Laduram vs The State Of Madhya Pradesh on 13 February, 2020

[Cites 18, Cited by 1]

Madhya Pradesh High Court

Laduram vs The State Of Madhya Pradesh on 13 February, 2020

Regard being had to the similar controversy involved in above cases, they have been heard analogously together with the consent of the parties and a common order is being passed in the matter. Facts of WP No.28804/2019 are narrated as under:-

The petitioner before this court has filed this present petition being aggrieved by the order of detention dated 18-12-2019 passed by the District Magistrate, Neemuch in exercise of powers conferred under the National Security Act, 1980.

The undisputed facts of the case reveal that the petitioner is a businessman man and he is engaged in sale and purchase of 'Dhaniya'. The facts further reveal that the report was received dated 17-12-2019 by the Superintendent of Police by the District Magistrate informing the District Magistrate that the petitioner is engaged in business of sale of adultrated 'Dhaniya' which is harmful for human consumption. The order passed by the District Magistrate reveals that earlier also on 26-09-2018 2 WP No. 28804/2019 & WP No. 717/2020 samples of loose 'Dhaniya' was sent to the State Food Examination Laboratory, Bhopal and it was found to be of sub-standard. Again on 11-08-2019 sample was found to be sub-standard containing colour and in respect of the third incident the sample was found to contain colour as well as sulphar-dioxide.

The order of the District Magistrate reveals that Neemuch is a sensitive place keeping in view one of the largest base of Paramilitary forces i.e. CRPF and the supply is being made in Neemuch as well as to the other States. Reasons have been assigned in the detention order and various grounds has been raised by the learned counsel arguing the matter. In respect of the fact whether an offene committed under the Regulatory Act such as Food Safety and Standard Act, 2006 which contains penalty clause can be taken against the person under the National Security Act, 1980 or not, a reference has been made to the Larger Bench by the Division Bench of this court by order dated 04-12-2019 passed in Kamal Khare Vs. State of M.P. and another in Writ Petition No. 22290/2019.

Shri Pushyamitra Bhargav has argued before this court that the order of detention dated 18-12-2019 does not provide that a detainee was given a right to represent before the District Magistrate, before the Advisory Board and before the State Government. Shri Gandhi has drawn the attention of this court towards Annexure-R-1 dated 18-12-2019 which was duly received by the detainee on 18-12-2019 and the same reveals that complete documents were given to the detainee and he was 3 WP No. 28804/2019 & WP No. 717/2020 informed about his rights to submit a representation to the State Government, to the Advisory Board and to Union of India. At this stage learned counsel Shri Pushyamitra Bhargava has argued before this court that the detainee was not informed about the right to submit a representation to the District Magistrate.

No statutory provision of law finds place under the National Security Act, 1980 to make a representation to the District Magistrate. Section 8 of the National Security Act, 1980 reads as under :-

"Section 8 in The National Security Act, 1980

8. Grounds of order of detention to be disclosed to persons affected by the order.--

(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

The aforesaid statutory provision of law provides for an opportunity of make a representation against the order to the appropriate Government. The aforesaid statutory provision of law does not provide that the detainee should also be informed that he is having the right to submit a representation to the 4 WP No. 28804/2019 & WP No. 717/2020 District Magistrate. Shri Pushyamitra Bhargava, learned counsel has drawn the attention of this court towards the judgment delivered in the case of Sudeep Jain Vs. State of M.P. in Writ Petition No. 21768/2019 decided on 08-11-2019. The paragraphs- 09 to 13 of the aforesaid order reads as under :-

"9. Close reading of paragraphs 19, 20 and 21 of the decision in Sudeep Jain (supra) suggests that where the offence is committed under a Regulatory Act, as the FSSA is said to be, which contains penalty clause, and even if it is prejudicial to the security of the State or to the maintenance of public order or to the maintenance of supplies and services essential to the community, no action under the National Security Act, 1980 is permissible.

10. In my humble opinion, it is too broad a proposition that where the offence is committed under a Regulatory Act, as the FSSA is said to be, which contains penalty clause, and even if it is prejudicial to the security of the State or to the maintenance of public order or to the maintenance of supplies and services essential to the community, no action under the National Security Act, 1980 is permissible.

11. The National Security Act, 1980 was enacted to provide for preventive detention in certain cases and for matters connected therewith. The statement of objects and reasons reflects the circumstances which prevailed upon the Parliament to enact the law.These were : "In the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues, it was considered necessary that the law and order situation in the country is tackled in a most 5 WP No. 28804/2019 & WP No. 717/2020 determined and effective way. The anti-social and anti-national elements including secessionist, communal and pro-caste elements and also other elements who adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom. Considering the complexity and nature of the problems, particularly in respect of defence, security, public order and services essential to the community, it is the considered view of the Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers of preventive detention. The National Security Ordinance, 1980, was, therefore, promulgated by the President on September 22, 1980. Subject to a modification, the Bill seeks to replace the aforesaid ordinance. The modification relates to the composition of Advisory Boards and is for providing that the Chairman of an Advisory Board shall be a person who is, or has been, a Judge of a High Court and the other members of the Advisory Board may be persons who are, or have been, or are qualified to be appointed as Judges of a High Court."

12. In A.K. Roy vs Union of India AIR 1982 SC 710, it is observed :

"35. But, the liberty of the individual has to be subordinated, within reasonable bounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III, authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention. These entries read thus:

Entry 9, List I: "Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.'' 6 WP No. 28804/2019 & WP No. 717/2020 Entry 3, List III:

"Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention."

The practical need and reality of the laws of preventive detention find concrete recognition in the provisions of Article 22 of the Constitution. Laws providing for preventive detention are expressly dealt with by that article and their scope appropriately defined. "The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited ...., it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions" (see The Queen v. Burah. The legislative power in respect of preventive detention is expressly limited to the specific purpose mentioned in Entry 9, List I and Entry 3, List III. It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril. So long as a law of preventive detention operates within the general scope of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by 7 WP No. 28804/2019 & WP No. 717/2020 the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. Khanna J., in his judgment in the Habeas Corpus case has dwelt upon the need for preventive detention in public Interest....

37. In so far as our Constitution is concerned, an amendment was moved by Pandit Thakur Dass Bhargava to draft Article 15, which corresponds to Article 21 of the Constitution, for substituting the words "without due process of law" for the words "except according to procedure established by law". Many members spoke on that amendment on December 6, 1948, amongst whom were Shri K.M. Munshi, who was in favour of the amendment, and Sir Alladi Krishnaswamy Ayyar who, while explaining the view of the Drafting Committee, said that he was "still open to conviction". The discussion of the amendment was resumed by the Assembly on December 13, 1948 when, Dr. Ambedkar, who too had an open mind on the vexed question of 'due process', said:

"... I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my friend Pandit Bhargava for the deletion of the words "procedure according to law" and the substitution of the words "due process".

xx xx xx "The question of "due process" raises, in my judgment, the question of the relationship between the legislature and the judiciary. in a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. .... The 'due process' clause, in my judgment, would 8 WP No. 28804/2019 & WP No. 717/2020 give the judiciary the power to question the law made by, the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law, apart from the question of the powers of the legislature making the law. ... The question now raised by the introduction of the phrase 'due process' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.

"... There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is a rather a case where a man has to sail between Charybdis and Seylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes." (See Constituent Assembly Debates Vol. VII, pp. 999-1001).

The amendment was then put to vote and was negatived. In view of this background and in view of the fact that the Constitution, as originally conceived and enacted, recognizes preventive detention as a permissible means of abridging the liberties of the people, though subject to the 9 WP No. 28804/2019 & WP No. 717/2020 limitations imposed by Part III, we must reject the contention that preventive detention is basically impermissible under the Indian Constitution."

13. In Ashok Kumar v Delhi Administration AIR 1982 SC 1143, it is held :

"13. The true distinction between the areas of 'public order' and 'law and order' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circumstances of the present case.

14. Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Preventive detention is devised to 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 doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, 10 WP No. 28804/2019 & WP No. 717/2020 but are taken by way of precaution to prevent mischief to the State. It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city of Delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence. There is a constant struggle to control the criminal activities of the persons engaged in such organized crimes for the maintenance of public order. It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not able to substantiate. There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose."

It is true that the Division Bench of this court placing reliance upon a judgment delivered in the case of Kamlesh Kumar Ishwardas Patel Vs. Union of India and others reported in (1995) 4 SCC 51 has held that a detainee has a right to make a representation against the order of detention to the Advisory Board as well as to the authority, who has passed the order of detention. In the present case the order of detention has been passed by the District Magistrate and the letter which is enclosed Annexure-R-1 reads as under :-

U;k;ky; ftyk n.Mkf/kdkjh ftyk uhep] ¼e0iz0½ tkod dz- 950@vkj-Vh-lh-@19 uhep fnukad 18@12@2019 iz-dzekad 5@,u-,l-,-@2019 11 WP No. 28804/2019 & WP No. 717/2020 izfr] euh"k firk jes'kpUnz vxzoky mez 34 lky fuoklh d`".kkuxj c?kkuk izksijkbZVj esllZ euh"k dqekj vk'kh"k dqekj vkuUn Hk.Mkj vjfu;k dqekj lknMh jksM uhep ftyk uhep &&00&& fujks/k esa j[ks tkus ds layXu fooj.k i= ds vuqlkj ftyk eftLVsªV ftyk uhep ¼e-iz-½ }kjk jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk&3 ¼2½ ds vUrxZr vkidks fujks/k esa j[kus dk vkns'k ikfjr fd;k x;k gSA 2& vr% mDr vf/kfu;e dh /kkjk&8 ds vuqj{k.k esa vkidks fujks/k esa j[ks tkus ds vk/kkj dk fooj.k rFkk vU; leLr dkxtkr] ftuds vk/kkj ij esjh larq"Vh gqbZ gS layXu lwph vuqlkj bl i= ds layXu gSA esjs }kjk vkids fo:) ikfjr fd, x, fujks/kkns'k ds fo:) vij eq[; lfpo] e-iz-'kklu x`g foHkkx] Hkksiky ,oa Hkkjr ljdkj dks vH;kosnu djus dk vkidks vf/kdkj gSA 'kklu }kjk esjs vkns'k dh iqf"V fd, tkus dh fLFkfr esa vkidks mDr vkns'k ds fo:) e/;izns'k 'kklu] x`g foHkkx] Hkksiky ,oa Hkkjr ljdkj x`g eaa=ky; ubZ fnYyh dks vH;kosnu djus dk vf/kdkj gS rFkk vkidks vius laca/k esa fuosnu djus ds fy, ekuuh; lykgdkj cksMZ ds le{k Lo;a mifLFkr gksus dk Hkh vf/kdkj gSA layXu%&1&fujks/k vkns'k 2&fujks/k dk vk/kkj 3&nLrkostksa dh izekf.kr izfr;ka ¼vt; flag xaxokj½ ftyk n.Mkf/kdkjh] ftyk uhep e0iz0 The letter does not reveal that the detainee was informed about his right to submit a representation to the District Magistrate i.e. the authority who has passed the order of detention. Shri Gandhi has argued before this court that the District Magistrate has been delegated the power to pass an order of detention and in the present case he has passed the order of detention which has been approved by the State Government as well as by the Advisory Board. He has further stated that the 12 WP No. 28804/2019 & WP No. 717/2020 petitioner was given an opportunity to submit representation to the Advisory Board, State of Madhya Pradesh as well as to the Union of India and, therefore, the requirement of statute was fulfilled as they have certainly informed the detainee vide letter dated 11-12-2019 about his rights well in advance. He has also stated that the judgment delivered in the case of Kamlesh Kumar Ishwardas Patel (supra) was a case arising out of COFEPOSA Act (Act 52 of 1974) and, therefore, as the National Security Act, 1980 does not provide for a right to make a representation to the detaining authority the matter deserves to be referred to a Larger Bench at this point also.

We are in agreement with the arguments canvassed by Mr Gandhi. Therefore the matter be placed before Hon'ble the Chief Justice for constituting a larger Bench to decide the issue as to :-

"a). whether a detainee, who is detained under the National Security Act, 1980 has got a right to make a representation to the District Magistrate who acts on behalf of the State Government as the State Government is the appropriate Government within the meaning of Section 2 (a) of National Security Act, 1980.

b). whether the order of detention is a nullity in absence of such a communication informing the detainee about his right of making representation to the District Magistrate, even though the Detainee has been informed by the District Magistrate to make a representation to the Sate Government/to the Union of India/Advisory Board.

c). whether the District Magistrate keeping in view the scheme of the Act i.e. the National 13 WP No. 28804/2019 & WP No. 717/2020 Security Act, 1980 has the power to revoke the order of detention once passed by him in view of section 10 and Section 14 of the National Security Act, 1980."

The matter be immediately transmitted to Hon'ble the Chief Justice for constituting a larger Bench to decided the aforesaid issues, today itself.

A prayer has been made by the learned counsel Mr Pushyamitra Bhargav that the person so detained be released temporarily keeping in view section 15 of the National Security Act, 1980. As we have already referred the matter, we do not find any reason to pass an order of release and the petitioner cannot be released unless and until the order is set-aside by this court keeping in view the facts and circumstances of the case.

Certified copy today itself.

            (S.C. SHARMA)                    (SHAILENDRA SHUKLA)
               JUDGE                               JUDGE


 Rashmi




Digitally signed by Rashmi
Prashant
Date: 2020.02.13 16:18:39 +05'30'

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