Madhya Pradesh High Court
Rahul Agrawal vs The State Of Madhya Pradesh on 17 March, 2021
Author: Sheel Nagu
Bench: Sheel Nagu
1 WP.3303.2021
The High Court of Madhya Pradesh
WP.3303.2021
[Rahul Agrawal Vs. State of M.P. & Ors.]
Gwalior dated 17.03.2021
Shri Sanjay Kumar Bahirani, learned counsel for the petitioner.
Shri MPS Raghuvanshi, learned Additional Advocate General for
respondents No.1 to 7/State.
Shri Vilas Tikhe, learned counsel for respondent No.8. Learned counsel for the rival parties are heard.
1. Present petition filed u/Art.226/227 of the Constitution of India assails the order of preventive detention passed by the District Magistrate, Gwalior (M.P.) on 28.01.2021 vide P-1 detaining the petitioner for a period of three months by invoking the provisions of Sec.3(3) of the National Security Act ("NSA" for brevity).
2. Learned counsel for the petitioner Shri Bahirani has raised the following grounds in support of the aforesaid challenge to the impugned order:
(i) The impugned order vitiated by the vice of non-application of mind since the petitioner was already in custody on the date of passing of the impugned order of preventive detention, which fact was not taken into account as there is no such recital in the impugned order disclosing that the District Magistrate, Gwalior knew about petitioner being in custody. For this purpose Md.
Vakil Vs. State of M.P. [2014 (2) MPLJ 613] and Vijay Kumar Vs. State of Jammu & Kashmir & Others (1982) 2 SCC 43, Merugu Satyanarayana Vs. State of Andhra Pradesh and Others (1982) 3 SCC 301 are pressed into service.
2 WP.3303.2021
(ii) Impugned order is issued in violation of Sec.3(4) of NSA.
3. Bare facts attending the instant case reveal that petitioner being owner of M/s Agrawal Road Carrier and another transporter, namely, Munnalal Agrawal who is co-accused were entrusted with the work of transporting the essential commodities to fair price shops situated in Gwalior (Urban) sector for which express agreements were executed between the petitioner and the State. Complaints were received about the essential commodities not having reached the fair price shops. Enquiry was conducted by the Joint Director, Food, Civil Supplies and Consumer Protection, Assistant Food Supplies Officer and Regional Manager which led to submission of a report before the Directorate which in turn by letter dated 02.11.2020 directed for lodging of FIR inter alia against the petitioner alleging offences punishable u/S.3 r/w 7 of Essential Commodities Act and u/Ss.407, 409 and 34 of IPC in respect of large amount of essential food grains i.e. Wheat, Rice, Sugar, Salt, Jwar, Chana, Tuar Dal valued at more than Rs.Two crores which the petitioner was alleged to have misappropriated during the period from April, 2020 to November, 2020. The FIR dated 18.12.2020 bearing Crime No.562/2020 was registered at Police Station Jhansi Road, Gwalior (M.P.) vide P-4 against the petitioner and the co-accused Munnalal Agrawal. Petitioner was taken into custody on 01.01.2021. The bail application u/S.439 Cr.P.C. of the petitioner was dismissed by the Sessions Court on 11.01.2021. Thereafter, the impugned order of preventive detention was passed on 28.01.2021 when the petitioner was already in custody. The District Magistrate, Gwalior on 29.01.2021 supplied the grounds for detention and supportive material to the petitioner. On 01.02.2021, the District Magistrate forwarded the impugned order along with grounds of 3 WP.3303.2021 detention and supportive material to the State for approval. The State vide order dated 04.02.2021 (Annexure R/2) affirmed the impugned order on 04.02.2021. On 04.02.2021 itself the State forwarded the impugned order along with grounds and the supportive relevant material to the Central Government.
4. Petitioner has challenged the impugned order of preventive detention on the ground that the reasons for passing the impugned order do not pass the test of breach of public order but this Court refrains from going into the said grounds of merits since the petition deserves to be allowed for the reasons infra.
4.1 The concept of preventive detention is not punitive. Its purpose is to prevent the breach of public order or its likelihood in future. Thus, by its very nature, power of preventive detention is exercised to prevent and not to punish. In the present case, indisputably the petitioner was in custody in connection with Crime No.562/2020 registered on 18.12.2020 and continued to be in custody when the impugned order of preventive detention was passed.
4.2 Since the exercise of power u/S.3 is preventive in nature, the District Magistrate while exercising this power qua a person who is already in custody has to expressly demonstrate and satisfy the following prerequisites:-
(i) That the District Magistrate knew at the time of passing of the order u/S.3(3) that the petitioner was already in custody.
(ii) The District Magistrate was satisfied that despite the petitioner being in custody at the time of passing of the order of preventive detention it was necessary for reasons to be recorded in writing in the order of preventive detention to further detain the 4 WP.3303.2021 petitioner.
4.3 The aforesaid two prerequisites, for exercising the power u/S.3(3) by District Magistrate in case of a person already in custody at the time of preventively detaining, have to be expressly reflected from the order of preventive detention or should at least reveal from the affidavit filed while defending the order of preventive detention in the Court.
5. This Court is bolstered in its view by the decisions of the Apex Court in the case of "Vijay Kumar Vs. State of Jammu & Kashmir & Others (1982) 2 SCC 43 (para 10), Merugu Satyanarayana Vs. State of Andhra Pradesh and Others (1982) 3 SCC301 (para 12)" which have been followed in the decision of the co-ordinate Bench of this Court in "Md. Vakil Vs. State of M.P. & Others, reported in 2014 (2) MPLJ 613 (para
4)" relevant portions of which are reproduced below for ready reference and convenience:
(A) Vijay Kumar Vs. State of Jammu & Kashmir & Others (1982) 2 SCC 43:-
"10. The detenu in para 3 of his petition before this Court has specifically averred that he was arrested on June 26 1981, the correct date being June 25,1981, under a false and fabricated charge. Shri K.S. Salathia, Deputy Secretary to Government of Jammu & Kashmir, Home Department, who has filed the counter affidavit has with reference to the averments made in para 3 of the petition made a very very ambiguous statement that for the purpose of J and K Public Safety Act the petitioner was arrested on July 11, 1981, pursuant to the detention order. It is nowhere suggested that the detaining authority was aware of the fact that the detenu was already in jail and that keeping in view the fact the detenu was already locked up in jail yet it was considered necessary for preventing him from acting in a manner prejudicial to the security of the State to pass the detention order. It may further be pointed out that Shri A. Sahasranaman, the District Magistrate of Jammu who has made the impugned detention order, filed an affidavit on February 7, 1982. Of course, in fairness to him it must be stated that this affidavit was for the limited purpose of pointing out as to how he dealt with the case of Hans Raj, another detenu whose detention was quashed by this Court subsequent to the order of this Court. It may be noticed in passing 5 WP.3303.2021 that Hans Raj and the detenu were involved jointly in the activity, which led to the detention of the detenu. Even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this Court and the affidavit at least does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail for a period of more than a fortnight before the date of the impugned detention order. Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order."
(B) Merugu Satyanarayana Vs. State Of Andhra Pradesh and Others (1982) 3 SCC 301:-
"12. One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated."
(C) Md. Vakil Vs. State of M.P. & Others, reported in 2014 (2) MPLJ 613 :-
"4. He submits that in the various judgments passed by Supreme Court including the judgments passed in the case of Sanjay Kumar Aggarwal Vs. Union of India (UOI) and Others, N. Meera Rani Vs. Government of Tamil Nadu and Another, Dharmendra Suganchand Chelawat and another Vs. Union of India and others, Kamarunnissa and Others Vs. Union of India and another, Abdul Sathar Ibrahim Manik Vs. Union of India and others,Veeramani Vs. State of T.N., and also by a Division Bench of this Court in Chandan Vs. State of M.P. and Another, it is clear that even in case of a person in custody, a detention order can validly be passed, if the authority passing the order is aware of the
6 WP.3303.2021 fact that he is actually in custody and if he has reason to believe on the basis of reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording such satisfaction, the same cannot be struck down. But according to him, in the present case, no such awareness in the mind of Detaining Authority has been brought on record and the impugned detention order does not give the slightest indication that the Detaining Authority was aware that the detenu was already in jail and yet on the material placed before him, he was satisfied that a detention order ought to be passed."
6. In the instant case, pleadings disclose that neither in the order of preventive detention impugned herein nor in the affidavit filed by the State in response to this petition and nor in the original record produced by the learned Additional Advocate General there is any recital which may disclose the mind of the District Magistrate that he knew about the factum of petitioner already being in custody at the time of passing of the order of preventive detention and also that the District Magistrate had reasons to be satisfied that if petitioner who is already in custody is not further detained, it may lead to breach of public order.
7. More so, the impugned order further stands vitiated in law due to violation of mandatory procedure laid down u/S.3(4). For ready reference and convenience Sec.3(4) of NSA is reproduced below:
"3. Power to make orders detaining certain persons.--
(1) XX XX XX
(2) XX XX XX
(3) XX XX XX
(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 7 WP.3303.2021 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."
8. The aforesaid provision requires the District Magistrate to forthwith report the fact of having passed the order of preventive detention to the State Government together with the supportive grounds and such other particulars which have bearing on the matter.
8.1 The expression "............he shall forthwith report the fact to the State Government......." found in Sec.3(4) obviously mean that forwarding of the report to the State Government by District Magistrate has to be immediate and any delay in this regard unless explained satisfactorily vitiates the order of preventive detention. The Apex Court in one of its recent decisions had an occasion to interpret the aforesaid expression "forthwith" in "Hetchin Haokip Vs. State of Manipur and others [(2018) 9 SCC 562]" relevant portion of which is reproduced blow:
"15. The expression "forthwith" under Section 3(4), must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity.
16. In the present case, the District Magistrate submitted the report to the State Government on the fifth day (17.7.2017), after the date of the detention order (12.7.2017). The reason for the delay of five days is neither mentioned in the State Government's order confirming the detention order, nor in the impugned judgment. It was for the District Magistrate to establish that he had valid and justifiable reasons for submitting the report five days after passing the order of detention. As the decision in Keshav Nikanth Joglekar Vs. Commnr. of Police, 1956 SCR 653:AIR 1957 SC 28, holds,the issue is whether the report was sent at the earliest time possible or whether the delay in sending the report could have been avoided. Moreover, as the decision in Salim Vs. State of W.B., (1975) 1 SCC 653: 1975 SCC (Cri) 290, holds, there should be no laxity in reporting the detention to the 8 WP.3303.2021 Government. Whether there were administrative exigencies which justify the delay in sending the report must be explained by the detaining authority. In the present case, as we shall explain, this was a matter specifically placed in issue before the High Court. The District Magistrate offered no explanation. This would vitiate the order of detention."
8.2 In the instant case, the State in its affidavit has disclosed that after passing of the order of preventive detention on 28.01.2021 the case was forwarded by the District Magistrate to the State Government u/S.3(4) on 01.02.2021 i.e. after four days. Neither in the order impugned nor in the reply filed by the State there is any explanation for not forwarding the case to the State Government earlier. The delay of four days has not been explained by the official respondents.
9. The law of preventive detention is an exception to the fundamental right to personal liberty u/Art.21 of the Constitution and therefore has to be strictly construed. Any aberration by the Competent Authority in complying with the statutory procedure laid down under the NSA is not only to be frowned upon but interfered with by the superior court.
10. In view of above discussion, this Court has no manner of doubt that the order of preventive detention Annexure P-1 is vitiated due to non- application of mind and in particular breach of mandatory statutory procedure contained u/S.3(4) of NSA.
11. Consequently, present petition stands allowed with the following directions:
(i) The impugned order (Annexure P-1) dated 28/01/2021 passed by District Magistrate, Gwalior (M.P.) is quashed.
(ii) Since the due process of law under NSA has not been followed by State resulting into deprivation of fundamental right of personal liberty to the petitioner, respondent No.4-District Magistrate Gwalior 9 WP.3303.2021 is liable to be fastened with cost of this litigation which is quantified at Rs.10,000/- (Rs.Ten Thousand) which shall be paid to petitioner by District Magistrate, Gwalior within a period of 30 (Thirty) days from today by way of digital transfer in the account of petitioner and receipt thereof shall be filed in the Registry, failing which matter shall be put up by the Registry in "Direction Matters".
(Sheel Nagu) (Anand Pathak)
Judge Judge
pd
PAWAN
Digitally signed by PAWAN
DHARKAR
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF
DHARK
MADHYA PRADESH BENCH
GWALIOR, postalCode=474011,
st=Madhya Pradesh,
2.5.4.20=345b3604d572ed9dd14
AR
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DHARKAR
Date: 2021.03.18 11:56:18 +05'30'