Madhya Pradesh High Court
Suresh Patel vs Union Of India on 24 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:11056
1 W.P. No. 8068 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 24th OF APRIL, 2025
WRIT PETITION No. 8068 of 2025
SURESH PATEL
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Maqbool Ahmad Mansoori - Advocate for the petitioner.
Shri Sudeep Bhargava - Dy. A.G. for respondent/State.
ORDER
The petitioner has filed this present petition under Article 226 of the Constitution of India challenging the order of detention passed under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as "NSA") dated 17.08.2024 and orders dated 01.10.2024, 18.11.2024 and 17.02.2025 passed by the State Government extending the period of detention for 3-3 months.
2. FACTS OF THE CASE, IN SHORT, ARE AS UNDER:-
2.1 Shri Rajendra Yadav, a Manager of Aurobindo Medical University lodged a report at P.S. Banganga alleging that the petitioner has made illegal encroachment over the land of the Hospital, and when Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 2 W.P. No. 8068 of 2025 the Tehsildar, Naib Tehsildar and Patwari went to the spot for removing the alleged encroachment, the accused persons namely Pradeep Mishra, Jaykumar and Jaydeep Mishra came there in a drunken state and fired gunshots in the air and threatened the officers with dire consequences.
They have acted on the petitioner's instance. Accordingly, F.I.R. bearing Crime No.1042/2024 (dated 14.08.2024) was registered against the petitioner and other persons named above for the offences punishable under Section 125, 296, 351(2) and 3(5) of the Bhartiya Nyay Samhita, 2023 (BNS).
2.2 That on 16.08.2024, the Station House Officer of the Police Station Banganga, Zone - 3, Indore made a request to The Deputy Commissioner of Police, Zone - 3, Indore to initiate proceedings for detaining the petitioner under Section 3(2) of the NSA, who in turn vide letter dated 16.08.2024 forwarded the aforesaid report to the District Magistrate, Indore making a recommendation to pass an order of detention against the petitioner.
2.3 That, acting upon the report mentioned above, the District Magistrate, Indore issued a detention order dated 17.08.2024 in exercise of the powers under Section 3(2) of the NSA and ordered to detain the petitioner in Central Jail Indore.
2.4 On 18.08.2024, the petitioner was detained in Central Jail Indore in compliance with the detention order issued by the learned District Magistrate. The petitioner preferred bail application on 20.08.2024 before the learned Sessions Court, Indore in connection with Crime No.1042/2024 registered at Police Station Banganga. The said application was allowed by the Court of Learned Additional Sessions Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 3 W.P. No. 8068 of 2025 Judge vide order dated 21.08.2024 passed in B.A. No.2762/2024. Being aggrieved by the order of detention, the petitioner submitted a representation before the appropriate authority but the same has never been decided by the competent authority.
2.5 The State Government after receiving the opinion/ report from the Advisory Board, passed a confirmatory order dated 01.10.2024 under Section 12(1) of the NSA, whereby the State Government had confirmed the detention order passed by the District Magistrate for a period of three months from the date of his initial detention i.e. from 18.08.2024 to 18.11.2024.
2.6 Thereafter, an order dated 18.11.2024 was passed by the State Government whereby the State Government has extended the period of detention for a period of three months i.e. from 18.11.2024 to 18.02.2025. Now again vide order dated 17.02.2025 the State Government has extended the period of detention for a further period of three months i.e. from 18.02.2025 to 18.05.2025. Hence, this petition before this Court.
SUBMISSIONS OF PETITIONER'S COUNSEL
3. Shri Maqbool Ahmad Mansoori, learned counsel for the petitioner submits that in a criminal case registered against the petitioner at Crime No.1042/2024, he has been falsely implicated on the basis of a false allegation that other three accused threatened the revenue officers at the instance of petitioner. The present order of detention has been passed only on the basis of this F.I.R. which was registered under the pressure of the Manager of Aurobindo Hospital. The house of the petitioner has Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 4 W.P. No. 8068 of 2025 also been tried by the local administration to demolish which has been stayed by this Court. The petitioner is aged about 60 years leading a peaceful life with his family. It is further submitted that the old criminal cases registered against him cannot be the basis for the order of detention. From 2014 to 2024, only six cases are registered and none of the cases are of heinous offence. The petitioner has undergone almost eight months of illegal detention and the same is likely to be extended for 3 months.
4. Shri Mansoori, learned counsel for the petitioner further submits that there is a violation of Section 3(4) of the NSA which mandates that the detaining authority must forward the report to the State Government with grounds on which the order of detention is to be passed, but in the present case as per the reply filed by the State Government only a telegram was sent on 17.08.2024 by the District Magistrate to the State Government without grounds, therefore, the orders are bad in law and liable to be set aside.
SUBMISSIONS OF RESPONDENT/ STATE COUNSEL
5. Learned Dy. A.G. appearing for the respondent/State refutes that the petitioner is a known criminal of the locality and a number of criminal cases are registered against him. In order to control his criminal activities it was necessary to detain him. It is always a subjective satisfaction of authority under the NSA Act to consider the illegal activities of the person and send him for detention. It is further submitted that the order of detention has been affirmed by the Advisory Board and thereafter the order of confirmation was passed by the State Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 5 W.P. No. 8068 of 2025 Government. The proper procedure prescribed under the NSA has been followed, therefore, no case for interference is made out and the petition deserves to be dismissed.
APPRICIATIONS AND CONCLUSIONS
6. For ready reference Section 3(4) of the NSA reads as under:-
"(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government".
7. That Section 3(4) of the NSA clearly provides that when any order is made by an officer mentioned in Section 3(3) of the Act i.e. District Magistrate, he shall "forthwith" report the fact of detention to the State Government, alongwith the grounds on which the confirmatory order will be passed by the State of M.P. However, in the present case, the District Magistrate did not forward grounds and material alongwith a report about the petitioner‟s detention to the State Government together with the grounds and other materials.
8. A bare perusal of the reply filed by the respondents makes it clear that the District Magistrate has only sent a wireless message to the State Government informing about an order of detention of the petitioner. Moreover, the respondents have neither filed a copy of the report (if any) submitted by the District Magistrate to the State Government in their reply nor disclosed about the date of forwarding any such report and therefore, it is a case of clear violation of the mandatory provisions of Section 3(4) of Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 6 W.P. No. 8068 of 2025 the NSA Act which vitiates the further proceedings of detention. Apart from that, no additional material has been considered by the authorities to extend the period of detention twice.
9. The order of detention of the petitioner has been passed under Section 3(2) of the National Security Act, according to which if the Central Government or State Government, as the case may be, is to be satisfied with respect to any person who is liable to be prevented from acting in any manner prejudicial to the security of the State or prejudicial to the maintenance of public order, may make an order directing that such person be detained. Therefore, the proceedings under Section 3(2) of the National Security Act amount to suspension of the right of freedom as enshrined under the Constitution of India to prevent such person without conducting ant regular trial who is acting in a manner prejudicial to the maintenance of public order. Merely because a number of criminal cases are registered against any person in which he has been enlarged on bail by the competent court, the proceedings of detention may be initiated if there is positive and strong material available that if any person is not detained, he would continue to do any act which may affect the security of the State or disturb the public order i.e. law and order. If the police have input that any person is collecting anti-social elements to create Loot, Balwa, Riots or heinous crimes, therefore, in order to prevent him from doing such activities, the order under Section 3(2) of the National Security Act can be passed. On the basis of an old criminal case in which either he has been acquitted or convicted, or trial is pending, such a person cannot be detained under the National Security Act which amounts to curtailment of fundamental rights of a citizen. The Supreme Court as well as this Court in catena of cases has held that the order of detention should not have been passed in a routine Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 7 W.P. No. 8068 of 2025 manner. The Division Bench of this Court in the case of Usman Vs. State of M.P. and others reported in I.L.R. [2012] M.P. 1594 has observed as under:-
"3. The National Security Act of 1980 empowers detention without trial. The object of preventive detention is not to punish a person for having done something but to intercept him before he acts in any manner prejudicial to the maintenance of public order. It has, therefore, to be understood in contradistinction to 'punitive detention' which follows as a consequence when an individual is found guilty in a trial for an offence. Detention without trial is a serious matter and the order of detention must therefore be justified by the detaining authority whenever personal liberty is in peril due to drastic executive action under the draconian law.
4. The law of preventive detention has stood the test on the anvil of fundamental rights since A.K.Gopalan v. State of Madras. It is now well settled, that the order of detention made under the Act is essentially a precautionary measure and is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of surrounding circumstances. It may be easier to draw such inference where there is a series of acts evincing the course of conduct to form subjective satisfaction that the person concerned, if not detained, would be likely to act in a manner 'prejudicial to the maintenance of public order'. Activities prejudicial to the maintenance of 'public order' are quite distinct from activities relating to 'law and order' problems. The difference between 'law and order' and 'public order' may be explained by drawing two concentric circles the larger representing 'law and order' and the smaller representing 'public order'. Every infraction of law affects the law and order, but an act affecting law and order may not necessarily also affect the public order. For example, an assault by one individual upon another would affect only law and order but it would not disturb the peace; tranquillity and even tempo of life so as to amount to a breach of 'public order'. The true distinction between the areas of 'law and order' and 'public order' lies in the nature and quality of the act done but also in the circumstances under which it was done and the degree and extent of its reach upon the society. The detaining authority must reach that satisfaction on the basis of relevant and cogent material, then only such satisfaction partakes the character of a „subjective satisfaction‟ which is beyond the pale of judicial review. These are the sine qua non for the valid and lawful exercise of power."
10. If the State Government wanted to keep this petitioner in custody they could have opposed the application for suspension or challenged it Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30 NEUTRAL CITATION NO. 2025:MPHC-IND:11056 8 W.P. No. 8068 of 2025 before the High Court, therefore, the competent Court has already considered the material available in the case diary of Crime No. 1042/2024 and Session Court vide order dated 21.08.2024 has granted the bail to him. Even otherwise prima facie it appears that the petitioner has been implicated on the memorandum of accused recorded under Section 27 of the Indian Evidence Act.
11. In view of above, the petition stands allowed. The detention order dated 17.08.2024 issued by the learned District Magistrate and the confirmatory order dated 01.10.2024 passed by the State Government as well as the first extension order dated 18.11.2024 and the second extension order dated 17.02.2025 passed by the State Government are hereby quashed. Petitioner be released forthwith if he is not required in any other criminal case. The petitioner shall be entitled to the cost of Rs. 10,000/- (Rupees Ten Thousand Only) from the State of M.P. (VIVEK RUSIA) (GAJENDRA SINGH) JUDGE JUDGE Vatan Signature Not Verified Signed by: VATAN SHRIVASTAVA Signing time: 28-04-2025 17:57:30