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2020 DIGILAW 318 (MP)

Puja Pandey v. State Of Madhya Pradesh And Others

2020-02-27

ATUL SREEDHARAN, SANJAY YADAV

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JUDGMENT Atul Sreedharan J. - The present petition has been filed praying for a writ of habeas corpus by the petitioner, who is the wife of the detenue Yogendra Dev Pandey. The detenue was arrested on 17.12.2019 in connection with crime no.207/2017. He was sent on police remand by the order of the Magistrate and he remained with the Police in their custody from 17.12.2019 to 19.12.2019. He was sent to judicial custody on 19.12.2019. The detention order is dated 17.12.2019. The grounds of detention was served on the husband of the petitioner on 19.12.2019 and the said order of detention is stated to have been approved by the State Government on 27.12.2019. 2. The brief facts of the case are that on 14.12.2019, Sub- Inspector PS Crime Branch Bhopal received information that a tanker bringing milk from Chilling Plant Multai, shall stop at a restaurant (dhaba), wherein the driver shall take out milk and instead of that he shall mix water and urea of that quantity. Thereafter the Sub-Inspector reached the Dhaba at 9.00, where the milk tanker bearing registration No.MP-13-H-2178 was parked. As soon as the Police approached, a man started running who was identified as Gopal. The Sub-Inspector found the driver of the tanker Farhan and upon inspection of the tanker found that the seal of the tanker lid was broken. The driver Farhan disclosed that the tanker was on contract with the Bhopal Diary Cooperative Federation Sanchi and belonged to the husband of the petitioner. As per the contract, the milk was to be transported from the chilling plant at Multai to the Bhopal Milk Federation at Habibganj, Bhopal, where it is to be delivered. The driver of the tanker has stated to have disclosed that after breaking open the seal Gopal (the person who ran away from the scene of occurrence) takes out the milk from the tanker which is taken away and sold in the open market and in order to replenish the quantity of milk, water and urea is mixed by them in the milk tanker. It is on the statement of the driver who said that he had been instructed to do thus by the husband of the petitioner, that he was arrested. 3. It is on the statement of the driver who said that he had been instructed to do thus by the husband of the petitioner, that he was arrested. 3. Before his arrest, the husband of the petitioner addressed a letter to the DIG Bhopal range on 15.12.2019, which is Annexure- B to the rejoinder filed by the petitioner. By the said letter, the husband of the petitioner informed the Police that is literally impossible to remove milk or adulterate it once it is filled in the tanker, as before the tanker leaves the Multai Chilling Plant it is sealed. The seal is only opened when it reaches its destination in Bhopal. If the seal is found broken, the milk in the entire tanker is rejected by the milk federation. He further states that before the milk is accepted at its destination it is tested by the milk federation for purity, consistency and adulteration. If the sample fails, once again the milk in the entire tanker is rejected. 4. The grounds of detention were supplied to the petitioners husband on 19.12.2019. The ground of detention is the alleged act of mixing urea in the milk. The said information was given to the authorities by the driver of the tanker. Therefore, he has been detained under NSA on account of supplying milk that had failed the standard test. The order does not disclose that it takes cognizance of the fact that the petitioners husband is already in jail and neither does it disclose that there is a possibility of the petitioners husband being enlarged on bail. Thereafter, it informs the petitioners husband of his right to appeal to the State Government, the Advisory Board and also to the Central Government. The ground of detention however does not intimate the petitioners husband of his right of giving an appeal or a representation before the detaining authority itself. The learned counsel for the petitioner has submitted that the order of detention has not been approved by the State Government within the time stipulated under section 3 of the National Security Act.1980. 5. The ground of detention however does not intimate the petitioners husband of his right of giving an appeal or a representation before the detaining authority itself. The learned counsel for the petitioner has submitted that the order of detention has not been approved by the State Government within the time stipulated under section 3 of the National Security Act.1980. 5. The State per contra has filed its reply and along with it has filed Annexure R/2, which is the food analyst report which reflects that the milk sample taken from the tanker tested positive for formalin and urea and was unsafe under section 3(1) (zz) of the Food Safety and Standard Act, 2006. By filing an additional reply the State has placed on record the purported order of approval passed by the State Government of the order of detention dated 17.12.2019 passed by the District Magistrate. It reads as follows : 'In exercise of the powers conferred by subsection (4) of section 3 of the National Security Act 1980 (no.65 of 1980) the State Government has approved the detention order dated 17.12.2019 passed by the District Magistrate, Bhopal against Yogendra Dev Panday, S/o Shri Om Saran Panday R/o Distt. Bhopal under sub-section (2) of section 3 of the said Act on dated 27.2.2019'. 6. The order has been passed in the name of the Governor of Madhya Pradesh and signed by the Under Secretary to the Government of Madhya Pradesh. A bare perusal of the purported order reveals that it is not an order approving the detention of the petitioner but an intimation from the Home Department sent to the District Magistrate, Bhopal that the detention orders passed by the District Magistrate has been approved of by the State Government vide an order dated 27.12.2019. This intimation was dispatched to the Home department Bhopal on 2.1.2020 and was received by the Collectors office at Bhopal on 4.1.2020. If the order approving detention was indeed passed on 27.12.2019, it ought to have been filed by the State Government in their reply. It is relevant to mention here that the State Government has filed two replies. In the first reply there is no document pertaining to the approval granted by the State Government as required under sub-section (4) of section 3 of the National Security Act. It is relevant to mention here that the State Government has filed two replies. In the first reply there is no document pertaining to the approval granted by the State Government as required under sub-section (4) of section 3 of the National Security Act. Under the circumstances, this Court is not in a position to accept that such an order was ever passed, or, if such an order is passed there is no reason why the State ought not to have annexed the said order with either of its replies. Besides, the only reason why the petitioners husband has been taken into custody under the NSA is based upon the statement of the driver that the driver has carried out the adulteration allegedly at the behest of the petitioner. 7. There is no independent evidence to the contrary. Undisputedly, the petitioners husband was not accompanying the tanker. He is only the contractor, would enter into the contract with the milk federation to transport the milk from the Chilling Plat at Multai to the Federation Plant at Bhopal. It is also submitted on behalf of the petitioner that the petitioner has no control over his employee and that the business works on the basis of trust and that he cannot be held liable for the act of the driver, until and unless there is independent evidence to that effect. Even otherwise, one more aspect of the case is that the alleged act of rendering the milk unsafe for consumption as defined under Section 3 (1)(zz) is specifically punishable under section 59 Clause (i) of the Food Safety and Standards Act of 2006 with imprisonment for a term which may extend to six months and also with fine which may extend to Rs.1,00,000/-. 8. In view of what has been mentioned hereinabove, the petition is allowed and if the husband of the petitioner is still held in detention, he be released forthwith unless his continued incarceration is required in any other case.