Madhya Pradesh High Court
Siddharth Jain Through His Wife Lavina ... vs Lokesh Kumar Jatav on 30 September, 2019
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
REVIEW PETITION NO.1371 OF 2019
AND
CONTEMPT PETITION NO.2479 OF 2019
Indore, Dated 30.09.2019
Parties through their respective counsel
Regard being had to the similitude in the controversy
involved in the present cases, the cases were analogously
heard and by a common order, they are being disposed of by
this Court. Facts of Review Petition No.1371/2019 are narrated
hereunder.
This review petition is arising out of order dated
24.09.2019passed in Writ Petition No.18047/2019 (Siddharth Jain vs State of Madhya Pradesh and Others).
The facts of the case was that an order was passed on 09.08.2019 under the provisions of National Security Act, 1980 and only on the ground that the period of detention was not mentioned in the detention order, the writ petition has been allowed. The writ petition was allowed based on the earlier order judgment delivered in the case of Satyanarayan @ Narayan Luniha vs State of MP and Another (WP No.3154/2019) decided on 28.03.2019. In the case of Satyanarayan Luniha (supra), this Court has allowed the writ petition, placing reliance upon the judgment delivered in the case of Gurbax Bhiryani case reported in 1988 Supp SCC
568. The parties appearing in the matter of Siddharth Jain (supra) have not at all brought to the notice of this Court the delivered judgment in the similar circumstances by Hon'ble Apex Court in the case of State of Tamil Nadu vs Kamla and Others reported in 2018 5 SCC 322. The Apex Court in the aforesaid case in para No. 4 to 6 is held as under:-
2HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE REVIEW PETITION NO.1371 OF 2019 AND CONTEMPT PETITION NO.2479 OF 2019
4. In T Devaki v Government of Tamil Nadu, a Bench of this Court has held that since the legislation does not require the detaining authority to specify the period for which a detenue is required to be detained, the order of detention is not rendered invalid or illegal in the absence of such specification. This Court held thus:
"13. This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of this Court in Ujagar Singh v. State of Punjab while considering validity of detention order made under Section 3 of the Preventive Detention Act, 1950 held that non-specification of any definite 3 2010 (3) MWN (Cr.) 42 (DB) 4 (1990) 2 SCC 456 period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid. In Suna Ullah Butt v. State of Jammu & Kashmir [(1973) 3 SCC 60: 1973 SCC (Cri) 138: (1973) 1 SCR 870] , validity of detention order made under Jammu and Kashmir Preventive Detention Act, 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify the period of detention.
The court held that since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention. In Suresh Bhojraj Chelani v. State of Maharashtra [(1983) 1 SCC 382: 1983 SCC (Cri) 202] , while considering the validity of the detention order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected similar submission 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE REVIEW PETITION NO.1371 OF 2019 AND CONTEMPT PETITION NO.2479 OF 2019 made on behalf of the detenu that order of detention was vitiated as the government had failed to mention the period of detention while confirming the order of detention. The court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention. When no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act." (Id at page 464) The decision in Bhiryani's case has been overruled.
5. In the circumstances, the High Court was not justified in quashing the order of detention on the basis that no period of detention was provided in the order. The High Court has proceeded on the basis of the decision of this Court in Bhiryani which is no longer good law in view of the subsequent decision of a larger Bench in Devaki. The decision of the High Court in Santhi, to the extent that it adopts the same position as in Bhiryani, will not reflect the correct legal position.
6. Accordingly, the impugned judgment of the High Court of Judicature at Madras dated 24 February 2016 in H.C.P. No. 2442/2015 is set aside. As a consequence, the detention order dated 31 August 2015 bearing G.O. No. SR.1/63-5/2015 Public (SC) Department shall stand revived. However, since the period of detention has come to an end, nothing further remains except for this Court to clarify the true legal position as we have done in the above terms. In the aforesaid case, it has been held that only because the period of detention is not mentioned in the order of detention, it does not render it as invalid or illegal. Not only this, in another Apex Court judgment delivered in the case of T. Devaki vs Government of Tamil Nadu reported in 1990 2 SCC 456, the Apex Court in paras 13 and 15 has held as 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE REVIEW PETITION NO.1371 OF 2019 AND CONTEMPT PETITION NO.2479 OF 2019 under:-
13. This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of this Court in Ujagar Singh v. The State of Punjab, [1952] 3 SCR 756 while considering validity of detention order made under Section 3 of the Preventive Detention Act 1950 held that non-
specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid. In Suna Ullah Butt v. State of Jammu & Kashmir, [1973] 1 SCR 870 validity of detention order made under Jammu and Kashmir Preventive Detention Act 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify the period of detention. The Court held that since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention. In Suresh Bhojraj Chela- ni v. State of Maharashtra , [1983] 1 SCC 382 while consider- ing the validity of the detention order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected simi- lar submission made on behalf of the detenu that order of detention was vitiated as the Government had failed to mention the period of detention while confirming the order of detention. The Court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention. When no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.
15. It is thus clear that the view taken in Gurbux Biryani's case on the interpretation of Section 3 of the Maharashtra Act is incorrect. This Court has while considering the question of the validity of the detention order made under different Acts, consistently taken the view that it is not 5 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE REVIEW PETITION NO.1371 OF 2019 AND CONTEMPT PETITION NO.2479 OF 2019 necessary for the detaining authority or the State Govern- ment to specify the period of detention in the order. In the absence of any period being specified in the order the detenu is required to be under detention for the maximum period prescribed under the Act, but it is always open to the State Government to modify or revoke the order even before the completion of the maximum period of detention. We are, therefore, of the opinion that the impugned order of detention is not rendered illegal on account of the detain- ing authority's failure to specify period of detention in the order.
It has been held in the aforesaid case that view taken in the case of Gurbux Bhiryani case on the interpretation of Section 3 of the Maharashtra Act is incorrect.
In light of the aforesaid, the order passed by this Court deserves to be recalled and is accordingly recalled. The writ petition No.18047/2019 is restored to its original number. The same be listed on 14.10.2019.
State to file the reply in this matter. The review petition and contempt petition stands disposed of accordingly.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2019.10.01
17:19:33 +05'30'