Madhya Pradesh High Court
Prem Narayan Gwal vs The State Of Mp on 31 January, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1
THE HIGH COURT OF MADHYA PRADESH
WP.20490.2019
(Prem Narayan Gwal Vs. State of M.P. and others)
Gwalior, Dated 31.01.2020
Shri K.N. Gupta, learned Senior Counsel with Shri Harshad
Bahirani, learned counsel for the petitioner.
Shri Pratip Visoriya, learned Government Advocate, for
respondent/State.
1. Writ as well as supervisory jurisdiction u/Art.226/227 of the Constitution is invoked assailing the order of preventive detention passed by the District Magistrate, Guna (M.P.) dated 12.09.2019.
2. Pertinently, the challenge made herein is at pre-detention stage.
3. Facts disclose that the petitioner is running a dairy business in the name and style as Mamta Dugdh Dairy at Guna involved in purchase and sale of milk and its products under a licence issued under the Food Safety and Standards Act, 2006 which is alleged to be valid till 2020. On receiving various complaints against the petitioner's business of indulging in adulterated and unsafe food products especially milk products, the government authorities inspected the premises of the petitioner's milk dairy by conducting a surprise inspection on 28.07.2019 at Jagdish Colony, Guna (M.P.) where the dairy business was found to be operative. 2
THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) Products like cream, ghee, butter-milk, curds etc. were found at the premises. During inspection, urea and detergent were also found at the premises of the petitioner in large quantity which gave rise to suspicion that these items are used to prepare synthetic milk or to increase quantity of milk by mixing them with real milk. To convert this suspicion into prima facie evidence, the members of the team called the expert from Sanchi Chilling Centre, Guna, Bhopal Sahakari Dugdh Sangh. The expert tested the prepared milk-stock kept in the dairy of petitioner with primary test with the help of Milk Adulteration Detection Kit to detect the additives in milk and found that milk contains additives. Samples were taken by the Food Safety Officer, Sub-Divisional Magistrate, Tahsildar, Revenue Officer along with Food Inspector. Panchnama was prepared vide R-1. Samples were sent to the laboratory at Bhopal. Samples of curds were found to be sub- standard. However, reply of the State reveals that the chemical report of the samples of milk lifted from the premises of the petitioner is awaited. The facts further reveal that the petitioner did not avail remedy of appeal to challenge the test reports within 30 days as per the provisions of Food Safety And Standards Act, 2006. The notice sent to the petitioner dated 27.09.2019 to avail 3 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) this remedy is Annexure R-2 along with the return. 3.1 The facts also reveal that on the basis of report of Superintendent of Police, Guna dated 22.08.2019, the District Magistrate, Guna registered a case under Section 3(2) of National Security Act, 1980 ("NSA" for brevity) and issued notices to four witnesses for recording of statements. Statements of all the four witnesses were recorded on 12.09.2019 whereafter the District Magistrate formed opinion that allowing the petitioner to enjoy liberty would be prejudicial to public order. Accordingly, the order of preventive detention was passed on 12.09.2019 itself.
4. Pertinently, petitioner has not yet been arrested.
5. Prolonged arguments were extended by learned counsel for the rival parties but this Court has to first address the core issue about the maintainability of this petition raised by counsel for the State that though the order of preventive detention has not been confirmed by the State but since the petitioner has not been arrested till date the statutory safeguards prescribed in Section 3 of NSA are not available to the petitioner to be availed. 5.1 The law in regard to challenge to an order of preventive detention at pre-detention stage is well settled by the Apex Court in "State of Maharashtra and others Vs. Bhaurao Punjabrao 4 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) Gawande [(2008) 3 SCC 613]" after following its earlier decision in "Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another [1992 Supp. (1) SCC 496]", relevant extract of which is reproduced below:-
"40. An order of detention can be challenged on certain grounds, such as, the order is not passed by the competent authority; condition precedent for the exercise of power does not exist; subjective satisfaction arrived at by the detaining authority is irrational; the order is mala fide; there is non- application of mind on the part of the detaining authority in passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant, extraneous, non- existent or stale; the order is belated; the person against whom an order is passed is already in jail; the order is punitive in nature; the order is not approved by State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts, etc. 5.2 The present case reveals that the order of preventive detention has not been confirmed by the State till date and therefore the present petition on the ground of "the order is not approved by State/Central Government as required by law" as laid down by the Apex Court as aforesaid is maintainable even at pre-detention stage.
5.3 This Court now has to deal with the objection of the State Government that the safeguards in Section 3 NSA i.e. the confirmation of order of preventive detention by the State within 5 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) the stipulated period of 12 days is not available to the petitioner at pre-detention stage.
6. Section 3 of NSA is reproduced below for ready reference and convenience:
"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 6 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) the Prevention of Blackmarketing 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 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 detentions, 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, 7 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) 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.
6.1 The expression "detention order" is defined in Section 2(b) as an order made u/S.3. Section 3(2) and Section 3(3) both relate to power of making an order directing any person to be detained in case the activities of such person are found inter alia to be prejudicial to maintenance of public order. The only difference between the two sub-sections is that sub-section (2) of Section 3 vests power with the Central Government or the State Government while sub-section (3) of Section 3 vests power with the District Magistrate or Commissioner of Police to be exercised within his territorial jurisdiction.
6.2 The first safeguard provided in proviso to Section 3(3) is that an order of preventive detention passed u/S.3(3) shall at the first instance not exceed three months with the rider that the same can be extended from time to time if found necessary by the State Government by any period not exceeding three months at any one time.
6.3 The second safeguard in Section 3 is that if the order is passed by District Magistrate or the Commissioner of Police then 8 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) the fact of the order having been made along with the grounds on which it was made should be forthwith reported to the State Government concerned and in case the State Government does not approve the said order of preventive detention within 12 days of its making then the same would lapse.
6.4 The third safeguard provided in Section 3 is that whenever any order of preventive detention is approved by the State Government then within seven days of passing of the order of preventive detention intimation is sent to the Central Government together with grounds on which the order is passed.
7. To answer the question raised by the counsel for the State, scrutiny of a few more sections of NSA would be apt. 7.1 Section 4 deals with execution of detention order which shall be made in the same manner as provided in Cr.P.C. for execution of warrant of arrest. Section 7 details the powers which can be exercised in relation to absconding person against whom order of preventive detention has been made i.e. the procedure for publishing the order of preventive detention, taking action for declaring absconding person as a proclaimed absconder under Section 82, 83, 84 and 85 of Cr.P.C. and categorizing the failure of the absconding person to subject himself to the order of 9 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) preventive detention, as a cognizable offence under Cr.P.C. 7.2 Further safeguard u/S.9 is by subjecting the legality and validity of order of preventive detention to the Advisory Board constituted in every State comprising of three persons who are, or have been, or are qualified to be appointed, as Judges of High Court. It is obligatory on the part of the government to place every case of preventive detention before the Advisory Board within three weeks from the date of detention of a person under the order of preventive detention along with grounds for passing of order of preventive detention and the representation made by the detenue if any. The Advisory Board has the power to confirm or annul the order of preventive detention.
7.3 Further safeguard is provided u/S.13 prescribing maximum period of detention under order of preventive detention which has been confirmed under Section 12 by the Advisory Board to be 12 months from the date of detention.
7.4 The remaining sections of NSA being not relevant to the issue involved herein are not being discussed.
8. From bare perusal of Section 3 which provides for three different safeguards, it is revealed from the textual interpretation especially of Section 3(4) that confirmation to be made by the 10 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) State Government is to the order made u/S.3(3) of preventive detention and not to the fact of physical detention/arrest of the person against whom the order is passed. Thus, the State Government u/S.3(4) is required to affirm the decision of the District Magistrate taken under Section 3(3) of detaining a person under the NSA. This power of the State Government and the corresponding safeguard attached to the same is unrelated to the factum of arrest/physical detention. The scrutiny by way of approval of the State Government u/S.3(4) is of the decision taken by the District Magistrate to preventively detain anyone, thus, it necessarily follows that all the safeguards envisaged in Section 3 are available to the person sought to be detained even at pre- detention/pre-execution stage.
9. If the objection of the counsel for the State is accepted then an incongruous situation would arise where the desired order of preventive detention having been made under Section 3(3) of NSA, the safeguards available in Section 3(3) and 3(4) would not become available to the proposed detenue without first ensuring physical detention of the person against whom the order is passed. This would violate the object behind NSA. The interpretation being given by learned counsel for the State to Section 3 cannot 11 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) be accepted and therefore the same is rejected.
10. Learned Senior Counsel for the petitioner has relied upon various decisions in WP.2695/2019 [Akash Yadav Vs. State of M.P. and others- order dated 12.04.2019], WP.18568/2018 [Mukesh Garg Vs. State of M.P. and others-order dated 01.10.2018], WP.22469/2019 [Ish Arora Vs. State of M.P.-order dated 18.11.2019], Gaffar Khan Vs. The State of M.P. and another [1984(1) FAC 79], WP.19820/2019 [Rajesh Gupta Vs. State of M.P.-order dated 16.10.2019], WP.23109/2019 [Ashish Pandey Vs. State of M.P. and others-order dated 06.11.2019] , with special emphasis on the decision of co-ordinate bench of this Court at Principal Seat on 08.11.2019 in WP.21768/2019 [Sudeep Jain Vs. State of M.P. and others], vide Annexure P-8, where petitioner therein was under similar allegations as made herein the order of preventive detention was passed.
10.1 The co-ordinate bench at the principal seat in Sudeep Jain (supra) quashed the order of preventive detention by holding that mere allegation of discovery of substandard/adulterated ghee and mawa at the premises of the petitioner therein cannot be a good ground to sustain an order of preventive detention and therefore on the anvil of Art.21 of the Constitution order of preventive 12 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) detention was quashed.
11. Counsel for the State, on the other hand, has relied upon the recent decision of another co-ordinate bench of this Court at Principal Seat rendered on 04.12.2019 in WP.22290/2019 [Kamal Khare Vs. State of M.P. and another] where another Division Bench doubted the legal tenability of the order dated 08.11.2019 passed in WP.21768/2019 [Sudeep Jain Vs. State of M.P. and others] and referred the matter to Hon'ble the Chief Justice for constituting Larger Bench on the following issue:
"Where the offence is committed under Regulatory Act such as Food Safety and Standards Act, 2006 which contains penalty clause, under no circumstances, an action can be taken against a person whose activities are prejudicial to maintenance of public order under the National Security Act, 1980"
11.1 Thus, the view of Division Bench in the case of WP.21768/2019 [Sudeep Jain Vs. State of M.P. and others] having been doubted, is of no avail to learned Senior Counsel for the petitioner.
12. This Court need no go into the tenability of the grounds and reasons assigned by the District Magistrate to pass the impugned order of preventive detention, since the same is no more in 13 THE HIGH COURT OF MADHYA PRADESH WP.20490.2019 (Prem Narayan Gwal Vs. State of M.P. and others) existence, for having lapsed due to the State Government not having approved the same u/S.3(4) of NSA. Therefore, adjudicating merits behind the order of preventive detention which does not exist any more would not only be an academic exercise but an exercise in futility which this Court in its equity jurisdiction desists from indulging in.
13. Consequently, the present petition having rendered infructuous due to the order of preventive detention dated 12.09.2019 passed by the District Magistrate, Guna (M.P.) having lapsed due to its non-confirmation by the State Government within 12/15 days of its passing, is dismissed as such, sans cost.
14. The petitioner shall be entitled to cost of Rs.25,000/- (Rupees Twenty Five Thousand Only) to be paid by the State for having issued an order of preventive detention which could not be approved thereby giving an impression that the entire exercise of issuing order of preventive detention was casual, callous and insensitive towards one of the most precious fundamental rights i.e. right to liberty. Cost be paid within 30 days failing which Registry to list the matter as PUD for execution.
(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge
pd 31.01.2020 31.01.2020
PAWAN
DHARKAR
2020.01.3
1 17:39:41
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