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2019 DIGILAW 48 (MP)

Nitesh @ Nittu v. State of M. P.

2019-01-11

B.K.SHRIVASTAVA, HULUVADI G.RAMESH

body2019
ORDER 1. This petition has been filed by the petitioner under Article 226 of the Constitution of India seeking quashment of the order of his detention dated 16.11.2018 (Annexure P-1) passed by the District Magistrate, Hoshangabad (Respondent No. 2 herein) in exercise of powers conferred under Sub-section (2) read with (3) of section 3 of the National Security Act, 1980 (for short 'the Act') and Order No.F-31-5/1998/Two-C-1 dated 22.9.2018 issued by Department of Home, State of Madhya Pradesh. 2. According to the petitioner, being a citizen of India, he enjoys all the fundamental rights guaranteed under the Constitution of India. The respondent No. 2 has passed the impugned order and directed to send the petitioner to Central Jail, Jabalpur and in the order of detention the District Magistrate has formed an opinion that there are eight cases against the petitioner, which are listed in the detention order and there is likelihood of disturbance of public order and further the petitioner is involved in criminal activities. It is further stated in the detention order that from the aforesaid criminal record it is clear that the petitioner is continuously involved in various criminal activities since 2014 and his criminal activities are getting intensified. There is apprehension of disturbance of public order and peace as the large section of public has developed feeling of outrage, insecurity and their normal life is affected and further looking to the upcoming election it is necessary that the petitioner be detained. However, the detenue was made aware of his right to make representation to the Government. 3. According to the petitioner, he being an educated person belongs to Scheduled Caste community and is engaged in the work of lightening, decoration/contractor etc. It is further contended that his brother namely Dharmendra is at present District President of Bahujan Samaj Party (BSP). His brother contested the election of Legislative Assembly in the year 2013 and in order to tarnish the reputation of his brother, the impugned action has been taken against the petitioner. It is further submitted that the cases have been registered against the petitioner on account of political influence of ruling party and on account of political pressure, the order of detention has been passed against the petitioner under the Act. It is further submitted that the cases have been registered against the petitioner on account of political influence of ruling party and on account of political pressure, the order of detention has been passed against the petitioner under the Act. Furthermore, the detention order of the petitioner was passed without application of mind as there are no compelling reasons justifying such detention despite the fact that all the cases are pending and were registered due to political influence of ruling party. 4. This petition has been filed on the grounds that the detaining Authority failed to appreciate that in case the petitioner is released, his activity would not be prejudicial to the maintenance of public order, as such the order is said be bad in law. It is also contended that the District Magistrate failed to appreciate that on recommendation of Superintendent of Police the petitioner is facing prosecution in eight cases which are pending for consideration and out of eight cases, three cases are under investigation. Hence, it cannot be said that due to his criminal activities there is possibility of disturbance of maintenance of public peace and order. It is further contended that the impugned order of detention of the petitioner passed by the District Magistrate is arbitrary and contrary to the spirit of section 3(2) of the Act and that the District Magistrate failed to appreciate that there is no sufficient material available on record to hold that detenue creates public terror on account of his criminal activities, which are absolutely prejudicial to the maintenance of public order and peace. Lastly, it is contended that there is no evidence available on record to show that due to disturbance of public order and public peace by the petitioner large section of public has developed feeling of outrage, insecurity and that their normal life is affected. In this view of the matter, it is prayed that order of detention is liable to be quashed. 5. Learned counsel for the petitioner relying upon the decision of the Division Bench of this Court reported in 2013 (2) JLJ 300 = 2013(2) M.P.L.J. 605 (Bhaiya @ Bhaiyalal @ Arvind v. State of M.P.) submitted that it is apparent that as per section 3(3) and 3(5) of the Act compliance of the provision is mandatory. 5. Learned counsel for the petitioner relying upon the decision of the Division Bench of this Court reported in 2013 (2) JLJ 300 = 2013(2) M.P.L.J. 605 (Bhaiya @ Bhaiyalal @ Arvind v. State of M.P.) submitted that it is apparent that as per section 3(3) and 3(5) of the Act compliance of the provision is mandatory. He has also placed reliance on the decision of this Court in the case of Pradeep s/o Hari Mohan Singh Kushwaha v. State of M.P. and others reported in 2016 (1) JLJ 252 = 2016 (2) M.P.L.J. 110 , involving the same issue. 6. On the other hand, learned counsel for the State submitted that the petitioner is a habitual offender and there are many cases registered against him. The impugned order has been passed on the recommendation of the Superintendent of Police with application of mind and does not call for any interference. It is settled law that such preventive detentions are exception carved out in sub-clause (b) of Article 22 (3) of the Constitution of India. The contention of counsel for the petitioner that the acts of the petitioner do not constitute sufficient material to take action under section 3(2) and (3) of the Act of 1980 is absolutely misconceived in view of law laid down by the apex Court in the case of Babulal Mitra v. State of West Bengal ( AIR 1973 SC 197 ) wherein it was held that the act that would tantamount to disturbance of "law and order'' or "public order" which has an impact upon the local community or disturbs the even tempo of the life of the community of that specified locality. In the case of Smt. Kamla Bai v. Commissioner of Police Nagpur (1993) 3 SCC 384 ) it was held that even a solitary threat can be sufficient to cause disturbance and breach of public order. 7. We have heard learned counsel for the parties and find that the present petition deserves to be allowed. 8. On perusal of the impugned order passed by the District Magistrate, it appears that as many as 8 to 9 cases have been filed against the present petitioner. It is pertinent to note that in the background of ensuing assembly election the impugned order was passed and now the election is over, the result has also been declared and the new Government has come into force. It is pertinent to note that in the background of ensuing assembly election the impugned order was passed and now the election is over, the result has also been declared and the new Government has come into force. It is pertinent to note that in para 10 of the judgment in the case of Bhaiya @ Bhaiyalal @ Arvind (supra), this Court has held as under : "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 subsection (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 one 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, Annexure R-7, it is clear that the approval is granted on 8.8.2012 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, therefore, also at initial stage, when the petitioner was taken into custody, he was unaware regarding the period of his detention, therefore, compliance of sub-section (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. 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. 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, noncomp-liance of sub-section (5) of section 3 also appears on the fac e of record." 9. On perusal of the aforesaid para in the said judgment, it is indicated that there is no mention of the specified date and period of detention. Furthermore, 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. 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. However, in the present case, it is stated that during assembly election the order of detention was passed and specified time has been completed in the background of which the petitioner was taken into custody. 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. Now, the election has been conducted and result has been declared. Three cases out of eight cases registered against the petitioner are under investigation and there is no compliance of the mandatory provisions and the order has been passed without mentioning the specified period of detention neither in the initial order nor in the final order, which would indicate the fact that due to his criminal activities there was possibility of disturbance of maintenance of public order and peace during the election. Furthermore, in the observation during election, no any criminal antecedents has been reported against the petitioner. Even thereafter the petitioner is in judicial custody for nearly two months and no purpose would be served by keeping him in judicial custody any further. 10. Furthermore, in the observation during election, no any criminal antecedents has been reported against the petitioner. Even thereafter the petitioner is in judicial custody for nearly two months and no purpose would be served by keeping him in judicial custody any further. 10. In view of the matter, the impugned order dated 16.11.2018 (Annexure P-1) is hereby quashed and the petitioner is directed to be released forthwith in connection with present case. Consequently, the petition is allowed.