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2013 DIGILAW 385 (MP)

Islamuddin @ Chhotiya v. State of M. P.

2013-03-20

J.K.MAHESHWARI, SHANTANU KEMKAR

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JUDGMENT : As per Shantanu Kemkar, J.:- By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 21-9-2012 (Annexure P-1) passed by the District Magistrate, Indore detaining him under Section 3 (2) of the National Security Act, 1980 (for short "the Act") as also the order dated 27-9-2012 passed by the State Government confirming the said detention order. 2. The petitioner's case in brief is that the impugned detention order passed by the District Magistrate and the order of the State Government confirming the same have been passed contrary to the facts on record and against the law. According to him, cut of the list of 13 cases on the basis of which the order of detention has been passed are of minor nature and except one all the cases have been decided long back. The only pending case, which is about the alleged incident dated 17-9-2012 cannot be made basis for his detention under the Act. He has also alleged non-compliance of the provisions of Section 3 and Section 10 of the Act. According to him, there are various procedural illegalities in the action taken against him and as such the impugned order of detention and the order of confirmation are liable to be quashed. He further submits that the offence alleged against him cannot be said to affect the public order so as to attract the provisions of the Act. 3. The respondents have filed reply and have supported the order of detention as well as the order of confirmation of it by the State Government. 4. During the course of hearing, the only point raised by Shri Sanjay Sharma, learned Counsel for the petitioner is that there is violation of the provision contained in sub-section (5) of Section 3 of the Act on the part of the State Government. He submits that when any order is made or approved by the State Government the State Government is required to report within 7 days the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. Drawing our attention to the wireless message dated 9-10-2012 (Annexure R-11) sent by the Under Secretary, Government of M.P. to the Deputy Secretary, Home Central Government, New Delhi, Shri Sanjay Sharma, learned Counsel for the petitioner urged that the confirmation order of the State Government which was passed on 27-9-2012 was required to have been reported to the Central Government within seven days as provided under Section 3 (5) of the Act but the same has been reported after 11 days and that too without there being any mention about the grounds on which the order has been passed and other particulars necessitating passing of the order. In the circumstances, he submits that there is clear violation of the provisions contained in Section 3 (5) of the Act and, therefore, on this ground alone the impugned orders are liable to be quashed. 5. In support of the aforesaid prayer, Shri Sanjay Sharma, learned Counsel for the petitioner relied on the judgment of the Supreme Court passed in the case of Rekha Vs. State of Tamil Nadu, (2011) 2 SCC (Cri) 596 = (2011) 5 SCC 244 , in which the Supreme Court has observed that law of detention should be strictly construed and confined to narrow limits of rare and exceptional cases, and meticulous compliance with procedural safeguards should be made mandatory. It has also been held by the Supreme Court that the personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the Detaining Authority to show that the impugned detention meticulously accords with the procedure established by law. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. 6. Having considered the aforesaid submissions and the law laid down by the Supreme Court, we find that not only the approval of the detention was reported by the State Government to the Central Government beyond the period of 7 days but it also lacks necessary ingredients of Section 3 (5) of the Act in it. 6. Having considered the aforesaid submissions and the law laid down by the Supreme Court, we find that not only the approval of the detention was reported by the State Government to the Central Government beyond the period of 7 days but it also lacks necessary ingredients of Section 3 (5) of the Act in it. In the circumstances in our considered view, there is clear violation of the provisions contained in Section 3 (5) of the Act, the compliance of which was mandatory in view of the law laid down by the Supreme Court in the case of Rekha Vs. State of Tamil Nadu (supra). 7. As a result, the impugned order of detention and its confirmation order passed by the State Government are liable to be and are hereby quashed. 8. The petitioner be set at liberty forthwith, if he is not required to be detained in any other case. 9. The petition stands allowed. No orders as to costs.