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Madhya Pradesh High Court · body

2015 DIGILAW 1211 (MP)

PRADEEP v. STATE OF M. P.

2015-11-30

D.K.PALIWAL, S.C.SHARMA

body2015
ORDER : 1. The petitioner before this Court is aggrieved by order dated 19.11.2013 passed by District Magistrate, Bhind in exercise of powers conferred under Section 3 of the National Security Act, 1980 (in short, The Act of 1980). 2. The facts of the case reveal that the Superintendent of Police submitted a report on 2.11.2013 for initiating action against the petitioner under the provisions of the Act of 1980 and a show cause notice was issued to the petitioner. The petitioner did submit reply and stated that he is a political worker and, therefore, proceedings have been initiated against him under the Act of 1980. The reply of the petitioner was considered and a final order has been passed on 19.11.2013. The petitioner did submit reply and stated that he is a political worker and, therefore, proceedings have been initiated against him under the Act of 1980. The reply of the petitioner was considered and a final order has been passed on 19.11.2013. The order passed by District Magistrate reads as under:- U;k;ky; ftyk n.Mkf/kdkjh] ftyk fHk.M ¼e0iz0½ dzekad D;w@jhMj@Mh,e@70@2013@jklqdk@673 fHk.M] fnukad 19 uoEcj] 2013 izfr] iqfyl v/kh{kd] ftyk fHk.M] fo"k;% vukosnd iznhi iq= gfjeksgu flag dq'kokg] mez 30 lky fuoklh jksgkuh lhaxiqjk Fkkuk ygkj] ftyk fHk.M ds fo:) jk"V~ªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3@2 ds rgr dk;Zokgh fd;s tkus ckcr~A fnukad 19-11-2013 dks esjs }kjk vukosnd iznhi iq= gfjeksgu flag] dq'kokg] mez 30 lky] fuoklh jksgkuh lhaxiqjk Fkkuk ygkj] ftyk fHk.M dks jk"Vªh; lqj{kk vf/kfu;e 1980 dh /kkjk 3¼2½ ds varxZr fujks/k esa ysus dk vkns'k ikfjr fd;k x;k gSA i= ds layXu fgUnh o vaxzsth vkns'k dh izfr] fujks/k esa fy;s tkus ds vk/kkj Hksts tk jgs gSaA d`i;k fujks/k esa fy;s tkus okys O;fDr dks rkehy djkbZ tkdj ,oa ,d izfr dsUnzh; tsy Xokfy;j esa nkf[ky djrs le; tsy v/kh{kd ds le{k rkehy djkdj nks Lora= lkf{k;ksa dh rLnhd ds lkFk rkehyh izfrosnu bl dk;kZy; dks fHktokus dk d"V djsaA 2- vukosnd ds firk vFkok mlds ifjokjtu dks vukosnd ds fujks/k esa fy, tkus dh lwpuk nh tkos rFkk lwpuk dh fyf[kr vfHkLohd`fr bl dk;kZy; dks fHktokus dk d"V djsaA 3- vukosnd iznhi iq= gfjeksgu flag dq'kokg] mez 30 lky fuoklh jksgkuh lhaxiqjk Fkkuk ygkj] ftyk fHk.M dks fujks/k esa ysus dh lwpuk rRdky ok;jySl ls izeq[k lfpo] e0iz0 'kklu] x`g foHkkx lh vuqHkkx ea=ky;] oYyHk Hkou Hkksiky dks Hkstdj bl dk;kZy; dks Hkh lwfpr djus dk d"V djsaA 4- fujks/k ds vk/kkj rFkk vU; fooj.k bl i= ds lkFk layXu dj Hkstk tk jgk gSA ftUgsa fujks/kh dks fu"ikfnr djkdj ikorh 24 ?kUVs ds vUnj bl dk;kZy; dks fHktokus dk d"V djsaA layXu% mijksDrkuqlkj ftyk n.Mkf/kdkjh ftyk fHk.M i`0dzeka0 D;w@jhMj@Mh,e@70@2013@jklqdk@674 fHk.M] fnukad 19 uoEcj] 2013 izfrfyfi] 1- v/kh{kd dsUnzh; tsy Xokfy;j dh vksj lwpukFkZ ,oa vko';d dk;Zokgh gsrqA layXu% fujks/k vkns'k fgUnh ,oa vaxzsth dh ,d izfr ,oa mijksDrkuqlkjA 2- Fkkuk izHkkjh ygkj ftyk fHk.M dh vksj lwpukFkZ ,oa vko';d dk;Zokgh gsrqA ftyk n.Mkf/kdkjh ftyk fHk.M 3. The representation (Annexure P-2) was preferred before the State Government. 4. The learned Govt. The representation (Annexure P-2) was preferred before the State Government. 4. The learned Govt. Advocate fairly stated before this Court that he is not aware of order passed by the State Government. 5. Learned counsel for the petitioner vehemently argued before this Court that the impugned order is bad in law, keeping in view Section 3 sub-section (3) of the Act of 1980 as the period of detention has not been prescribed in the impugned order. He has vehemently argued before this Court that there cannot be a detention for an indefinite period under the Act of 1980. He has placed heavy reliance on a judgment of Division Bench of this Court in the case of Bhaiya @ Bhaiyalal @ Arvind v. State of M.P. Reported in 2013(3) MPHT 495 (DB). Paragraphs 9 and 10 of the aforesaid judgment reads as under:- 9." In addition to the aforesaid, It is seen that in the order of detention of the District Magistrate dated 28.7.2012, the period of detention has not been specified. In the order of approval by the State Government also the period of detention has also not been specified. The period of detention of one year at the first time mentioned in the order of confirmation passed on 21.9.2012 (Annexure P-7). In the sad context, the provisions of subsections (2), (3) and (5) of Section 3, as well as Section 12 of the Act is relevant which are reproduced hereunder:- "3. Power to make orders detaining certain persons.- (1) *** (2) The Central Government or the State Government may, if satisfied with respect to any persons what with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner 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 it is necessary so to do, make an order directing that such person be detained. Explanation:- For the purposes of this subsection, 'acting in any manner prejudicial to the maintenance of supplies and services essential to the community' does not include 'acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community' as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner or Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section: Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order or extend such period from time to time by any period not exceeding three months at any one time. (5) When any order is made or approved by the State Government under this section, the State Government shall within seven days, report 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. 12. Action upon the report of the Advisory Board.- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. 12. Action upon the report of the Advisory Board.- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith." 10. Bare reading of the aforesaid, it is apparent that the order of detention in writing can be passed within the local limits by the District Magistrate directing that the detenue for the specified period shall remain in detention. The said order shall be passed in exercise of the powers under sub-section (2) of Section 3 of the Act. The proviso makes it clear that the period specified in an order made by the State Government under this sub-section shall not in the first instance exceed three months, but on having satisfied that detention is necessary then by extending it for the period from time to time by passing an order of three months may be extended at any time. In the said context, as per order of the Detaining Authority dated 28.7.2012 and the order of approval communicated on 13.8.2012 and in both these orders, the period of detention has not been specified. The period of detention is only specified in the order of confirmation passed in exercise of the power as conferred under Section 12(1) of the Act, therefor, also at initial stage, when the petitioner was taken into custody, he was unaware regarding the period of his detention, therefore, compliance of subsection (3) of Section 3 and its proviso has not been made by the Detaining Authority or by the State Government. As per reading of the proviso of sub-section (3), it is made clear that initial period of detention shall be three months, which may be extended, but in case where the period of detention has not been specified in the order of detention, it would amount to non-compliance of the said provision. As per reading of the proviso of sub-section (3), it is made clear that initial period of detention shall be three months, which may be extended, but in case where the period of detention has not been specified in the order of detention, it would amount to non-compliance of the said provision. It is further seen from the record that the order passed by the Detaining Authority or by the State Government has not been communicated to the Central Government. Either in the order of detention or approval or confirmation of the petitioner, the copy has not been sent to the Central Government. No document showing compliance of Section 3 (5) of the Act has been filed. Though to show compliance it is the duty of the State Government to send the order of detention and the ground of detention to the Central Government within 7 days. In absence thereto, noncompliance of sub-section (5) of Section 3 also appears on the face of record." 6. The Division bench has taken care of Section 3 subsection (3) as well as proviso to sub-section (3) while deciding aforesaid matter and it has been held that the order of detention has to be passed for a specific period and in the present case the period has not been specified, and, therefore, in the considered opinion of this Court, in the light of judgment delivered by the Division Bench, the impugned order of detention deserves to be set aside. 7. Not only this, another point has been argued by learned counsel for the parties regarding maintainability of the petition as the petitioner has not been detained so far by virtue of order dated 19.11..2013. The Division Bench of this Court in the case of Rinku @ Kuldeep Shukla v. state of M.P. And others reported in 2015(3) MPLJ 157 has dealt with the aforesaid issue. Paragraphs 5 and 6 of the aforesaid judgment reads as under:- "5. The Division Bench of this Court in the case of Rinku @ Kuldeep Shukla v. state of M.P. And others reported in 2015(3) MPLJ 157 has dealt with the aforesaid issue. Paragraphs 5 and 6 of the aforesaid judgment reads as under:- "5. Before we advert to rival submissions advanced on the strength of the respective pleadings, it is considered apposite to observe that challenge to the detention order is at the pre-execution stage, as so far the petitioner has not been detained, therefore, judicial scrutiny of the impugned order shall be in a way different from the challenge to the same order at post execution stage, i.e. after detention, as detailed Writ Petition No. 1603/2015 (Rinku @ Kuldeep Shukla v. State of Madhya Pradesh and others) and circumscribed in the context of extraordinary constitutional jurisdiction of the Supreme Court and High Courts under Article 32 and 226 of the Constitution of India. The Hon'ble Supreme Court in the case of Additional Secretary to the Government of India and Others v. Smt. Alka Subhash Gadia and another, 1992 Supp (1) SCC 496 considered contentions advanced in the context of judicial review under Article 226 and 32 of the Constitution of India regarding challenge to the detention order at pre-execution stage. The Court held that judicial review being a part of basic structure of the Constitution of India, the aforesaid powers of the High Courts and Supreme Court are sacrosanct and cannot be circumscribed by any law including detention law. Therefore, detention order can be challenged at any stage and the artificial distinction between the pre-decisional and post decisional challenge is inconsistent with and alien to the wide powers of the High Courts and Supreme Court under Article 226 and 32 of the Constitution of India. The Court, however, noted that the power must be exercised keeping in mind the self-restraint and with circumspection. The Court, however, noted that the power must be exercised keeping in mind the self-restraint and with circumspection. It went on to explain the nature, extent, limit, scope, ambit and dimension of the powers of the Supreme Court and High Court under Articles 32 and 226 of the Constitution of India and has stated that there is no restriction on the powers of the superior Courts either by the Constitution or by any statutory enactment, but over the years certain self-restraints for exercising these powers have been observed, as a mark of judicial discipline Writ Petition No. 1603/2015 (Rinku @ Kuldeep Shukla v. State of Madhya Pradesh and others) and in the interest of administration of justice. Such self imposed restrictions or restraints are not only confined to reviewing the orders passed under detention law, but also the orders passed and decisions made under all laws. Therefore, bearing in mind the aforesaid self-evolved judicial policy and in conformity with the self imposed internal restrictions the superior Courts insisted that the aggrieved person first shall be allowed the due operation and implementation of the concerned law and, therefore, before approaching the High Court or the Supreme Court invoking their extraordinary constitutional and equitable jurisdiction, the petitioner must exhaust the remedies provided to him under the relevant laws. Therefore, exercise of such powers by the superior Courts shall depend upon facts and circumstances of each case. As far as detention orders are concerned, it is held that if in every case a detenu is permitted to challenge and seek stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated, since such orders are in the operation only for a limited period. However, Courts have powers to entertain grievances against any detention order prior to its execution, but the grounds on which Courts have interfered with such challenges to the detention orders at pre-execution stage are necessarily very limited in scope and number viz. However, Courts have powers to entertain grievances against any detention order prior to its execution, but the grounds on which Courts have interfered with such challenges to the detention orders at pre-execution stage are necessarily very limited in scope and number viz. where Courts are prima facie satisfied (I) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a Writ Petition No.1603/2015 (Rinku @ Kuldeep Shukla v. State of Madhya Pradesh and others) wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. A note of caution is also struck that refusal by the Courts to exercise extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. (Emphasis supplied)" The aforesaid five circumstances detailed by the Hon'ble Supreme Court though in fact were illustrative in nature, but have all along been understood and applied in the matters of challenge to detention order of pre-execution stage in strict and literal sense by the superior Courts. But, in the case of Subhash Popatlal Dave v. Union of India and another, (2012) 7 SCC 533 the Hon'ble Supreme Court has considered the aforesaid judgment and explained that nowhere in Alka Subhash Gadia's (supra) case it has been indicated that challenge to a detention order at pre-execution stage can be made only in the five exceptions referred therein. It has been held as under:- "By prefacing the five exceptions in which the courts could interfere with an order of detention at the pre-execution stage, with the expression "viz.", Their Lordships possibly never intended that the said five examples were to be exhaustive. In common usage Writ Petition No. 1603/2015 (Rinku @ Kuldeep Shukla v. State of Madhya Pradesh and others) or parlance the expression "viz." means "in other words". There is no aura of finality attached to the said intended expression. The use of the expression suggests that the five examples were intended to be examplars and are not exhaustive. In common usage Writ Petition No. 1603/2015 (Rinku @ Kuldeep Shukla v. State of Madhya Pradesh and others) or parlance the expression "viz." means "in other words". There is no aura of finality attached to the said intended expression. The use of the expression suggests that the five examples were intended to be examplars and are not exhaustive. On the other hand, the Hon'ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power. 47. With due respect to the Hon'ble Judges in Sayed Taher Bawamiya case, (2000) 8 SCC 630 , we have not been able to read into the judgment in Alka Subhash Gadia case any intention on the part of the Hon'ble Judges, who rendered the decision in that case, that challenge at the pre-execution stage would have to be confined to the five exceptions only and not in any other case. Both the State and the Hon'ble Judges relied on the decision in Sayed Taher Bawamiya case. As submitted by Mr. Rohtagi, to accept that it was the intention of the Hon'ble Judges in Alka Subhash Gadia case to confine the challenge to a detention at the pre-execution stage, only on the five exceptions mentioned therein, would amount to imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Article 226 and 32 of the Constitution. The exercise of powers vested in the superior courts in judicially reviewing executive Writ Petition No. 1603/2015 (Rinku @ Kuldeep Shukla v. State of Madhya Pradesh and others) decisions and orders cannot be subjected to any restrictions by an order of the court of law. Such powers are untrammelled and vested in the superior courts to protect all citizens and even non-citizens, under the Constitution, and may require further examination." Therefore, with the aforesaid enunciation of law it is vividly clear that the challenge to detention order at pre-execution stage is not confined to grounds as cataloged in Alka Subhash Gadia's (supra) case. But, challenge may also be made on grounds touching the jurisdictional issues akin to the aforesaid five exceptions in the matter of passage of detention order. 6. But, challenge may also be made on grounds touching the jurisdictional issues akin to the aforesaid five exceptions in the matter of passage of detention order. 6. Before we address on the moot question 'whether the impugned order of detention can be construed to have been passed for maintenance of public order under Section 3 (2) of the Act of 1980 or in fact the aforesaid order need to be construed as an order passed for maintenance of law and order in the backdrop of grounds ex facie, as filed Annexure P/2 supplied to the petitioner, it is necessary to restate the law as laid down by the Hon'ble Supreme Court drawing legal distinction with different consequences flowing therefrom between 'public order' and 'law and order'. 8. The Division bench presided over by Hon'ble Chief Justice in the aforesaid case has held that the petition is maintainable at pre-execution stage also. 9. Keeping in view the aforesaid judgment, in the considered opinion of this Court, the petition is certainly maintainable and the net result is that the impugned order dated 19.11.2013 is hereby quashed. 10. Another important aspect of the case is that the petitioner has been detained on the basis of seven cases registered against him. In the present case, the petitioner has been slapped with the order of detention under the National Security Act by taking into account seven cases. The first case is at Crime No. 0/97 for the offence under Sections 397 and 307 of IPC in which the petitioner has been acquitted by the Court. The other case is at Crime No. 16/99 and again the petitioner has been acquitted by the court. In respect of third case at Crime No. 57/00 which is for offence under Sections 186, 147, 148, 353 and 506 of IPC. The fourth case is at Crime No. 145/09 for the offence under Sections 399 and 420 of IPC. The fifth case is at Crime No. 241/11, which is for the offence under Sections 341, 294, 148, 148 and 149 of IPC. The same is also pending. The sixth case is at Crime No. 260/11 and he has been acquitted in the aforesaid case. In respect of Crime No. 193/13, which is for the offence under Sections 304 and 34 of IPC, the matter is under investigation. The same is also pending. The sixth case is at Crime No. 260/11 and he has been acquitted in the aforesaid case. In respect of Crime No. 193/13, which is for the offence under Sections 304 and 34 of IPC, the matter is under investigation. Meaning thereby, out of seven cases the petitioner has been acquitted in three cases. The trial is pending in two cases and one case is under investigation. However, as this Court has quashed the order of detention, as it was contrary to the statutory provision, no further comments are required to be passed in respect of pending cases. Petition stands allowed. No orders as to cost.