Madhya Pradesh High Court
Akash Yadav vs The State Of Madhya Pradesh on 12 April, 2019
Equivalent citations: AIRONLINE 2019 MP 1076
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
HIGH COURT OF MADHYA PRADESH : JABALPUR.
DB : Hon'ble Shri Justice J.K. Maheshwari &
Hon'ble Shri Justice Rajendra Kumar Srivastava
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W.P.No. 2695/2019
Akash Yadav.
Vs.
State of Madhya Pradesh and others.
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Shri Anoop Kumar Saxena, counsel with the petitioner.
Shri Som Prakash Mishra, Govt. Advocate for the respondents-State.
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ORDER
(12.04.2019) Per :J.K. Maheshwari, J.
Invoking the jurisdiction under Article 226 of the Constitution of India and assailing the order of detention dated 07.09.2018 (Annx.P/3), passed by the District Magistrate, Chhatarpur in exercise of powers under Section 3(2) and (3) of the National Security Act, 1980 (hereinafter referred to as the 'NSA Act'), approved by the State Government on 19.9.2018 (Annx.R/6), the petitioner has filed this petition.
2: It is the contention of the petitioner that Station House Officer, Police Station Civil Lines, Chhatarpur, made a request to the Superintendent of Police, District Chhatarpur on 13.7.2018 to make the recommendation to the District Magistrate for passing an order under Sub-section (3) of Section 3 of the NSA Act to detain the petitioner and to restrain him in any manner prejudicial to the (2) maintenance of the public order. The Superintendent of Police on the same day in reference to the proposal of the Station House Officer made the recommendation without due verification and application of mind to the District Magistrate. On the said recommendation, the District Magistrate passed the order impugned on 7.9.2018, in exercise of the power under Sub-section (3) of Section 3 of NSA Act directing the detention of petitioner and to keep him in Civil Prison Chhatarpur.
3: It is urged that the order has been passed without affording due opportunity of hearing and without complying the provision of Sub-section (3), (4) and (5) of Section 3 ibid. In the order passed by the District Magistrate or in the approval order of the State Government, the period of detention has not been specified. It is said, the detention order cannot remain in operation for more than three months in first blush without following the procedure prescribed, however, not in confirmity to the provisions of law. The order of approval passed by the State Government in the facts of this case without specifying the period in the order of approval Annx. R/6, is also contrary to the spirit of the NSA Act, therefore, the order of detention and order of approval both, may be quashed. 4: The Respondent-State have filed their reply inter alia contending that a report was submitted by the Station House Officer Police Station Civil Lines, Chhatarpur to the Superintendent of Police, who made a request to the District Magistrate to exercise the power under Sub-section (3) of Section 3 of the NSA Act. It is said that the petitioner was engaged in commission of crimes since 2011 upto 2018 and as many as 12 cases were registered against him in 3 Police Station Civil Lines, Chhatarpur; out of them various cases are of grievous nature, therefore, to maintain the law and order and looking to the report submitted and also considering the fact that the petitioner is absconding, the order impugned dated 7.9.2018 has rightly been passed. As per the order of detention, he has been taken into custody on 1.1.2019 giving intimation to the State Government as per Annx.R/4. It is said, after arrest, he has served with the detention order and the grounds of detention, and also apprised regarding his right to submit a representation before the State Government, but he has not chosen so to do. He has also not made any request for hearing before the Advisory Board, and now the order of detention has been approved by the State Government on 19.9.2018, therefore, interference in the facts of the present case is not warranted.
5: After having heard learned counsel appearing on behalf of both the parties, in the facts of this case and looking to the order, it reveals that the order detaining the petitioner has been passed under sub-section (3) of Section 3 of the NSA Act and the petitioner has been taken into custody. Thus, the provision of Sections 3 & 4 of NSA Act are relevant, however, it is reproduced as under :-
"3. Power to make orders detaining certain persons.-
(1) The Central Government or the State
Government may, -
(a) if satisfied with respect to any person that
with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or
(b) if satisfied with respect to any foreigner that (4) with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The Central Government or the State government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.- For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub- section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
(3) 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 satisifed 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 5 made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(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 ground 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 :
Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted. (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 such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order.
4. Execution of detention order.- A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973."
6: On perusal, it is apparent that the Central Government and (6) State Government do have power to detain any person, with a view to prevent that person from acting prejudicial to the defence of India; the relations of India with foreign powers or the security of India. The foreigner may also be detained with a view to regulate his continuous presence in India or for making the arrangement to his expulsion from India, on recording satisfaction that "it is necessary so to do, make an order directing to detain such person." As per Sub-section (2), the Central Government or the State Government, may pass an order of detention to any person with a view to prevent him from acting in any manner prejudicial to the security of the State, or to act in any manner to the maintenance of public order in the State or in any manner prejudicial to the maintenance of supplies and services essential to the community, "if it is necessary so to do, make an order directing such person to be detained". It is clarified by the explanation that it would not include the supply of services essential to the community as explained in Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. 7: Sub-section (3) of Section 3 of NSA Act confers a power to the State Government with 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 that "if it is necessary so to do, may by order in writing, direct that during such period as may be specified in the order", for the reasons or on the grounds as provided in sub-section (2), to pass an order of detention. The District Magistrate or the Commissioner of Police has also been conferred such power with some limitations at par to 7 the State Government. In case the power is exercised under Sub- section (3) by the State Government, as per proviso, the said order in first instance shall not exceed three months later on having satisfied that it is necessary to do so amend such order to extend such period from time to time not exceeding three months at any one time. In case the order has been passed by the District Magistrate or by Commissioner of Police, they ought to have forthwith report the fact to the State Government to which they are subordinate along with the grounds on which the order has been made and such other particulars as in his opinion have bearing to the matter. The order passed by the District Magistrate shall not remain in force for more than 12 days, unless approved by the State Government in the meanwhile. The proviso of Sub-section (4) further clarifies that as per Section 8 ibid, the grounds are required to be communicated as soon as possible by the officer making the order before five days. In case the officer making the order has communicated the grounds after five days, but prior to 10 days from the date of detention, the words "12 days" would be substituted by words "15 days". Section 4 of the NSA Act, makes it clear that how the order of detention may be executed, which may be as per the procedure prescribed under the Code of Criminal Procedure for execution of the warrant of arrest.
8: In view of the foregoing analysis, Section 3 ibid is in four parts. First includes sub-section (1) and (2), which relate to security of India and State Government both to which the powers can be exercised to detain a person on the grounds specified in sub- sections (1)(a)(b) and sub-section (2) of Section 3 ibid, after (8) satisfaction by the Central Government or the State Government as the case may be. Second consists of the circumstances prevailing or likely to prevail in any area within the local limits of jurisdiction of a District Magistrate or Police Commissioner, to which the powers can be exercised by the State Government and also by the District Magistrate or Police Commissioner to detain a person on recording its satisfaction, if deems necessary for a specified period mentioned in the order with certain riders. Third relates to the fact that if the order is passed looking to the circumstances prevailing in the local limits of the jurisdiction of the District Magistrate by the State Government, the period of such order would be initially for three months, which can be further extended for the reasons to be recorded to three months for any one time. But, in case the power is exercised by the District Magistrate and Police Commissioner, the said order would remain in operation upto 12 days or 15 days as the case may be unless approved by the State Government in the meantime subject to the compliance as specified. Fourth, if the powers have been exercised by the Central Government or the State Government; as the case may be in sub-sections (1)(a)(b) or in sub-section (2) of Section 3 ibid, the period for which the order may be passed is not required to be specified in the order, because it relates to the security of the Central and security of the maintenance of the public order in the State. Hence, in both these sub-sections, the language used are "it is necessary so to do, make an order directing that such person be detained." When the power is required to be exercised prevailing to the circumstances or likely to prevail in any area within the local limits of 9 the jurisdiction, the power has been given to the State Government as well to the District Magistrate and Police Commissioner, but in the said contingency in the order, time limit ought to be specified as per proviso of sub-section 3 and sub-section 4 of Section 3 ibid as reveal by the language of sub-section 3 viz "it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order". Thus, the legislative intention is clear that in case the issue regarding the security of the Central Government or the State Government is on peril or may be affected, prescription of time limit in order is skipped, but to deal with issues of the local limits of jurisdiction of the district, the order of preventive detention should be for an initial period of three months by the State Government, 12 days or 15 days as the case may be by the District Magistrate or Police Commissioner subject to approval by the State Government for three months and if it is necessary so to do amend the order extending the period not exceeding three months at any one time. When any order is made or approved by the State Government; it shall within seven days report the fact to the Central Government stating the grounds on which and other material as in the opinion of the State Government necessary or having any bearing to the order.
9: The case at hand, relates to sub-section (3) for the reasons specified in Sub-section (2) of Section 3 ibid therefore compliance, Sub-section (3), (4) & (5) of Section 3 are mandatory, because the order of detention has been passed due to the act of the petitioner which is prejudicial to the maintenance of the law and order on account of registration of various offences within the local limits of (10) jurisdiction to the District Magistrate, Chhatarpur. The said order is required to be approved within 12 days and may be confirmed subject to compliance of the provisions of Sections 8, 9, 10, 11 & 12 of the NSA Act.
10 : Section 8 of the NSA Act, relates to the procedure which ought to be followed after detention with intent to afford an opportunity to the detenue, however, the Grounds of order of detention be disclose, as soon as possible ordinarily not later than five days or in exceptional cases assigning the reason not later than ten days. He shall be afforded the earliest opportunity to make a representation against the order to the appropriate Government, while Section 9 of the NSA Act provides for Constitution of Advisory Boards by the State Government, which is constituted and functional in the State of Madhya Pradesh. The order is passed by the District Magistrate in the present case has been affirmed by the State Government and after information to the Central Government it is required to be referred to the Advisory Board as per Section 10 of the NSA Act, within three weeks from the date of detention specifying the grounds on which the order was passed and the representation of the detenu along with report of the officer as per sub-section (4) of Section 3 ibid.
11 : As per Section 11, the procedure prescribed to be followed by Advisory Board by which the Advisory Board is required to submit its report within seven weeks from the date of detention of the person concerned, after perusal of the material placed, or on further information if deemed necessary from the government or through the officer of the government or from the person detained, and if 11 desired by detenue, the Board may afford an opportunity of hearing. The Board shall prepare a report in one part and in other part, its opinion specifying the sufficiency of the reasons for the cause of detention. In case of difference of opinion of the members of the Advisory Board, the majority opinion shall prevail. The appearance of the legal practitioner on behalf of the detenu is restricted in a proceeding of the reference before the Advisory Board and its report and opinion shall be confidential.
12 : Section 12 clarifies how the action may be taken on the report of the Advisory Board. In the opinion of the Board, sufficient grounds and reasons of detention are there, the Government may confirm the order continuing the said person in detention. But if in the opinion of the Advisory Board, sufficient cause and grounds of the detention are not made out, the Government shall revoke the order and cause the persons to be released forthwith. Section (13) makes it clear that the order of detention of a person affirmed by the State Government may be confirmed after the opinion of the Advisory Board for maximum period of 12 months from the date of detention. As per Section 14, the order of detention can be revoked or modified at any time to the causes specified in Section 14(1)(a) &
(b) of the NSA Act and the repeated order are not suppose to be passed as per Sub-section (2).
13 : Thus, the Scheme of the NSA Act indicates that for the purpose of passing any order under sub-section (1) or (2) or in (3), the procedure as prescribed in Sub-section (4) & (5) of Section 3 ibid and to confirm it of Sections 8, 10, 11, 12 ibid ought to be followed to detain a person upto the maximum period of twelve (12) months otherwise it would amount to affect the personal liberty of a person as enshrined by Article 21 of the Constitution of India, by which the deprivation of the life and personal liberty is protected. Therefore, prior to passing the order of detention by the authority, the procedure prescribed by the NSA Act must be necessarily observed.
14 : Article 22 of the Constitution of India, confers protection against arrest and detention in certain cases. For the purposes of the case at hand Sub-clauses (4), (5) & (7) of Article 22 of Constitution are relevant, therefore, reproduced as under :-
"22. Protection against arrest and detention in certain cases (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period 13 than three months unless-
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub- clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe-
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4)."
On perusal, it is apparent that under the Constitution of India, the detention of a citizen for more than 3 months is ordinarily prohibited except by law made by Parliament, under sub-clause (b) of clause (7) or in accordance to any law made by Parliament under (14) sub clauses (a) and (b) of Clause (7) showing the circumstances and the class or classes of the cases as specified by the law; or until Advisory board in its opinion said that the cause of such detention are sufficient. The Parliament by law may prescribe the maximum period of detention and procedure as prescribed ought to be followed by the Board in an enquiry of Clause 4(a) and (b) of Article 22 of Constitution of India.
15 : The said statutory provisions have been considered by Hon'ble the Apex Court and also by this Court interpreting the law regarding preventive detention. Thus, those judgment can be referred for brevity to take guidance for due interpretation of law. Before the Supreme Court validity of the National Security Ordinance and certain provisions of NSA Act were challenged in the case of A.K. Roy Vs. Union of India and others [(1982) 1 SCC 271], in which the challenge to Sub-section (3) of Section 3 of the NSA Act was also under consideration before five Judges Bench in which the Apex Court in para 72 with respect to the said provisions has observed as under :-
"72. We have already dealt with the argument arising out of the provisions of Section 3(2) read with the Explanation, by which power is conferred to detain persons in order to prevent them from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Insofar as sub- section (3) of Section 3 is concerned, the argument is that it is wholly unreasonable to confer upon the District Magistrate or the Commissioner of Police the power to issue orders of detention for the reasons mentioned in sub-section (2) of Section 3. The answer to this contention is that the said power is conferred upon these officers only if the State Government 15 is satisfied that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of these officers, it is necessary to empower them to take action under sub-section (2). The district Magistrate or the Commissioner of Police can take action under sub-section (2) during the period specified in the order of the State Government only. Another safeguard provided is, that the period so specified in the order made by the State Government during which these officers can exercise the powers under sub- section (2) cannot, in the first instance, exceed three months and can be extended only from time to time not exceeding three months at any one time. By sub-section (4) of Section 3, the District Magistrate or the Commissioner of Police has to report forthwith the fat of detention to the State government and no such order of detention can remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. In view of these in-built safeguards, it cannot be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub-section (2)."
On perusal of it, the issue regarding conferment of the power by the NSA Act to the District Magistrate or the Commissioner of Police was put into stake before the Court. The Apex Court said that such power has been conferred to them only with regard to the circumstances prevailing or likely to prevail in any area within the local limits of the officers specified with certain rider and subject to the compliance and approval by the State Government. Thus, in view of inbuilt safeguards the conferment of the said power to the District Magistrate or Commissioner of Police cannot be said to be excessive or unreasonable, therefore, the validity of sub-section (3) of Section 3 of the NSA Act has been approved.
(16)16 : In the case of Ashok Kumar Vs. Delhi Administration and others [(1982) 2 SCC 403], before the three Judges Bench of the Hon'ble Supreme Court, the order of detention was challenged. In the said case, the Court distinguished the above said Full Bench Judgment on the points that before the constitutional bench, the validity of the order was not under challenge and it is only the validity of the statute was challenged to which certain observations have been made. However, the Apex Court in para 11 while interpreting Section 3(1) and (2) of the NSA Act, has held as under :-
"11. It is plain from a reading of Section 3 of the Act that there is an obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention. It will be noticed that sub-section (1) of Section 3 stops with the words "make an order directing that such person be detained", and does not go further and prescribe that the detaining authority shall also specify the period of detention. Otherwise, there should have been the following words added at the end of this sub-section "and shall specify the period of such detention.". What is true of sub-section (1) of Section 3 is also true of sub-section (2) thereof. It is not permissible for the courts, by a process of judicial construction, to alter or vary the terms of a section. Under the Scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of." It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in Section 13 of the Act."
On perusal of the aforesaid, it is clear that the Apex Court has considered the scope of sub-sections (1) and (2) of Section 3 ibid and said that while mentioning the words "to make an order directing that such person be detained" does not prescribe that 17 the detaining authority shall also specify the period of detention. Otherwise, at the end of this sub-section, it ought to be mentioned that the authority shall specify the period of such detention; It is also observed that in a process of judicial construction, the Court should not alter or vary the terms of Section. But, said that under the Scheme of the Act, the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activities complained of meaning thereby the scope and the nature of prejudicial activities specified in sub-sections (1) & (2), and in sub-section (3) of Section 3 of NSA Act are on different footings because under sub-sections (1) and (2), it relates to the security of Central Government; activities prejudicial to the defence of India, relations of India with foreign powers and security of India and to prevent any person acting in any manner prejudicial to the security of the State, or acting in any manner prejudicial to the maintenance of public order in the State which itself carve out the class or classes of the activities. While in sub- section (3) of Section 3 ibid confers the power to the State Government for the local limits of the jurisdiction of a District Magistrate or Police Commissioner, therefore, the nature of prejudicial activities complained of, in sub-section (3) of Section 3 ibid, is different which said "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." However, the three Judges Bench of the Hon'ble Supreme Court have not dealt with the provisions of sub-section (3) of Section 3 ibid, and observed that period of detention must necessarily vary (18) looking to the exigencies and prejudicial activities complained of. Thus, the said judgment do not apply to the facts of the instant case because it relates to the class or classes of the cases specified by the law made by Parliament, hence distinguishable. In view of the above discussion, arguments of learned Govt. Advocate that prescribing the time limit in the detention order is not necessary relying upon the said judgment, is of no avail to them. 17 : In the said case of Ashok Kumar (supra) Hon'ble the Apex Court has also considered the distinction in 'public order' and 'law and order'. The relevant paras 12 and 13 made such distinction, which are reproduced as under :-
"12. The most crucial question on which the decision must turn is whether the activities of the detenu fall within the domain of 'public order' of 'law and order'. The contention is that the grounds of detention served on the detenu are not connected with 'maintenance of public order' but they relate to 'maintenance of law and order' and therefore the impugned order of detention purported to have been passed by the detaining authority in exercise of his powers under sub-section (2) of Section 3 of the Act is liable to be struck down.
"13. The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That 19 test is clearly fulfilled in the facts and circumstances of the present case."
Therefore, on registration of any individual criminal case against an individual, may affect the law and order, but any such cumulative activity of the person which may affect the public at large would fall within the purview of the 'public order'. 18 : Before Hon'ble the Suprme Court, the issue regarding orders of preventive detention and nature of the constitutional right came up for consideration. The three Judges Bench of the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another [1992 Supp (1) SCC 496], in para 11 has held as under :-
"11. The provisions of Articles 21 and 22 read together, therefore, make it clear that a person can be deprived of his life or personal liberty according to procedure established by law, and if the law made for the purpose is valid, the person who is deprived of his life or liberty has to challenge his arrest or detention, as the case may be, according to the provisions of law under which he is arrested or detained. The proposition is valid both for punitive and preventive detention. The difference between them is made by the limitations placed by sub-clauses (1) and (2) on the one hand and sub-clauses (4) to (7) on the other of Article 22, to which we have already referred above. What is necessary to remember for our purpose is that the Constitution permits both punitive and preventive detention provided it is according to procedure established by law made for the purpose and if both the law and the procedure laid down by it, are valid."
Thus, it is clear that the order of preventive detention may be passed, as per the provisions of law and by following the procedure (20) prescribed in this regard, because it affect the life and liberty of a citizen.
19 : The three Judges Bench of Hon'ble Supreme Court in the case of Rekha Vs. State of Tamil Nadu through Secretary to Government and another [(2011) 5 SCC 244], has again considered the said issue wherein relevant observations of the Apex Court are as under :-
"Article 22 cannot be read in isolation but must be read along with Articles 19 and 21. Article 22(3)(b) which permits preventive detention is not itself a fundamental right but only an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Right to liberty guaranteed by Article 21 implies that before a person is imprisoned a trial must ordinarily be held giving him full opportunity of hearing, and that too through a lawyer, because a layman would not be able to properly defend himself except through a lawyer. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial.
xxxx xxxx xxxx xxxx xxxx Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The history of liberty is the history of procedural safeguards. These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be 21 diluted on the basis of the nature of the alleged activities of the detenu."
On perusal of the aforesaid, it is apparent that the orders of the preventive detention is an exception to the life and liberty enshrined under Article 21 of the Constitution, which can be passed observing the procedural safeguards and are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu.
20 : Before five Judges Bench of the Hon'ble Supreme Court in the case of Kamleshkumar Ishwardas Patel Vs. Union of India and others [(1995) 4 SCC 51], the issue regarding submission of the representation in view of Article 22(5) of the Constitution came up for consideration in which it was observed that failure to inform the detenu about his right to make a representation resultant to denial of his right under Article 22(5), which render the detention order illegal. In the said case, it is further held that the fundamental right available to the detenu must be strictly enforced irrespective of the nature of activities of the detenu. The Court observed that framers of the Constitution, being aware regarding preventive detention laws which involves a serious encroachment on the right of the personal liberty even incorporated in clauses (4) & (5) of Article 22 to provide certain minimum safeguards for the protection of the person, who is sought to be detained. The rigour cannot be modulated on the basis of the nature of activities of the particular person.
21 : Hon'ble the Apex Court in the context of specifying period of (22) detention in the order has considered the issue in the case of Cherukuri Mani W/o Narendra Vs. Chief Secretary, Government of Andhra Pradesh and others [(2015) 13 SCC 722] and held as under :-
"When habeas corpus writ petition is filed, even though the petitioner has not properly framed the petition and not sought appropriate relief, it is expected from the Court to at least go into the issue and decide on merits. Normally, in such matters where liberty of a person is at stake, the courts would take a liberal approach in the procedural aspects. But unfortunately in the instant case, the High Court has dismissed the writ petition at the threshold itself.
Proviso to sub-section (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the first instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not exceeding three months each. The expression "extend such period from time to time by any period not exceeding three months at any one time" assumes significance in this regard.
The requirement to pass order of detention from time to time in the manner referred to above, has got its own significance. It must be remembered that restriction of initial period of detention to three months is nothing but implementation of the mandate contained in clause (4)(a) of Article 12 of the Constitution of India.
Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the government order in the present case, 23 directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time.
Normally, a person who is detained under the provisions of the Act is detained without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the legislature has specifically provided the mechanism of "Advisory Board" to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenu. Hence, the impugned government order directing detention for the maximum period of twelve months straightaway cannot be sustained in law.
Adjournment sought for by the State beyond summer vacation, is rejected for the simple reason that maximum part of the period of detention of the detenu is going to be complete by the end of summer vacation. Undisputedly, the detenu was detained on 5.10.2013 and he has remained under detention for about seven months at a stretch without any periodical review as envisaged by law. The detention order passed by the State Government in this case is in contravention to the provisions of law and on this ground alone, without going into other issues, the detention order is quashed and the detenu set at liberty forthwith."
22 : With respect to compliance of the provisions of sub-section (4) of Section 3 ibid, the interpretation of word "forthwith" came up for consideration in a case of Hetchin Haokip Vs. State of Manipur and others [(2018) 9 SCC 562], where the Court said to supply the documents forthwith has been interpreted in paras 15 & (24) 16 and the Court has held as under :-
"15. The expression "forthwith" under Section 3(4), must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity.
16. In the present case, the District Magistrate submitted the report to the State Government on the fifth day (17.7.2017), after the date of the detention order (12.7.2017). The reason for the delay of five days is neither mentioned in the State Government's order confirming the detention order, nor in the impugned judgment. It was for the District Magistrate to establish that he had valid and justifiable reasons for submitting the report five days after passing the order of detention. As the decision in Keshav Nikanth Joglekar Vs. Commnr. of Police, 1956 SCR 653:AIR 1957 SC 28, holds, the issue is whether the report was sent at the earliest time possible or whether the delay in sending the report could have been avoided. Moreover, as the decision in Salim Vs. State of W.B., (1975) 1 SCC 653: 1975 SCC (Cri) 290, holds, there should be no laxity in reporting the detention to the Government. Whether there were administrative exigencies which justify the delay in sending the report must be explained by the detaining authority. In the present case, as we shall explain, this was a matter specifically placed in issue before the High Court. The District Magistrate offered no explanation. This would vitiate the order of detention."
23 : Now the reliance placed by counsel for the State Government on a Division Bench judgment of this Court in the case of Vishal 25 Sharma Vs. Union of India, Laws (MPH) 2014 1069, wherein the judgment of the Mohaseen Kureshi, has been distinguished and said that initial period for detention can be for 3 months on the ground so specified. The State Government while passing the order confirming the said detention has specified the maximum period prescribed in Section 13 of the NSA Act. While in the present case, the order of affirmation is there but not of the confirmation after following the procedure of Section 8, 9, 10, 11 and 12 of the NSA Act, therefore, the said judgment does not apply in the facts of the present case and of no help to them.
24 : In the case of Bhaiya @ Bhaiyalal @ Arvind Vs. State of M.P. [2013(2) MPLJ 604], to specify the period of detention in order, the issue came for consideration, in the said case in the light of the judgment of the Hon'ble Supreme Court, it was found that not mentioning the period by detaining authority or by the State Government would vitiate the order. It is further held that compliance of sub-section (5) of Section 3 ibid by the State Government within one week is mandatory, otherwise the order of detention would be vitiated. The said judgment has again been considered by the Division Bench of this Court in the case of Pradeep Vs. State of M.P. and others reported in 2016(2) MPLJ 110 and further relying on a judgment in the case of Rinku @ Kuldeep Shukla Vs. State of M.P. And others reported in 2015 (3) MPLJ 157, quashed the order of detention on account of non- specification of the period in the order.
25: The aforementioned three cases viz; Bhaiya @ Bhaiyalal @ Arvind (supra), Pradeep (supra) and Rinku @ Kuldeep Shukla (26) (supra) are the cases in which the powers were exercised under sub-section (3) and not under sub-section (1)(a)(b) and (2) of Section 3 of the NSA Act, therefore, the aforesaid three cases squarely apply to the facts of the case at hand coupled with the judgment of the Supreme Court in the case of Cherukuri Mani W/o Narendra (supra).
26: The scope of jurisdiction under Article 226 of the Constitution of India to challenge the detention order at pre-execution stage came up for consideration before Division Bench of this Court in the case of Rinku @ Kuldeep Shukla reported in 2015 (3) MPLJ 157 wherein it has been held that the order of detention can be challenged at any stage and the distinction between pre decision stage and post decision stage is inconsistent and alien to the wide powers of the High Court particularly when a serious consequence to invasion of fundamental rights or right to life and liberty of a citizen is involved, therefore, it can be exercised with bonafides and subjective satisfaction based on germane facts with utmost care and circumspection otherwise even at pre-execution stage the jurisdiction of the Court can be invoked.
27: Bare perusal of the provisions of the NSA Act as well as Article 22 of the Constitution of India and also the various judgments, it can safely be crystallized that the order of preventive detention in the first blush should not be longer than three months unless Advisory Board, prior to expiration of the said period, recorded its opinion regarding sufficiency of the cause to such detention or by the law made by the Parliament as per sub-clause
(b) of Clause (7) of Article 22 permit so. More so, the person may be 27 detained in accordance with the provisions of any law made by the Parliament under sub-clauses (a) and (b) of Clause (7) of Article 22 of the Constitution of India. Clause (7) of Article 22 provides a latitude to the parliament to make the law with respect to class or classes of the cases to detain a person for a period longer than three months but opinion of the Advisory Board as specified in sub- clause (a) of Clause (4) of Article 22 is necessary to keep him in custody upto the maximum period even in a class or classes of the cases. Therefore, as per the spirit of Article 22 (4) and (7) of the Constitution, the law regarding preventive detention as specified under Section 3 of the NSA Act spell out the distinction in class or classes of the cases. Thus, to pass the order of preventive detention, the procedural boundations to make such order valid are described as under :-
(i) If the order is passed in exercise of the power under sub-section (1)(a)(b) and sub-section (2) of Section 3 of the NSA Act, the specification of the period of detention in the order is not necessary.
(ii) If the order is passed under sub-section (3) by the State Government looking to the circumstances prevailing in any area within the local limits of jurisdiction of a District, the period for which the detention is directed, must be specified in the order and the period shall not longer than three months at first blush.
(iii) If the power has been exercised by the District Magistrate or the Police Commissioner, as the case may be, looking to the circumstances prevailing within the local limits of jurisdiction, the said order shall remain in operation for a period of 12 days or 15 days, as the case may be, subject to (28) affirmation/approval by the State Government in the meantime and in the order of approval passed by the State Government it shall specify the period of detention i.e. three months.
(iv) The order passed by the State Government for initial period of three months may further be extended for the reasons to be recorded for any one time.
(v) On passing the order either under sub-section (1)(a)(b) and sub-section (2) or sub-section (3) of Section 3 of the NSA Act, the procedure as prescribed under Sections 8, 9, 10, 11, 12 of the NSA Act, must be necessarily followed to pass an order of confirmation and to detain a person for a maximum period of one year
(vi) The Parliament by bringing the National Security Act, 1980 has specified the class and classes enumerated in sub-section (1)(a)(b) and (2) of Section 3 of the NSA Act, therefore, if the power is exercised for the said class or classes by the authority, non specification of time of three months would not vitiate the order on the said pretext.
(vii) Law & order and Public Order are two different domain, therefore, registration of a singular case against any individual may come within the purview of Law & Order until his activities cumulatively affects the public at large to bring it within the purview of Public Order.
(viii) Personal liberty of a citizen is his fundamental right and to hamper the said personal liberty is an exception for which the procedure prescribed in the law should be strictly followed and it cannot be diluted looking to the nature of the activity of detenue.
(ix) It is the duty of the prosecution to inform about 29 the rights of detenue to submit the representation to the State Government and to afford him an opportunity of hearing before the Board otherwise it would vitiate the order.
(x) Compliance of sub-section (5) of Section 3 and Section 8 are mandatory. Non compliance would vitiate the order.
(xi) The scope of jurisdiction under Article 226 of the Constitution of India is open even at pre decisional or post decisional, both stages.
The aforesaid procedural aspects are illustrative and not exhaustive, which is required to be observed by the Central Government, State Government or the authority competent to pass the order under the NSA Act.
28 : In the context of the aforesaid statutory provisions and various judgments described above, if we analyze the facts of the present case, then it is clear that on account of registration of various offences against the petitioner, the Station House Officer, Police Station Chhatarpur, requested the Superintendent of Police Chhatarpur on 13.7.2018 vide Annx.P/1 to persuade and to get an order against the petitioner for maintenance of the public order and security within the local limits of the District Chhatarpur. The Superintendent of Police, on receiving the request of the Station House Officer made a recommendation to the District Magistrate to exercise the power under sub-section (3) of Section 3 of NSA Act and to pass an order of detention against the petitioner. The District Magistrate exercising the said power, passed an order in reference to the said recommendations on 7.9.2018, directing detention of the petitioner with effect from the date of passing of the order and also directed to keep him into custody in District Jail Chhatarpur. The (30) grounds of detention have also been specified and annexed to the said order separately.
29: Now in the facts of the case and also looking to the stand taken by the respondent/State in their return, the justification of the action taken following the procedure prescribed is required to be examined in the case at hand. In the present case, the order has been passed by the District Magistrate on 7.9.2018 on the pretext of affecting public order on account of registration of various cases alleging commission of offence against individuals from the year 2011 to 2018. Nothing is brought on record in the return how his activity would be prejudicial to the public order. It is not said, on which date the matter was reported to the State Government by the District Magistrate. The affirmation/approval order is passed by the State Government on 19.9.2018 not within the period of 12 days, therefore, the compliance of sub-section (4) of Section 3 ibid is beyond the prescribed time limit of 12 days. Thus due to non affirmation of the order within 12 days by the State Government, the order of District Magistrate stands vitiated.
30: On perusal of the order passed by the District Magistate dated 7.9.2018, the period, to which the detention was directed, has not been specified in the order, though as per the report of the SHO and the Superintendent of Police, Chhatarpur, the cause relates to the jurisdiction affecting the local limits of the area of the District by the petitioner, however, in exercise of power under sub-section (3) of Section 3 of the NSA Act, such an order can be passed by the District Magistate for a period not longer than 3 months, subject to approval by the State Government for the said period otherwise the 31 order of District Magistrate and the order of affirmation/approval of the State Government without specifying the period, vitiates it as per proviso to sub-section (3) of Section 3 of the NSA Act and Article 22(4) of the Constitution of India and the interpretation of law made hereinabove in the light of the judgments of the Supreme Court in the case of Cherukuri Mani W/o Narendra (supra) and the judgments of the Division Bench of this Court in the cases of Bhaiya @ Bhaiya lal @ Arvind and Pradeep (supra). 31 : In the present case, nothing has been brought on record that compliance of sub-section (5) of Section 3 of NSA Act, has been made by the State Government submitting a report to the Central Government together with the grounds on which the order has been made with particulars which are having bearing and necessary in the opinion of the State. The non-compliance of sub-section (5) of Section 3 ibid is mandatory, therefore, also the order stands vitiated. 32 : Nothing is brought on record that the State Government has made reference to the Advisory Board within a period of three weeks from the date of detention of the petitioner. As per the return filed by the respondent-State, the petitioner is taken to custody on 1.1.2019. The return was filed before this Court on 6.3.2019 after more than eight weeks, but nothing is stated regarding compliance of Section 8, 9 and 10 of the NSA Act. It is not explained in the return that the matter is referred to the Advisory Board in prescribed time, who prepared a report and submitted its opinion to the State Government within seven weeks from the date of detention, though the said period has already elapsed on the date of filing of the return. It is not brought on record that as per the opinion of the (32) Advisory Board, the State Government has confirmed the order of detention, to continue it upto the maximum period of 12 months as prescribed in Section 13. In absence thereto, the order passed by the authority cannot be sustained in the eyes of law, therefore, quashed.
33 : In view of the foregoing discussion, in our considered opinion, the order passed by the District Magistrate approved by the State Government is in non observance of the procedure prescribed by the NSA Act. It is to further held that the order of detention of the petitioner which affects the personal liberty, has not been passed following the procedure prescribed under the law and in observing the constitutional safeguard contemplated under Article 22(4) of the Constitution of India, therefore, such an order cannot be allowed to stand and is hereby quashed.
34: Accordingly, this petition succeeds and is hereby allowed. The order of detention passed by the District Magistrate, Chhatarpur Annexure P-3 dated 7.9.2018, affirmed by the State Government vide order Annexure R-6 dated 19.9.2018 are hereby quashed. The petitioner is set at liberty to live his life peacefully to which he be released from the jail forthwith if not required in any other case.
(J.K. Maheshwari) (Rajendra Kumar Srivastava)
Judge Judge
Ashwini Prajapati
Pradyumna Barve
Digitally signed by
PRADYUMNA BARVE
Date: 2019.04.30
16:46:01 +05'30'
33
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No. : 2695/2019
Parties Name : Akash Yadav Vs State of M.P. & others
Bench Constituted : Hon'ble Shri Justice J.K.Maheshwari &
Hon'ble Shri Justice Rajendra Kumar Srivastava Judgment delivered by : Hon'ble Shri Justice J.K.Maheshwari Whether approved for reporting : Yes Name of counsel for the parties Counsel For the Petitioner : Shri Anoop Kumar Saxena Counsel For the Respondents : Shri Som Prakash Mishra, GA. Law laid down:
➢ Bare perusal of the provisions of the NSA Act as well as Article 22 of the Constitution of India and also the various judgments, it can safely be crystallized that the order of preventive detention in the first blush should not be longer than three months unless Advisory Board, prior to expiration of the said period, recorded its opinion regarding sufficiency of the cause to such detention or by the law made by the Parliament as per sub-clause (b) of Clause (7) of Article 22 permit so. More so, the person may be detained in accordance with the provisions of any law made by the Parliament under sub-clauses (a) and (b) of Clause (7) of Article 22 of the Constitution of India. Clause (7) of Article 22 provides a latitude to the parliament to make the law with respect to class or classes of the cases to detain a person for a period longer than three months but opinion of the Advisory Board as specified in sub-clause (a) of Clause (4) of Article 22 is necessary to keep him in custody upto the maximum period even in a class or classes of the cases. Therefore, as per the spirit of Article 22 (4) and (7) of the Constitution, the law regarding preventive detention as specified under Section 3 of the NSA Act spell out the distinction in class or classes of the cases. Thus, to pass the order of preventive detention, the procedural boundations to make such order valid are described as under :-
(i) If the order is passed in exercise of the power under sub-section (1)(a)(b) and sub-section (2) of Section 3 of the NSA Act, the specification of the period of detention in the order is not necessary.
(ii) If the order is passed under sub-section (3) by the State Government looking to the circumstances prevailing in any area within the local limits of jurisdiction of a District, the period for which the detention is directed, must be specified in the order and the period shall not longer than three months at first blush.
(iii) If the power has been exercised by the District Magistrate or the Police Commissioner, as the case may be, looking to the circumstances prevailing within the local limits of jurisdiction, the said order shall remain in operation for a period of 12 days or 15 days, as the case may be, subject to (34) affirmation/approval by the State Government in the meantime and in the order of approval passed by the State Government it shall specify the period of detention i.e. three months.
(iv) The order passed by the State Government for initial period of three months may further be extended for the reasons to be recorded for any one time.
(v) On passing the order either under sub-section (1)(a)(b) and sub-section (2) or sub-section (3) of Section 3 of the NSA Act, the procedure as prescribed under Sections 8, 9, 10, 11, 12 of the NSA Act, must be necessarily followed to pass an order of confirmation and to detain a person for a maximum period of one year
(vi) The Parliament by bringing the National Security Act, 1980 has specified the class and classes enumerated in sub-section (1)(a)(b) and (2) of Section 3 of the NSA Act, therefore, if the power is exercised for the said class or classes by the authority, non specification of time of three months would not vitiate the order on the said pretext.
(vii) Law & order and Public Order are two different domain, therefore, registration of a singular case against any individual may come within the purview of Law & Order until his activities cumulatively affects the public at large to bring it within the purview of Public Order.
(viii) Personal liberty of a citizen is his fundamental right and to hamper the said personal liberty is an exception for which the procedure prescribed in the law should be strictly followed and it cannot be diluted looking to the nature of the activity of detenue.
(ix) It is the duty of the prosecution to inform about the rights of detenue to submit the representation to the State Government and to afford him an opportunity of hearing before the Board otherwise it would vitiate the order.
(x) Compliance of sub-section (5) of Section 3 and Section 8 are mandatory. Non compliance would vitiate the order.
(xi) The scope of jurisdiction under Article 226 of the Constitution of India is open even at pre decisional or post decisional, both stages.
➢ The aforesaid procedural aspects are illustrative and not exhaustive, which is required to be observed by the Central Government, State Government or the authority competent to pass the order under the NSA Act.
Significant Paragraph : 27.
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