384 of IPC, and Section7/8 of the Nagaland Security Regulation.
Then the next day, the Magistrate granted a 72-hour Police remand of the petitioner.
But on September 21, 2019, the Court sent the petitioner on judicial remand to Central Jail, Dimapur, “and the petitioner still continues to be under judicial custody”, the order stated.
After hearing the arguments, Justice Baruah pointed out that according to Section 3 of the National Security Act, when an order is made or approved by the State Government, it should report within 7 days the fact to the Central Government “together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government having a bearing on the necessity for the order”.
While the State Government had passed the Order of Detention on September 27, 2019, Baruah said that there was “no whisper in the affidavit-in-opposition” filed by the State Respondents as to when the order of detention was communicated to the Central Government along with the grounds on which it was made.
“The affidavit-in-opposition shows that only the approval Order of Detention dated October 6, 2021, along with relevant documents were forwarded to the Central Government. In absence of any materials placed before this Court, it appears that the Detention Order dated September 27, 2019 was not communicated to the Central Government within the period of 7 days as is required under Section 3(5) of The Act. Accordingly, the said Detention Order, on the face of it, violates the mandate of Section 3(5) of The Act”, he ruled.
Baruah also noted that despite the petitioner being “not so conversant with the English language”, the Detention Order as well as the grounds of detention were issued in English ~ leading to the situation where the petitioner could learn about the contents of the orders only when his lawyer had explained it to him.
“It would, therefore, be relevant to take note of the prejudice which has been caused to the petitioner…This right of the petitioner for consideration of his representation by the Detaining Authority was taken away in view of the fact that the Detention Order as well as the grounds of detention were not in the language in which the petitioner could understand”, the order stated.
Also, it was almost after 14 days of issuing the Detention Order that the petitioner was granted an effective opportunity to submit a representation, the Court noted.
“This violates the dual obligation cast upon the Detaining Authority under Article 22(5) of the Constitution”, it added.
Heard of email?
Quite damningly, the Court noted that though the petitioner had submitted his representation on October 11, 2021, the Home Department had ‘rather strangely’ received it only on October 20, 2021 ~ after a gap of 9 days.
“We are presently at an age where communications are issued and acted upon on the basis of electronic means and sufficient protection is given to the said mode by the Information Technology Act, 2000. Under such circumstances, it is not at all conceivable why a representation from Dimapur Central Jail took nine days to reach the State Government at Kohima.
“We are dealing with a person’s liberty which is one of the harshest forms of order depriving a person of his liberty and under such circumstances each day delay beyond explanation infringes on the person’s rights under Article 21 and 22 of the Constitution. Same is also the case when we see that the representation of the petitioner reaching the Central Government only on October 27, 2021 i.e., almost after 16 days”, it stated.
In contrast, Justice Baruah pointed out, the Government had sent the “communication of rejection of the representations” (submitted by the petitioner) forthwith through electronic means.
“If that could have been done, then this Court finds it difficult to comprehend why the petitioner’s representation could not be sent by electronic mode as such mode is permissible in terms of the Information Technology Act, 2000. The hard copy of the representation could have followed suit by usual process. The communication of the representation submitted has to be made in the fastest possible means and as such this Court is of the opinion that not sending the representations to the authorities who could revoke the Order of Detention through fastest mode permissible under law interferes with the rights of the petitioner under Article 22 (5) of the Constitution of India”, it stated.
(Page News Service)