Madhya Pradesh High Court
Anamika Sajnani vs Home Department on 24 June, 2021
Equivalent citations: AIRONLINE 2021 MP 849
Author: Sujoy Paul
Bench: Sujoy Paul, Shailendra Shukla
1 WP No.9703/2021 & WP No.9704/2021
High Court of Madhya Pradesh: Bench at Indore
WP No.9703/2021
Banshilal Choudhary Vs. State of MP & Ors.
WP No.9704/2021
Anamika Sajnani Vs. State of MP & Ors.
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Coram:
Justice Sujoy Paul, Judge
Justice Shailendra Shukla, Judge
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Presence :
Shri Sankalp Kochar, Advocate for the petitioners.
Shri Pushyamitra Bhargav, learned Additional Advocate
General with Shri Amit Singh Sisodiya, GA for the respondent/State.
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Whether approved for reporting :
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ORDER
(Passed on 24th June, 2021) Sujoy Paul, J. :
Regard being had to the similitude of the questions involved, on the joint request of the parties, matters were analogously heard and are decided by this common order.
2. In both the writ petitions, the orders of detention passed by the District Magistrate are called in question.
3. Shri Sankalp Kochar attacked these detention order on three counts:-
(i) In the detention order, the learned District Magistrate has not mentioned that the detenue has right to prefer representation to the District Magistrate against the detention order which amounts to depriving the petitioners from the valuable right of representation before the same authority and runs contrary to the Constitution Bench judgment in Kamleshkumar Ishwardas Patel 2 WP No.9703/2021 & WP No.9704/2021 v/s Union of India & Others, (1995) 4 SCC 51 and Full Bench judgment of this Court in Kamal Khare v/s The State of Madhya Pradesh (W.P. No.22290/2019). Reliance is placed in the matter of State of Maharashtraz Vs. Santosh Shankar Acharya (2000) 7 SCC
463.
(ii) In the detention orders, no period of detention is mentioned which runs contrary to the order passed by Division Bench of this Court in Akash Yadav v/s The State of Madhya Pradesh & Others (W.P. No.2695/2019).
(iii) The detention orders were passed when detenues were already in custody. Yet the respondents mentioned that corpus are "absconding" which is bad in law.
4. The prayer is opposed by Shri Pushyamitra Bhargav, learned Additional Advocate General for the respondent / State.
5. Points involved in these petitions are not res integra. This Court passed order in W.P. No.9792/2021 (Yatindra Verma Vs. State of MP) and opined as under:-
"31) Indisputably, the detention order does not contain any stipulation that the detenue has right to prefer representation before the same authority namely, District Magistrate. The reliance is placed on the recent Full Bench judgment of this Court passed in the case of Kamal Khare (supra). To counter this argument, the bone of contention of learned AAG was that the said Full Bench decision is distinguishable. Full Bench judgment is based on a constitution bench judgment in the case of Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51. In Kamleshkumar (supra), the Apex Court was dealing with the provisions of COFEPOSA Act and the PIT NDPS Act and not with NSA Act. Hence, the said constitution Bench judgment could not have been relied upon.
32) We do not see much merit in this argument because similar argument was advanced by the Govt. before Full Bench in the case of Kamal Khare (supra) which is reproduced in extenso in para-14 of the said judgment.
The similar argument could not find favour by the Full Bench.
33) In Kamleshkumar (supra), Apex Court opined as under:-
3 WP No.9703/2021 & WP No.9704/2021"6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya [1951 SCR 167, 186: AIR 1951 SC 157] .) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention.
14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the 4 WP No.9703/2021 & WP No.9704/2021 order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenue is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation."
(emphasis supplied)
34) The Full Bench after considering the constitution Bench judgment opined as under:-
5 WP No.9703/2021 & WP No.9704/2021"20. The Supreme Court in Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315 dealing with the aspect whether the Life Insurance Corporation Act, 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding conditions of service of the employees of the Life Insurance Corporation of India held that the Industrial Disputes Act would prevail over the Life Insurance Corporation of India Act as the former relates specially and specifically to industrial disputes between the workmen and employers. Relevant discussion in paragraph No.52 of the report would be useful to reproduce hereunder:-
"52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes - so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission - the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, or management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua 6 WP No.9703/2021 & WP No.9704/2021 workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to."
30. Now coming to the question as to what would be the effect of not informing the detenue that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) even examined this aspect in paragraph No.14 of the report and categorically held as under:-
"14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."
33. In view of the above, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) analyzed the effect of not informing the detenue of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal. The relevant paragraph No.47 is reproduced hereunder:-
"47. In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenue was only informed that he can make a representation to 7 WP No.9703/2021 & WP No.9704/2021 the Central Government or the Advisory Board. The detenue was not informed that he can make a representation to the officer who had made the order of detention. As a result the detenue could not make a representation to the officer who made the order of detention. The Madras High Court, by the judgments under appeal dated 18-11-1994 and 17.1.1994, allowed the writ petitions filed by the detenues and has set aside the order of detention on the view that the failure on the part of the detaining authority to inform the detenue that he has a right to make a representation to the detaining authority himself has resulted in denial of the constitutional right guaranteed under Article 22(5) of the Constitution. In view of our answer to the common question posed the said decisions of the Madras High Court setting aside the order of detention of the detenues must be upheld and these appeals are liable to be dismissed."
(emphasis supplied)
35) Another Division Bench in WP No.5866/2015 (Salma vs. State of MP) opined as under:-
"On the last date of hearing opportunity was granted to the learned counsel for the State to examine the law laid down by the Apex Court, which has been made applicable in the various cases by the Division Bench of this Court, in the matter of compliance of provisions of Article 22 (5) of the Constitution of India in the matter of detention itself, intimating the detenue that he/she is entitled to make a representation before the Detaining Authority himself against the order of detainsion. Such law was considered and made applicable in view of the law laid down by the Apex Court in the matter of State of Maharashtra and others Vs. Santosh Shankar Acharya (2000) 7 SCC 463, vary same law was made application by this Court in W.P. No.1830/2015, W. P. No.3491/2015, W.P. No.3677/2015 & W. P. No.3683/2015 in the following manner:
Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others vs. Santosh Shankar Acharya (2000) 7 SCC 463 in para 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that non-communication of the fact to the detenue that he could make a representation to the detaining Authority so long as order of detention has 8 WP No.9703/2021 & WP No.9704/2021 not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamlesh kumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeramanâs case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observe that the detention order and the disclosure of the fact that detenue could make representation to the detaining Authority before the State Government considered the proposal for approval has abridged the right of detenue under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.
These petitions, therefore, must succeed. The impugned detention orders in the respective petitions are quashed and set aside and respondents are directed to set the petitioners/detenu at liberty forthwith unless required in connection with any other criminal case."
36) In view of these authoritative pronouncements, there is no manner of doubt that the detenue had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.
37) In view of foregoing analysis, the impugned order of detention cannot sustain judicial scrutiny."
(emphasis supplied)
6. So far as question of not mentioning period in the detention order is concerned, this Court in W.P. No.9529/2021 (Smt. Monica Tripathi Vs. State of MP) held as under:-
"12) A Division Bench of this Court in Akash Yadav (supra) came to hold that in absence of mentioning 9 WP No.9703/2021 & WP No.9704/2021 the period of detention, detention order becomes illegal. A careful reading of the order of Akash Yadav shows that the authoritative pronouncement of Supreme Court on this aspect in T. Devki (supra) was not brought to the notice of the Division Bench. In T. Devki (supra), Apex Court held as under:-
"12. Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 is identical in terms to Section 3 of the Tamil Nadu Act. Section 3 of Maharashtra Act does not require the State Government, District Magistrate or a Commissioner of Police to specify period of detention in the order made by them for detaining any person with a view to preventing the detenue from acting in any manner prejudicial to the maintenance of public order. Section 3(1) which confers power on the State Government to make order directing detention of a person, does not require the State Government to specify the period of detention. Similarly, sub-sections (2) or (3) of Section 3 do not require the District Magistrate or the Commissioner of Police to specify period of detention while exercising their powers under sub-section (1) of Section 3. The observations made in Gurbux Bhiryani case [1988 Supp SCC 568: 1988 SCC (Cri) 914] that the scheme of the Maharashtra Act was different from the provisions contained in other similar Acts and that Section 3 of the Act contemplated initial period of detention for three months at a time are not correct. The scheme as contained in other Acts providing for the detention of a person without trial, is similar. In this connection we have scrutinised, the Preventive Detention Act, 1950, the Maintenance of Internal Security Act, 1971, COFEPOSA Act, 1974, National Security Act, 1980, but in none of these Acts the detaining authority is required to specify the period of detention while making the order of detention against a person."
(emphasis supplied)
13) Pertinently, the judgment of Akash Yadav (supra) was pressed into service before another Division Bench of 10 WP No.9703/2021 & WP No.9704/2021 this Court in the case of Narendra Verma (supra). The Division Bench opined as under:-
"16. From the discussion herein before, it is evident that T. Devki's case was earlier in point of time and it is a decision of Apex Court by three Hon'ble Judges holding that it is not necessary to specify the period of detention in the detention order. The subsequent decision of Apex Court is also delivered by two Hon'ble Judges but there is no reference or mention of the earlier decision of T. Devki's case therein. It appears that the same was not brought to the notice of Hon'ble Judges of the Apex Court. As stated herein before that in case of conflict as held in the case of Jabalpur Bus Operator (supra), the earlier decision will prevail hence as per decision in T. Devki's case, we hold that it is not necessary to specify the period in the detention order and detention order cannot be held illegal for not specifying the period of detention in detention order."
(emphasis supplied)
14) We are in respectful agreement with view taken by Division Bench in Narendra Verma (supra) because it is based on the binding judgment of 3 Judges Bench of Supreme Court in the case of T. Devki. Interestingly, the judgment of T. Devki was not brought to the notice of subsequent Benches in the case of Lahu Shrirang Gatkal and in Sama Aruna. These two judgments are delivered by two Judges Bench of Supreme Court. In both these matters, on which heavy reliance is placed by Shri Dhanodkar, a different statute was subject matter of interpretation. NSA Act was not the subject matter nor the judgment of T. Devki in which NSA Act was interpreted was considered. Thus, we are unable to hold that for not mentioning the period of detention, detention order will vanish in thin air. In R.P. No.1372/2019 (State vs. Sahil Khan), the Division Bench further held as under:-
"7. In light of the aforesaid and also keeping in view the judgment delivered in the case of Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department (supra), as the judgement delivered in the case of Gurbux Anandram Bhiryani (supra) was overruled and the aforesaid fact was not brought to the attention of 11 WP No.9703/2021 & WP No.9704/2021 this Court by either side, order passed in W.P. No.17650/2019 is hereby recalled.
8. The writ petition No.17650/2019 is restored to its original number. The same be listed on 04.11.2019.
9. The review petition stands disposed of accordingly."
15) In view of foregoing analysis, the detention order cannot be interfered with for not mentioning the period of detention. Thus, this contention of Shri Dhanodkar must fail.
16) Our understanding about the Sub-section 3 of Section 3 of NSA Act is that this provision deals with delegation of power of State Government to the District Magistrate or Commissioner of Police for the purpose of detention. The expression "during such period as may be specified in the order", in our opinion talks about the period during which the order delegating the power shall remain alive. In other words, Sub-section 3 of Section 3 deals with the period relating to the order of delegation and not a period to be mentioned in the order of detention.
(emphasis supplied)
7. In W.P. No.9792/2021 (Yatindra Verma Vs. State of MP) this Court took note of the mistake of the Government, wherein a person who was already in detention was held to be 'absconding'. This Court opined as under:-
"26) In the instant case, as noticed, in the impugned order dated 06/04/2021, the State has partially mentioned the reason of "communal threat" in a mechanical manner. Similarly, we have noticed that despite recording a finding in the impugned detention order that the Corpus was already in custody, the State Govt. repeatedly mentioned that he is "absconding". We are not impressed with the argument of learned AAG that it was not a mistake on the part of the government. We also find substance in the argument of Shri Chhabra that if State Govt. and Central Govt. carry an impression that detenue is absconding, this may have an adverse impact on their decision. Thus, utmost care and caution must be taken while giving a finding whether the person concern is really absconding or not.
27) Thus, we have no hesitation to hold that the respondents have mechanically opined that Corpus was "absconding". This is an example of non-application of 12 WP No.9703/2021 & WP No.9704/2021 mind or acting in a mechanical manner."
(emphasis supplied)
8. Apart from this, the findings of this Court in WP No.9264/2021 (Smt.Sandhya Parmar Vs. State of MP & Ors.) is also relevant wherein the Court has deprecated the detention of citizens without application of mind. This Court opined as under:-
16. The order of detention deprives detenue's Freedom flowing from Article 21 of the Constitution of India. The freedom of a citizen cannot be snatched and taken away in a mechanical manner. Whether in a given case detention of a person is necessary or not needs to be examined with accuracy and precision. We deem it proper to remind ourself to unique exposition on this aspect by R.S. Sarkaria, J. that:-
"it is the duty of the Court to see that efficacy of the limited, yet crucial safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with their application."
(See: Shaik Hanif v/s State of W.B. (1974) 1 SCC 637, para
10)
17. In the instant case, the detention orders passed by District Magistrate are based solely on the basis of information given by the Superintendent of Police, Indore. The recommendation of S.P. dated 19.04.2021 shows that allegations against both the detenues were relating to blackmarketing of Remdesivir injection. There is no iota of finding regarding use of distill water in Remdesivir injection. This allegation of using distilled water in Remdesivir injection was made in fact against one Nilesh Chouhan which is evident from bare perusal of his F.I.R. However, District Magistrate in the impugned detention orders mentioned that one Remdesivir injection so recovered from both the detenues was containing distill water. It is difficult to gather as to from where the District Magistrate gathered this fact. The decision making process adopted by District Magistrate appears to be faulty and this finding of recovery of Remdesivir injection filled with distilled water against present detenues is without there being any basis. We deprecate the action of District Magistrate in 13 WP No.9703/2021 & WP No.9704/2021 mechanically passing the detention orders by cut copying the reasons from F.I.R. of some other person namely Nilesh Chouhan. This mechanical exercise on the part of District Magistrate runs contrary to the constitutional scheme ingrained in Article 14 and 21 of the Constitution of India and also the provisions of NSA Act."
(emphasis supplied)
9. In view of the forgoing analysis, petitions deserve to succeed on point No.1. Following the dicta of Full Bench, the impugned orders are liable to be axed because detenues were not made aware about their valuable right to prefer representation before the District Magistrate.
10. Resultantly, the impugned orders of detention dated 07.05.2021 are set aside.
11. The petitions are allowed.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
vm
Digitally signed by
VARGHESE MATHEW
Date: 2021.06.24
15:31:52 -07'00'