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2014 DIGILAW 1359 (MP)

Vishal Sharma v. Union of India

2014-10-17

A.M.KHANWILKAR, ALOK ARADHE

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JUDGMENT : A.M. Khanwilkar, CJ. This writ petition, under Article 226 of the Constitution of India, is filed by the detenu Vishal Sharma who came to be detained pursuant to order passed by the District Magistrate, Katni dated 2nd April, 2014 (Annexure P-1) in exercise of power under Section 3(2) of the National Security Act, 1980 and which detention was confirmed by the State Government consequent to the opinion of the Advisory Board vide order dated 20th May, 2014 (Annexure P-4) issued under the signature of Under Secretary, Home Department (C-Section), Government of Madhya Pradesh. Both these decisions are subject matter of challenge in this petition. 2. The petitioner has raised three contentions before us. The first is on the basis of the decision of the Division Bench of this Court (Bench at Indore) in the case of Mohaseen Kureshi s/o Nasir Kureshi vs. State of Madhya Pradesh & others, W.P.No.1158/2014 decided on 1.9.2014. The second contention is that the District Magistrate had no authority to issue order under Section 3(2) of the Act of 1980. The third contention is that the subjective satisfaction of the detaining Authority is vitiated on account of non-mentioning and non consideration of the vital fact that the petitioner/detenu was already in jail in connection with criminal case referred to in the grounds of detention in paragraph 15. The petitioner when placed under detention, pursuant to the impugned detention order was already in jail and had not applied for grant of bail in the said criminal case. 3. To deal with the first contention, we may advert to the relevant facts as under: (i) The District Magistrate, Katni, no doubt, issued detention order against the petitioner by invoking powers under Section 3(2) of the Act of 1980. However, the order dated 2nd April, 2014 makes no reference to the time frame for which the detention order would operate. That detention order was subject matter of proposal considered by the Advisory Board and the Advisory Board approved the same. Consequent to the decision of the Advisory Board, the State Government issued order under Section 12(1) of the Act of 1980 on 20th May, 2014. Indeed, this order refers to the detention period as 12 months i.e. up to 1st April, 2015. Consequent to the decision of the Advisory Board, the State Government issued order under Section 12(1) of the Act of 1980 on 20th May, 2014. Indeed, this order refers to the detention period as 12 months i.e. up to 1st April, 2015. (ii) The Division Bench of this Court in the case of Mohaseen Kureshi (supra), relying on the recent decision of Apex Court in Cherukuri Mani Vs. The Chief Secretary, Government of Andhra Pradesh and Others, AIR 2014 SC 2090 , was pleased to quash the detention order passed “by the detaining Authority”, for 12 months, “at the first instance”. The decision of the Supreme Court in the case of Cherukuri Mani (supra) is rendered in respect of provisions of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act. No doubt, the provisions of Section 3(1) of the said Act are comparable and pari materia to Section 3(2) of the National Security Act, 1980. Similarly, sub-section (2) of Section 3 of the Andhra Pradesh Act is pari materia to sub-section (3) of Section 3 of the National Security Act. The observations in the said decision have been therefore, applied by the Division Bench of this Court in the case of Mohaseen Kureshi (supra) on the finding that the impugned order of detention passed in that case by the District Magistrate was for 12 months, at the first instance. That is not the fact situation in the present case. 4. As aforesaid, the order passed at the first instance by the District Magistrate dated 2nd April, 2014 does not refer to any period whatsoever. Non-mention of any period in this order would necessarily mean that it would operate for the period specified in Section 3(3) of the Act of 1980, having been issued by the delegatee. It would have been a different matter if the delegatee were to mention the period of detention of 12 months, at the first instance. Only then, the decision of the Supreme Court, which has been made the basis and applied to the case of Mohaseen Kureshi (supra) would be of some significance and binding on this court. 5. As mentioned earlier, the detention order passed in the first instance does not refer to any time frame for which the said order would operate. Only then, the decision of the Supreme Court, which has been made the basis and applied to the case of Mohaseen Kureshi (supra) would be of some significance and binding on this court. 5. As mentioned earlier, the detention order passed in the first instance does not refer to any time frame for which the said order would operate. It is also noticed that the said detention order was placed before the Advisory Board within the statutory period and has been approved by the Advisory Board. As a consequence of approval by the Advisory Board, the State Government issued order in exercise of powers under Section 12(1) confirming the detention order passed by the District Magistrate and continuing the same for period specified in its order dated 20th May, 2014, for a period of 12 months i.e. up to 1st April, 2015. 6. The respondents have justly relied on the decision of the Supreme Court in the case of Mrs. Harpreet Kaur Harvinder Singh Bedi Vs. State of Maharashtra and another, (1992) 2 SCC 177 . The Supreme Court while interpreting the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981, which are analogous and pari materia to Section 3(2) and 3(3) of the National Security Act respectively, in paragraph 33 observed thus:- “33. A plain reading of the section shows that the State Government under Section 3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of “public order”, it is necessary so to do, make an order of detention against the person concerned. A plain reading of the section shows that the State Government under Section 3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of “public order”, it is necessary so to do, make an order of detention against the person concerned. Sub- section (2) of Section 3 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied, having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be to exercise the powers of the State Government to order detention of a person as provided by sub-section (1), then the State Government may, by an order in writing direct that during such period as may be specified in the order, the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub-section (1), exercise the powers of the State Government as conferred by sub-section (1). The proviso to sub-section (2), only lays down that the period of delegation of powers, specified in the order to be made by the State Government under sub-section (2), delegating to the District Magistrate or the Commissioner of Police the powers under sub-section (1) shall not in the first instance exceed three months. The proviso, therefore, has nothing to do with the period of detention of a detenu. The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act. It is, therefore, futile to contend that the order of detention in the instant case was vitiated because it was for a period of more than three months. The second argument, therefore, also fails.” [Emphasis supplied] 7. Reliance has also been justly placed on another decision of the Supreme Court which has had occasion to examine the purport of similar provisions in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in the case of Vijay Kumar Vs. Union of India (UOI) and Others, (1988) 2 SCC 57 . Reliance has also been justly placed on another decision of the Supreme Court which has had occasion to examine the purport of similar provisions in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in the case of Vijay Kumar Vs. Union of India (UOI) and Others, (1988) 2 SCC 57 . In paragraph 29 of the said decision, the Court considered the argument which has been reiterated before us. The same reads, thus: “29. The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in section 10 of the Act. It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant. This contention, in our opinion, is devoid of any merit. Section 10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given. In confirming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind as to the period of detention. In any event, under section 11 of the Act, a detention order may, at any time, be revoked or modified by the Government. In the circumstances, we do not think that the detenu was in the least prejudiced or that there has been non- application of mind by the Government to the question of period of detention of the detenu. This contention of the appellant also fails. No other point has been urged in this appeal.” [emphasis supplied] It will be useful to reproduce the observations in the separate judgment given by Justice Jagannath Shetty in para 38 which, reads thus:- “38. This contention of the appellant also fails. No other point has been urged in this appeal.” [emphasis supplied] It will be useful to reproduce the observations in the separate judgment given by Justice Jagannath Shetty in para 38 which, reads thus:- “38. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression “as it thinks fit” in Section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention. The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. Section 11 provides for revocation of detention order. The detention order may at any time be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.” 8. Having noticed these judgments, we are of the considered opinion that the decision of the Division Bench of this Court in the case of Mohaseen Kureshi (supra) can be distinguished in the fact situation of this case, as the detention order passed in the first instance by the Authority (District Magistrate), specified under Section 3(3) of the National Security Act, did not provide for any time frame. But, the time frame of detention has been stipulated by the State Government while confirming the said detention order in exercise of powers under Section 12(1) of the Act and that the same was in conformity with the maximum period prescribed in Section 13 of the Act. 9. Turning to the second point urged by the learned counsel for the petitioner, he submits that the detention order under Section 3(2) could be passed, at best, by the State Government and not by the District Magistrate. 9. Turning to the second point urged by the learned counsel for the petitioner, he submits that the detention order under Section 3(2) could be passed, at best, by the State Government and not by the District Magistrate. To buttress this argument, the learned counsel for the petitioner has invited our attention to the provisions of Section 3 of the Act and tried to point out the distinction between the purport of sub-section (1), sub-section (2) and sub-section (3) of the Act. According to him, sub-section (1) of the National Security Act can be invoked only by the Central Government and State Government and not their delegatee - as it pertains to matters involving national security. To wit, the activities which are prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, regulating the continued presence of the detenu in India or with a view to make the arrangements for expulsion of the detenu from India. Whereas, sub-section (2) pertains to matters involving activities prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. For that reason, neither sub-section (1) nor sub-section (2) envisages delegating Authority to any other person or Authority. But that power is required to be exercised only by the Central government or the State Government, as the case may be. 10. Learned counsel further submits that sub-section (3) of Section 3 of the National Security Act is a composite provision not only enabling delegation of power and to pass order ascribable to sub-Section (2) of Section 3 of the Act by the District Magistrate or a Commissioner of Police, within whose local limits of the jurisdiction, they may “find it necessary to” detain any person. Obviously, contends learned counsel, that power can be exercised in the context of matters which are outside the purview of national security or public order referable to sub-section (1) and sub-section (2) of Section 3 of the National Security Act. 11. He further points out that the proviso to sub- section (3) of Section 3 of the Act makes it amply clear that the limited time period of three months would be applicable only if the detention order is passed in exercise of powers conferred under sub-section (3) of Section 3 of the Act by the delegatee. 11. He further points out that the proviso to sub- section (3) of Section 3 of the Act makes it amply clear that the limited time period of three months would be applicable only if the detention order is passed in exercise of powers conferred under sub-section (3) of Section 3 of the Act by the delegatee. For, the expression used in the proviso is that the order made by the State Government “under this sub- section”, which, obviously refers to order passed by the delegatee. In the present case, however, the order has been passed with reference to Section 3(2) by the District Magistrate and for which reason it is without authority of law. 12. Although, this ground has been urged by the petitioner and the learned counsel for the respondents has countered the same. In our opinion, this petition ought to succeed on the sole ground that the subjective satisfaction of the detaining authority is vitiated because the detaining Authority has failed to mention or take into account the fact that the petitioner was already in jail when the order of detention was passed and more so executed on the petitioner whilst in jail. The order was passed on 02.04.2014 and served on the petitioner along with the grounds of detention on the same day while he was in Central Jail, Katni, in connection with the crime to which reference has been made in the ground of detention. Notably, the detaining Authority was aware of the Criminal Case pending against the petitioner/detenu. However, has not shown the same awareness, about the factum of petitioner being in jail in connection with the said criminal case and that there was no impending possibility of his being released on bail, until the order of detention was passed. For, there is nothing on record to even remotely indicate that the petitioner had filed application for grant of bail in relation to the said criminal offence, when his detention proposal was mooted or considered. It necessarily follows that the Detaining Authority has failed to consider the vital factum as to whether detention of the petitioner was imperative. A priori, the subjective satisfaction of the Detaining Authority is vitiated. 13. In our opinion, non consideration of this vital fact vitiates the subjective satisfaction of the Detaining Authority, and for which reason, the impugned detention orders cannot stand the test of judicial scrutiny. A priori, the subjective satisfaction of the Detaining Authority is vitiated. 13. In our opinion, non consideration of this vital fact vitiates the subjective satisfaction of the Detaining Authority, and for which reason, the impugned detention orders cannot stand the test of judicial scrutiny. It is a different matter that the petitioner has been ordered to be released on bail only recently by this Court on 19.09.2014 in M.Cr.C. No.9835/2014 but he has not availed of that bail as he is already in jail, presumably because of the impugned detention order passed against him. 14. Accordingly, the petition succeeds. The impugned orders dated 02.04.2014 (Annexure P-1) and 20.05.2014 (Annexure P-4) are quashed and set aside. The respondents are directed to set the petitioner at liberty forthwith, unless involved in any other crime and has been arrested in connection with that crime.