Allahabad High Court
Sunil Chachuda vs State Of U.P. And 5 Others on 29 January, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:14166-DB A.F.R. Court No. - 43 Case :- HABEAS CORPUS WRIT PETITION No. - 1046 of 2023 Petitioner :- Sunil Chachuda Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sujan Singh,Anjani Kumar Raghuvanshi Counsel for Respondent :- G.A.,A.S.G.I.,Om Prakash Mishra Hon'ble Siddhartha Varma,J.
Hon'ble Anish Kumar Gupta,J.
(Per: Hon'ble Anish Kumar Gupta, J.)
1. Counter affidavit filed on behalf of respondent no.3 is taken on record.
2. Heard Sri Sujan Singh, learned counsel for the petitioner, Sri Amit Sinha, learned A.G.A. for the State and Sri Om Prakash Mishra, learned counsel for the respondent no.6- Union of India.
3. The instant application has been filed seeking quashing of the impugned detention order dated 30.01.2023, passed by the respondent no.3- District Magistrate- Hapur, which was confirmed by the respondent no.2- State Government, vide order dated 13.03.2023, in terms of Section 12 (1) of the National Security Act, 1980 (hereinafter referred as 'the Act'), on 13.03.2023, which was subsequently extended vide order dated 27.10.2023.
4. The facts in brief are that the petitioner herein was detained vide order dated 30.01.2023 passed by the District Magistrate- Hapur, under Section 3(2) of the Act, having been authorised under Section 3(3) of the Act. The said order was approved by the State Government under Section 3(4) of the Act on 07.02.2023 and the matter was referred to Advisory Board. After receiving the report from the Advisory Board, the said detention order was confirmed in terms of Section 12 (1) of the Act, by the State Government on 13.03.2023 whereby the petitioner was detained for a period of three months from the date of initial detention order. The said order dated 13.03.2023 was further extended time to time and lastly on 27.10.2023 for a period of 12 months from the date of initial detention.
5. Learned counsel for the petitioner contends that since the order dated 13.03.2023 passed under Section 12(1) of the Act, is a final order and the State has no right to review the said order in terms of provisions of Section 12 of the Act, therefore, the subsequent orders passed extending detention of the petitioner, are without any authority of law and could not be sustained. Therefore, the detention of the petitioner herein in terms of order dated 13.03.2023 after the expiry of three months from the date of initial detention i.e., 30.01.2023, is illegal and therefore, the petitioner is liable to be released forthwith. In support of his contentions, learned counsel for the petitioner relied upon the judgement of the Apex Court in Pesala Nookaraju vs. The Government of Andhra Pradesh & others reported in 2023 SCC OnLine SC 1003 and Ameena Begum vs. The State of Telangana and others reported in (2023) 9 SCC 587.
6. Per contra, learned A.G.A. submits that in view of the judgement of the Apex Court in Cherukuri Mani v. State of A.P., reported in (2015) 13 SCC 722, the State Government could not have passed an order of detention at a time more than for a period of three months. Therefore, initially the order dated 13.03.2023 was passed confirming the detention of the petitioner herein for a period of three months and subsequently, the same was extended from time to time. Therefore, there is no illegality either in the initial detention order dated 30.01.2023 and the confirmatory order dated 13.03.2023 and the subsequent extension orders extending detention of the petitioner herein for a period of three months at a time.
7. To appreciate the submissions made by learned counsel for the parties, it will be relevant to go through the scheme of the Act with regard to the detention of a persons. It will be relevant to note the Sections 3, 10, 11, 12, & 13 of the Act, which reads 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 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 Public order 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 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 Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as 3 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 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:
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 1[fifteen days] from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words "2[twenty 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.
10. Reference to Advisory Boards.--Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under sub-section (4) of that section.
11. Procedure of Advisory Boards.--(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; andthe proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
12. Action upon the report of the Advisory Board.--(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith.
13. Maximum period of detention.--The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 12 shall be twelve months from the date of detention:
Provided that nothing contained in this section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time."
8. As per the provisions of Section 3(2) of the Act, if the Central Government or the State Government, as the case may be, if satisfied in respect of any person with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and record its satisfaction that it is necessary so to make an order, then, pass an order directing that such a person to be detained. As per Section 3(3) of the Act, the State Government may delegate such powers of detention to the District Magistrate or the Commissioner of Police. In view of such delegation of the powers, the District Magistrate or the Commissioner of Police, as the case may be, is empowered to pass the order under Section 3(2) of the Act. Such delegation of powers to the District Magistrate or the Commissioner of Police shall not be made at a time for a period exceeding three months. As per Section 3(4) of the Act, the officer who is delegated power of detention under Section 3(3) of the Act is directed to forthwith report the fact of such detention to the State Government concerned alongwith grounds of such detentions and no such order shall remain in force for more than 12 days, unless it is approved by the concerned State Government. When any order is made or approved by the State Government within the aforesaid period of 12 days, the State Government shall report the fact of such detention within 7 days from the date of approval of detention to the Central Government together with the grounds of detention and other relevant particulars. As per Section 10 of the Act, the concerned Government is mandated to place the matter within a period of three weeks before the Advisory Board constituted by it in terms of Section 9 alongwith grounds of detention and other relevant documents. As per Section 11 of the Act, the Advisory Board, after considering the material placed before it and after calling for such other information as it may deem necessary and if the Advisory Board so consider it essential or the person concerned desirous to be heard, after hearing the detenue shall submit its report to the concerned Government within 7 weeks from the date of detention of the persons concerned. The Advisory Board shall also record its satisfaction whether there are or not the sufficient cause for detention of the concerned persons. After receipt of the report of the Advisory Board the concerned Government may pass an order confirming the detention order and may continue the detention of the persons concerned for such period as it thinks fit. In terms of Section 13, maximum period of detention under the provisions of the Act shall be 12 months from the date of detention.
9. In Cherukuri Mani(supra), the Apex Court in para 10, 11, 12, 13 and 14 has held as under:
"10. To answer the above issue, it is necessary to examine the relevant provisions of the Act. Section 3 of the Act empowers the detention of certain category of persons, as defined under the Act. Apart from conferring of power, the section regulates the manner of passing the orders of detention as well as their duration. It reads thus:
"3.Power to make orders detaining certain persons.--(1) The Government may, if satisfied with respect to any bootlegger, dacoit, drug offender, goonda, immoral traffic offender or land grabber that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) 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 Government are satisfied that it is necessary so to do, they 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 (1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the 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.
(3) When any order is made under the section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government 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 Government."
11. A reading of the above provisions makes it clear that the State Government, District Magistrate or Commissioner of Police are the authorities, conferred with the power to pass orders of detention. The only difference is that the order of detention passed by the Government would remain in force for a period of three months in the first instance, whereas similar orders passed by the District Magistrate or the Commissioner of Police shall remain in force for an initial period of 12 days. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Sub-section (3) makes this aspect very clear. Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months.
12 [Ed. : Para 12 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2014 dated 29-8-2014.] . 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.
13. 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 22 of the Constitution of India. It reads as under:
"22. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period 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)."
14. 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, 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."
(Emphasize Supplied)
10. In the recent judgement of the Apex Court in Pesala Nookaraju (supra), the Apex Court has overruled the judgement in Cherukuri Mani (supra) and has held as under :
"42. Hence, Article 22(4)(a) in substance deals with the order of detention and has nothing to do with the delegation of the power of detention by the State Government to an Officer as stipulated under Section 3(2) of the Act. In fact, under Section 9 of the Act, the State Government has to refer the matter to the Advisory Board within three weeks from the date of detention, irrespective of whether the detention order is passed under Section 3(1) or Section 3(2) of the Act and the Advisory Board has to give its opinion within seven weeks from the date of detention. That would totally make it ten weeks. As stipulated in Article 22(4)(a) of the Constitution, if in a given case, once the Advisory Board gives its opinion within the stipulated period of three months, then in our view, Article 22(4)(a) would no longer be applicable. Thus, Article 22(4)(a) applies at the initial stage of passing of the order of detention by the State Government or by an officer who has been delegated by the State Government and whose order has been approved by the State Government within a period of twelve days from the date of detention and not at the stage subsequent to the report of the Advisory Board. Depending upon the opinion of the Advisory Board, under Section 12 of the Act, the State Government can revoke the order of detention and release the detenu forthwith or may confirm the detention order and continue the detention of the person concerned for any period not exceeding the maximum period of twelve months, which is stipulated in Section 13 of the Act. Therefore, when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from the date of initial order of detention, but up to a maximum period of twelve months from the date of detention.
43. We reiterate that the period of three months stipulated in Article 22(4)(a) of the Constitution is relatable to the initial period of detention up to the stage of receipt of report of the Advisory Board and does not have any bearing on the period of detention, which is continued subsequent to the confirmatory order being passed by the State Government on receipt of the report of the Advisory Board. The continuation of the detention pursuant to the confirmatory order passed by the State Government need not also specify the period of detention; neither is it restricted to a period of three months only. If any period is specified in the confirmatory order, then the period of detention would be upto such period, if no period is specified, then it would be for a maximum period of twelve months from the date of detention. The State Government, in our view, need not review the orders of detention every three months after it has passed the confirmatory order.
44. Thus, in our view, the period of three months specified in Article 22(4)(a) of Constitution of India is relatable to the period of detention prior to the report of the Advisory Board and not to the period of detention subsequent thereto. Further, the period of detention in terms of Article 22(4)(a) cannot be in force for a period beyond three months, if by then, the Advisory Board has not given its opinion holding that there is sufficient cause for such detention. Therefore, under Article 22(4)(a), the Advisory Board would have to give its opinion within a period of three months from the date of detention and depending upon the opinion expressed by the Advisory Board, the State Government can under Section 12 of the Act, either confirm the order of detention or continue the detention of the person concerned for a maximum period of twelve months as specified in Section 13 of the Act or release the detenu forthwith, as the case may be. If the order of detention is confirmed, then the period of detention can be extended up to the maximum period of twelve months from the date of detention. With respect, we observe that it is not necessary that before the expiration of three months, it is necessary for the State Government to review the order of detention as has been expressed by this Court in Cherukuri Mani (supra). The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention. On the other hand, when under Section 3(3) of the Act, the State Government delegates its power to the District Magistrate or a Commissioner of Police to exercise its power and pass an order of detention, the delegation in the first instance cannot exceed three months and the extension of the period of delegation cannot also be for a period exceeding three months at any one time. [See: Abdul Razak v. State of Karnataka, ILR 2017 Kar 4608 (FB)]"
(Emphasis Supplied)
11. Following the judgement in Pesala Nookaraju (supra), in Ameena Begum (supra), the Apex Court in para 71, 72, 73, 76 and 78 has held as under:
"71. Both Mr. Luthra and Mr. Dave have referred us the recent decision of a 3-Judges Bench of this Court in the case of Pesala Nookaraju vs. The Government of Andhra Pradesh [Crl. Appeal No. 2304 of 2023, decided on 16th August, 2023 where an order of detention passed in exercise of power conferred by the Andhra Pradesh Prevention of Dangero Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 ("1986 Act" hereafter) was upheld despite the detenu having obtained orders of bail upon arrest in connection with investigation of 4 (four) F.I.R. under sections 7B and 8B of the Andhra Pradesh Prohibition Act, 1995.
72. Mr. Luthra intended to rely on the decision in Cherukari Mani vs. Chief Secretary, Government of Andhra Pradesh, (2015) 13 SCC 722. According to the appellant, the detention could only be in force for a period of three months in the fir instance and that such order on a periodic assessment was required to be reviewed for continuous detention till the maximum period permissible. The contention was accepted by this Court.
73. While hearing of the appeal was in progress, came the decision in Pesala Nookaraju (supra) overruling Cherukari Mani (supra). It was held that the "State Government need not review the orders of detention every three months after it ha passed the confirmatory order." Fairly, Mr. Luthra did not seek to rely on Cherukari Mani (supra) further.
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76. Mr. Dave next relied on the reasons assigned in Pesala Nookaraju (supra) to contend that the impugned Detention Order should be held legal and unexceptionable.
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78. It is indeed true that the appellant had raised a contention before the Court that the Government of Andhra Pradesh had directed detention of the appellant for the maximum period of 12 (twelve) months without any application of mind providing reasons as to why this is necessary."
12. From the scheme of the Act as noted above and as per the judgement of the Apex Court in Pesala Nookaraju (supra), once the confirmatory order of detention is passed under Section 12 (1) of the Act i.e., a final order and the State Government has no authority to review its order. If in the confirmatory order any particular period of detention is prescribed by the State Government such detention order is valid only for that period. If no period of detention is prescribed in an order and passed under Section 12 (1) of the Act, then, such detention will be for a maximum period of 12 months as prescribed under Section 13 of the Act. However, once the order under Section 12 (1) is passed by the State Government prescribed a period of detention, the said order cannot be reviewed or extended by the State Government. Such detention will be over after the expiry of the period prescribed in the confirmatory order passed under Section 12(1) of the Act. The said order cannot be reviewed or extended any further. However, the Detaining authority i.e., the State Government or the District Magistrate, may pass a fresh order in terms of Section 3(2) of the Act, if the circumstances so demand. Such concerned detention order has to be confirmed again following the procedure prescribed under Sections 3, 10, 11 and 12 of the Act.
13. In the instant case, the confirmatory order has been passed on 13.03.2023, whereby the petitioner herein was directed to be found for a period of three months from the initial detention order i.e., 30.01.2023. Therefore, after the expiry of three months from 30.01.2023, the petitioner's detention becomes illegal and he is liable to be released forthwith. For the reasons stated above, the writ petition is allowed. It is declared that the detention of the petitioner herein subsequent to the expiry of three months from 30.01.2023 is illegal and all subsequent orders extending the detention of the petitioner herein are illegal and not in accordance with law. Therefore, all further orders extending period of detention of the petitioner herein are hereby quashed and set-aside.
14. We, therefore, direct the petitioner, Sri Sunil Chachuda (the detenue) to be set at liberty forthwith unless he is required in any other case.
Order Date :- 29.1.2024
Shubham Arya
(Anish Kumar Gupta, J.) (Siddhartha Varma, J.)