SMTI. Minakali K. Zhimomi vs The State Of Nagaland & Ors.

(Helen Dawngliani, J)

Heard Mr. N. Chishi, the learned counsel appearing on behalf of the petitioner. Ms. Inaholi, learned Government Advocate for the State respondent Nos. 1, 2 and 3 and Mr. Z.N. Ngullie, the learned Central Govt. counsel appears on behalf of the respondent No. 4.

The petitioner in the instant proceedings is the wife of the detenu one Shri Kitoho H. Zhimomi (detenu) and well-wisher of detenues Shri. Senlo Khing and Shri Tovito Kiba. The instant petition has been filed under Article 226 of the Constitution for issuance of a writ in the nature of Habeas Corpus for setting at liberty the aforenamed three detenues i.e, 1. Shri Senlo Khing, Kitoho H. Zhimomi and Tovito Kiba by challenging the detention order dated 03.07.2026 issued by the District Magistrate, Kohima, Nagaland and which was further approved by the Chief Secretary to the Government of Nagaland vide order dated 14.07.2026.

At the outset, it maybe pertinent to mention that Ms. Inaholi, learned Govt. Advocate for the State respondent Nos. 1 – 3 has placed on record the order dated 08.09.2026 by which the detenue Tovito Kiba was released forthwith from detention by the Chief Secretary to the govt. of Nagaland in exercise of the power conferred under Sub-Section (2) of Section 12 of the National Security Act, 1980, unless the person is required to be kept in custody in connection with any other case. In view of the said submission, the instant judgment would be confined to the application of the detenue Sh. Senlo Khing and Sh. Kitoho H. Zhimomi.

The facts of the case leading to the filing of the instant application as it appears from the petition is that on 18.06.2026, a suo moto FIR was lodged by one S.I Imnasosang Jamir of (Sechu Zubza P.S) DEF, Kohima before the O/C of North P.S, Kohima Nagaland alleging that as per reliable source information some unknown self-style underground faction members had entered Kohima jurisdiction from Dimapur and a team of Kohima Police was constituted and search operation was conducted to apprehend the individuals. In the course of operation, the suspected self-style underground members were apprehended from new secretariat area under Kohima, North P.S jurisdiction. It is also revealed from the petition that after the arrest they were taken to North P.S and was shown to be formally arrested and Kohima North P.S case No. 28/2026 under Section 61/62/3(5) BNS r/w 25(1-B)(a)/35 Arms Act r/w 7/8 NSR was registered.

It is further noticed from the petition that while the detenues were in judicial custody in connection with the aforesaid, S.P of police, Kohima vide letter dated 26.06.2026 had written a letter to the District Magistrate, Kohima proposing for detention under Section 2 of the NSA in respect of the aforementioned detenues. Thereafter, the District Magistrate, Nagaland vide order dated 03.07.2026 issued a Detention Order No. DCK/CON/NSA/2026/07 in respect of the detenue Senlo Khing in exercise of the power contained under Sub-Section (3) of Section 3 of the National Security Act, 1980 (in short the Act of 1980). Similarly, the District Magistrate issued Detention Order No. DCK/CON/NSA/2026/08 dated 03.07.2026 against the detenue Kitiho H. Zhimomi in exercise of the power contained under Sub-Section (3) of Section 3 of the National Security Act, 1980 (in short the Act of 1980).

Mr. N. Chishi, learned counsel for the petitioner submitted that the facts leading to the registration of the FIR is false and misleading. According to the learned counsel, the detenues were simply travelling to drop off one of the detenues in Kohima and they are not involved in any illegal act or crime at the time of arrest. While the detenues were in judicial custody, the impugned Detention Order dated 03.07.2026 was passed by the District Magistrate against the detenues without application of mind. It is also further submitted that the approval of the detention order given by the Chief Secretary to the Govt. of Nagaland vide order dated 14.07.2026 was also issued without applying independent judicious mind and ordered to detain the detenues for the initial period of three months w.e.f the date of detention till 02.10.2026. The learned counsel submitted that the representation dated 13.07.2026 submitted by the detenues for revocation of their respective detention orders was also mechanically rejected by the State Government on 20.07.2026 without application of mind. A challenge has also been made to the effect that the Chief Secretary to the Govt. of Nagaland had disposed of the representation of the detenues without referring the same to the Advisory Board which is in violation of Section 10 & 11 of the Act. It is also the case of the petitioner that the approval of detention was given by the State authorities without the opinion of the Advisory Board which is in violation of Section 14(A) of the Act r/w Article 22 of the Constitution. The statement in the Detention Order that there is likelihood of the detenues being released on bail and in the event of release they are likely to indulge in prejudicial activities is not supported by any materials when in fact, no bail application has been preferred by the detenues and so there is no likelihood of their release on bail.

Per contra, Ms. Inaholi, learned Govt. Advocate appearing for the respondent No. 1, 2 & 3 on the other hand submitted that the detention under the NSA of the detenues were made as per the merit of the case and all relevant provisions of the Act and law have been complied with while passing the detention order. The Detention order was passed based on the subjective satisfaction that there exist a real likelihood of the detenue being released on bail and upon such release they are likely to indulge in activities which are prejudicial to public order. The learned G.A further submitted that the detaining authority was fully aware that the detenue were in judicial custody but was convinced that if they are released on bail they will indulge in prejudicial activities and for this, detention order under NSA Act was passed and that while doing so, the detaining authority applied its mind and recorded satisfaction on the plain of security of the States and maintenance of public order. According to the learned G.A the Detaining Authority applied its mind judicially to all its facts and circumstances of the case and that the satisfaction of detention which was recorded is not mechanical or perverse by it needs the legal standard. The learned G.A submitted that the approval order dated 14.07.2026, the Detention Order, Grounds of Detention, Schedule, Information to the detenue along with all relevant documents were forwarded to the Advisory Board on 22.07.2026 which is within the stipulated period under the Act. Further, the representations of the detenues dated 13.07.2026 were also forwarded by the Central Jail authorities on 14.07.2026 and 15.07.2026. Accordingly, the learned G.A submitted that no grounds have been made out to interfere with the Detention order.

At this stage, it may be appropriate to reproduce the Grounds of Detention dated 03.07.2026, issued by the District Magistrate, Kohima, Nagaland in respect of the two detenues which are similarly warded.

The Schedule to the Grounds of Detention which is relevant for consideration of the instant application is also reproduced below:

A similarly warded Schedule was also appended to the Detention Order in respect of the detenue Kitoho H. Zhimomi.

From a perusal of the Schedule to the Grounds of Detention, issued by the District Magistrate, Kohima it is noticed that he has taken cognizance of the fact of the arrest of the two detenues and in the given facts and circumstances of the case, enlarging them on bail is likely to endanger the safety and security of the State and to prevent them from further indulging in activities, highly prejudicial to the maintenance of public security, peace and order. It was considered a fit case for detaining them under Sub-Section (2) of Section 3 of the National Security Act, 1980.

The Order of Approval No. CON/NSA/25/2026/131 dated 14.07.2026 in respect of detenue Mr. Senlo Khing and the Approval Order No. CON/NSA/25/2026/132 dated 14.07.2026 both issued by the Chief Secretary to the Govt. of Nagaland in exercise of the power under Section 3(2) under the Act of 1980 ordered the detention of the aforesaid two detenues in Central Jail, Dimapur for an initial period of three (3) months with effect from the date of detention till 02.10.2026 and within such period the detention is to be reviewed as required under the provisions of the Act of 1980.

The record further shows that against the impugned detention orders, the detenues submitted a representation on 13.07.2026 requesting the concerned authorities for revocation of the impugned detention order. However, the representation of the detenue Senlo Khing was rejected by the Chief Secretary of the Govt. of Nagaland vide order No. CON/NSA/25/2026/143 dated 20.07.2026 (Detention Order No. 1). The representation of the detenue Kitoho H. Zhimomi was also rejected by the Chief Secretary of the Govt. of Nagaland vide order No. CON/NSA/25/2026/144 dated 20.07.2026 (Detention Order No. 2).

The learned counsel appearing on behalf of the petitioner referring to the judgment of the Supreme Court in the case of Ameena Begum Vs. State of Telangana & Others reported in (2023) 9 SCC 587 submitted that the subjective satisfaction on which the Detaining Authority had issued the Detention Order and subsequent Approval Order including the subsequent. It is the specific submission of the learned counsel for the petitioner that the impugned Detention Order is based upon extraneous considerations and the said aspect of the matter would be very much apparent from the fact that on 18.06.2026, the detenues were arrested under stringent provisions of law, i.e., under Section 61/62/3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023 r/w 25(B)(a)/35, Arms Act, r/w 7 of the Nagaland Security Regulation, 1962 and shortly thereafter on 03.07.2026, they were put under preventive detention.

The learned counsel also submitted that when the offence in question can very well be tried under the normal criminal process, there was no requirement that the petitioner's husband and her well-wisher should have been put under preventive detention.

On the basis of the aforesaid submission by the learned counsels for the parties and taking into account the pleadings in the writ petition and the records which have been produced by the Ms. Inaholi, the learned Government Advocate appearing on behalf of the State respondents, the following point for determination arises:

At this stage, it may be relevant take note of the judgment of the Supreme Court in the case of Ameena Begum (supra) wherein at paragraph No. 28 and its sub-paragraphs, the Supreme Court enumerated the circumstances when a Constitutional Court would be entitled to examine the legality of the orders of preventive detention. At paragraph No. 29 of the said judgment, the Supreme Court further observed that if the Court finds the exercise of power to be bad and/or vitiated applying any of the tests which were enumerated in paragraph No.28 thereby rendering the detention order vulnerable, it shall be the duty of the Constitutional Court for righting the wrong. Paragraph Nos. 28 and 29 are quoted herein below:

The principles laid down by the Supreme Court in paragraph No. 28 of the judgment in the case of Ameena Begum (supra), would show that the Writ Court would be within its jurisdiction to examine as to whether the Detention Order was based on requisite satisfaction, albeit subjective, of the Detaining Authority inasmuch as the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied. The Constitutional Court can also examine as to whether in reaching such requisite satisfaction, the Detaining Authority had applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute. It was also observed that the satisfaction which has to be arrived at have to be one basis of the existence of a live proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale.

In the backdrop of the said proposition settled by the Supreme Court in the case of Ameena Begum (supra), this Court has to consider as to whether a preventive Detention Order ought to have been passed in the instant case, that too when the detenues were already in custody in connection with serious offences and for that matter whether the non-consideration of the fact that the detenues are already in custody in connection with serious offences would have vital bearing on the subjective satisfaction arrived at for passing the Detention Order.

In the case of Dharmendra Sugan Chand Chelawat Vs. Union of India reported in (1990) 1 SCC 746, it was observed that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that:

The Supreme Court further clarified the expression “compelling reasons” in the context of making an order for detention on a person already in custody to mean that there must be cogent materials before the Detaining Authority on the basis of which it may satisfy that:

In another judgment, the Supreme Court in the case of Amrit Lal Vs. Union of India reported in (2001) 1 SCC 341 wherein the Detaining Authority recorded its satisfaction for detention under the National Security Act, 1980 in view of the fact that the person who was already in jail was going to move a bail application, the Supreme Court observed that although in the grounds of detention it has been mentioned that there was a likelihood of the detenue moving an application for bail, for which the detention was necessary, there must be cogent materials before the authority passing the Detaining Order that there was likelihood of his release on bail.

In the case of Geetha Vs. State of Tamil Nadu reported in (2006) 7 SCC 603, the Supreme Court observed that the Detaining Authority should be aware of the fact that the detenue is already in custody and is likely to be released on bail. The conclusion that the detenue may be released on bail cannot be ipsi dixit of the Detaining Authority.

In the case of Huidrom Konungjao Singh –Versus- State of Manipur & Others reported in (2012) 7 SCC 181, the Supreme Court culled out three propositions as to when a person, who is in jail can be detained under the preventive detention laws. Paragraph 9 of the said judgment being extracted below:

From the above backdrop, upon examination of the materials on record, it is seen that the two detenues were arrested in connection with North P.S Case No. 28/2026 registered under Section 61/62/3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023 read with Section 25(1-B)(a)/35 of the Arms Act read with Section 7/8 of the Nagaland Security Regulation, 1962.

From the record, it is also noticed that the Senior Superintendent of Police, Kohima in his letter dated 26.06.2026, addressed to the Deputy Commissioner and District Magistrate, Kohima, wherein, he proposes for the detention of the instant two detenues under Section 3(2) under the Act of 1980, there was no mention that they were likely to be released on bail. In the said letter, what was stated was that, if bailed, there is likelihood of the accused persons committing breach of peace and tranquility of the State and thereby endangering the economic safety and security of the society.

Reverting back to the Schedule to the Grounds of Detention of both the detenues, it is noticed that even in the said Schedule, there is no mention that the two detenues are likely to be enlarge on bail. In the case at hand, there is no reliable material on the basis of which one could reasonably believe that there was real possibility of the detenues being released on bail and further on being released that they would probably indulge in activities which are prejudicial to public orders. The Detention Order 1 & 2 which is annexed to the petition does not disclose any material from which an inference could be possibly drawn by the police to form a reason to believe that there was real possibility of the detenues being released on bail. The affidavit submitted by the respondents and the oral submissions made by the counsel for the respondents clearly acknowledges that both the detenues were under judicial custody and though it was submitted that there is likelihood of the detenues being released on bail. No material is provided to draw such presumption and further that in the event of there being released on bail they are likely to commit acts which are prejudicial to the interest of the society.

Taking into account that there is no cogent materials shown before us as well as nothing transpires upon perusal of the entire records, as to on what basis the District Magistrate, Kohima had the belief that the petitioner's husband and her well-wisher were likely to be released on bail, we are of the opinion that the subjective satisfaction so formed by the Detaining Authority to put the petitioner’s husband and her well-wisher under preventive detention appears to be based on mere ipse dixit statements in the Schedule to the Grounds of Detention, and the same cannot be sustained.

Accordingly, we are of the opinion that the Detention Order and the Approval Order and the subsequent order of rejection of the representations are to be interfered with.

We therefore dispose of the instant proceedings with the following observations and directions: