P.P. Naolekar, C.J.@mdashThis petition is by the wife of the detenu named Shri Kamal Khartu Mongsang. On 08.11.2003, the detenu was
served with an order of detention dated 06111.2003 issued by the State Government of Nagaland under the signature of the Additional Chief
Secretary (Home), Government of Nagaland detaining him under Sub-section (1) and (2) of Section 3 of the National Security Act, 1980. The
detenu was also served with the particulars in support of the grounds of detention on 08.11.2003 along with the order of detention. After service
of the detention order and grounds of detention, the detenu has not made any representation either to the State Government or to the Central
Government. On 11.12.2003 the Secretary to the Government of Nagaland issued an order confirming the detention in exercise of powers under
Sub-sections (1) and (2) of Section 12 of the National Security Act, 1980. The order of detention dated 06.11.2003 may be reproduced
hereunder, which reads :
GOVERNMENT OF NAGALAND
HOME DEPARTMENT; POLITICAL BRANCH
ORDER
No. CON/NSA/01/2003/472 Dated Kohima the 6th Nov., 2003.
Whereas the State Government of Nagaland is satisfied that with a view to prevent Shri Kamal Khartu Mongsang @ Dr. Kumar, Counterfeit
Currency Racketeer, s/o Lt. Bahadur Thapa Magar, Village Paku, District Arghakhachi, Nepal, from acting in any manner prejudicial to the
Security of the State of Nagaland and Maintenance of public order, it is necessary to detain him under Sub-sections (1) and (2) of Section 3 of the
National Security Act, 1980.
Now, therefore, in exercise of powers conferred by Sub-sections (1) and (2) of Section 3 of the said Act, the State Government hereby orders
that Shri Kamal Khartu Mongsang @ Dr. Kumar, Counterfeit Currency Racketeer be detained and kept in Central Jail, Dimapur.
By order and in the name of the Governor of Nagaland.
(P. Talitemjen Ao)
Addl Chief Secretary (Home)
2. From the aforesaid order, it is clear that the detenu was detained for acting in a manner prejudicial to the security of the State of Nagaland and
maintenance of public order. Thus, the order of detention is on two counts - (1) security of the State of Nagaland and (2) the maintenance of
public order. The order of confirmation issued by the Secretary to the Government of Nagaland, Home Department on 11.12.2003 refers to the
opinion of the Advisory Board that the detention of the detenu is justified under the National Security Act, 1980 and his detention will be necessary
in order to prevent him from further indulging in activities highly prejudicial to the Defence of India, security of the State of Nagaland and
maintenance of public order. After referring to the opinion of the Advisory Board the order of detention was confirmed by the Secretary to the
Government of Nagaland, Home Department by order dated 11.12.2003.
3. Heard Mr. A. Das, learned counsel for the petitioner, Mr. M.N.B. Choudhury, learned Government Advocate for the State of Nagaland and
Mrs. G. Sinha, learned CGSC.
4. It is submitted by the learned counsel for the petitioner that the detenu had not been given the opportunity, as provided under Article 22(5) of
the Constitution of India, to make representation against the newly added ground in the detention order i.e. the activities of the detenu are highly
prejudicial to the defence of India and, therefore, the order dated 11.12.2003 confirming the detention requires to be quashed.
5. On the other hand, it is submitted by the learned State Counsel that the order of detention has not been issued by the State Government taking
into consideration three grounds namely, (1) activities of the detenu is highly prejudicial to the defence of India, (2) security of the State of
Nagaland and (3) maintenance of public order, but in fact, it has been issued only on two grounds of which the detenu has been initially detained
and third ground has been referred in the order merely as an opinion of the Advisory Board, therefore, the order of confirmation of detention is to
be read as if it has been passed only on two grounds namely, security of the State of Nagaland and maintenance of public order only.
6. To appreciate the rival contention, we shall take into consideration the order of detention dated 06.11.2003 and the order dated 11.12.2003.
On plain reading of these two orders, it is clear to us that on 06.11.2003 the detention order has been issued detaining the detenu taking his
activities (1) to be prejudicial to the security of the State of Nagaland and (2) maintenance of public order. The confirmation order issued by the
State Government, has referred to the opinion of the Advisory Board wherein according to the order, the Advisory Board was of the opinion that
(1) the detenu''s activities are highly prejudicial to the defence of India (a ground which has not been mentioned in the detention order) (2) security
of the State of Nagaland and (3) maintenance of public order. At this stage we may also refer to the opinion of the Advisory Board. We find that
the recommendation of the Advisory Board to continue detention of the detenu is that the detenu''s activities are prejudicial to the security of the
State of Nagaland and maintenance of public order. The ground, which is attributed to the opinion of the Advisory Board, namely, activities of the
detenu is highly prejudicial to the defence of India, does not find place in the opinion of the Advisory Board.
7. Facts clearly indicates that the order of confirmation of the detention of the detenue issued by the Secretary to the Government of Nagaland is
based on three grounds - (1) security of the State of Nagaland, (2) maintenance of public order and (3) activities of the detenu is highly prejudicial
to the defence of India. By catena of decisions, which is the subject-matter of repeated pronouncement by the Court in The State of Bombay v.
Atma Ram Shridhar Vaidya, reported in AIR 1954 SC 157 ; Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, ; Shibban Lal
Saksena Vs. The State of Utter Pradesh and Others, ; Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, and other decisions of the
Apex Court the interpretation of Article 22(5) of the Constitution of India, has consistently been adopted of the law, which is now well settled, that
the detenu has two rights under Article 22(5) of the Constitution - (1) to be informed, as soon as may be, of the grounds on which the order of
detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (2) to be afforded the earliest
opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a
representation which on consideration may obtain relief to him.
8. There is distinction between the supplementary ground or the additional ground and supplementation of the particulars of the facts, which are
already mentioned in the detention order or of giving particulars of facts in addition to the facts mentioned in the ground to lead to the conclusion of
facts contained in the ground originally furnished. The Constitution Bench of the Apex Court has very succinctly drawn this distinction in the matter
of The State of Bombay Vs. Atma Ram Sridhar Vaidya, where the Apex Court has said :
15. The argument that supplementary grounds cannot be given after the grounds are first given to the detenu, similarly requires a closer
examination. The adjective ""supplementary"" is capable of covering cases of adding new grounds to the original grounds, as also giving particulars of
the facts which are already mentioned, or of giving facts in addition to the facts mentioned in the ground to lead to the conclusion of fact contained
in the ground originally furnished. It is clear that if by ""supplementary grounds"" is meant additional grounds, i.e. conclusions of fact required to bring
about the satisfaction of the Government, the furnishing of any such additional grounds at a latter stage will amount to infringement of the first
mentioned right in Article 22(5) as the grounds for the order of detention must be before the Government before it is satisfied about the necessity
for making the order and all such grounds have to be furnished as soon as may be. The other aspects, viz., the second communication (described
as supplemental grounds) being only particulars of the facts mentioned or indicated in the grounds firstly supplied, or being additional incidents
which taken along with the facts mentioned or indicated in the grounds firstly supplied, or being additional incidents which taken along with the facts
mentioned or indicated in the grounds already conveyed lead to the same conclusion of the fact, (which is the ground furnished in the first instance)
stands on a different footing. These are not new grounds within the meaning of the first part of Article 22(5). Thus, while the first mentioned type of
additional"" grounds cannot be given after the grounds are furnished as soon as may be, but provided they are furnished so as not to come in
conflict with giving the earliest opportunity to the detained person to make a representation will not be considered an infringement of either of the
rights mentioned in Article 22(5) of the Constitution.
9. According to the Apex Court, if the ground stated in the detention order is supplementary ground or an additional ground, it will amount to
infringement of the first mentioned right in Article 22(5) as it would not afford an opportunity to the detenue to make a representation against the
ground, which forms part of the detention order. On the other hand, if it is merely a supplementation of facts which are already been communicated
to the detenue or the additional facts mentioned in the grounds to lead to the conclusion of fact contained in the grounds originally furnished,
addition or supplementation of such facts subsequently, would not invalidate the detention order.
10. In the present case, by no stretch of imagination, the third ground, namely, the detenu''s activities are highly prejudicial to the defence of India,
can be said to be a ground incorporated in the grounds, that is, security of the State of Nagaland and maintenance of public order. We have no
hesitation in holding that the third ground on which the detention order has been issued is an additional or supplementary ground of detention for
which the detenue has not been given any opportunity of representation. The detaining authority has given an extra ground for detaining the
detenue, apart from the two grounds. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner
and to what extent each of these grounds operated in the mind of the appropriate authority and contributing to the creation of satisfaction on the
basis of which the detention order was made. Therefore, it is not possible for us to say that the other grounds, of which the detenue has been given
opportunity to make representation, are quite sufficient to sustain the order, as if it amounts to substituting of a decision of the executive authority,
which is against the legislative intent underlined in the National Security Act, 1980. The addition of the new ground, of which opportunity was not
afforded to the detenue and resultant order of detention, is contrary and has infringed the right conferred on the detenue under Article 22(5) of the
Constitution of India. That being the case, we set aside the order of detention and direct immediate release of the detenu, if he is not otherwise
required in any other matter.