Madhya Pradesh High Court
Vivek Khurana vs The State Of Madhya Pradesh on 20 May, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav, Atul Sreedharan
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL BENCH AT JABALPUR
WRIT PETITION NO. 1362/2020
IN THE MATTER OF:-
Petitioner,,, Vivek Khurana
Versus
Respondents ... State of Madhya Pradesh and Ors.
For the Petitioner: Yogesh Soni, Ld. Advocate
For the Respondents : Shekhar Sharma, Ld. Addl. A.G
Coram: Hon'ble Mr. Justice Sanjay Yadav
Hon'ble Mr. Justice Atul Sreedharan
ORDER
(20/05/2020) Per: Atul Sreedharan J The present writ petition has been filed by the Petitioner, aggrieved by the order of detention passed by the District Magistrate, Katni (the Respondent No.2 herein) dated 02/01/2020, whereby the Petitioner has been detained in exercise of power under S. 3(2) of the National Security Act, 1980 (hereinafter referred to as the "NSA") for an alleged offence committed by him under the Food Safety and Standards Act, 2006.
2. The brief facts of the case are as follows: On 27/05/05, the Food Inspector, Ms. Deoki Sonwani of the Food and Drug Administration, Jabalpur, holding additional charge in Katni, conducted a surprise inspection of the Petitioner's Dhaba and samples of loose chilli powder and Thums UP (carbonated beverage) was taken. The report of the Public Analyst disclosed that the sample of chilli powder was found to be misbranded and a complaint case was registered by the Food Department against the Petitioner, in the Court of the JMFC Katni, being Case No. 4433/2013, which was still pending on the date of filing the petition under judgment.
3. The Causa Causans for the action under the NSA against the Petitioner is a surprise inspection conducted by the Food Safety Officer at the Dhaba of the Petitioner on 07/08/2019, in which sample of 'Magaj Ke Laddu' were taken and the sample, upon being teste by the Food Analyst at the State Food Testing Laboratory, found it unsafe. The copy of the report of the Food Analyst is annexed with the petition at page 85 as Annexure P/3. The report is dated 18/10/2019. The sample is branded as unsafe for human consumption u/s. 3(1)(22)(v) of the Food Safety and Standards Act, 2006, due to the presence Metanil Yellow, a non-permitted colour.
4. It is the case of the Petitioner that in both the instances (the case in 2005 and 2019), he was not the manufacturer of the food substance. In both the cases he had had purchased it from a third party and had kept it at his Dhaba for sale. However, the Chief Medical and Health Authority and Designated Officer under the Food Safety Administration, District Katni, Respondent No.5 herein, wrote a letter dated 30/12/2019 to the Superintendent of Police, Katni, the Respondent No.3 herein and recommended stern action against the Petitioner as a deterrent. Likewise, the Station House Officer of P.S. Madhav Nagar, District Katni, the Respondent No. 4 herein also addressed a letter dated 30/12/2019 to the Respondent No.3 recommending the detention of the Petitioner under section 3(2) of the NSA in view of the two cases of food adulteration against the Petitioner.
5. Based on the aforementioned letter of the Respondent No.5 and Respondent No.4, addressed to the Respondent No.3, the Respondent No. 3 addressed a letter dated 31/12/2019 to the District Magistrate, Katni, the Respondent No.2 herein, who issued the impugned order dated 02/01/2020, on the basis of which the Petitioner has been detained under the NSA.
6. The grounds of detention dated 02/01/2020, takes into account the earlier case against the Petitioner in 2005 under the erstwhile Prevention of Food Adulteration Act, 1954 for keeping misbranded chilli powder in which the case is still pending against the Petitioner before the Trial Court. The grounds of detention disclose the mind of the Respondent No.2 who feels that it is necessary to hold the Petitioner in detention on account of his continuous activity of preparing and selling adulterated food. This opinion of the District Magistrate has been based upon a case pending against the Petitioner which had taken place fourteen years before the present case, which prompted the initiation of the NSA proceedings against the Petitioner. How that instance of 2005 and thereafter the act of adulteration in 2019, could make the District Magistrate arrive at the 'subjective opinion' that the Petitioner has continuously been engaging in acts of adulteration from 2005 to 2019 is not clear in the absence of any similar offence in the intervening fourteen years.
7. Inter alia, the ground has been taken that the State Government did not intimate the Central Government about the detention order passed against the Petitioner, as required under S. 3(5) of the NSA. Section 3(5) lays down that where the order of detention is passed or approved by the State Government, it was required of the State Government to report the fact pertaining to the detention to the Central Government within seven days along with the grounds on which the order of detention was made. This ground has been taken by the Petitioner in paragraph 6.5 of the petition. The Petitioner has contended that the report of the Petitioner's detention was not given to the Central Government within seven days of the approval granted by the State and so the continued detention of the Petitioner is bad in law.
8. The State has replied to the same in paragraph 9 of its reply.
According to the State, the communication of the report to the Central Government need not be made to the Petitioner as that is not a requirement u/s. 3(5) of the NSA. However, there is no categorical assertion by the State that the requirement of S. 3(5) of the NSA has been satisfied. Annexure R/5 at page 19 of the reply is the order of approval of the detention dated 17/01/2020. In the list of persons to whom the said order has been forwarded at the base of the order, is the Under Secretary to the Ministry of Home Affairs, New Delhi at S.No.3.Annexure R/5 is the copy of the approval u/s/ 3(4) of the NSA sent to the District Magistrate, Katni. The State has not filed a copy of the intimation specifically marked to the Central Government. Besides, it is also mandatory to enclose the grounds of detention and understandably so. The Communication of the approval to the Central Government u/s. 3(5), relating to a detenu's detention under the NSA, is not an empty formality but a solemn act to ensure that the Central Government is in a position to appreciate the necessity of detaining the Petitioner under S. 3(2) of the NSA Act. The non-dispatch of the grounds of detention to the Central Government can render further detention unlawful. In this case, the state has not find any document to reveal that (a) approval of the State Government dated 10/01/2020 has been dispatched to the Central Government as mandated under section 3 (5) of the NSA and (b) if sent, whether the said intimation included the grounds of detention pertaining to the Petitioner here.
9. Under the circumstances, we find that there has been no compliance of section 3 (5) of the NSA which renders the impugned order of detention bad in law and therefore the same set-aside. We ordered dated to 02/01/2020 is quashed. The Petitioner if he is in detention shall be released forthwith if not wanted in any other case. With the above the Petitioner is finally disposed of.
(Sanjay Yadav) (Atul Sreedharan)
Judge Judge
Digitally signed by
RAVIKANT KEWAT
Date: 2020.05.20 11:51:13
+05'30'