Kohima Bench quashes NSA detention of two alleged NSCN-K (Ang Mai) members, citing lack of reliable material supporting bail possibility
DIMAPUR/KOHIMA — The Kohima Bench of Gauhati High Court has quashed the preventive detention of two alleged members of NSCN-K (Ang Mai) faction, holding that the authorities failed to show any “reliable material” to establish a real possibility of their release on bail.
The Division Bench of Justice Susmita Phukan Khaund and Justice Yarenjungla Longkumer, in separate but identical judgements pronounced on August 28, set aside the detention, approval, confirmation and extension orders issued against Zhimoka Zhimomi and Piwoto L Swu under the National Security Act (NSA), 1980.
Both men were detained following their arrest in connection with an arms case registered at Mokokchung Police Station. The court, however, clarified that its order does not affect any further proceedings that may be initiated under the NSA or proceedings relating to their regular bail in the arms case.
According to the judgements, the two were travelling in a Mahindra Bolero from Cheniosho towards Dimapur when they were intercepted by the 12th Assam Rifles at Mokokchung village on January 19. A sack allegedly containing prohibited arms and ammunition and other articles was recovered from the vehicle.
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The seizure included an AK-56 rifle, a Madsen machine gun, a Beretta pistol, 52 rounds of ammunition, mobile phones, NSCN/GPRN stamps and seals, pouches, pen drives, writing pads and a letter, the order stated.
The men were subsequently handed over to Mokokchung Police and under Section 25(1A) of the Arms Act read with Sections 7/8 of the Nagaland Security Regulations.
The district magistrate, Mokokchung, ordered their detention under Section 3(2) of the NSA on February 23. The state government approved the detention on March 6 for three months, while the chief secretary later confirmed and extended it for another three months until August 22.
The petitioners challenged the detention orders, arguing that there was no material to show that the detainees posed a threat to public order or the security of the state and that the regular criminal proceedings were sufficient to deal with the allegations.
The state, on the other hand, submitted that the authorities were aware that the detainees were in judicial custody and had reason to believe that they could be released on bail and, if released, might indulge in similar prejudicial activities.
The court accepted that the detaining authority was aware of their judicial custody. However, it found a crucial deficiency in the detention orders.
“There is nothing on record to show as to how the detaining authority came to a conclusion that there was a real possibility of the detenue being released on bail,” the Bench observed.
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Referring to Supreme Court judgements, the court held that preventive detention of a person already in custody requires reliable material showing a real possibility of release on bail and the likelihood of the person engaging in prejudicial activities after release.
In the present cases, the court found that neither the proposal of the senior superintendent of police nor the detention records showed that the detainees had applied for bail. There was also no material, such as details of bail granted to similarly placed co-accused, to support the authorities’ conclusion.
The Bench therefore held that the statement about a possible release on bail could not, by itself, sustain the preventive detention orders.
The court consequently set aside the February 23 detention orders, March 6 approval orders and May 20 confirmation and extension orders in both cases.
At the same time, the Bench stressed that the detention orders had been interfered with on a technical legal ground and that the judgement would not prejudice any further proceedings under the NSA or the regular criminal case against the two detainees.