Madhya Pradesh High Court
Sameer Khan S/O Anwar Khan Thr. His Wife ... vs Home Department on 30 July, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
-1- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE S.C.SHARMA &
HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION NO.8949/2020
JAVED KHAN S/O NASIR KHAN
Vs.
STATE OF M.P & OTHERS
WRIT PETITION NO.9039/2020
IMRAN KHAN S/O BHURU KHAN
Vs.
STATE OF M.P & OTHERS
WRIT PETITION NO.9040/2020
SALEEM @ SALLU S/O LALLU KHAN
Vs.
STATE OF M.P & OTHERS
WRIT PETITION NO.9042/2020
SAMEER KHAN S/O ANWAR KHAN
Vs.
STATE OF M.P & OTHERS
Smt.Sudha Shrivastava learned counsel for the
petitioner.
Smt.Archana Kher learned Dy.A.G for the
respondent/State.
O R D E R
(Passed on 30.07.2020) Per Vivek Rusia, J:
-2- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 This order shall also govern the disposal of connected writ petitions i.e. W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 as the issue involved in all these petitions is the same.
2. All the Petitioners being permanent residents of Indore have filed the present petitions challenging the validity of the order of detention dated 08.04.2020 passed by the District Magistrate, Indore (respondent No.2) under section 3(2) of the National Security Act, 1980 (hereinafter referred to as 'the NSA Act ') as well as the order dated 18.05.2020 passed by the respondent No.1 under section 12(1) of the NSA Act .
For the sake of convenience, facts are being taken from W.P.No.8949/2020.
3. Government of M.P in anticipation of the massive impact of the Covid-19 pandemic in the entire state imposed a total lock-down from 23.03.2020 followed by an order under section 144 of the Cr.P.C. Vide Gazette Notification dated 20.03.2020, the State Govt. has passed a notification under section 3 (3) of the NSA Act authorizing the concerned District Magistrates within their respective jurisdiction to exercise the powers for making an order of detention conferred by sub-section (2) of section 3 of the NSA Act during the period 1st April to 30th June 2020. By virtue of the aforesaid notification, the District Magistrate, Indore is the competent authority to pass an order under sections 3(4) of the NSA Act .
4. In the Indore city, the Police have started monitoring the restricted the movement of the public after 23.03.2020.
-3- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 On 07.04.2020 at around 6.30 hrs. the present petitioner along with four others were found sitting in a Magic van bearing registration No.MP-10-T-4559. The police personnel directed them to go inside the home to follow the guidelines issued by the Central Govt./State Govt. in respect of the lock-down. Instead of going inside the home, they attacked the police personnel by throwing stones by using abusive language. By pelting stones on the Police personnel a law & order situation was created at Chandan Nagar area in Indore. The aforesaid incident was video graphed by the media and widely circulated through print as well as electronic media in the entire country. The aforesaid act of the petitioner and others was considered as a threat not only to the Police but to the safety of the public at large. Constable Surendra has lodged an FIR against the present petitioner and others in the Police Station Chandan Nagar, Indore as FIR No.244/2020 at 1.50 hrs for the offences punishable under sections 353, 336, 188, 269, 270, 147 & 149 of the IPC. In continuation of the aforesaid incident on 08.04.2020, Constable Yogesh Singh received information that the petitioner along with other co- accused was threatening the local residents of Chandan Nagar by showing a knife and trying to disturb the harmony between the two communities. The aforesaid information was recorded in the Rojnamcha register at 9.18 hrs. on 08.04.2020. The Superintendent of Police (West), Indore vide letter dated 08.04.2020 sent a detailed report to the District Magistrate, Indore requesting for initiation of action under section 3(2) of the NSA Act against the petitioner.
-4- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 Along with the aforesaid request letter, a copy of the FIR, Rojnamcha and other documents were forwarded. The respondent No.2 being the detaining authority, after considering the aforesaid material and recording its satisfaction has passed the impugned order dated 08.04.2020 under section 3(2) read with section 3(3) of the NSA Act detaining the petitioner in the Central Jail, Jabalpur. In compliance with the aforesaid order, at about 7.55 hrs the petitioner was taken into custody and the detention order was served upon him along with the grounds of detention.
5. After detention, the petitioner was shifted to Central Jail, Jabalpur. Being aggrieved by his shifting, the petitioner filed a writ petition before this Court i.e. W.P.No.7346/2020 and vide order dated 13.04.2020 this Court has directed the State Govt. to transfer the petitioner from Central Jail, Jabalpur to Central Jail, Bhopal. Being aggrieved by the aforesaid detention, the petitioner through his wife Heena Bee filed a representation to the State Govt. as well as to the District Magistrate on 18.06.2020. The said representation was sent by registered post and thereafter the petitioner has filed the present petition before this Court challenging the validity of the order dated 08.04.2020. The petitioner has assailed the impugned order mainly on the grounds that (i) there was no material before the respondent No.2 for arriving at to his subjective satisfaction (ii) the detention order was passed by respondent No.2 in a hasty manner without any material produced before him (iii) the order is vague in nature which does not disclose the specific act of the
-5- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 petitioner (iv) the impugned order was valid only for 12 days and during this period there was no such approval by the State Govt., therefore, the order has lost its effect (v) the petitioner was not a member of the mob who were found throwing the stones upon the police personnel and the health workers during Covid-19 check-ups in Chandan Nagar area
(vi) the petitioner has not been disclosed the grounds of detention within the prescribed period (vii) the order has been passed in violation of the provisions of the NSA Act and especially sections 8, 11, 12 & 14 of the NSA Act and Article 22(4) of the Constitution of India.
6. After notice, the respondents have filed the reply denying all the allegations and the averments made in the writ petition. It is submitted in the reply that the detaining authority after going through all the documents placed before it and applying its mind reached to the conclusion that the detention of the petitioner under NSA Act would by in the interest of the public order and security. In pursuant to the impugned order, the petitioner was taken into custody and the order of detention along with the grounds for detention was supplied to him. The petitioner has duly acknowledged it by signing on each paper of the detention order. The order of detention was sent to the State Govt. for approval vide letter dated 08.04.2020. The arrest of the petitioner was informed to his wife on 08.04.2020. It is further submitted that vide order No.F.No.31-83/2020/11/C-1 dated 18.05.2020, the Home Department of the State Govt. in the exercise of the powers conferred by sub-section (1) of section 12 of the
-6- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 NSA Act has confirmed the detention order made under section 3 by the District Magistrate, Indore for the period of 3 months from the date of detention up to 08.07.2020, hence the writ petition is liable to be dismissed.
7. The petitioner filed the rejoinder specifically denying his involvement in the alleged incident dated 07.04.2020 by submitting that none of the police personnel or the members of Suraksha Samiti had reported the incident to the concerned police station and there was no mention of the incident in the Rojnamcha of 07.04.2020. The FIR was lodged on 08.04.2020 at about 1.58 hrs. against the petitioner and others based on false and fabricated story cooked up by the police. The petitioner was not involved in any criminal activity and he has no criminal antecedents. A false criminal case has been registered against him to initiate the proceedings of the NSA Act. The impugned order of detention dated 08.04.2020 was not sent to the State Govt. which is apparent from Annexure R/4 which is only a message recording passing of the order dated 08.04.2020. There is nothing on record that the State Govt. has affirmed the detention order within 12 days as per the requirement of Section #(4) of the NSA Act., therefore, the said detention order stands vitiated. There is nothing on record to show that the State Govt. has ever referred to the Advisory Board within 3 weeks from the date of the detention order.
8. Thereafter State Government has filed the additional reply to the rejoinder because the petitioner has raised some new grounds to challenge the impugned order. It is further
-7- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 submitted by the respondents that the impugned order has been passed under section 3(2) and not under section 3(3) of the NSA Act , therefore, the period of detention is not required to be mentioned. The incident occurred between 5 to 6.30 hrs. on 07.04.2020 and the FIR was registered at about 1.58 hrs. on 08.04.2020. It is further submitted that immediately after passing the detention order on 08.04.2020 copy of the same was sent to the Home Department on the very same day and the petitioner was served with the ground of detention on the same day. In reply to the grounds raised by the petitioner that the State Government has not confirmed the detention order within 12 days, it is submitted that the State Government has intimated and forwarded the matter to the Advisory Board on 08.04.2020 and 13.04.2020 for confirmation and thereafter received its due approval on 17.04.2020. The copy of the passed in F.No.31- 83/2020/11/C-1 dated 17.04.2020 is filed as Annexure R/9 and the copy was forwarded to the Under Secretary to the Govt. of India and District Magistrate. The respondents have further submitted that on 16.06.2020 the respondent No.2 has extended the detention period further for three months and forwarded the same to the State Govt. and now vide order dated 03.07.2020 the State Govt. has again approved the detention of the petitioner for three months from 08.07.2020 to 08.10.2020 as per the directions of the Advisory Board, High Court of Madhya Pradesh.
-8- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020
9. We have heard Smt.Sudha Shrivastava learned counsel for the petitioner and Smt.Archana Kher learned Dy.A.G for the respondent/State and perused the record.
10. The NSA Act , 1980 is an Act to provide for preventive detention in certain cases and matters connected therewith. Since the Act restricts the citizens' fundamental right of personal liberty it has to be construed strictly as far as possible in favour of the citizen but it does not violate Articles 19, 21, 22 & 14 of the Constitution of India. Section 3 gives power to the Central Govt. or State Govt. to make orders detaining certain persons. Thus, the Sections 3 of NSA Act which requires interpretation, in this case, is reproduced below , 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 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
-9- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 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 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 satisifed 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 5 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 ground 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, 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.
-10- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 As per sub-section (1) of section 3 of the NSA Act , the Central Govt. or the State Govt., after its satisfaction, may make an order directing a person to be detained to prevent him from acting in any manner prejudicial to the defence of India. Under sub-section (2) of section 3, the Central Govt. or State Govt. may, if satisfied concerning any person, make an order directing him that such person be detained to prevent him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Under sub-section (3) of section 3, 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 Govt. may by order in writing direct that during such period the District Magistrate or the Commissioner of Police may exercise the powers as provided in sub-section (2) of section 3. As per proviso to sub-section (3), the State Govt. under this sub-section shall not authorize the District Magistrate or the Commissioner of Police, in the first instance, exceed three months. After conferring the power under sub-section (3) by the State Govt., the District Magistrate or the Commissioner of Police, as the case may be, in his opinion may make an order and shall forthwith report the fact to the State Govt. for its approval and no such order shall remain in force for more
-11- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 than 12 days or 15 days, as the case may be, unless in the meantime it has been approved by the State Govt.
11. Section 8 of the NSA Act provides that when a person is detained in pursuant to the detention order, the authority making the order shall, as soon as may be and not later than 5 days, and in exceptional circumstances not later than 10 days from the date of the detention order, communicate to him the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Govt. Sections 9, 10 & 11 of the NSA Act provide the constitution of Advisory Board, reference to the Advisory Board and the procedure of Advisory Board to be followed respectively. After giving opinion by the Advisory board that there is sufficient cause for the detention of a person, the appropriate Govt. in the exercise of powers under section 12 of the NSA Act may confirm the detention order and continue the detention of a person concerning for such period, as it thinks fit, and if the Advisory Board has reported that there is no sufficient cause for the detention of a person, the appropriate Govt. shall revoke the detention order and cause the person concerned to be released forthwith. Section 13 provides the maximum period of detention i.e. 12 months from the date of detention unless revoked or modified under section 14 of the NSA Act . Under section 14, the detention order may at any time be revoked or modified. Under sub-section (2) of section 1, the expiry of revocation of the detention order
-12- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 shall not bar the making of another detention order under section 3 against the same person.
12. The petitioner is assailing the impugned detention order as invalid because it does not prescribe the period of detention but sub-sections (1), (2), (3) & (4) of section 3 nowhere mandate the detaining authority to prescribe the period of detention in the order. Sub-section (3) only provides three months for the State Government to authorizing or conferring the power to the District Magistrate for passing the order of detention if satisfied as provided in sub-section 2. If the order is passed under sub-section (4) by the District Magistrate, the said order shall remain valid for a period of 12 days or 15 days, as the case may be, unless in the meantime it has been approved by the State Government. that sub-section 4 of section 3 also does not mandate for the authority to fix the period of detention The power has been given to the appropriate Govt. under section 12 to prescribe the period of detention while confirming the order of detention after the report given by the Advisory Board. Hence, in the present case, in the impugned order the District Magistrate has rightly not prescribed the period of detention but the State Govt. in the confirmation order dated 18.05.2020 has prescribed the period of three months from the date of detention, therefore, the aforesaid ground is misconceived and is accordingly rejected.
13. The petitioner has raised the second ground that he had not been served with the grounds of detention. Along with
-13- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 the return the State Govt. has filed the order of detention dated 08.04.2020 and the same was duly communicated to the petitioner as it bears his signature on each and every page. The order was communicated by the S.H.O, police station Chandan Nagar. After communication of the aforesaid order, the petitioner did not submit any representation to the State Government. For the first time, the representation was submitted by the wife of the petitioner on 18.06.2020 and that too by way of registered post. There is no acknowledgment of receiving such representation by the appropriate government, hence this grounds is also not liable to be considered.
14. The petitioner has also assailed the impugned action on the ground that he has been falsely implicated in the case. He was not a member of the mob involved in the stone-pelting. It is for the prosecution to prove the charges against the petitioner, in a regular criminal trial, therefore, while examining the validity of the detention order it would not be appropriate for this Court to make any observation on the merit of the criminal charges. The scope of interference by the High Court in the writ petition challenging a detention order is very limited. The Apex Court in the case of Pebam Ningol Mikoi Devi vs State Of Manipur And Others reported in (2010) 9 SCC 618 has held that to decide the correctness or otherwise of the detention order it is required to be seen that the documents and the material on which the reliance was placed by the detaining authority and those materials were justified in arriving at the finding that the
-14- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 detenue should be detained under the NSA Act. The grounds stated in the order of detention are sufficient or not is not within the ambit of the discretion of the Court because it is a subjective satisfaction of the detaining authority. However, if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority under the NSA Act is non existing or misconceived or irrelevant, the order of detention would be invalid. Paras-26 & 28 of the said judgment are reproduced below:
26. What emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be two fold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting
28. We are conscious of the fact that the grounds stated in the order of detention are sufficient or not, is not within the ambit of the 1 discretion of the court and it is the subjective satisfaction of the detaining authority which is implied.
However, if one of the grounds or reasons which lead to the subjective satisfaction of the detaining authority under NS Act, is non-existent or misconceived or irrelevant, the order of detention would be invalid.
15. From March 2020 onwards the entire country is facing the Covid-19 pandemic. In the State of M.P especially in Bhopal,Jabalpur and Indore when the cases of Covid-19 patients started coming to the Government took prompt action by deputing medical as well as police personnel to control the spread of the epidemic. The Government also imposed total lock- down and concerned District Magistrate also passed an order
-15- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 under section 144 Cr.P.C. Anticipating the situation prevailing or likely to prevail in the area within the local limit, the State Government authorized the District Magistrate for passing the order of detention under the NSA Act. There is no dispute that the alleged incident took place on 07.04.2020 in the Chandan Nagar area, Indore where certain residents were found pelting stones over the health workers as well as police personnel. This news was widely published in the electronic as well as print media in the entire country and condemned by the general public. The Police immediately came in action and arrested the petitioner and others to control such activities and an FIR was also registered against them. The Superintendent of Police (West), Indore submitted a detailed report to the District Magistrate requesting for initiation of the proceedings under section 3 of the NSA Act, therefore, we are of the considered opinion that there was grounds or reasons which led to the subjective satisfaction of the detaining authority under the NSA Act for initiating the detention proceedings. As held by the Apex Court, the grounds stated in the order are sufficient or not is not within our jurisdiction to examine as an appellate authority. On the basis of the material available, we are satisfied that at the relevant point of time there were grounds and reasons which led to the detaining authority to pass an order against the petitioner, therefore, in our considered view the District Magistrate has not committed any error of law while passing the impugned order dated 08.04.2020.
16. It is correct that as per section 3(4) of the NSA Act the order passed by the District Magistrate has a life of 12 and 15 days, as the case may be, and the said order is liable to be approved by the State Govt. otherwise it loses its effect.
-16- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 According to the respondents, a vide letter dated 08.04.2020 (Annexure R/4) the impugned order dated 08.04.2020 was sent to the Home Secretary. The language of this letter reveals that it is only an information by the District Magistrate to the Home Secretary that NSA Act order dated 08.04.2020 has been passed against the petitioner Javed under sub-section (2) of section 3 of the NSA Act. The OIC wireless station, Indore PL has sent this message. The respondents have filed a copy of the order bearing F.No.31-83/2020/11/C-1 dated 18.05.2020 by which Shri Das, Under Secretary to the Govt. of M.P, Home Department has passed the order of approval for a period of 3 months. The copy of the order is reproduced below:
SECRET Government of Madhya Pradesh Home (C-Section) Department Order F.No.31-83/2020/II/C-1 Bhopal Dated 18/05/2020 Whereas, the Advisory Board constituted under Section 9 of the National Security Act, 1980 (No.65 of 1980) (here in after referred to as the said Act) has reported that there is, in its opinion sufficient cause for the detention of Javed Khan s/o Nasir Khan R/o Distt. Indore under the provisions of the said Act;
Therefore, in exercise of the powers conferred by the sub-section (1) of section 12 of the said Act, the State Government hereby confirms the detention order made under section 3 of the said Act by the District Magistrate, Indore against of Javed Khan s/o Nasir Khan R/o Distt. Indore and further directs that the period of detention of Javed Khan s/o Nasir Khan R/o Distt. Indore shall continue till the expiry of 03 (Three) month from the date of his detention that is up to 08-07-2020.
By order and in the name of the Governor of Madhya Pradesh (Shri Das) Under Secretary to the Govt. of Madhya Pradesh, Home Deptt.
Bhopal, Dated 18/05/2020 F.No.31-83/2020/IIC-1 Copy forwarded to:-
-17- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020
1. Copy together with copies of the order in Hindi forwarded to the Supdt. Distt. Jail Bhopal with the request that one copy of the order may be served on the detenue and the order copy should be returned to the department after obtaining signature on it.
2. Copy forwarded for information to :-
(i) The District Magistrate, Indore
(ii) The Director-General of Police, M.P, Bhopal.
(iii) The Director-General of Prisons, Bhopal.
17. The petitioner by way of rejoinder took a specific ground that this order is passed beyond the period of 12 days from the date of passing of the detention order and the copy of this order has not been sent to the Central Government as required under section 3(5) of the NSA Act. In reply to the rejoinder, the State Govt. has filed the copy of the order dated 17.04.2020 to show that the approval had been granted on 17.04.2020 by the State Govt and the copy has been sent to the Govt. of India. The copy of the order dated 17.04.2020 filed as Annexure R/9 is reproduced below:
Secret GOVERNMENT OF MADHYA PRADESH HOME (C-SECTION) DEPARTMENT ORDER Bhopal, Dated / /2020 F.No.31-83/2020/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 08/04/2020 passed by the District Magistrate, Indore against Javed S/o Nasir Khan R/o Distt. Indore under sub-section (2) of section 3 of the said Act on dated 17/04/2020.
By order and in the name of the Governor of Madhya Pradesh (Shri Das) Under Secretary to Government of Madhya Pradesh, Home Department
-18- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 F.No.31-83/2020/II/C-1 Bhopal, Dated 17/04/2020 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, Bhopal.
(Shri Das) Under Secretary to Government of Madhya Pradesh Home Department
18. Although the State Govt. has not filed the copy of the Advisory Board proceedings for the perusal of this Court. Annexure R/9 reveals that by this order dated 17.04.2020 the State Govt. had already approved the detention of the petitioner in the exercise of powers conferred by section 4(3) of the NSA Act and the order dated 18.05.2020 reveals that the State Govt. has confirmed the detention order in exercise of powers conferred by sub-section (1) of section 12 of the NSA Act, for the period of three months, therefore, so far as the validity of the order dated 08.04.2020 and the confirmation order dated 17.04.2020 is concerned, we do not find any violation of the provisions of the NSA Act committed by the respondents. Both the orders have rightly been passed and approved by the State Government in conformity with the NSA Act. The petitioner has already undergone the aforesaid period.
19. During the period of detention of 3 months, the District Magistrate vide letter dated 16.06.2020 requested the
-19- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 Government for extension of detention for further three months from 08.07.2020 to 08.10.2020 as the Indore city is still undergoing the Corona epidemic and release of the petitioner may lead to disturbance in the locality. The State Government vide order dated 03.07.2020 has approved an extension of detention of the petitioner from 08.07.2020 to 08.10.2020 in the public interest. Although the petitioner has not challenged the validity of the aforesaid two orders in this petition according to the respondents that order dated 03.07.2020 has been passed in the extension of the period of detention hence we are ignoring such technicalities.
20. Under section 12 of the NSA Act where the Advisory Board has reported that in its opinion there is sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. In the present case, vide order dated 18.05.2020 the State Govt. had confirmed the detention order for a period of three months from the date of his detention. The period was about to expire on 08.07.2020 but before that respondent No.2 has recommended for its extension Section 12 gives the power to the Government continue the detention of a person concerned for such period, as it thinks fit. Section 13 provides that the detention order which has been confirmed under section 12 NSA Act shall be 12 months from the date of detention with a power to the appropriate govt. to revoke or modify the detention order at any earlier time. Section 14 provides the revocation of the detention order. Sub-section
-20- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 (2) of section 14 provides that the expiry of the revocation of the detention order shall not bar making of another detention order under section 3 against the same person. While recommending for extension of the period, the District Magistrate believed that in the local area the status of law and order (Corona epidemic) is still the same and if the petitioner is released, the situation may become worse in the concerned area. For the so-called offense committed by the petitioner and others is concerned an FIR has been registered for which they will face the consequences.
21. So far as the order dated 03.07.2020 extending the period of detention of the petitioner up to 08.10.2020 is concerned, the order of detention dated 08.04.2020 was passed as the petitioner was found disturbing peace, law, and order, etc. during lock-down and curfew period. Now after the expiry of 4 months the Government is extending the lock-down with certain relaxations and the curfew has also been relaxed in day time except Sundays. The markets are opened and people have started their business activities. The Government offices are also opened. Although the cases of Covid-19 infected persons are increasing day by day not only in Indore but in the entire country and at this stage no one is in a position to predict when this will come to an end. The detention of the petitioner for a period of 3 months was justified and we have accordingly upheld it but we do not find any reason for giving the further extension of 3 months in view of the changed circumstances. Some of the
-21- W.P.No.8949/2020, W.P.No.9039/2020, W.P.No.9040/2020 & W.P.No.9042/2020 petitioners have also found Covid-19 positive during incarceration. Hence, we hereby quash the order dated 03.07.2020 and directe the respondents to release the petitioners forthwith, if they are not required in any other case. However, during this remaining period from the date of release till 08.10.2020, the petitioners are directed to appear and mark his presence before the Chandan Nagar Police Station on the 1st Monday of every month.
22. In the result, the petitions are partly allowed.
C.c as per rules.
(S.C.SHARMA) (VIVEK RUSIA)
JUDGE JUDGE
Digitally signed by Hari Kumar
hk/ Nair
Date: 2020.08.06 12:38:30 +05'30'