Madhya Pradesh High Court
Mangilal Gupta vs The State Of Madhya Pradesh on 16 July, 2021
Author: Sujoy Paul
Bench: Sujoy Paul, Anil Verma
1 W.P. No.10286/2021
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
WP No.10286/2021
Mangilal Gupta ......................... Petitioner
Vs.
State of MP & Others ..........................Respondents
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Coram:
Justice Sujoy Paul, Judge
Justice Anil Verma, Judge
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Presence :
Shri Manish Kumar Vijaywargiya, Advocate for the petitioner.
Shri Pushyamitra Bhargav, learned Additional Advocate
General for the respondents/State.
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Whether approved for reporting : No
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ORDER
(Passed on this 16th day of July, 2021) Sujoy Paul, J. :
This petition filed under Article 226 of the Constitution challenges the detention order dated 19/05/2021 whereby the District Magistrate, Indore has detained the son of the petitioner (detenu) by invoking Section 3 of National Security Act, 1980 (hereinafter called "NSA Act").
2) Criticizing this order, Shri Manish Kumar Vijaywargiya, learned counsel for the petitioner submits that the detenu was arrested in Crime No.474/2021 on 13/05/2021. The Superintendent of Police recommended detention of detenu on 18/05/2021 (Annexure P/3). In turn, the District Magistrate passed the impugned order on 2 W.P. No.10286/2021 19/05/2021.
3) Learned counsel for the petitioner submits that petitioner's name does not find place in the FIR. The petitioner is subsequently arraigned during investigation on the basis of a memorandum of co-
accused prepared under Section 27 of Indian Evidence Act. The detenu was already in custody when detention order was passed. Three ingredients which are required to be satisfied for such detention, are not fulfilled. There is no criminal record of the detenu. The reliance is placed on (1980) 4 SCC 544 (Shalini Soni (Smt.) & Ors. vs. Union of India & Ors.) to bolster the submission that District Magistrate has passed the order without application of mind.
4) Shri Pushyamitra Bhargav, learned Additional Advocate General supported the impugned order by contending that the necessary parameters on the strength of which power under Section 3 of NSA Act can be invoked were taken care of by learned District Magistrate. There is no illegality in the decision making process. This Court has dismissed similar petitions.
5) In rejoinder submissions, Shri Manish Kumar Vijaywargiya, learned counsel for the petitioner submits that the ground of detention shows that necessary ingredients for detaining a person, who is already under arrest were not satisfied by the District Magistrate.
6) No other point is pressed by learned counsel for the parties.
7) We have heard the learned counsel for the parties at length and perused the record.
8) The points raised by learned counsel for the parties are no more res integra. This Court in WP No.9792/2021 (Yatindra Verma vs. State of MP & Ors.) opined as under:-
"29) In (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.) it was again held that while detaining a person, who was already arrested, due care should be taken and it must be shown (i) regarding knowledge of detaining authority about detenu custody,
(ii) real possibility of detenu's released on bail and (iii) 3 W.P. No.10286/2021 necessity of preventing him from indulging in activities prejudicial to the security of State maintenance of public order upon his release on bail."
(Emphasis supplied)
9) If the said test is applied in the present case, it will be clear that the detention order dated 19/05/2021 shows that the District Magistrate was aware that petitioner has already been arrested. Secondly, the order of detention shows that District Magistrate was not oblivious of the fact that there is real possibility of detenu's release on bail. Thirdly, considering the extreme crisis situation prevailing at Indore, the District Magistrate opined that release of petitioner may have adverse impact on 'public order' and it is necessary to detain him from preventing him from indulging in activities prejudicial to maintenance of 'public order'.
10) This Court in WP No.9846/2021 (Manikant Asati vs. State of MP & Ors.) considered almost analogous provision (Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980) and applied the test mentioned in Yatindra Verma (supra). This Court held as under:-
"8) Shri Tiwari, learned counsel for the petitioner rightly pointed out that three necessary ingredients needs to be satisfied for passing a detention order against a person who is already under arrest. The first requirement regarding knowledge of detaining authority about his arrest is admittedly satisfied as per contention of Shri Tiwari. Situation regarding two remaining conditions needs to be looked into. The condition remaining is possibility of grant of bail for the detenu. The whole argument of Shri Bhoopesh Tiwari is based on a fact that on the date when detention order was passed, no bail application was pending consideration before a Court of law. Merely because no bail application was pending on that day, it cannot be said that the likelihood of getting bail to the detenu in future was not there. Similarly, the question of producing any specific material in relation to an activity of this nature relatable with past does not arise in the peculiar facts and circumstances of this case. This pandemic related situation has arisen after more than 100 years (after the spanish flu which threatened the 4 W.P. No.10286/2021 humanity in the year 1918). The entire civilization was facing an extreme crisis because of shortage of oxygen, medicines, injections, hospital beds and other facilities.
In Yatindra Verma (supra), this Court poignantly held that for blackmarketing of remedesivir injection the "public order" is put to jeopardy and thus, Section 3 of the detention law can very well be invoked.
9) No doubt, ordinarily the Blackmarketing Act can be invoked when there is some material to show that the detenu has indulged in similar activities in past, but it cannot be forgotten that in the peculiar factual matrix of this case, there was no question of availability of any past record of getting indulged in blackmarketing of remedesivir injection. Putting it differently, the demand of remedesivir injection arose because of the pandemic and, therefore, before pandemic, there could not have been any past record of petitioner related to blackmarketing of remedesivir injections or any such drug. This is trite that judgment of a Court should not be read as Euclid's Theorem.[See: Bharat Petroleum Corporation Ltd. Vs. N.R.Vairmani (2004) 8 SCC 579, C.Ronald Vs.UT Andaman & Nicobar Islands (2011) 12SCC 428, Deepak Bajaj Vs. State ofMaharashtra (2008) 16 SCC 14] Hence in the peculiar facts and circumstances of this case, the judgments cited by Shri Tiwari cannot be pressed into service.
10) In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd & Ors. (2003) 2 SCC 111, the Apex Court poignantly held that the precedential value of a judgment depends on the facts and circumstances of a case. One different fact may change the precedential value of a previous judgment. In this pandemic era, the era of extreme crisis one singular incident of indulging in blackmarketing, in our opinion is sufficient to invoke Blackmarketing Act and no fault can be found on this account in the order of detention.
11. The Apex Court in (1986) 4 SCC 407 (Rajkumar Singh vs. State of Bihar) opined as under:-
"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)
12. Blackmarketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking Section 3 of Blackmarketing Act against the petitioner by District 5 W.P. No.10286/2021 Magistrate."
(Emphasis supplied)
11) A plain reading of the aforesaid analysis in the case of Manikant Asati (supra) leaves no room for any doubt that during pandemic crisis wherein the nation in general and Indore in particular was facing extreme crisis because of paucity of injections, medicines, oxygen, hospital beds etc, singular act of blackmarketing of remedesivir injection is sufficient to invoke Section 3 of NSA Act against the petitioner. This pandemic situation has arisen almost after 100 years from previous pandemic of Spanish flu. In this scenario, it cannot be held that NSA Act can be invoked only when petitioner has past record of similar nature. This aspect was considered in extenso in Manikant Asati (supra) and it was poignantly held that judgments on this point (mentioned in para-9 of judgment of Manikant Asati) are distinguishable.
12) This Court in WP No.9878/2021 (Sonu Bairwa vs. State of MP & Ors.) opined as under:-
"19. Blackmarketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking Section 3 of NSA Act against the petitioner by District Magistrate."
(Emphasis supplied)
13) In view of this judgment, the alleged act of blackmarketing the remedesivir injection is sufficient to invoke Section 3 of NSA Act. No flaw in decision making process is established. We find no reason to interfere in this matter. Petition fails and is hereby dismissed.
(SUJOY PAUL) (ANIL VERMA)
JUDGE JUDGE
soumya
Digitally signed
by SOUMYA
RANJAN DALAI
Date: 2021.07.16
15:47:38 +05'30'