Madhya Pradesh High Court
Mayank Khatri Thr. His Wife Smt. ... vs The State Of Madhya Pradesh on 30 June, 2021
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. Writ Petition No.3540/2021
Parties Name
Mayank Khatri through his wife Smt
Snehlata Korche (Khatri)
vs.
The State of Madhya Pradesh and others
Date of Order 30/06/2021
Bench Constituted Division Bench :
Justice Prakash Shrivastava
Justice Virender Singh
Order passed by Justice Prakash Shrivastava
Whether approved for reporting No
Name of counsels for parties For petitioner : Shri Pradeep Singh, Senior
Advocate with Shri Gautam Prasad,
Advocate
For respondents/State: Shri A.P. Singh,
Dy. Advocate General
Law laid down -
Significant paragraph numbers -
ORDER
(30.06.2021) Per : Prakash Shrivastava, J.
By this petition, the petitioner has challenged the order dated 03.01.2021 whereby the detention of the petitioner has been directed for a period of three months under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as 'the Act') .
2. The case of the petitioner is that he is engaged in the business of selling agricultural equipments, fertilizers and pesticides through its firm "Amar Krishi Farm". On 21.11.2020 the inspection of the premises of the petitioner was carried out and fertilizers and pesticides were seized by the S.D.M., who had come along with the Dy. Director, Agriculture and his team. The FIR dated 22.12.2020 in Crime No.762/2020 was lodged against W.P.No.3540/2021 2 the petitioner and other persons alleging commission of offence under Section 417, 420 of the Indian Penal Code, Section 3-13 and 18 of the Insecticides Act, 1968 and Rules of 1971 as well as Section 7-12-13 and 19- 21 of the Fertilizer (Control) Order, 1985 and Section 3 and 7 of the Essential Commodities Act on the premise that the petitioner was manufacturing fake/sub-standard fertilizers and pesticides by mixing material like salt, coal, marble powder, colour etc. which was harmful to the crop and causing damage to the agriculturists. The petitioner was taken in custody on 22.12.2020. The samples collected from the petitioner's premises were found to be misbranded.
3. Further facts are that the respondent No.4 had sent the recommendation to the respondent No.3 for initiating action under the NSA and the respondent No.3 had further sent the recommendation on 24.12.2020 to respondent No.2 to take action against the petitioner under Section 3(2) of the Act. The District Magistrate thereafter had passed the impugned order dated 03.01.2021.
4. The respondents have filed their reply disclosing that after passing the detention order dated 03.01.2021, the copy of grounds of detention and material for arriving at the satisfaction was served upon the petitioner on 04.01.2021. The State Government had approved the detention order on 07.01.2021 and the Advisory Board had also opined that there exist sufficient ground for detention of the petitioner and thereafter the State Government has also extended the detention order till the expiry of three months from the date of detention up to 04.04.2021. The additional document filed by the petitioner reveals that the detention order has been extended up to 04.10.2021 vide order dated 16.06.2021.
5. Learned counsel appearing for the petitioner submits that the detention order suffers from non-application of mind and it has been passed in the mechanical manner verbatim mentioning the reports submitted by the respondent No.3. He further submits that on the date of passing of the detention order the petitioner was in custody, but, this fact has not been considered nor the possibility of release of the petitioner on bail has been W.P.No.3540/2021 3 taken note of. He has also submitted that Section 3(5) of the Act has not been complied with and the intimation was not sent to the Central Government within seven days.
6. Opposing the prayer learned counsel for the respondents submits that the detention order has been passed after due application of mind and that the detaining authority was aware of the fact that the petitioner was in custody and that provisions of Section 3(5) of the Act have been duly complied with.
7. Having heard the learned counsel for the parties and on the perusal of the record, we have noticed that so far as first ground of challenge is concerned, though the respondent No.2 in the grounds of detention has quoted the report submitted by the respondent No.3 but the order of detention also reveals that the respondent No.2 has taken into account the other material such as the report submitted by the Deputy Director, Agriculturist Welfare and Agriculture Development dated 03.01.2021 and other material placed before it and has passed the detailed order in respect of the detention of the petitioner under Section 3(2) of the Act. Hence we are of the opinion that detention order does not suffer from the defect of non- application of mind.
8. The next ground of challenge raised by the petitioner is that provisions of Section 3(5) of the Act has not been complied with, which reads as under :
"3. Power to make orders detaining certain persons.--(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (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 W.P.No.3540/2021 4 such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order."
9. The record reflects that vide Annexure R/8 dated 07.01.2021, the State Government had sent the copy of the detention order, grounds of detention and other material to the Central Government. That was sent within seven days. Hence, this ground of the petitioner does not survive.
10. So far as the next ground is concerned, learned counsel for the State has not disputed the fact that the petitioner was taken in custody on 22.12.2020 and he had not applied for bail and he is still in custody.
11. The Supreme Court in the matter of Binod Singh Vs. District Magistrate, Dhanbad, Bihar and others, (1986) 4 SCC 416 has held that if the detenu is already in jail at the time of service of the order and detenu is released or prospects of his imminent release not considered then the continued detention is illegal on the ground of non-application of mind to the relevant factors even if detention order otherwise found to be justified.
12. In the matter of Abdul Razak Abdul Wahab Sheikh Vs. S.N. Sinha, Commissioner of Police, Ahmedabad and another, (1989) 2 SCC 222, it has been held that if the detenu is already in jail then the bald statement made by the detaining authority that the detenu was likely to be released on bail and thereafter there were full possibilities of continuance of prejudicial activities is not enough as the detaining authority was unaware that the bail application has been rejected and thereafter no further application for bail was moved by the detenu. In such circumstances, it has been held that subjective satisfaction of detaining authority was not reached on relevant materials, hence the detention order was found liable to be set aside.
13. In the matter of Anand Prakash Vs. State of U.P. and others, (1990) 1 SCC 291 and Sanjay Kumar Aggarwal Vs. Union of India and others, (1990) 3 SCC 309, it has been held that in respect of detenu who is in jail, there must be apprehension that he would indulge in prejudicial activity on being released on bail.
W.P.No.3540/2021 514. The Supreme Court in the matter of Kamarunnissa Vs. Union of India and another, (1991) 1 SCC 128 after taking note of the earlier judicial pronouncements on the issue has reached to the conclusion that even in a case where a person is in custody, the detention order can be passed but has laid down the circumstances when such an order can be passed. In the case of Kamarunnissa (supra), it has been held that :
"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him
(a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court.
What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise.
We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody."
W.P.No.3540/2021 615. In the present case, the ground of detention does not reflect that the detaining authority was aware of the fact that the petitioner was actually in custody at the time of passing of the impugned order. The detaining authority has also not applied his mind in respect of the petitioner's possibility of being released and on being so released his possibility or probability of indulging into prejudicial activities, hence, the order passed by the detaining authority suffers from the defect of non-application of mind to that extent. Counsel for the respondents/State has referred to the FIR and has submitted that mere registration of FIR indicates that the authority was aware of the custody of the petitioner but such a contention cannot be accepted because this awareness must be shown in the grounds of detention and order of detention.
16. In the above circumstances, we are of the opinion that the order of detention suffers from the illegality of non-application of mind by the detaining authority inasmuch as the detaining authority has not considered the fact that at the time of passing of the detention order and the service thereof the detenue was already in jail and had not moved any application for bail.
17. Hence, the impugned detention order dated 03.01.2021 as also the subsequent extension order are found to be unsustainable and are hereby quashed. The writ petition is accordingly allowed.
(PRAKASH SHRIVASTAVA) (VIRENDER SINGH)
JUDGE JUDGE
DV
Digitally signed by
DINESH VERMA
Date: 2021.07.01
14:30:02 +05'30'