Madhya Pradesh High Court
Siddharth Jain Through His Wife Lavina ... vs State Of M.P. Through Home Department on 24 September, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
Indore, dated : 24.09.2019
Shri Ajay Bagadiya, learned counsel for the petitioner.
Shri Vinay Gandhi, learned Government Advocate for the
respondents - State.
Heard.
The petitioner before this Court has filed this present writ
petition being aggrieved by the order dated 09.08.2019 passed by
the District Magistrate, Indore, in exercise of powers conferred
under Section 3 of the National Security Act, 1980 (in short "the
Act of 1980").
Learned counsel for the petitioner has argued before this
Court that the petitioner is a respectable person of the society and
is running business in the name of "Siddharth Enterprises". It
has been stated that on an allegation that adulterated ghee was
found on a surprise inspection which took place on 25.07.2019.
The petitioner has been arrested on 09.08.2019 and an order has
been passed under the Act of 1980.
This Court has issued notices on 06.09.2019 however, no
reply has been filed in the matter till date. Various grounds have
been raised in the writ petition, however, Shri Ajay Bagadiya,
learned counsel for the petitioner, at the outset, has argued before
this Court that the order is void ab initio, it is an illegal order as it
has been passed for an indefinite period and the same deserves to
be quashed in the light of the judgment delivered in the case of
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
Commissioner of Police and another vs. Gurbux Anandram
Bhiryani reported in 1988 (Suppl.) SCC 568.
This Court in the case of Satyanarayan @ Narayan
Luniha vs. State of MP and another (W.P. No.3154/2019,
decided on 28.03.2019) in similar circumstances has passed the
following order :
07- Undisputedly, earlier also an order i.e. order
dated 17/07/2017 was passed by the District
Magistrate, Indore in respect of the petitioner in
exercise of powers conferred under the National
Security Act, 1980. The Division Bench of this Court,
in the earlier case i.e. Writ Petition No.6103/2017 on
13/10/2017 has passed the following order:-
"He has also placed reliance upon a judgment
delivered by the Division Bench in the case of Usman
Vs. State of M.P. & Ors. (W.P. No.903/2012) reported
in ILR (2012) M.P. 1594. He has also placed reliance
upon the judgment delivered in the case of Khurshid
Vs. State of M.P. and others reported in 2016(2)
MPLJ, (Cri.), 551.
In all the three cases, it has been held that a
counter affidavit in respect of a habeas corpus petition
has to be filed along with the affidavit of District
Magistrate, who has passed the detention order.
Paragraph Nos.2 to 8 of the order passed in the case
of Khurshid (supra) read as under:-
"2. A case for the offence under Section 429, 379
of IPC as well as under Section 4/9 of M.P. Govadh
Pratished Adhiniyam, 2004 was registered against the
petitioner by Police Station Sironj vide crime No.
129/2016. The petitioner was arrested in connection
with the aforesaid offence on 24/4/2016 and was
produced before the Judicial Magistrate and was sent
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
on judicial remand. On 25/4/2016 , the Station House
Officer, Police Station, Sironj, sent a letter to the
Superintendent of Police for initiating proceedings
under the provisions of Act of 1980 against the
petitioner. Thereafter, on 26/4/2016, the
Superintendent of Police, Vidisha informed the
District Magistrate, Vidisha about the activities of the
petitioner and a proposal was sent that the petitioner
be detained under the provisions of Act of 1980. The
District Magistrate on 28/4/2016, passed an order in
purported exercise of powers under Sections 3 (2) and
3 (3) of the Act of 1980. In the aforesaid factual
background, the petitioner has approached this Court.
3. Learned counsel for the petitioner submitted that
the order of detention is vitiated in law inasmuch as
no period of detention in order of detention is
mentioned. It is further submitted that at the time
when the order of detention was passed, the petitioner
was already in judicial custody since 24/4/2016 and
admittedly had not applied for grant of bail, therefore,
there was no likelihood of the petitioner to come out of
the jail and to disturb the public order. However, the
detaining authority has failed to take into account the
aforesaid aspect of the matter while passing the order
of detention which vitiates the order of detention. It is
also urged that the order of detention has been passed
in violation of Section 3 (3) and 3 (4) of the Act of
1980 inasmuch as the approval of the State
Government has not been accorded in respect of order
of detention. Lastly, it is urged that the return filed on
behalf of the respondents is not supported by an
affidavit of the District Magistrate which is mandatory
in law. On the other hand, learned Government
Advocate has supported the order of detention and has
submitted that the order of detention as per the
averments made in the return has been passed for a
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
period of one year.
4. We have considered the rival submissions made at
the Bar and have perused the record. Before
proceedings further, it is considered apposite to take
note of the provisions of Section 3 (3) and 3 (4) of the
Act of 1980 which are reproduced below for the
facility of reference:
"3. Power to make orders detaining certain
persons.
(1) xxx xxx xxx (2) xxx xxx xxx
(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 the 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 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:
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
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 detention, this sub-section shall apply
subject to the modification, that, for the words "twelve
days", the words "fifteen days" shall be substituted."
5. The Supreme Court in the case of Commissioner of
Police and Anr. Vs. Gurbux Anandram Bhiryani, 1988
(supp) SCC 568 has held that the period of detention
has to be mentioned in the order of detention and the
order of detention cannot be passed for an indefinite
period. A Division bench of this Court in the case of
Bhaiya alias Bhaiyalal alias Arvind Vs. State of M.P.,
2013 (2) JLJ 300 after careful scrutiny of provisions of
Section 3 of the Act of 1980 has held that order of
detention is required to be passed for a specific
period. Similar view has been taken by another
Division Bench of this Court in the case of Pradeep
Vs. State of M.P. & Ors., 2016 (1) JLJ 252. Admittedly,
in the instant case, in the order of detention the period
of detention has not been specified, therefore, the
order of detention is vitiated in view of aforesaid
enunciation of law.
6. Admittedly, at the time when the order of detention
was passed, petitioner was in judicial custody. The
Supreme Court in the case of Rekha Vs. State of
Tamilnadu through Secretary to Government and Anr.,
(2011) 5 SCC 244 while taking note of the decision in
the case of Union of India Vs. Paul Manickam, (2003)
8 SCC 342 has held that the detaining authority in a
case of a detenu, who is already in jail, has to form an
opinion that in case the detenu files an application for
bail, there is likelihood of detenu's being released on
bail and taking into account his antecedents, he must
be detained in order to prevent him to indulge in
prejudicial activities which are detrimental to public
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
order. Similar view has been taken by the Supreme
Court in the case of Huidrom Konungjo Singh Vs.
State of Manipur & Or., AIR 2012 SC 2002. In the
instant case, admittedly, the petitioner has not filed
any application for bail and in the order of detention,
there is no whisper that there is likelihood of
petitioner being released on bail. Thus, the order of
detention is vitiated in law on this count also.
7. We find force in the submissions made by learned
counsel for the petitioner that the return filed by the
respondents was required to be supported by the
affidavit of District Magistrate. A Division Bench of
this Court in the case of Usman Vs. State of M.P. &
Ors, ILR (2012) MP 1594 has held that the detention
of a person without trial is a serious matter and the
order of detention must be justified by the detaining
authority and in answer to rule issued in a Habeas
Corpus petition, the counter affidavit filed by the State
should be sworn by District Magistrate, who passed
the detention order. Admittedly, in the instant case, the
District Magistrate who passed the order of detention
has not filed his affidavit, but the same has been sworn
in by Sub Divisional Magistrate, Sironj. Thus, the
order of detention is vitiated in law on this count also.
8. In view of the preceding analysis, the impugned
order cannot be sustained in eye of law. Accordingly, it
is quashed. In the result petition is allowed."
In light of the aforesaid judgment delivered by
the Division Bench, this Court is of the opinion that
the impugned order cannot be sustained in the eyes of
law. In the case of Usman (supra), similar view has
been taken. Paragraph No.5 of the order reads as
under:-
"5. In the instant case, the District Magistrate
who passed the order of detention has not filed his
affidavit. It is well established by catena of decisions
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
of the Supreme Court that in answer to a Rule issued
in a habeas corpus petition, the counter affidavit on
behalf of the State should be sworn by the District
Magistrate who had passed the detention order. In the
present case, there is a direct allegation that the
detention order was passed without application of
mind and there was no material before the detaining
authority to reach the subjective satisfaction. There is
no para-wise reply. The affidavit in support of the
reply does not say that the City Superintendent of
Police personally dealt with the matter. He has merely
sworn the affidavit on the information gathered from
the record. No explanation has been offered for not
filing the affidavit of the District Magistrate. The reply
also does not show that all procedural steps, as
required under the Act, were taken within the specified
time. Except for news-paper cuttings (which have no
evidentiary value), no other cogent material has been
placed before us to judge the legality of the detention
order. In this unsatisfactory state of affairs, we have
no hesitation to hold that the District Magistrate
passed the detention order in a most cavalier manner
without any application of mind, and was confirmed
by the State Government in equally callous manner as
such,it is difficult for us to sustain the detention order.
Yet there is another ground which makes the detention
order unsustainable. In this connection, we may refer
to the earlier division Bench decision of this Court in
W.P. No.3426/2008 decided on 22.7.2008 wherein it is
held that the detenue must be appraised of his right to
make representation to Central Government. We find
even this was not fulfilled in the case on hand."
Resultantly, the writ petition stands allowed. The
impugned order dated 17.07.2017 passed by the
District Magistrate under the provisions of National
Security Act, 1980 (No.65 of 1980) is hereby quashed.
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
The petitioner be set free forthwith at liberty."
In the earlier round of litigation this Court has
taken into account the judgment delivered in the case
of Gurbux (Supra) wherein the apex Court has
quashed the order of detention as the period of
detention was not mentioned in the order.
08- Section 3 of National Security Act, 1980 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
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
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 subsection:
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 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 ten days
from the date of detentions, this sub-section shall
apply subject to the modification, that, for the words
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
"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."
The aforesaid statutory provision of law makes it
very clear that the State Government is under an
obligation to pass an order of detention, at the first
instance, for a period not exceeding three months. In
the present case, the period of detention is not mention
at all.
09- A categoric question was asked to learned
Government Advocate i.e. whether, the order has been
approved by the State Government or not. He has
categorically told this Court that he does not have
instruction on this subject. The another question was
raised to learned Government Advocate i.e. whether, a
reference has been made to the Advisory Board or not.
He has again categorically stated that he does not
have instruction on this subject also. However, as the
period of detention is not mention in the order of
detention, the order is bad in law as held by the apex
Court in the case of Gurbux (Supra).
10- There is another important ground raised by the
petitioner i.e. that the order does not apprise the
detenu to make a representation to the Central
Government.
11- In light of the aforesaid and also keeping in view
that the period of detention has not been mentioned in
the order of detention, the impugned order dated
28/01/2019 certainly deserves to be quashed and is
accordingly quashed. The respondent / State is
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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
W. P. No.18047 of 2019
(Siddharth Jain vs. State of MP & others)
directed to release the petitioner forthwith, in case he
is not required to be detained in any other criminal
case.
12- With the aforesaid, writ petition stands allowed.
No order as to costs.
The detention order passed in the present case reads as
under :
No.13/Det./PA/2019 Indore dated 09.08.2019
ORDER
Where as, I, Lokesh Kumar Jatav, District Magistrate, District Indore am satisfied that with a view to preventing Siddharth Jain S/o Dilip Jain, Aged 25 years, R/o 19, Sitabag Colony, Near Dhenu Market, Indore, District Indore from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under Sub-Section 2 of Section 3 of the National Security Act, 1980.
Now, therefore, in exercise of the powers conferred by Sub-Section (2) read with sub-Section (3) of Section 3 of the said Act and Government of Madhya Pradesh, Home (C) Department Order F.No.31-05-1988-II-C-1 dated 23.07.2019, I, Lokesh Kumar Jatav, District Magistrate, Indore hereby order that Siddharth Jain S/o Dilip Jain, Aged 25 years, R/o 19, Sitabag Colony, Near Dhenu Market, Indore, District Indore be detained and kept in Central Jail, Bhopal.
(Lokesh Kumar Jatav) District Magistrate, Distt. Indore (MP) The detention order is certainly for an indefinite period and, therefore, as it has not been passed in consonance with Section 3 12 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.18047 of 2019 (Siddharth Jain vs. State of MP & others) of the National Security Act, 1980, meaning thereby, it is for an indefinite period, the same is hereby quashed. The respondent State is directed to release the petitioner forthwith, in case he is not required to be detained in any other criminal case.
With the aforesaid, the present Writ Petition stands allowed and disposed of. No order as to costs.
(S. C. Sharma) (Shailendra Shukla)
Judge Judge
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Digitally signed by Geeta Pramod
Date: 2019.09.24 18:06:20 +05'30'