Madhya Pradesh High Court
Naziya vs Home Department on 12 July, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 12th OF JULY, 2022
WRIT PETITION No. 12595 of 2022
Between:-
NAZIYA W/O AKHTAR KHAN, AGED
ABOUT 32 YEARS, OCCUPATION:
HOUSEWIFE, R/O 272/2 PIPLIYAHANA
INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI ABHINAV DIXIT, LEARNED COUNSEL FOR THE
PETITIONER)
AND
STATE OF M.P. THROUGH SECRETARY,
1. HOME DEPARTMENT BHOPAL (MADHYA
PRADESH)
DISTRICT MAGISTRATE OFFICE OF THE
DISTRICT MAGISTRATE,
2.
COLLECTORATE OFFICE, INDORE
(MADHYA PRADESH)
DEPUTY COMMISSIONER OF POLICE
3.
ZONE 3, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI UMESH GAJANKUSH, DEPUTY ADVOCATE GENERAL)
WRIT PETITION No. 12090 of 2022
Between:-
AAMNA KHATUN PATHAN W/O SHRI
GULAM RASUL PATHAN, AGED ABOUT 50
YEARS, OCCUPATION: HOUSEWIFE, R/O
DHAN KA MOHALLA, MOOLCHAND
MARG, NEEMUCH, DISTRICT NEEMUCH
(MADHYA PRADESH)
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.....PETITIONER
(SHRI R.S.CHHABRA, SENIOR ADVOCATE ALONGWITH
ABHISHEK TUGNAWAT, LEARNED COUNSEL FOR THE
PETITIONER )
AND
STATE OF M.P. THROUGH SECRETARY,
HOME DEPARTMENT BHOPAL (MADHYA
1.
PRADESH)
DISTRICT MAGISTRATE NEEMUCH
2. (MADHYA PRADESH)
SUPERINTENDENT OF POLICE, NEEMUCH
3.
(MADHYA PRADESH)
.....RESPONDENTS
( SHRI UMESH GAJANKUSH, DEPUTY ADVOCATE GENERAL
ALONGWITH VALMIK SAKARGAYEN, GOVT. ADVOCATE)
This petition coming on for order this day, JUSTICE VIVEK
RUSIA passed the following:
ORDER
The petitioners have filed the aforesaid Writ Petitions challenging the order of detention passed under Section 3(2) of the National Security Act, 1980 (hereafter referred to as 'NSA' 1980).
[2] The petitioners have assailed the impugned order of detention on various grounds but after the filing of these Writ Petitions, the matter was considered by the Advisory Board. Thereafter State Government revoked the order of detention, thus both the Writ Petitions have rendered infructuous as no cause survive to challenge the order of detention and petitioners have already been released.
The facts of Writ Petition No.12595/2022 [3] In Writ Petition No.12595/2022, the order of detention
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was passed on 28.04.2022 and thereafter it was sent to the State Government for its approval. Simultaneously, the case of the detenue was put up before the Advisory Board as per the provision of NSA, 1980. By invoking the power under Section 12 of NSA, 1980, the Advisory Board was of the opinion that there were no sufficient reasons to detain the detenue and forwarded its opinion to the State Government. On the basis of that opinion, vide order dated 17.06.2022, the State Government has revoked the order of the detention. Copy of the order was sent by speed post to the District Magistrate on 28.06.2022, thereafter the detenue was released on the same day. Since there was a delay on part of the respondents in issuing the order of revocation immediately after the opinion given by the Advisory Board, therefore, this Court had called upon to respondents to explain why the order was not communicated to the Jail authorities for the release of the detenue immediately as it is a question of personal liberty of a person.
[4] The In-charge District Magistrate has filed an affidavit that there was no deliberate delay/intention to release the detenue from the jail. The Authorities acted in accordance with the provision of the Act and revoked the order on 17.06.2022 and it was communicated to the concerned authorities vide speed post which was sent on 28.06.2022. All due diligence was taken in communicating the order to the authorities well within time.
The facts of Writ Petition No.12090/2022 [5] So far as Writ Petition No.12090/2022 is concerned, the Writ Petition came up for hearing on 05.07.2022 and on the
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said date, Deputy Government Advocate has informed this Court that the State Government has revoked the detention order on 04.07.2022 and directed to immediately release of detenue forthwith. The Officer-in-charge of the case has been directed to submit an explanation as to why the detenue has been detained after 04.07.2021 or from the date of order passed by the Advisory Board under Section 12(2) of the NSA, 1980. [6] The District Magistrate, Neemuch filed an affidavit with an explanation that an order of detention was passed on 19.05.2022 and immediately, it was sent to the State Government for approval and thereafter the case of the detenue was put up before the Advisory Board under Section 12 of NSA, 1980. The State Government received the opinion of the Advisory Board on 29.06.2022 and immediately acted promptly for issuance of an order of revocation, which was dispatched on 04.07.2022. 2nd July 2022 was non-working day and 03.07.2022 the intimation was sent to the concerned District Magistrate, same was received on 05.07.2022 and thereafter the detenue was released.
[7] Learned senior counsel for the petitioners submits that Section (2) of Section 12 of NSA, 1980 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 release the person forthwith. But in the present case, there is unexplained delay by the respondents in issuing the revocation order, therefore, for violation of the fundamental right of detenue, the exemplary cost is liable to be imposed. In support of his contention, they have placed reliance on the judgment passed
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by this Court in the case of Kamlesh S/o Husan Vs. The State of Madhya Pradesh & Others (Writ Petition No.26923/2019) passed on 10.02.2020).
[8] Shri Gajankush, learned Additional Advocate General for the respondent/State submits that after receipt of the opinion from the Advisory Board, no time is prescribed for passing the order of revocation and releasing of the detenue. The Apex Court in the case of Hetchin Haokip vs The State Of Manipur (2018) 9 SCC 562, has considered the expression "forthwith"
as used under Section 3(4), it means the detaining authority must furnish the report at the earliest possible. Any delay between the date of passing of the detention order 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.
By making the above submission, he prays for the dismissal of the Writ Petitions.
Heard.
[9] The Parliament enacted the National Security Act, 1980 to provide power to the Central Government or State Government to pass preventing detention orders in certain cases looking to the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest etc. considering the complexity and nature of the problems. Particularly in respect of defence, security, public order and services essential to the community. Section 3, gives power to Central Government and State Government to pass an order of detention of any person in view to prevent him from acting in any manner prejudicial to the security of the State or
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from actions of any manner prejudicial to the maintenance of public order. As per proviso, the period specified in the detention order made by the State Government under this sub section shall not, in the first instance, exceed three months at any one time. Sub Section (4) of Section 3 provides that when an order is made under sub section (3), he shall forthwith report to the State Government and no such order in force for than twelve days, unless, in the meantime, it has been approved by the State Government. After approval by the State Government, the same shall be reported to the Central Government within seven days. The aforesaid strict time period has been as this matter is related to detain a person against his fundamental right enshrined under the Constitution of India. In order to further check the action taken by the State Government under Section 3, there is the constitution of the Advisory Board, which consist of three person out of which one member is or has been a Judge of High court. Section 10 provides that in the case where a detention order has been made under this Act the appropriate Government shall, within three weeks from the date of detention place the order before the Advisory Board. The Advisory Board shall after considering the material before it and after giving an opportunity of hearing to the detenue, submit its report to the Government within seven weeks from the date of detention. Section 12 provides the action upon the report of the Advisory Board. In the case whereby the Advisory Board found sufficient cause for the detention of a person, the appropriate Government may confirm the detention order under Section 12 for the maximum period of 12 months and in the case where the Advisory Board has reported that there is no
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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. There is no discretion to the State Government to pass any order contrary to the opinion given by the Advisory Board. The State Government is bound to release the person immediately based on the opinion of the Advisory Board, therefore, after the opinion given in favour of the detenue, immediately, the order should have been passed revoking the order of detention , releasing the person concerned forthwith. [10] In the case of Writ Petition No.12595/2022, the opinion was given by the Advisory Board on 17.06.2022 and detenue was released after 11 days i.e. 28.06.2022, the delay has been caused in passing the order of revocation and informing to the Jail authorities.
[11] In the case of Writ Petition No.12090/2022, the Advisory Board gave an opinion on 28.06.2022 and the detenue was released on 04.07.2022. There is no valid explanation given by the State Government for this delay.
[12] The Apex Court in recently in Suo Moto Writ Petition No. (s) 4/2021 has given importance to the communication of the order of bail to the Jail authorities for the immediate release of jail inmates and has also directed all the Courts and authorities to adopt the procedure named FASTER (Fast and Secured Transmission of Electronic Records). So that prisoners and accused may not be detained even for one day after the bail order is passed. The State Government should also follow this mode for internal communication, especially in the case where the personal liberty of the person is involved.
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[13] In the present cases, the revocation orders were passed only when these writ petitions came up before this Court for hearing otherwise no action was being taken for the immediate release of detenue hence they were unnecessary kept under detention which violated their fundamental rights. After the recommendation of the Advisory board, the Government ought to have released the dentues forthwith.
[14] Hence, the exemplary cost is liable to be imposed on the State Government for acting against the personal liberty of the detenue. Both the petitioners are entitled to compensation of Rs. 50,000/- each.
Let copy of this order be kept in the connection writ petition too.
Certified copy as per rules.
( VIVEK RUSIA) (AMAR NATH (KESHARWANI)
JUDGE JUDGE
praveen
Digitally signed by
PRAVEEN NAYAK
Date: 2022.07.18 17:56:23
+05'30'