Madhya Pradesh High Court
Muin Khan @ Muinuddin vs State Of M.P. on 4 December, 2014
WP 6077/2010
(Muin Khan Vs. State of MP)
03/12/2014.
Shri Sameer Kumar Shrivastava, Advocate for
the petitioner.
Shri Prabal Solanki, Government Advocate for
respondents State.
They are heard.
Petitioner has filed this petition against the order of his detention dated 29/9/2010 passed by the District Magistrate, Guna (Annexure P/1).
The aforesaid order was challenged at pre- detention stage.
Petitioner pleaded that the State Government has not confirmed the order of detention. Additional return has been filed on behalf of the respondents State. In the aforesaid additional return, it is pleaded that the order of detention passed by the District Magistrate, Guna dated 29/9/2010 was forwarded to the State Government by the District Magistrate on 5/10/2010 and thereafter the competent authority confirmed the order of detention vide order dated 14/10/2010 (Annexure R/4).
We have perused the order dated 14/10/2010 (Annexure R/4). The competent authority has not 2 WP 6077/2010 mentioned the period of detention of the petitioner in the aforesaid order.
Question involved in this petition is whether pre- detention order can be challenged by the petitioner without submitting himself to detention.
Hon'ble the Supreme Court in Deepak Bajaj Vs. State of Maharashtra and another, (2008) 16 SCC 14 has held that under exceptional circumstances, preventive detention order can be challenged at pre- detention stage. Hon'ble the Supreme Court has held as under :
"The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-
execution stage are necessarily very limited in scope and number, viz. Where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose
(iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal of the courts to use their extraordinary powers 3 WP 6077/2010 of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question."
Section 3 of the National Security Act, 1980 [ for brevity, the "Act"] prescribes power to make order of detention of certain persons. Aforesaid section gives power to the State Government to detain certain persons under certain circumstances. Sub-section (3) of section 3 of the Act reads thus :
"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 satisfied 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 made by the State Govt. under this sub-section shall not, in the first instance, exceed three months, but the 4 WP 6077/2010 State Government may, if satisfied as aforesaid that it it necessary to do so, amend such order to extend such period from time to time by any period not exceeding three months at any one time."
From perusal of the aforesaid section, it is clear that the District Magistrate on satisfaction can pass order under the aforesaid provision in regard to detention of a person. However, proviso appended to the aforesaid sub- section provides that the State Government can only pass order of detention in the first instance for a period of three months and if satisfied aforesaid period can be extended from time to time but not beyond the period of three months at any one time.
Hon'ble the Supreme Court in the case of Cherukuri Mani Vs. Chief Secretary, Government of Andhra Pradesh, 2014 CRI.L.J. 2748 has interpreted the provisions of section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act. Aforesaid provision of the Andhra Pradesh Act is pari materia, qua section 3 of the National Security Act. Hon'ble the Supreme Court has held that the State Government cannot pass one time order of detention for a period of more than three months.5 WP 6077/2010
Same principles have been applied by Division Bench of this Court in Mohaseen Kureshi Vs. State of MP and ors, 2014 (4) MPHT 342 following the decision of Hon'ble the Supreme Court in Cherukuri Mani ( supra ).
In the present case, period of detention of the petitioner has not been specified by the State Government while confirming the order passed by the District Magistrate, Guna (Annexure P/1). Apart from this, in the order dated 29/9/2010 passed by the District Magistrate, Guna (Annexure P/1) the period of detention has also not been specified. The order Annexure P/1 is dated 29/9/2010 and the period has already lapsed. In such circumstances, in our opinion, the order of detention can be challenged at pre-detention stage because it is an extraordinary circumstance.
Consequently, this writ petition is disposed of with the following direction :-
Impugned order dated 29/9/2010 passed by the District Magistrate, Guna (Annexure P/1) and the confirmation order dated 14/10/2010 passed by the State Government (Annexure R/4) are hereby quashed.
However, it is clarified that under the facts and circumstances, if it is necessary to pass any order of detention against the petitioner, the competent authority 6 WP 6077/2010 is at liberty to do so in accordance with the provisions of law.
Petition is disposed of with the aforesaid. No order as to costs.
(S.K.Gangele) (Sheel Nagu)
Judge Judge
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