P.K.MUSAHARY, J. - (1.) HEARD Mr. Yanger Wati, learned counsel for the petitioner/detenu and Mr. N. M. Jamir, learned Government Advocate appearing for the respondents No. 1, 2, 3 and 4 and Mr. T.B. Jamir, learned C.G.S.C. for the respon-dent No. 5.
(2.) THIS application under Article 226 of the Constitution has been filed challenging the detention order dated 08.02.11, approval order dated 15.02.11 of the aforesaid detention and also the order dated 21.03.11 confirming the detention of the petitioner. The petitioner was arrested on 31.01.11 in connection with Dimapur SBN PS Case No. 005/11 under Section 25 (i) (IA) of the Arms Act read with Section 7 of the NSR Act. Thereafter by an order passed by the District Magistrate on 08.02.11, the petitioner was detained under Section 3(3) of the NSA Act., 1980. The District Magistrate, Dimapur on the same date sent a formal proposal to the Addl. Chief Secretary & Commissioner, Nagaland for approval of detention. The petitioner was furnished with the grounds of detention on the same day i.e. 08.02.11. Thereafter, the Addl. Deputy Commissioner (HQ) vide his communication dated 09.02.11 addressed to the Home Commissioner, Nagaland sought approval of detention order from the Government of Nagaland, Kohima. Accordingly, the Special Secretary to the Government of Nagaland vide order dated 15.02.11 accorded approval to the detention order. In the aforesaid approval order it was provided that the petitioner shall be detained and kept in Central Jail, Dimapur for a period of 1(one) year w.e.f. 08.02.11. Against the order of detention, the petitioner filed a representation on 18.02.11 before the (1) Secretary, Ministry of Home Affairs, C/O Department Secretary (Security) Division 9th Floor O.C. Wings, Lok Nayak Bhawan, Khan Market, New Delhi, (2) The Additional Chief Secretary & Commissioner, Nagaland, Kohima and (3) the District Magistrate, Dimapur Nagaland through the Superint-endent Central Jail, Dimapur but the same was rejected, which was informed to the petitioner by the said Special Secretary vide his communication dated 14.3.11. Utlimately, the detention order in respect of the petitioner was confirmed by the Special Secretary to the Government of Nagaland. Home Department vide order dated 21.03.11 (Annexure -9 to the writ petition). The specific ground of challenge is that the State Government did not place the representation submitted by the petitioner before the Advisory Board for its consider-ation. The State respondents have withheld the representation submitted by the petitioner and thereby deprived him of opportunity of being considered by the Advisory Board in violation of Section 10 of the National Security Act, for short the Act. Such withholding of representation of the detenu is a serious lapse which has amounted to violation of the provisions under the Act and on that score alone the detention order is rendered invalid and the same is liable to be quashed and set aside. The other specific submission of the learned counsel for the petitioner is that the impugned detention order was passed by the respondent District Magistrate mechanically without applying his mind and without looking into the materials placed by the arresting authority and without being satisfied himself that preventive detention of the detenu was necessary.
(3.) WE have carefully gone through the offi-cial records produced by the Mr. N. M. Jamir, learned Government Advocate. From the records, we find that the Special Secretary to the Government of Nagaland, Home Department, Political Branch, referred the petitioner along with another detenu before the Advisory Board vide letter No. Con/NSA/55/97 dated 25.02.11. The said letter was received by the Secretary to the Advisory Board on 02.03.11. In the said letter, it is specifically stated that no representation has been submitted by the detenu. The petitioner was produced before the Advisory Board on 12.03.11. and 13.03.11. His case was cons-idered by the Advisory board. The Board observed that the case has been referred within time as required under Section 10 of the Act. It also observed that grounds of detention dated 15.02.11 were furnished to the detenu on 19.02.11 and as such, the provisions of Section 8 of the Act has been duly complied with. It is however, observed that the detenu has not filed representation. On the other hand, the respondent authorities in their affidavit-in opposition stated that the petitioner's representation dated 18.02.11 was received and necesary steps were taken by the State authority concerned. For a clear appreciation, paragraph No. 7 of the said counter affidavit is quoted hereunder:- "7. With regard to the statement made in paragraph 11 D of the petition the answering respondents states that the representation of the petitioner dated 18.02.2011 was received by the Respondent State authority on 02.03.2011 through Central Jail Authority, Dimapur. It is to state that such representations are routed through proper channel and are dispatched through postal services. It is pertinent to state that on receipt of the aforesaid representation of the petitioner, necessary action was initiated for decision of the respondent State authorities without any delay. As a matter of fact, certain amount of time is required to process the matter by the State authorities. As such, there was no intentional or inordinate delay in rejecting the representation of the petitioner by letter dated 14.03.2011." Again in the communication bearing No. Con/NSA/33/3022 dated 14.03.11 issued by the Special Secretary to the Government of Assam, Home Department, Political Branch (Annexure-8 to the writ petition), the petitioner was informed that his representation for revocation of detention order passed under the act was examined by the State Government but not acceded to. From this communication it appears that the petitioner's representation was placed before the State Government, for consideration without placing the same before the Advisory Board as required under the provision of the Act. This makes the position abundantly clear that the State Government did not place the petitioner's representation before the Advisory Board, and the State authority usurp the powers and functions of the statutory body like the Advisory Board. It is crystal clear that the petitioner's representation was withheld from the Advisory Board and as a result, it could not be considered and disposed of by the Advisory Board. That the State Government did not place the petitioner's representation before the Advisory Board can also be seen from the Government letter dated 25.02.11 issued by the Special Secretary, Government of Nagaland, as referred to earlier, a copy of which was sent/marked to the Chairman of the Board. The operative portion of the said letter reads as under:- "... Copy along with the copies of Detenu's order, Grounds of Detention and other relevant documents are sent herewith to the Hon'ble Justice S.P. Rajkhowa (Rtd), Chairman Advisory Board, NSA constituted under Government Notification. No representations have been submitted by the detenu. (emphasis supplied);