Madhya Pradesh High Court
Mohaseen Kureshi vs Secretary State Of M.P. And 2 Ors. on 1 September, 2014
Author: Shantanu Kemkar
Bench: Jarat Kumar Jain, Shantanu Kemkar
1
WP No.1158/2014
Writ Petition No.1158/2014
01.09.2014
Smt. Sudha Shrivastava, learned counsel for the petitioner.
Ms. Mini Ravindran, learned Deputy Government Advocate
for the respondent / State.
Arguments heard.
Order passed separately signed and dated.
(Shantanu Kemkar) (Jarat Kumar Jain)
Judge Judge
rcp
2
WP No.1158/2014
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.: Hon'ble Shri Shantanu Kemkar
Hon'ble Shri Jarat Kumar Jain, JJ.
Writ Petition No.1158/2014
Mohaseen Kureshi s/o Nasir Kureshi
Versus
State of Madhya Pradesh & others
*****
Smt. Sudha Shrivastava, learned counsel for the petitioner.
Ms. Mini Ravindran, learned Deputy Government Advocate for the
respondent / State.
*****
ORDER
(Passed on this 1st day of September, 2014) Per Shantanu Kemkar, J.
By filing this petition under Article 226 of the Consti- tution of India, the petitioner has challenged his detention order dated 20.09.2013 (Annexure P/1) passed by District Magistrate, Indore in exercise of his powers under Section 3 (2) of the Na- tional Security Act, 1980 (for short, the Act) as also the order dated 14.11.2013 (Annexure P/2) passed by the State Govern- ment under Section 12 (1) of the Act by which the order of de- tention passed by the District Magistrate, Indore has been af- firmed.
2. At the outset, it has been argued by the learned counsel for the petitioner that the State Government has passed the impugned order of detention for a period of 12 months at one stroke; being in violation of the spirit of proviso to Section 3 (3) of the Act and is also contrary to the law laid down by the Supreme Court in the case of Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh 2014 Criminal Law Journal 2748, the same is liable to be quashed on this 3 WP No.1158/2014 ground alone.
3. On the other hand, learned Deputy Government Advocate appearing for the respondent / State has argued that the judgment of the Supreme Court is distinguishable on facts, and as such, the same cannot be applied to the facts of the present case.
4. Having considered the submissions made by the learned counsel for the parties and having gone through the judgment of the Supreme Court in the case of Cherukuri Mani (supra) and also through the provisions of the Act and the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act (for short, the AP Act), we find that the relevant provisions contained in AP Act are exactly the same as contained in Section 3 (3) and proviso of the Act.
5. The Supreme Court while interpreting the provisions contained in Section 3 (2) and its proviso of the AP Act has held thus: -
"A reading of the provisions of Section 3 of the Act makes it clear that the State Government, District Magistrate or Commissioner of Police are the authorities, conferred with the power to pass orders of detention. The only difference is that the order of detention passed by the Government would remain in force for a period of three months in the first instance, whereas similar orders passed by the District Magistrate or the Commissioner of Police shall remain in force for an initial period of 12 days. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Sub-section (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. Proviso to sub-section (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, not exceeding 4 WP No.1158/2014 three months, at a time. Thus, when the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the Government order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months, in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time."
6. Keeping in view the law laid down by the Supreme Court in the case of Cherukuri Mani (supra), holding that the State Government cannot at one time, pass an order of detention for a period of more than three months and since by the impugned order, the petitioner has been ordered to be detained for a period of twelve months at one stroke, in our considered opinion, the impugned order of detention, which is for 12 months at first instance, is liable to be and is hereby quashed. The petitioner be set at liberty forthwith, if not required in any other case.
Copy of this order be sent by the Registry to the Secretary, Department of Home and all the District Magistrates of the State of Madhya Pradesh.
C. c. today.
(Shantanu Kemkar) (Jarat Kumar Jain)
Judge Judge
Pithawe RC