V.D. GYANI, C.J.
(1.) The petitioner, who is the elder brother of the detenu Vitoshe Sema, by this petition under Article 226 of the Constitution of India, seeks to challenge the detention order, Annexure-5, dated 15-2-1997, as passed by the respondent No.2, in exercise of power u/s 3 (2) (1) of the National Security Act, 1980 (for short the Act). The grounds of detention are:
1. That your activities in the capacity of a Self Styled Deputy Secretary (Judicial) and Secretary In-charge of Education and NGO Affairs of NSCN (1M), an unlawful Association, were prejudicial to: (a) Defence of India; (b) Security of the State of Nagaland; and (c) Maintenance of public order. 2. That in the event of your release from custody you are likely to indulge in activities prejudicial to the above three matters unless you are detained under the provisions of aforesaid law. 3. The particulars, which have a bearing on the matters are specified in the schedule attached. 4. You are also informed that you have a right to make a representation to the State Government against the abovesaid order through the concerned Jail Authorities. You have also a right to claim a personal hearing before the Advisory Board constituted by the State Government under the aforesaid Act.
(2.) The basic facts constituting the aforestated grounds are contained in the Schedule attached to the grounds of detention, the relevant facts are extracted therefrom and reproduced below for ready reference: Detenu was apprehended by Security Forces from LRC Colony, Dimapur on 10-9-1996 alongwith incriminating documents one fire arm (Pistol) with 5 rounds of 303 BDR Ammunition. On receipt of FIR from the Security Force, Dimapur (West) P.S. Case No. 0188/96 u/ss 120(B)/ 121/ 121(A)/122/124(A) read with Sections 10/13 UA(P) Act was registered and investigated. The detenu had left a Government job as a Block Development Officer in March 1990 and had voluntarily joined the unlawful Association named National Socialist Council of Nagaland. (1M) The documents seized from him bear the proof of his antisocial and illegal activities. Shri Vitoshe Serna. SS Secretary is therefore, a hardcore high ranking functionary of an unlawful Association who has taken active part in numerous illegal, activities in furtherance of the cause of the unlawful Association viz. National Socialist Council of Nagaland which has been indulging in successionist struggle. Such activities included large-scale extortion of money from. Government servants, businessmen and innocent public, crossing over the international border to meet other high ranking functionaries of the said Association in Dhaka. Bangladesh in 1995 for purchase of arnisi ammunition to wage war against the established Government, and remmittance of 2 (two), crores of rupees to Shri Issac Chishi the SS President of the unlawful Association NSCN (1M) at Bangkok in 1995 for this purpose.
(3.) The facts constituting the grounds of detention as noted above, leave no manner of doubt that they are germane to and have a nexus with the object sought to be achieved by passing the detention order. They are specific and proximate in point of time, fully justifying the detention order. Therefore, all that remains to be seen is whether the inbuilt procedural safeguards as provided in the Act have been followed by the detaining authority?
(4.) Before going to the grounds of challenge as urged and argued, one important fact needs to be noted. The detenu had earlier been detained by order dated 27-9-1996, which was also challenged by the petitioner in Civil Rule (HC) 63/96. A Division Bench of this court by its judgment dated 13-12-1996, quashed the aforesaid detention order dated 27-9-1996 but while doing so, allowed the respondents to pass fresh detention order. Accordingly, the impugned order, Annexure-5, dated 15-2-1997 has been passed. The operative part of the Division Benchs judgment dated 13-12-1996 is quoted below: For the reasons stated above, the aforesaid order of detention dated 27-9-1996 passed by the Additional Chief Secretary, Govt. of Nagaland, is quashed. This order will however not affect the detenuTs custody in connection with the Criminal Case No. 0188/96underSections 120-B/121/121-A/ 122/ 124-A of the Indian Penal Code, read with Sections 10 and 13 of the Unlawful Activities (Prevention) Act. We would also clarify that in case at any point of time the detaining authority on the materials available before it is reasonably satisfied on cogent material that there is likelihood of the detenuTs release and in view of his antecedent activities with which are proximate in point of time he must be detained in order to prevent the detenu from indulging in such prejudicial activities, it will be open for the detaining authority to pass fresh detention order in accordance with law. We may further clarify that in case the detenu is released in the Criminal Case No. 0188/96 under Sections 120 (B)/121/121(A)/122/124(A) IPC, read with Sections 10 and 13 of the Unlawful Activities (Prevention) Act, the question of preventive detention under the National Security Act on the above material may be reconsidered by the appropriate authority in accordance with law and this judgment passed by us shall not be construed as an impediment for that purpose.
(5.) The detenu was not released, he continued to be in custody when the impugned detention order, Annexure-5 was passed. It is challenged on the following grounds, by Mr. Mishra, learned counsel for the petitioner:
1) No fresh order of detention could be legally passed on the same grounds and material facts the High Court's order dated 13-12-1996 notwithstanding. 2) The detention order, Annexure-5, has been mechanically, passed without any application of mind, vitiating the subjective satisfaction of the detaining authority. 3) There was inordinate unexplained delay in disposing of the representation dated 252-1997, Annexure-6, which was not disposed till filing the petition.
Mr. Barthakur, learned Advocate General appearing for the respondent State has, on the other hand, defended the impugned order, which is based on fresh ground as well and denied any delay in disposal of the representation, Annexure-6.
(6.) Let us first examine what was the fresh material or ground available to the detaining authority for passing the second detention order, Annexure-5. As pointed out by the learned Advocate General, from the Schedule appended to the grounds of detention. While Shri Vitoshe Serna was under detention some high ranking NSCN activists were arrested by Meghalaya Police and one of the documents seized from one of them viz. Shri V. Horan, SS Home Secretary GPRN/NSCN was a so called Assignment AzhaT dated 20-8-1996 in which it is mentioned that Shri Vitoshe Serna who was Dy. Secretary (Judicial) was assigned the post of Secretary Incharge of Ministry of Education and NGO Affairs under the so called Ministry of Kilo, GPRN/NSCN. This discovery has further strengthened the suspicion that he may revert back to prejudicial activities of released. Shri Vitoshe Serna was detained under NSA by an order No. CON/NSA/108/96 dated 27-9-1996. But the said detention order was held invalid and quashed by Honble High Court by their order passed in Civil Rule (HC) 53 of 1996 on 13-12-1996. The Honble High Court have, however, clarified further that it will be open for the detaining authority to pass fresh detention order in accordance with, law if at any point of time it is satisfied that there is likelihood of the detenuTs release.T
(7.) It is just a new assignment of post to the detenu, the activities, basically and essentially, remain the same. It is just an addition to the earlier existing facts constituting the grounds of detention for passing the order of detention on earlier occasion on 27-9-1996, which was the subject matter of challenge in Civil Rule (HC) 53/96, as the Schedule to Annexure-5 itself states: Shri Vitoshe Serna was detained under NSA by an order No. CON/NSA/108/96 dated 27-9-1996. But the said detention order was held invalid and quashed by Honble High Court by their order passed in Civil Rule (HC) 53 of 1996 on 13-12-1996. The HonTble High Court have, however, clarified further that it will be open for the detaining authority to pass fresh detention order in accordance with law if at any point of time it is satisfied that there is likelihood of the detenus release. While Shri Vitoshe Serna was under detention some high ranking NSCN activities were arrested by Meghalaya Police and one of the documents seized from one of them viz. Shri V. Horam, SS Home Secretary GPRN/NSCN was also called Assignment Azha dated 20-8-1996 in which it is mentioned that Shri Vitoshe Sema who was Dy. Secretary (Judicial) was assigned the post of Secretary Incharge of Ministry of Education and NGO Affairs under the so called Ministry of Kilo, DPRN/NSCN. This discovery has further strengthened the suspicion that he may revert back to prejudicial activities of released. Having considered the prevailing situation not being conducive for expeditious disposal of the criminal case of Dimapur (West) P.S. FIR No. 0188/96 in which charge-sheet has been submitted by police, it is likely that he may be enlarged on bail, and on consideration of the facts and circumstances of the matter, it is considered necessary to detain him as to prevent him from acting in any manner prejudicial to the Defence of India, Security of the State and maintenance of public order that he is ordered to be detained under the provisions of the National Security Act.
(8.) Although Shri Mishra, learned counsel appearing for the petitioner has disputed that it was also a fact known or at any rate should be presumed to be known to the detaining authority, there is nothing new about it. Assuming for the sake of argument, it was a fresh ground available to the respondent No. 2, on his own showing it has been used along with the other basic material facts set out in the previous order as merely a supplement or additional ground, and even in such a situation the subjective satisfaction of the detaining authority stands vitiated and held to be fatal to fresh detention order as has been pointed out by the Supreme Court in Jahangirkhan Fazalkhan Pathan v. The Police Commissioner, Ahmedabad and another: It is therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming; the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in grounds of the impugned detention order have been considered.
(9.) The same view has been expressed in Ramesh v. State of Gujarat and Ors., wherein basic material constituting subjective satisfaction in the earlier order of detention which was quashed by the High Court, was considered alongwith other for arriving at the requisite subjective satisfaction for passing fresh order of detention, it was held that the fresh order of detention was liable to be quashed. The judgment in Ramesh v. State of Gujarat (supra) followed Chhagan Bhagwan Kahar v. N.L. Kalna and Ors., which clearly holds the view that: even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order.
(10.) In Ibrahim Bachchu Bafan v. State of Gujarat, it has been categorically held by the Supreme Court that fresh order of detention cannot be made on the same grounds, where the previous order based on such grounds has been quashed by the High Court.
(11.) In view of the above enunciation of law on the point, let us turn to the order of the Division Bench as already quoted above. Reading the order as it is, all that the Court did was to clarify to the authorities that although the detention order was quashed, the authorities could invoke the power of detention, at any point of time if the detaining authority on material available before it is reasonably satisfied on cogent material that there was likelihood of detenus release, it would be open to detaining authority to pass fresh detention order: in view of his antecedent activities with which are proximate in point of time he must be detained in order to prevent the detenu from indulging in such prejudicial activities, it will be open for the detaining authority to pass fresh detention order in accordance with law.
(12.) The detaining authority, Respondent NO.2 has not used the facts and incidents as contained schedule to show the antecedents of the detenu but as substantive grounds of detention. A minute reading of Division Bench order will show that there is nothing in the order which permitted the detaining authority to use the same grounds of detention on which the previous order was based and quashed by the Division Bench.
(13.) In the instant case, there is absolutely no explanation forthcoming from the authorities as to why the representation was withheld for 16 days, which was admittedly submitted by the detenu to the Jail Superinten7 dent on 25-2-1997 and on respondent's own shown it was rejected on 19th March 1997. The respondents have come out with a very clear stand on the point. Their averments in this behalf contained in paragraph 15 of the affidavit-in-opposition which reads as follows: That with regard to the statements made in paragraph 18 of the petition, the answering deponent states that the representation was received by the Government for and on behalf of the detenu on 3-3-1997 and the same was directly submitted to the Jail Authorities as required under the Rules although it was mentioned in the representation, through Superintendent, Central Jail, Dimapur. Even then the Government considered the said representation carefully and replied to the detenu on 19-3-1997 rejecting the prayer made by him in the said representation.T
(14.) A detenu behind the bar cannot be expected to be acquainted with the procedural formalities. It is the bounden duty of the Jail Authorities to forward the representation to the authorities concerned immediately as soon as possible without any delay and loss of time to the concerned authorities.
(15.) Reading paragraph 15 of the affidavit-in-opposition, it appears, as if, the respondent-State was obliging the detenu by considering his representation although it was mentioned Through Superintendent, Central Jail, DimapurT. The Supreme Court by series of decisions, by now, has emphasised the importance of prompt disposal of representations submitted by the detenu. These cases are: Durga Pada Ghosh v. State of West Bengal, Rajindra v. Commissioner of Police Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors. B. Alamelu v. State of Tamil Nadu and Ors..
(16.) In the light of these judgments, it can safely be held that there is unexplained inordinate delay in disposal of detenus representation, instead of coming forward with an explanation the respondents are seeking shelter behind the technicalities, that too, of no significance in the mode of address, as mentioned in the representation. The continued detention is therefore, liable to be quashed, it is accordingly quashed.
(17.) For the foregoing reasons, this petition deserves to be allowed, it is accordingly allowed. The detenu be set at liberty forthwith unless otherwise wanted in connection with some other case. Petition allowed.