Madhya Pradesh High Court
Devesh Chourasia vs The District Magistrate Jabalpur on 24 August, 2021
Equivalent citations: AIRONLINE 2021 MP 1784
Author: Sujoy Paul
Bench: Sujoy Paul
1 W.P. No.10177/2021
The High Court of Madhya Pradesh Bench at Indore
Case Number WP No.10177/2021
Parties Name Devesh Chourasia
Vs.
The District Magistrate, Jabalpur & Ors.
Date of Order 24/08/2021
Bench Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered Justice Sujoy Paul
by
Whether approved NO
for reporting
Name of counsel for Shri Manish Dutt, learned Sr.Counsel with
parties Shri Pankaj Dubey, learned counsel for
petitioner.
Shri Vivek Dalal, learned Additional Advocate
General assisted by Ms. Palak Joshi, learned
counsel for the respondents/State.
Shri Milind Phadke, learned counsel for
respondent/Union of India.
ORDER
(Passed on 24th August, 2021) Sujoy Paul, J.:-
This petition filed under Article 226 of the Constitution assails the detention order dated 11/5/2021 passed u/S.3 of National Security Act, 1980 (for short "NSA") and also the order dated 8/7/2021 whereby the detention period was extended for three months by District Magistrate, Jabalpur. This matter was analogously heard with WP No.10085/2021 (Sarbjeet Singh Mokha vs. State of MP). Present petitioner was an employee in pharmaceutical wing of City Hospital run by Shri Mokha.2 W.P. No.10177/2021
02. In nut shell, the case of petitioner is that petitioner is an employee of Pharmaceutical Department of a hospital namely City Hospital, Jabalpur. It is averred that an FIR bearing No.252/2021 was lodged against the petitioner u/Ss.274, 275, 308, 420, 120-B of IPC read with Sec.53 of Disaster Management Act, 2005 and Sec.3 of the Epidemic Act, 1897. It is alleged in the FIR that petitioner in conspiracy with owner of City Hospital, Jabalpur namely Shri Sarabjeet Singh Mokha has procured and used fake Remdesivir injections (injections) to gain illegal profits during the pandemic era thereby endangering human life.
03. The petitioner was arrested by Police Station, Omti, Jabalpur on 10/5/2021 in Crime No.252/2021. On the next day on 11/5/2021, despite the fact that petitioner was in custody, a detention order was passed by District Magistrate in exercise of power under sub-section (2) of Sec.3 of NSA.
04. Shri Manish Dutt, learned Sr.Counsel assisted by Shri Pankaj Dubey, Advocate submits that the impugned order of detention dated 11/5/2021 Annexure P/1 is solely founded upon the recommendation of Superintendent of Police (SP) dated 11/5/2021. The S.Ps recommendation shows that it is based on five documents enclosed with the said recommendation. These five documents are - (1) FIR lodged against the petitioner (2) five statements of persons recorded u/S.161 of Cr.P.C. (3) invoice bills (4 pages), (4) FIR registered in P.S B Division, District Morvi, Gujarat (5) nine newspaper cuttings.
05. Criticising the order of detention passed by District Magistrate, learned Sr.Counsel submits that he has verbatim reproduced the recommendation of SP dated 11/5/2021. In addition, he recorded the statement of investigating officer (IO) Shri Shiv Pratap Singh Baghel. On the basis of cut copy paste averments of SP's report and IO's statement alone the learned District Magistrate passed the detention order which suffers from following infirmities - (1) there is no 3 W.P. No.10177/2021 independent application of mind by District Magistrate while passing the detention order. Indeed he mechanically acted on the recommendation of SP, (2) for recording "subjective satisfaction" of District Magistrate there must exist objective material which was totally absent in the present case, (3) the statements recorded u/S.161 of Cr.P.C and paper cuttings cannot form basis for passing an order of detention and (4) the detention order is passed in utter violation of Sec.3(5) of NSA. (5) A person already detained cannot be subjected to NSA unless certain conditions are satisfied which was lacking in the instant case.
06. To elaborate, Shri Dutt read out the statements of Kshitij Rai, Devesh Chourasiya, Yash Maindiratta and Prakhar Kohli. It is urged that these statements do not provide any foundation for invoking Sec.3 of NSA Act. The petitioner being an employee of Pharmaceutical wing of City Hospital has acted as per direction of owner of the hospital namely Shri Sarabjeet Singh Mokha. No act of present petitioner can be said to be a threat to public order or national security. Learned Sr.Counsel for petitioner has taken pains to contend that as per judgment of this Court passed in WP No.13234/2020 (Tanveer Patel Vs. State), newspaper cutting alone cannot be basis for passing a detention order. In Pebam Ningol Mikoi Devi Vs. State of Manipur & Ors. (2010) 9 SCC 618, it was held that the statement recorded u/S.161 cannot be utilized to detain a person unless there exists some further material.
07. Addressing the point about scope of judicial review of a detention order, it is urged that subjective satisfaction of detaining authority must be based on a reasonable and justifiable material. The detention order must show the independent application of mind by the competent authority. Reliance is placed on Faizal Ghosi & Ors. Vs. State of U.P. & Ors.(1987) 3 SCC 502, Chowdaraopu Raghunandan Vs. State of Tamil Nadu & Ors. (2002) 3 SCC 754, Pooja Batra Vs. 4 W.P. No.10177/2021 Union of India & Ors. (2009) 5 SCC 296 and Pebam Ningol Mikoi Devi Vs. State of Manipur & Ors. (2010) 9 SCC 618,
08. The petitioner was already under detention when impugned detention order was passed on 11/5/2021. A person can be detained under the NSA even if he was already arrested provided certain parameters are fulfilled. In order to establish those parameters reliance is placed on Rameshwar Shaw Vs. District Magistrate Burdwan & another AIR 1964 SC 334, N. Meera Rani Vs. Government of Tamil Nadu & another (1989) 4 SCC 418, Kamarunnissa & another Vs. Union of India & another (1991) 1 SCC 128, Suryaprakash Sharma Vs. State of U.P. & Ors. (1994) (S/3) SCC 195, Union of India Vs. Paul Manickam & another (2003) 8 SCC 342, Huidrom Konungjao Singh Vs. State of Manipur & Ors. (2012) 7 SCC 181 and Champion R. Sangma Vs. State of Meghalaya & another (2015) 16 SCC 253. The three necessary factors namely whether District Magistrate was independently satisfied that - (i) detenu is already under arrest (ii) there is likelihood of getting bail and (iii) there is possibility of repeating the same conduct, are essential factors which were required to be gone into by District Magistrate. There exists no such independent application of mind, strenuously contended Shri Dutt learned Sr. Counsel.
09. The detention order was criticised by contending that it is only 'cut copy paste' exercise which runs contrary to the order of this Court passed in WP No.9264/2021 (Sandhya Parmar Vs. State of MP & Ors.)
10. Section 3(5) of NSA Act makes it obligatory for the competent authorities to take a decision on the representation of the detenu promptly. The petitioner preferred representation on 24/05/2021 which was addressed to District Magistrate, State Govt. and Central Govt. The State Govt. approved the detention order by order dated 13/05/2021 (Annexure R/3), but this order was for the first time 5 W.P. No.10177/2021 served, seen by petitioner as an enclosure of reply in this matter. The judgment of this Court in Vivek Khurana vs. State of MP (WP No.1362/2020) was referred to contend that Section 3(5) of NSA Act lays down that where the order of detention is passed or approved by the State Govt., it was required of the State Govt. to report the fact pertaining to the detention to the Central Govt. within seven days along with the grounds on which the order of detention was made. In absence thereof, the order of the govt. stands vitiated. In other words, non-dispatch of the grounds of detention to the Central Govt. by the State Govt. can render further detention unlawful.
11. Similarly, order passed by Gwalior Bench in WP No.1118/2021 (Anshul Jain vs. State) was pressed into service in support of proposition that procedural lapse can vitiate the detention order. The detention order, approval by State Govt. and decision taken by Central Govt. must indicate the exact dates of communication.
12. By taking aid of Article 22(5) of the Constitution, it is submitted that the right of representation is a valuable right. The representation must be decided "as soon as possible" as per the mandate ingrained in the NSA. For this purpose, (1989) 4 SCC 418 (N. Meera Rani vs. Govt. of Tamil Nadu & Anr.) and (1982) 3 SCC 328 (Devi Lal Mahto vs. State of Bihar & Anr.) are relied upon. IA No.6332/21 which contains a postal dispatch communication is referred by Shri Dutt, learned Senior Counsel to submit that Central Govt. received the representation of petitioner sent on 28/05/2021, whereas Central Govt. in its reply stated that they received it on 07/06/2021. Wireless message filed with return of Central Govt. is relied upon. On the strength of aforesaid judgments, Shri Dutt, learned Senior Counsel submits that there is an unexplained and unreasonable delay in taking decision on petitioner's representation by Central Govt. This alone is sufficient to set aside the impugned order.
13. The last limb of argument is aimed against the order dated 6 W.P. No.10177/2021 08/07/2021 (Annexure P/1A), whereby the District Magistrate recommended to extend the period of detention. To assail this order, the petitioner contended that Station House Officer (SHO) Omti, Jabalpur sent communication dated 27/06/2021 which became basis for SP's recommendation dated 29/06/2021. In turn, District Magistrate passed the order of extension of detention on 08/07/2021. The order of District Magistrate is solely founded upon the recommendation of SP. Even language employed in the recommendation of SP is reproduced in toto by the District Magistrate without application of mind. Hence, order of extension of detention is also an example of non-application of mind. Lastly, Shri Dutt, learned Sr. Counsel submits that applicant or his family members have no criminal record and, therefore, on the basis of solitary incident, the NSA could not have been invoked.
14. In rejoinder submission, Shri Manish Dutt, learned Senior Counsel reiterated his stand that a combined reading of recommendation of police authorities and detention order shows lack of independent application of mind by District Magistrate. It's a "cut, copy, paste exercise" which deserves interference. AIR 1964 SC 334 (Rameshwar Shaw vs. District Magistrate, Burdwan & Anr.) was cited to show that word "satisfied" has significance which necessitated application of mind whereas impugned order of detention and other orders of rejection of representations are examples of non- application of mind. Reliance is placed on recent order of Principal Seat in WP No.9799/2021 (Rajeev Jain vs. State of MP).
15. Shri Milind Phadke, learned counsel for the Union of India supported the impugned orders.
State Govt.'s Stand:
16. Shri Vivek Dalal, learned AAG assisted by Ms. Palak Joshi, learned counsel urged that in view of judgment of Supreme Court reported in AIR 1951 SC 157 (State of Bombay vs. Atma Ram 7 W.P. No.10177/2021 Sridhar Vaidya), AIR 1964 SC 334 (Rameshwar Shaw vs. District Magistrate, Burdwan & Anr.) and constitution bench judgment in K.M. Abdulla Kunhi vs. Union of India (1991) 1 SCC 476, the order of detention can be passed on the basis of information and materials which may not be strictly admissible under Evidence Act. It depends on the needs and exigencies of administration to take into account some evidence to proceed against the detenu. The judgment of Atma Ram (supra) was followed in Rameshwar Shaw (supra) and it was ruled out that scope of interference by High Court in a detention order is limited. The detention order can be assailed if it is based on malafides and if there is nothing to rationally support the conclusion drawn by the District Magistrate. For the same purpose, the judgment of K.M. Abdulla Kunhi (supra) was pressed into service. It is for the government to consider the representation to ascertain whether the order is in-conformity with the power under the law. The Advisory Board considers the representation and the case of detenu to examine whether there is sufficient case for detention. Based on these judgments, it is contended that detention order is not assailed by alleging malafide. It cannot be said that detention order is without there being any rational basis at all.
17. Countering the argument that representation was required to be decided immediately, the learned AAG relied on the expression used in Clause-5 of Article 22 of the Constitution i.e. "as soon as may be". Reference is made to the judgment of K.M. Abdulla Kunhi (supra) to contend that representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there is no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. No statutory period is prescribed either under the constitution or under the relevant detention law within which representation was required to be decided. Thus, it depends on the factual basis of each case whether representation is 8 W.P. No.10177/2021 decided within reasonable time. As per para-16 of aforesaid judgment of Supreme Court till the decision of Advisory Board, there was no occasion and question for the State Govt. to take a decision on the representation. There is no unreasonable delay in taking decision by the State Govt. after the decision of the Advisory Board.
18. Lastly, it is submitted that in view of judgment of this Court in Manikant Asati vs. State of MP (W.P. No.9846/2021) and Nitin Vishwakarma vs. State of MP (WP No.11571/2021), the interference on the ground of delay is not warranted. There is no flaw in decision making process. The singular incident can become a reason to invoke detention law. One singular incident of grave nature is sufficient to detain a person. In pandemic like situation, even if some delay is caused in deciding the representation, it is not fatal because the authorities were working day and night to combat the situation arisen out of corona pandemic. This aspect cannot be ignored.
19. We have heard the learned counsel for the parties at length and perused the record.
20. No other point is pressed by the learned counsel for the parties. Background of Detention Law:-
21. The makers of constitution recognized the need of preventive detention laws. The constituent assembly composed of politicians, statesman, lawyers and social workers, who had attained a high status in their respective specialties and many of whom had experienced the travails of incarceration owing solely to their political beliefs, resolved to put Article 22, Clause (3) to (7) in the constitution, may be as a necessary evil (See: (1976) 2 SCC 521, Additional District Magistrate, Jabalpur vs. S.S. Shukla). Pertinently, this finding of Supreme Court has not been overruled in the subsequent judgment.
22. M.H. Beg, J. in Ram Bali Rajbhar vs. State of W.B. (1975) 4 SCC Page 47 opined:-
"The law of preventive detention, (.....) is 9 W.P. No.10177/2021 authorised by our Constitution presumably because it was foreseen by the Constitution-makers that there may arise occasions in the life of the nation when the need to prevent citizens from acting in ways which unlawfully subvert or disrupt the bases of an established order may outweigh the claims of personal liberty."
(Emphasis supplied) Conundrum & Criterion :
23. The conundrum regarding liberty of a citizen and possibility of its misuse by treating it to be a license is explained by words of wisdom by Apex Court in 1975 (Supp.) SCC 1 (Smt. Indira Nehru Gandhi vs. Raj Narain).
"318. The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs."
(Emphasis Supplied)
24. Justice M.N. Venkatchaliah in (1989)1 SCC 374 (Ayya @ Ayub vs. State of UP) held as under:-
"14.......the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other.... The paradigms and value judgments of the maintenance of a right balance are not static but vary according as the 'pressures of the day' and according as the intensity of the imperatives that justify both the need for and the extent of the curtailment of individual liberty. Adjustments and readjustments are constantly to be made and reviewed. No law is an end in itself. The 'inn that shelters for the night is not journey's end and the law, like the traveller, must be ready for the morrow."
(Emphasis supplied)
25. Justice Savyasachi Mukherjee in (1986) 4 SCC 407 (Raj 10 W.P. No.10177/2021 Kumar Singh vs. State of Bihar) held as under:-
"22. Preventive detention as reiterated as hard law and must be applied with circumspection rationally, reasonably and on relevant materials. Hard and ugly facts make application of harsh laws imperative."
(Emphasis supplied)
26. Chief Justice Earl Warren said that:
"Our judges are not monks or scientists, but participants in the living stream of our national life, steering the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem; how to apply to ever changing conditions the never changing principles of freedom."
(Emphasis supplied)
27. In the light of the aforesaid judgments, the argument of petitioner deserves consideration.
The Scope of Judicial Review of Detention Order -
28. The learned Senior Counsel for the petitioner placed reliance on certain judgments to submit that subjective satisfaction of detaining authority must be based on legally admissible cogent material. It is apposite to examine the legal journey in this regard. In 1951 SCR 167, (State of Bombay v. Atma Ram Sridhar Vaidya) a six judges Bench of Supreme Court held thus:-
"6.....By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of strong probability of the impending commission of a prejudicial act...."
(Emphasis supplied)
29. B.K. Mukherjea, J. in 1954 SCR 418 (Shibban Lal Saksena vs. State of U.P.) followed the said principle and opined as under:-
11 W.P. No.10177/2021"8..............It has been repeatedly held by this Court that the power to issue a detention order under Section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of malafides [Vide The State of Bombay v. Atma Ram Sridhar Vaidya, 1951 SCR 167]. A court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenue under Section 7 of the Act..............The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute......."
(Emphasis supplied)
30. A constitution Bench of Apex Court (1964)4 SCR 921 (Rameshwar Shaw vs. District Magistrate) ruled that:-
"8. It is, however, necessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by Section 3(1)(a) is the subjective satisfaction of the said authority, cases may arise where the detenu may challenge the validity of his detention on the ground of mala fides and in support of the said plea urge that along with other facts which show mala fides the Court may also consider his grievance that the grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority. It is only in this incidental manner and in support of the plea of mala fides that this question can become justiciable; otherwise the reasonableness or 12 W.P. No.10177/2021 propriety of the said satisfaction contemplated by Section 3(1)(a) cannot be questioned before the Courts."
(Emphasis supplied)
31. A three judges Bench in (1973) 3 SCC 250 (Mohd. Subrati vs. State of West Bengal) held as under:-
"3........This jurisdiction in different from that of judicial trial in courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would, therefore, not operate as a bar to a detention order, or render it mala fide. The matter is also not res integra."
(Emphasis supplied)
32. Reference may be made to 1988 (1) SCC 296 (K. Aruna Kumari vs. Govt. of A.P.) wherein the Court held that :-
"8.......It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention....."
(Emphasis supplied)
33. In (1990) 1 SCC 35 (State of Punjab vs. Sukhpal Singh), it was again held that:-
"9. ..... The High Court under Article 226 and Supreme Court under Article 32 or 136 do not sit in appeal from the order of preventive detention. But the court is only to see whether the formality as enjoined by Article 22(5) had been complied with by the detaining authority, and if so done, the court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detain the detenu. In other words, the court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of the authority as pointed out in Ashok Kumar v. Delhi Administration [(1982) 2 SCC 437 : 1982 SCC (Cri) 466 : AIR 1982 SC 1143 : (1982) 3 SCR 707] . Those who are responsible for the national security or for the maintenance of public order must be the judges of what the national security or public order requires. Preventive detention is devised to 13 W.P. No.10177/2021 afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from so doing. The justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. There is no reason why executive cannot take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that no prosecution can possibly succeed against the detenu because he has influence over witnesses and against him no one is prepared to depose...."
(Emphasis supplied)
34. In Ram Bali Rajbhar (supra), M.H. Beg, J. expressed the view on behalf of the bench that :-
"13. We think that the High Court of Calcutta, while dismissing the writ petition, need not have expressed any opinion about the worth of the affidavit sworn by Lal Mohan Jadav, the tea shop owner. That, we think, is the function of authorities constituted under the Act for deciding questions of fact. On a habeas corpus petition, what has to be considered by the Court is whether the detention is prima facie legal or not, and not whether the detaining authorities have wrongly or rightly reached a satisfaction on every question of fact...."
(Emphasis supplied)
35. Before dealing with aforesaid judgments of Supreme Court, it is apposite to mention that an order of detention was treated to be an administrative order by Supreme Court in 1975(2) SCC 81 (Khudiram Das vs. State of West Bengal). This principle was followed by Full Bench of Allahabad High Court in 1985 SCC Online 608 (Mannilal vs. Superintendent of Central Jail, Naini, Allahabad). This Court in 1989 CRLJ 978 (Brajraj vs. District Magistrate, Gwalior & Anr.) followed the dicta aforesaid and opined that order of detaining authority is an administrative order.
14 W.P. No.10177/202136. In view of aforesaid judgments of Supreme Court, we can cull out the principles as under:-
[1] It is not necessary that authority passing the detention order must always be in possession of complete information at the time of passing the order.
[2] The information on the strength of which detention order is passed may fall far short of legal proof of any specific offence. If order indicates strong probability of impending commission of a prejudicial act, it is sufficient for passing a detention order.
[3] The Court is not obliged to enquire into the correctness/truth of facts which are mentioned as grounds of detention.
[4] Whether grounds of detention mentioned in the order are good or bad is within the domain of competent authority.
[5] The satisfaction of competent authority in passing the detention order can be assailed on limited grounds including the ground of mala-fide and no evidence at all.
[6] The jurisdiction under the NSA Act is different from that of judicial trial in courts for offence and of judicial orders for prevention of offence. Even unsuccessful judicial trial would not operate as a bar to a detention order or make it mala-fide.
[7] An improperly recorded confession u/S.161 of Cr.P.C cannot be used as substantive evidence against the accused in criminal case but it cannot be completely brushed aside on that ground for the purpose of preventive detention.
[8] The Court cannot examine the materials before it and give finding that detaining authority should not have been satisfied on the material before it. The sufficiency of ground of detention can not be subject matter of judicial review.
[9] The justification for detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, it is called as 'suspicious jurisdiction'.15 W.P. No.10177/2021
[10] In a habeas corpus petition, Court needs to examine whether detention is prima-facie legal or not and is not required to examine whether subjective satisfaction on a question of fact is rightly reached or not.
[11] The statements/evidence gathered during investigation falls within the ambit of "some evidence" which can form basis for detaining a person.
[12] The detention order is an administrative order.
37. We have carefully examined the statements of the persons recorded by the administration. We are unable to hold that there is no probative value of the statements and on the strength of those statements the detention order could not have been passed. There definitely exists some probative material sufficient for passing the detention order. The correctness and sufficiency of evidence is beyond the scope of judicial review. Thus, the impugned detention order cannot be said to be irrational or illegal because statements of witnesses recorded during investigation were relied upon. The material which formed basis of passing the detention order:-
38. By placing heavy reliance on the judgment of Pebam Ningol Mikoi Devi (supra), it was contended that confessional statement of petitioner or any other statement of other persons recorded under Section 161 of Cr.P.C. cannot form basis for issuance of detention order. No doubt, in para-30 and 31 of said judgment, the Apex Court has taken note of certain documents including a confessional statement of petitioner therein recorded under Section 161 of Cr.P.C. and opined that such documents do not provide any reasonable basis for passing of detention order. It was further held that Section 161 statements are not considered substantive evidence, but can only be used to contradict the witness in the course of a trial. It is noteworthy that in the said case, after examining these documents, a finding was given by Apex Court on merits that the documents do not substantiate 16 W.P. No.10177/2021 the involvement of detenu in any unlawful activity.
39. As noticed above, a six judge Bench of Supreme Court in Atma Ram Sridhar Vaidya (supra), poignantly held that the detaining authority while passing the detention order cannot always be in possession of complete information. The information so gathered may fall short of legal proof of any specific offence, although it may be indicative of strong probability of impending commission of a prejudicial act. It was further held in the said case that the material on the basis of which detention order was passed may not be strictly admissible as evidence under the Evidence Act in a Court, but said material can very well be considered sufficient for forming subjective decision of the government. Similarly, in K. Aruna Kumari (supra), a Division Bench made it clear that even a confessional statement under Section 161 of Cr.P.C. which may not be admissible in a criminal case can be a reason for passing an order of detention. The Supreme Court while deciding the case of Pebam Ningol Mikoi Devi (supra) has not considered the judgment of Division Bench in K. Aruna Kumari (supra) and judgment of six judge bench in the case of Atma Ram Sridhar Vaidya (supra). A special bench (five judges) bench of this Court in (2003) 1 MPLJ 513 (Jabalpur Bus Operators Association & Ors. vs. State of MP & Ors.) opined that if there are two different views taken by different Benches of Supreme Court, the view taken by a Bench of larger strength will prevail. If Bench strength is same and previous judgment is not taken into account by subsequent bench, the previous judgment will prevail. In view whereof, we are unable to hold that statements recorded under Section 161 of Cr.P.C. cannot form basis for passing the detention order. The inevitable consequence of this finding is that the argument of Shri Dutt, learned Senior Counsel that detention order is passed without cogent material or there existed no objective material for recording subjective satisfaction cannot be accepted.
17 W.P. No.10177/202140. Apart from this, reference may be made to (1975) 3 SCC 845 (Tulshi Rabidas vs. State of West Bengal) (3 Judges) which makes it clear that some evidence gathered during investigation can very well be basis for passing the detention order. It needs no emphasis that statements recorded under Section 161 Cr.P.C. can be certainly termed "some evidence/material" collected during investigation. [See also:
(1975) 4 SCC 47 (Rambali vs. State of W.B.)] Thus, we are unable to agree with the contention that Section 161 statement cannot become basis for passing the detention order.
The detention order is solely based on recommendation of S.P.
41. By placing reliance on the language employed by Superintendent of Police in his recommendation and the order of detention and its extension etc., it was argued that there was no independent application of mind by District Magistrate and he has mechanically reproduced the language employed by S.P. We do not see much merit in this contention. It is not the form which is decisive for examining the validity of detention order. Indeed, whether contents of detention order are sufficient and satisfy the necessary ingredients for invoking detention law is material and important. V.R. Krishna Iyer, J. speaking for a 3 judges bench of Supreme Court in (1975) 3 SCC 845 (Tulshi Rabidas vs. State of West Bengal) opined as under:-
"7.......Even so, we are unable to void the order on this score, especially because the District Magistrate may well have acted on the police report. Whether the investigation was conducted properly or not, whether the District Magistrate should have pinned his faith on the result of the investigation and like questions, are not for the Court to consider. But the minimum which must be placed before the Court is that there was some evidence gathered during investigation which, in some manner, roped in the petitioner. We are prepared to hold that there is some evidence for the District Magistrate to act and there we pause."
(Emphasis Supplied) 18 W.P. No.10177/2021
42. The principle laid down in the said judgment are- i) the defect in the investigation cannot be a reason to disturb a detention order. ii) It is subjective satisfaction and faith of District Magistrate on the investigation which matters and it is not for the Court to sit in an appeal and reweigh it. iii) If some evidence is gathered during investigation in some manner, it is sufficient to invoke detention law. Thus, merely because language of detention order matches with that of recommendation, detention order cannot be jettisoned.
Petitioner was already under detention, whether could further be detained under NSA Act:-
43. Shri Dutt, learned Senior Counsel has rightly pointed out catena of judgments to contend that a person already arrested under any penal law can still be detained under NSA Act if certain parameters are satisfied which are rightly pointed out as i) the detaining authority must be aware that detenu is already in custody, ii) there is likelihood of his getting bail, iii) there is possibility of his indulging into similar activity. If on these parameters, the present matter is tested, it will be clear from plain reading of detention order that detaining authority was aware that petitioner is already under detention. He has duly recorded his apprehension which is not unfounded that there exists a likelihood of petitioner's getting bail. The District Magistrate recorded his satisfaction that if petitioner is not detained, there is every likelihood of misusing the liberty. Thus, we are of the opinion that necessary ingredients for detaining a person, who was already under arrest were satisfied. The detention order is not in the breach of principles laid down in the judgments cited by the petitioner.
44. During the course of hearing in this matter and in various similar matters, the learned counsel for the petitioners argued that the offence mentioned in the FIR are trivial in nature and such offences are triable by a Magistrate. For example, reference is made to Section 420 & 188 of IPC, Section 3 of Epidemic Disease Act, 1897 and 19 W.P. No.10177/2021 Section 3 & 7 of Essential Commodities Act. Suffice it to say that if this argument is accepted, no fault can be found in the opinion formed by District Magistrate that there is a likelihood of petitioner's release on bail. Thus, necessary ingredients for detaining a person, who is already arrested are satisfied.
SINGULAR ACT - NO PAST RECORD:-
45. Lastly, it was submitted that petitioner has no past record of similar nature. The existence of past record is not a condition precedent for invoking NSA Act. The legal journey on this aspect deserves to be noted.
46. This argument was advanced coupled with yet another argument that single incident was not sufficient to invoke Section 3 of NSA Act. It is profitable to examine the legal journey on this aspect.
In (1974) 4 SCC 135 (Debu Mahto vs. State of West Bengal), the Supreme Court opined thus:-
"2. ......We must, of course, make it clear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so, it is necessary to detain him. The nature of the act and the attendant circumstances may, in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances."
(Emphasis Supplied)
47. The ratio decidendi of this case was consistently followed by Supreme Court in catena of judgments including (1975) 3 SCC 292 (Israil Sk. vs. Distt. Magistrate of West Dinajpur), (1986) 1 SCC 404 (Shiv Ratan Makim vs. Union of India, (1991) 1 SCC 144 (M. Mohd. Sulthan vs. Jt. Secy. to Govt. of India, (1992) 4 SCC 154 20 W.P. No.10177/2021 (David Patrick Ward vs. Union of India), (2009) 5 SCC 296 (Pooja Batra vs. Union of India) and (2010) 1 SCC 609 (Gimik Piotr vs. State of T.N.). A Full Bench of this Court recently considered this aspect by taking note of Supreme Court judgments in WP No.22290/2019 (Kamal Khare vs. State of MP) 2021(2) MPLJ 554 and opined as under:-
"44. What can therefore be culled out from all the afore- discussed judgments is that whether an act would constitute simple breach of law and order, or breach of public order, would solely depend on the degree and extent of its reach and effect upon the society. Public order is even tempo of the life of the community of an area or even a locality, as a whole. Degree of disturbance upon the life of the community would determine whether it affects public order. An act by itself may not be a determinative factor of its gravity, but it is potentiality of its effect on the even tempo of the life of community that makes it prejudicial to the maintenance of public order. If the effect of act is restricted to certain individuals or a group of individuals, it merely creates a law and order problem but if the effect, reach and potentiality of the act is so deep and pervasive that it affects the community at large and disturbs the even tempo of the community that it becomes a breach of the public order. It therefore cannot be said that a single act would in all and every circumstances not be sufficient to affect public order or even tempo of the society. What is material is the effect of the act and not the number of acts and therefore what has to be seen is the effect of the act on even tempo of life of the people and the extent of its reach upon society and its impact."
(Emphasis Supplied) Thus, as a rule of thumb, it cannot be said that in absence of past record, detention order is bad-in-law.
48. The statements recorded under Section 161 shows that Shri Mokha was running the hospital and Devesh Chourasia was his employee. The fake injections were allegedly manufactured at Morvi, Gujrat. Certain persons involved in manufacturing fake injections used to send it to various places including Indore. From Indore, the fake 21 W.P. No.10177/2021 injections were sent in various boxes/cartoons to Shri Mokha with the help of supplier namely Sapan Jain, who was owner of Satyam Medicos and Bhagwati Pharma.
49. Another limb of argument of petitioner is that the time when period of detention order was extended, the crisis of danger corona was substantively reduced and there was no justification in extending the period of detention. A three judges bench of Supreme Court in 1975 (3) SCC 858 (Sheoraj Prasad Yadav vs. State of Bihar & Ors.) held as under:-
"7. Coming to the third submission made on behalf of the petitioner we would like to observe that there seems to be justification in the petitioner's grievance that he is being unnecessarily detained even after the agitation had been withdrawn and there is no likelihood of his indulging in acts prejudicial to the maintenance of supplies and services essential to the Community. But this is a matter which is not within our domain to decide. It is for the State Government to consider the question as to whether the continuance of detention of the petitioner is necessary or not. In the facts and circumstances of the case, however, we think it desirable that the State Government should as soon as possible review the case of the petitioner to find out whether any further detention in his case is necessary or not."
50. In view of this judgment, this Court is not inclined to interfere on the detention order. We are only inclined to observe that it will be open to the government to review the case of the petitioner in accordance with the law.
If the salt has lost its savour, wherewith shall it be salted.
51. A conjoint reading of statement of witnesses recorded under Section 161 of Cr.P.C. and detention order shows that background is that a drug/injection manufacturer at Surat indulged in manufacturing fake remedesivir injections in order to earn undue profit. In turn, said injections were sold to a person at Indore. The said drug dealer supplied it to distributor, the petitioner incharge of pharma wing and petitioner of connected matter (Shri Mokha) who was running the 22 W.P. No.10177/2021 hospital. Covid pandemic created a compete chaos which became a serious threat to normal life. The people were struggling for getting oxygen, hospital beds, necessary drugs etc. This kind of crisis is faced by humanity after almost 100 years after the 'Spanish flu' which broke out in 1918-1920. The administration has worked tirelessly during this period nation wide. Multi tasking was order of the day. The administration was required to take care of law and order situation, ensure supply of electricity, oxygen and other amenities to the people. There are other factors on which they were required to devote their time. If drug manufacturer, supplier, distributor, hospital owner and administrator indulge into such activity of blackmarketing remedesivir or using fake remedesivir, it was necessary to prevent them to maintain 'public order' because as per famous adage "if salt has lost its savour, wherewith shall it be salted". We make it clear that this observation of ours should not be treated as finding on the merits of the case. The trial Court is best suited to decide the matter on merits.
52. We are unable to hold that there was no material at all to invoke detention law. The Court cannot interfere if there was some evidence before the detaining authority upon which a reasonable man could have formed the satisfaction which is the sine qua non for the detention. (See: Ram Bali Rajbhar vs. State of W.B. (1975) 4 SCC
47) There is no flaw in the decision making process. Annexure R/3 shows relevant documents including 'grounds of detention' were sent to the Central Govt. by the State Govt. Delay (if any) in taking decision on representation cannot be measured by taking a stop watch in the hand. The explanation of delay depends on the factual background because of which delay occasioned. Pertinently, in Ayya Ayub (supra), the Apex Court considered this aspect and poignantly held that the Court should not be oblivious of the "pressures of the day" and according to the intensity of imperatives which may justify the need and extent of curtailment of individual liberty. Similarly, in 23 W.P. No.10177/2021 Raj Kumar Singh (supra), the Court ruled that hard and ugly facts make application of harsh laws imperative. The blackmarketing and use of fake remedesivir injections in pandemic crisis, in our opinion is such hard and ugly fact which makes application of detention law imperative.
53. In view of foregoing analysis, we find no reason to interfere in the impugned orders. Petition fails and is hereby dismissed.
(SUJOY PAUL) (ANIL VERMA)
JUDGE JUDGE
soumya
Digitally signed
by SOUMYA
RANJAN DALAI
Date: 2021.08.24
14:41:05 +05'30'