Madhya Pradesh High Court
Dilshad Patel vs The State Of Madhya Pradesh on 15 September, 2020
Author: S.C.Sharma
Bench: S.C.Sharma
Writ Petition No.13234/2020, 13235/2020,
13679/2020 and 13682/2020
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
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Writ Petition No.13234/2020
(Tanveer Patel Vs. State of M. P. and Others)
Writ Petition No.13235/2020
(Aftab Patel Vs. State of M. P. and Others)
Writ Petition No.13679/2020
(Dilshad Patel Vs. State of M. P. and Others)
Writ Petition No.13682/2020
(Dilshad Patel Vs. State of M. P. and Others)
Indore, dated 15/09/2020
Shri Anand Mohan Mathur, learned Senior Counsel with Shri
Abhinav Dhanodkar, learned counsel for the petitioner(s).
Shri Pushyamitra Bhargava, learned Additional Advocate General
for the respondent / State.
Regard being had to the similitude in the controversy involved in
the present cases, the writ petitions were analogously heard and by a
common order, they are being disposed of by this Court. Facts of Writ
Petition No.13234/2020 are narrated hereunder.
02- The present petition has been filed by Tanveer Patel, whose father
Usman Patel is in jail on account of detention order dated 31/08/2020
passed by District Magistrate, Indore. The petitioner's contention is that
his father was arrested on 31/08/2020 and he has been sent to Indore
Central Jail. His father has been informed about the ground of detention
on 31/08/2020 itself and the order of detention has also been served to
the petitioner's father on 31/08/2020.
03- Learned Senior Counsel has argued before this Court that in the
detention order old and stale cases have been referred and there is no
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case after 2007 registered against the petitioner's father.
04- Reliance has been placed upon a judgment delivered in the case
of Yumman Ongbi Lembi Leima Vs. State of Manipur and Others
reported in 2012 (2) SCC 176. Learned Senior Counsel has also placed
reliance upon a judgment delivered in the case of Lahu Shrirang Gatkal
Vs. State of Maharashtra and Others reported in (2017) 13 SCC 519. It
has also been argued that the order of detention does not mention the
period i.e. whether it is for six months or for three months and in absence
of a mention about the period of detention the order is bad in law.
05- It has also been argued that order of detention has not been
confirmed till date by State of Madhya Pradesh and therefore, keeping in
view Section 3(4) of National Security Act, 1980 the order of detention
has come to an end.
06- On the other hand, Shri Pushyamitra Bhargava, learned Additional
Advocate General for the respondent / State has vehemently argued
before this Court that the petitioner's father has been detained keeping in
view the statutory provisions as contained under the National Security
Act, 1980. He was involved in unlawful / criminal activities since 2005
and on 30/08/2020 while taking out a procession on the eve of
Muharram, he collected crowd and the crowd went along with the
Taziyas and in those circumstances, as the crowd was collected by the
petitioner's father, he created a very dangerous situation to public law
and order keeping in view Covid-19 Pandemic.
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07- He has vehemently argued before this Court that old cases can be
looked into and even a singular act can attract the National Security Act,
1980. Heavy reliance has been placed upon a judgment delivered in the
case of State of U. P. and Another Vs. Sanjai Pratap Gupta @ Pappu
and Others reported in (2004) 8 SCC 591. It has also been argued that
mere non-mention of the period in the detention order will not invalidate
the detention order keeping in view the judgment delivered in the case of
Secretary, to Government of Tamil Nadu Public (Law and Order)
Revenue Department and Another Vs. Kamala and Another reported
in (2018) 5 SCC 322.
08- Heard learned counsel for the parties at length and perused the
record.
09- The undisputed facts reveal that the petitioner's father Usman
Patel as reflected from the report of the Superintendent of Police was
involved in criminal case in the year 2005 i.e. Crime No.526/2005 for
offences under Section 147, 294, 323 and 506 of the Indian Penal Code,
1860. The other case against him is in respect of incident dated
13/03/2006, at Crime No.83/2006 for offences under Section 307, 336,
506, 427, 147, 148 and 149 of the Indian Penal Code, 1860 and the third
case is in respect of incident dated 30/08/2020, at Crime No.782/2020
for offences under Section 188, 269 and 270 of the Indian Penal Code,
1860.
10- Thus, the report of the Superintendent of Police reflects that only
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13679/2020 and 13682/2020
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three cases have been registered against the petitioner's father and one
of the case is for violating the prohibitory order issued by the District
Magistrate under Section 144 of the Code of Criminal Procedure, 1973
i.e. Crime No.782/2020.
11- Learned Senior Counsel has argued before this Court that the
petitioner's father was elected representative and permission was
granted to display the Taziyas on the occasion of Muharram and he was
certainly part of the procession, however, it was not the petitioner's father
who collected the crowd. People on their own joined the procession. The
order passed by the District Magistrate refers to the incident dated
30/08/2020 and the same reads as under:-
**vukosnd ds bUnkSj 'kgj esa LoPNUn fopj.k ls 'kgj ,oa
Fkkuk {ks= dh fQtk [kjkc gks jgh gSA lEiw.kZ Hkkjr esa dksjkuk
egkekjh ls rsth ls ladze.k QSy jgk gSA ladze.k ls vke ukxfjdksa
ds cpko ds mik;ksa gsrq rFkk LokLF; fgr dks cuk, j[kus gsrq
ftyk n.Mkf/kdkjh bUnkSj }kjk le; le; ij funsZ'k tkjh fd,
gSA bu funsZ'kksa dk ikyu djk, tkus gsrq iqfyl iz'kklu dh iwjh
Vhe iwjh eqLrSnh ls yxh gqbZ gSA oreku le; esa fgUrq eqfLye
leqnk; /kkfeZd R;kSgkj py jgs gSA izfro"kZ bl le; lEiw.kZ 'kgj
esa txg&txg fgUnw o eqfLye leqnk; ds yksxksa }kjk cM+s mRlkg
ls eksgjZe ds rkft;s o x.ks'k izfrek,sa LFkkfir dh tkdj iwtk
mikluk dh tkrh gSA fdUrq bl o"kZ dksjksuk ladze.k ds dkj.k
vketuksa ds LokLF; fgr dh j{kk gsrq ftyk n.Mkf/kdkjh
bUnkSj }kjk leLr leqnk; ds yksxksa ij ewfrZ] >kWadh] rkft;s rFkk
tqywl jSyh ij izfrca/k yxk;k tkdj leLr 'kgjokfl;ksa o
vketuksa ls vius vius ?kjksa esa iwtk mikluk dh vis{kk dh tkdj
funsZ'k tkjh fd, x, gS rFkk ikyu djkus gsrq funsZf'kr fd;k x;k
gS vkotwn blds vukosnd }kjk izfrca/kkRed vkns'k dh /kfTt;kWa
mM+krs gq, eqfLye lekt ds yksxksa dks mdlkdj cM+s rkft;s dk
fuekZ.k djk;k rFkk fnukad 30&8&2020 dks rkft;ksa dks tqyql
ds :i esa Hkkjh HkhM+ ds lkFk jksM+ ij fcuk vuqefr fudkyus gsrq
mRlkfgr fd;kA vukosnd ds mDr izdkj ds mdlkos ls izHkkfor
gksdj eqfLye oxZ dk leqnk; ,d /kM+s eas ,df=r gks x;k rFkk
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txg txg ls ?kjksa eas fuekZ.k fd, rkft;ksa dks tqyql ds :i esa
HkhM+ ds lkFk ysdj lks'ky fMLVsaflax dk mYya?ku dj foltZu
fd,s tkus gsrq lM+dksa ij vk x;kA
vukosnd ds mDRk dkjukeksa dks Hkh 'kgj ds izeq[k v[kckjksa
o fizaV ehfM;k esa izdkf'kr fd,s tkus ls vketuksa esa Hkkjh vkdzks'k
O;kIr gSA vukosnd ds mDr d`R; ij Fkkuk [ktjkuk bUnkSj ij
vijk/k /kkjk 188] 26 Hkknfo ds rgr iathc) fd;k x;kA
vukosnd ds bl d`R; ls leqnk; fo'ks"k ds yksxksa esa Hk; O;kIr
gqvk rFkk 'kklu iz'kklu dk e[kkSy mM+k jgs gSA
?kVuk dh izfrfdz;k mxz :i esa lkeus vkbZ gSA fofHkUu
lekpkj&i=ksa esa izeq[krk ls bldk mYys[k fd;k x;k gSA nSfud
ubZnqfu;k] bUnkSj fnukad 31&8&2020 esa 'kh"kZd *QSyh rkft;s
fudkyus dh vQokg] lM+dksa ij meM+h HkhM]* nSfud ubZnqfu;k]
bUnkSj fnukad 31&8&2020 eas 'kh"kZd [ktjkuk {ks= esa fudys
rkft;s] iwoZ ik"kZn lfgr 13 ij dsl] nSfud HkkLdj] bUnkSj fnukad
31 vxLr 2020 esa 'kh"kZd *;g ns[k dkSu dgsxk jfookj dks
ykWadMkmu Fkk*] fiiqYl lekpkj bUnkSj fnukad 31&8&2020 esa
*rkft, fudyus dh vQokg Qsyh iqfyl us dh l[rh*] if=dk
bUnkSj fnukad 31&8&2020 esa 'kh"kZd *vQokg ds dkj.k ?kjksa ls
fudyus yksx] cSfjdsfMax dj iqfyl us jkLrs jksds] fd;k iSny
ekpZ*] iztkra= fnukad 31&8&2020 esa 'kh"kZd *mUgksaus rks dkuwu dks
twrk fn[kk fn;k] vc dkuwu dh ckjh** esa rks ;g rd mYys[k dj
fn;k x;k fd vly eas ;gh oks ?kVuk,Wa gS] ftuesa ck:n gksrk gSA
vkt fu;a=.k ugha fd;k rks dy bls jksd ikus dk [okc Hkh er
nsf[k,A iqfyl iz'kklu dks vc vius MaMs ckgj fudkyus pkfg,
vkSj dkuwu dk etkd mM+kus okyh lHkh iksan dks <wa<&<wa<dj
lkS&lkS MaMs yxkus pkfg, vkSj fxuus nl&nl pkfg;sA**
The order passed by the District Magistrate reflects that on
account of violation of prohibitory order passed by District Magistrate
under Section 144 of the Code of Criminal Procedure, 1973, the
petitioner's father has allegedly committed offences under Section 188,
269 and 270 of the Indian Penal Code, 1860 and the reaction which was
published in various news papers reflects that there is a great protest in
the society on account of the procession. This Court really fails to
understand as to how merely on the basis of news paper clippings an
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opinion has been formed by the District Magistrate in absence of any
other cogent material.
12- The other important aspect of the case is that Section 3(4) of the
National Security Act, 1980 provides for confirmation of detention order
by the State Government. The reply has been filed today by the State of
Madhya Pradesh and today the stand of the State Government is that
process of passing the order of confirmation is under process. Section 3
of the National Security Act, 1980 reads as under:-
"3.Power to make orders detaining certain persons.- (1) The
Central Government or the State Government may, -
(a) if satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the defence of
India, the relations of India with foreign powers, or the security of India,
or
(b) if satisfied with respect to any foreigner that with a view to
regulating his continued presence in India or with a view to making
arrangements for his expulsion from India, it is necessary so to do,
make an order directing that such person be detained.
(2) The Central Government or the State Government may, if
satisfied with respect to any person that with a view to preventing him
from acting in any manner prejudicial to the security of the State or
from acting in any manner prejudicial to the maintenance of Public
order or from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community it is necessary so to
do, make an order directing that such person be detained.
Explanation.- For the purposes of this sub-section, "acting in
any manner prejudicial to the maintenance of supplies and services
essential to the community" does not include "acting in any manner
prejudicial to the maintenance of supplies of commodities essential to
the community" as defined in the Explanation to sub-section (1) of
section 3 of the Prevention of Black-marketing and Maintenance of
Supplies of Essential Commodities Act, 1980 (7 of 1980), and
accordingly, no order of detention shall be made under this Act on any
ground on which an order of detention may be made under that Act.
(3) If, having regard to the circumstances prevailing or likely to
prevail in any area within the local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State Government is
satisfied that it is necessary so to do, it may, by order in writing, direct,
that during such period as may be specified in the order, such District
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Magistrate or Commissioner of Police may also, if satisfied as
provided in sub-section (2), exercise the powers conferred by the said
sub-section:
Provided that the period specified in an order made by the
State Government under this sub-section shall not, in the first
instance, exceed three months, but the State Government may, if
satisfied as aforesaid that it is necessary so to do, amend such order
to extend such period from time to time by any period not exceeding
three months at any one time.
(4) When any order is made under this section by an officer
mentioned in sub-section (3), he shall forthwith report the fact to the
State Government to which he is subordinate together with the
grounds on which the order has been made and such other particulars
as, in his opinion, have a bearing on the matter, and no such order
shall remain in force for more than twelve days after the making
thereof unless, in the meantime, it has been approved by the State
Government:
Provided that where under section 8 the grounds of detention
are communicated by the officer making the order after five days but
not later than ten days from the date of detention, this sub-section
shall apply subject to the modification that, for the words "twelve
days", the words "fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government
under this section, the State Government shall, within seven days,
report the fact to the Central Government together with the grounds on
which the order has been made and such other particulars as, in the
opinion of the State Government, have a bearing on the necessity for
the order."
In the present case, the petitioner's father was served with
detention order on 31/08/2020 and he was served with the grounds of
detention on 31/08/2020 itself and therefore, the order by the State
Government confirming the detention order was required to be passed
within "twelve days". As the order has not been confirmed within "twelve
days", it is no longer in force keeping in view Sub Section 4 of Section 3
of Act of 1980.
13- The District Magistrate, Indore has filed a reply along with his own
affidavit and in paragraphs No.22 to 24 has stated as under:-
Writ Petition No.13234/2020, 13235/2020,
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"22. It is further submitted that the Detenue in pursuance of order
dated 31.08.2020 was taken into custody and detention
order was served upon him along with grounds of detention.
The copy of the grounds of detention along with receipt of
the same by the Detenue is annexed herewith and marked
as ANNEXURE R/7 (collectively).
23. That,the answering Respondent most respectfully submits
that the Section 3(4) of the Act provides for
reporting/submitting the detention order before the State
Government for approval and the answring respondent in
compliance of the same mandatory provision reported the
detention order to the State Govt. vide letter dated
31.08.2020, copy whereof is annexed herewith marked as
ANNEXURE R/8. It is also pertinent to mention here that the
Detenue's arrest information was also intimated to his family
member named Aftab Patel S/o Ismail Patel. Copy of the
acknowledgment of Detenue's arrest information is
submitted here with marked as ANNEXURED R/9.
24. That, the detaining authority after going through all the
documents placed before it and after applying mind to the
same, reached for the subjective satisfaction and thereafter
passed the detention order, in order to prevent the detenu
from acting in any manner prejudicial to the maintenance of
public order. Further the detention order passed by the
Detaining Authority is pending for confirmation by the State
Government."
Affidavit signed by the District Magistrate is dated 14/09/2020.
Thus, on 14/09/2020 a submission was made on oath that the detention
order passed by the Detaining Authority is pending for confirmation with
the State Government, meaning thereby, there was no confirmation by
the State Government on 14/09/2020 i.e. the day on which the reply was
filed on affidavit. Even on 15/09/2020 when the matter was argued at
length by Shri Pushyamitra Bhargava, learned Additional Advocate
General till his arguments were closed he has stated categorically that
the matter is still pending for confirmation with the State Government.
14- Shri Pushyamitra Bhargava, learned Additional Advocate General
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for the respondent / State, later on when the judgment was being
dictated, has categorically stated in open Court that an order has been
passed by the State Government on 15/09/2020. He has shown an order
dated 15/09/2020, which is an order passed by the State Government in
exercise of powers conferred under Section 3(4) of the National Security
Act, 1980, which mandates for approval by the State Government. The
order certainly reflects that the approval has been granted by the State
Government on 08/09/2020. Order dated 15/09/2020 reads as under:-
"GOVERNMENT OF MADHYA PRADESH
HOME (C-SECTION) DEPARTMENT
ORDER
Bhopal, Dated 15/09/2020 F. NO.31-301/2020/II/C-1 : In exercise of the powers conferred by sub-section (4) of section 3 of the National Security Act, 1980 ( No. 65 of 1980 ) the State Government has approved the detention order dated 31/08/2020 passed by the District Magistrate, Indore against Usman Patel S/o Kadar Patel R/o Distt. Indore under sub-section (2) of section 3 of the said Act on dated 08/09/2020.
By order and in the name of the Governor of Madhya Pradesh, Sd/-
(Shri Das) Under Secretary to Government of Madhya Pradesh Home Department F.NO.31-301/2020/II/C-1 Bhopal, Dated 15/09/2020 Copy forwarded to :-
1- Under Secretary to Govt. of India, NDCC - II Bhavan Jai Singh Road New Delhi 2- District Magistrate, Indore for information and necessary action.
3- The Superintendent, Central Jail Indore Sd/-
(Shri Das) Writ Petition No.13234/2020, 13235/2020, 13679/2020 and 13682/2020 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
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Under Secretary to Government of Madhya Pradesh Home Department"
This Court really fails to understand that if the approval was granted on 08/09/2020, why the approval order has been brought to the notice of this Bench after hearing was concluded that too the order is dated 15/09/2020. Resultantly, as the order is dated 15/09/2020 and the approval was certainly not granted by issuing any order within "twelve days" as required under under Section 3(4) of the Act of 1980 15- Preventive detention means detention of a person without trial. The order of preventive detention is issued by an executive authority in its subjective satisfaction. Thus, preventive detention involves a serious encroachment on the right of personal liberty. The law of preventive detention is strictly construed, and compliance with procedural safeguards is insisted upon [Union of India Vs. Paul Manickam reported in (2003) 8 SCC 342].
16- The Hon'ble Supreme Court of India has gone to point out that personal liberty is one of the most cherished values of mankind. As the power of preventive detention encroaches upon personal liberty, it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law, and the concerned person is not deprived of his personal liberty otherwise than in accordance with law.
17- On account of procedure irregularities by the authorities, the Hon'ble Supreme Court in the case of Icchu Devi Vs. Union of India Writ Petition No.13234/2020, 13235/2020, 13679/2020 and 13682/2020 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
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reported in (1980) 4 SCC 531 has set aside the detention under the COFEPOSA. In the case of Icchu Devi, there was an undue delay in supplying to her the copy of document and the material relied upon in the grounds of detention and there was unreasonableness, delay in considering the representation to the detenu.
18- In the considered opinion of this Court, keeping in view the fact that cases of 2005 and 2007 have been taken into account including the fact that there has been a violation of prohibitory order issued under Section 144 of the Code of Criminal Procedure, 1973, the action of the respondent / District Magistrate suffers from vice of non-application of mind and deserves to be quashed.
19- In the present case, the order of detention has been passed only because the petitioner has participated in a procession on the eve Muharram and that itself is certainly not a ground for detaining him by passing an order under the National Security Act, 1980. 20- The order passed by the District Magistrate refers to news published in Nai Duniya, Dainik Bhaskar, Peoples Samachar. The District Magistrate has formed his opinion on the basis of media trial. It is unfortunate that media trial has become very common these days and now the adjudicating authorities are delivering their judgments based upon media trials. Resultantly, there appears to be total non-application of mind on the part of the District Magistrate in passing the impugned order and therefore, the impugned order is here by quashed. The writ Writ Petition No.13234/2020, 13235/2020, 13679/2020 and 13682/2020 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
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petition is allowed and the respondents are directed to set the petitioner at liberty forthwith.
21- In Writ Petition No.13235/2020, again the detention order is dated 31/08/2020 and it has not been confirmed within twelve days and therefore, the petition is allowed as the order of detention is no longer in force. The State is directed to release the petitioner's father forthwith. 22- In Writ Petition No.13679/2020, again the detention order was passed on 31/08/2020, which has not been confirmed within the statutory period as informed by the learned Additional Advocate General and therefore, as the order of detention is no longer in force, the petitioner's father be set at liberty forthwith.
23- In Writ Petition No.13682/2020, the detention order passed on 21/08/2020 has not been confirmed within the statutory period and therefore, as the order of detention is no longer in force, the petitioner's brother be set at liberty forthwith, in case he is not required in any other criminal case.
No order as to costs.
Certified copy as per rules.
(S. C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Tej
Digitally signed by
Tej Prakash Vyas
Date: 2020.09.16
15:39:11 +05'30'