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Hon'ble Narendra Kumar Johari,J.

(Per: Hon'ble Mahesh Chandra Tripathi, J.)

1. We have heard Shri Daya Shankar Mishra, learned Senior Advocate, assisted by Shri Chandrakesh Mishra, Advocate and Shri Abhishek Mishra, Advocate appearing for the petitioner; Shri Syed Ali Murtaza, learned Additional Government Advocate for the State-respondent nos.1 to 3 and Shri Kuldeep Singh Chauhan, learned Standing Counsel for the Union of India (respondent no.4).

2. Present Habeas Corpus Writ Petition under Article 226 of the Constitution of India has been filed by the petitioner, who is in custody in District Jail, Varanasi since 02.3.2022, seeking issuance of a Writ of Habeas Corpus challenging the impugned detention order dated 15.3.2022 passed by the District Magistrate, Varanasi (respondent no.2) under Section 3 (2) of National Security Act, 1980 (in short, NSA, 1980) and the entire consequential proceedings and continued detention as being illegal and unconstitutional. Further prayer has been made to issue a writ of mandamus commanding the respondents to release the petitioner from custody.

3. The detention order dated 15.3.2022 states that the District Magistrate has been satisfied that it has become necessary to pass a detention order under Section 3 (2) of the NSA, 1980 to prevent the petitioner from acting in any manner, which would be prejudicial to the maintenance of public order. The grounds of detention are contained in a separate communication of the same date issued by the District Magistrate, wherein it has been stated that an information has been received by the Special Task Force, Varanasi on 02.2.2022 that a gang is preparing fake Covid vaccine injections and testing kits and selling these items to the innocent peoples to gain illegal profits during the pandemic era thereby endangering human life. On receipt of the said input, raid was conducted at the premises in question and vaccine vial, wrapper of vaccine, goods of packing, packing machine and other articles were recovered from the spot. After interrogation, the accused persons admitted that they were making fake Covid vaccines, fake Covid test kits and fake Ramedisivir injections and with the help of petitioner, they were selling the same in Delhi and other States. Regarding the said incident, the first information report was lodged on 02.2.2022, registered as Case Crime No.48 of 2022 under Sections 149, 420, 467, 468, 471, 274, 275, 276 IPC; Section 3 of Pandemic Act and Section 67 of Copyright Act, Police Station Lanka, District Varanasi and the petitioner was arrested and sent to District Jail, Varanasi on 03.2.2022.

5. Shri Daya Shanker Mishra, learned Senior Advocate appearing for the petitioner has assailed the impugned order of detention on various grounds. He has stated that the detention order is passed without there being any cogent material. If the allegation against the petitioner is that he was involved in preparing and black marketing the fake Covid vaccine and Remdisivir injections, for the said act the authority had ample powers to take recourse of the ordinary penal laws, which can take care of the alleged offences committed by the petitioner. Therefore, there was no justification for exercising the drastic power conferred under NSA, 1980. He further submitted that no act of present petitioner can be said to be a threat to public order or national security. There is a marked difference between 'public order' and 'law and order'. In any view of the matter, the activity as alleged against the detenue can at best be said to be the disturbance to the 'law and order situation' but the same cannot be put in the category of disturbance of 'public order'. Addressing the point about scope of judicial review of the detention order, it was also 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. He submitted that a person can be detained under NSA, 1980 even if he was already arrested provided certain parameters are fulfilled. 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 are required to be gone into by the District Magistrate. There exists no such independent application of mind. The order of detention is also bad in law on the ground that the detaining authority has considered solitary offence, which came to be registered against the petitioner which is not covered within the definition of Section 3 (2) of NSA, 1980. On 25.3.2022, i.e. on the date of passing of the detention order, the petitioner was already in custody and there was no possibility of the petitioner acting in any manner prejudicial to the maintenance of public order and in these circumstances, the provisions of Section 3 (2) of the NSA, 1980 are not attracted and the detention order is unsustainable in law.

16. Heard rival submissions and perused the record.

17. From the record it is apparent that the STF, Varanasi received the information on 02.2.2022 that the gang was preparing and selling fake Covid vaccine injections & testing kits. On receipt of the said information, the raid was conducted by the authorities at the premises in question and recovered vaccine vial, wrapper of vaccine, goods of packing, packing machine and other articles. Upon interrogation, accused persons admitted that they were making fake Corona vaccines, fake Covid test kits and fake Ramedisivir injections and with the help of petitioner, they are selling the same in Delhi and other States. After going through the entire records the District Magistrate, Varanasi has passed the impugned order dated 15.3.2022, whereby the petitioner has been detained under Section 3 (2) of NSA and at that point of time, the petitioner was under detention in District Jail, Varanasi. The impugned detention order alongwith grounds of the detention and all relevant materials were served upon the petitioner through the Jail authorities on the same day i.e. 15.3.2022 to afford him the opportunity for making an effective representation. The District Magistrate sent a report to the State Government about the passing of detention order together with the grounds of the detention and all the particulars bearing on the same. The said report and the particulars were considered by the State Government and it approved of the detention order under sub-section (4) of Section 3 of the NSA, 1980 and sent a report to the Central Government under Section 3 (5) of the NSA, 1980. The State Government forwarded the case of the petitioner to the Advisory Board in due course under Section 10 of the NSA, 1980 along with detention order together with the grounds of detention. The representation made by the petitioner to the State Government was also placed before the Advisory Board. The Board considered the material placed before it, including the representation of the petitioner and after hearing the petitioner in person, sent its report to the State Government. According to the Board there was sufficient cause for detention of the petitioner. In pursuance of the opinion expressed by the Advisory Board the State Government, in exercise of its powers under subsection (1) of section 12 of the NSA, 1980 confirmed the order for detention of the petitioner and the same was communicated to the petitioner. The District Magistrate, Varanasi, who had passed the impugned order, has filed a counter affidavit to which the petitioner has filed his rejoinder affidavit. In his counter affidavit, the District Magistrate has explained the circumstances, which led to the issuance of the detention order. The State respondents while filing the counter affidavit have also brought on record the dossier relating to the petitioner (Annexure CA No.3). There was ample material to form the subjective satisfaction that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order and authority, it was necessary to detain the said person and consequently, the detention order was passed on 15.3.2022. The State respondents have also complied with the timeline as contemplates in Section 3 (4) and (5) of the NSA, 1980. It also reveals from the counter-affidavit filed by Union of India dated 10.8.2022 that the representation dated 27.3.2022, which was moved by the petitioner, was forwarded to the Central Government and was also rejected on 11.4.2022. The same was duly communicated to the detenue on 13.4.2022. We do not come across any illegality committed at any stage of proceeding.