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Madhya Pradesh High Court · body

2021 DIGILAW 340 (MP)

Vinod Goyal v. State of M. P.

2021-03-10

ANAND PATHAK, SHEEL NAGU

body2021
JUDGMENT : 1. The present petition filed u/Art. 226 of the Constitution assails the order of preventive detention passed by District Magistrate Gwalior on 23/1/2021 by exercising powers u/S. 3(2) of National Security Act, 1980 (for brevity NSA) directing for detaining the petitioner for a period of three months. 2. Bare skeleton facts necessary for adjudication are that on 16/1/2021 Food Safety Officer carried out inspection of flour mill belonging to petitioner. Adulterated food articles alongwith packing material were seized. FIR bearing Crime No. 48/2021 at police station Dabra, District Gwalior was registered on 19/1/2021 alleging offences punishable u/Ss. 272, 273 and 420 IPC against petitioner. Petitioner was arrested on 20/1/2021 and was remanded to police custody for 2 days whereafter on 22/1/2021 petitioner was released on bail by order of the court of competent jurisdiction. Whereafter impugned order of preventive detention was passed on 28/1/2021 and on next day i.e. 29/1/2021 petitioner was taken into custody. On 29/1/2021 itself petitioner was supplied with grounds for detention. Whereafter, District Magistrate, Gwalior on 1.2.2021 forwarded the case to the State Government for approval. The State Government thereafter approved the order of preventive detention on 4/2/2021. It is submitted by the State counsel that copy of order of confirmation passed by the State Govt. was forwarded to the Central Government by letter dated 4/2/2021 alongwith grounds for detention. 2.1. From the aforesaid undisputed facts, what is evident as daylight is as follows:- (1) That after passing the impugned order on 28/1/2021 the District Magistrate, Gwalior forwarded the same for reporting to the State Govt. on 01.2.2021 i.e. after 4 days with no explanation either in the impugned order or in the reply filed to this petition as to what prevented the District Magistrate Gwalior to forward the case to the State Govt. for confirmation earlier so as to follow the mandate of expression ".....shall forthwith report the fact to the State Government......" found in Sec. 3(4) of the NSA. This in the considered opinion of this court amounts to unexplained and inordinate delay in forwarding the matter to the State Govt. for seeking approval thereby violating the mandatory provision of Sec. 3(4) and also mandate of Apex court in the case of in the case of Hetchin Haokip Vs. State of Manipur and others, (2018) 9 SCC 562 relevant portion of which is reproduced below:- "15. for seeking approval thereby violating the mandatory provision of Sec. 3(4) and also mandate of Apex court in the case of in the case of Hetchin Haokip Vs. State of Manipur and others, (2018) 9 SCC 562 relevant portion of which is reproduced below:- "15. The expression "forthwith" under Section 3(4), must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity. 16. In the present case, the District Magistrate submitted the report to the State Government on the fifth day (17.7.2017), after the date of the detention order (12.7.2017). The reason for the delay of five days is neither mentioned in the State Government's order confirming the detention order, nor in the impugned judgment. It was for the District Magistrate to establish that he had valid and justifiable reasons for submitting the report five days after passing the order of detention. As the decision in Keshav Nikanth Joglekar Vs. Commnr. of Police, 1956 SCR 653 : AIR 1957 SC 28 , holds, the issue is whether the report was sent at the earliest time possible or whether the delay in sending the report could have been avoided. Moreover, as the decision in Salim Vs. State of W.B., (1975) 1 SCC 653 : 1975 SCC (Cri) 290, holds, there should be no laxity in reporting the detention to the Government. Whether there were administrative exigencies which justify the delay in sending the report must be explained by the detaining authority. In the present case, as we shall explain, this was a matter specifically placed in issue before the High Court. The District Magistrate offered no explanation. This would vitiate the order of detention." (2) That the order of preventive detention passed by the District Magistrate Gwalior on 28/1/2021 was forwarded to the Central Govt. In the present case, as we shall explain, this was a matter specifically placed in issue before the High Court. The District Magistrate offered no explanation. This would vitiate the order of detention." (2) That the order of preventive detention passed by the District Magistrate Gwalior on 28/1/2021 was forwarded to the Central Govt. by letter dated 4/2/2021 i.e. after 6 days of passing of the order which breaches the maximum limit of 5 days prescribed in Sec. 8 of NSA in ordinary circumstances. No explanation has been pointed out either in the impugned order or in the reply to this petition to enable the respondents to take advantage of extended period of 10 days provided in Sec. 8 of the NSA. Thus, the impugned order stands vitiated by violation of the mandatory provision u/Sec. 8 of the NSA. In this connection Constitution Bench decision of Apex court in A.K. Roi Vs. Union of India & Another, AIR 1982 SC 710 , can be profitably referred to wherein in para 76 it is held thus:- "76. The objection of the petitioners against the provision contained in S. 8 is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenue as late as five days and in exceptional cases 10 days after the date of detention. This argument overlooks that the primary requirement of S. 8(1) is that the authority making the order of detention shall communicate the grounds of detention to the detenue "as soon as may be". The normal rule therefore is that the grounds of detention must be communicated to the detenue without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily, and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by S. 8(1) to record its reason in writing. We do not think that this provision is open to any objection." 2.2. From the above, it is evident that mandatory provision laid down in Sec. 3(4) and Sec. 8 of the NSA has been breached by unexplained delay in carrying out the mandatory duties by respondents. 2.3. The concept of preventive detention is an anathema to the fundamental rights of personal liberty. From the above, it is evident that mandatory provision laid down in Sec. 3(4) and Sec. 8 of the NSA has been breached by unexplained delay in carrying out the mandatory duties by respondents. 2.3. The concept of preventive detention is an anathema to the fundamental rights of personal liberty. However, Art. 22 of Constitution carves out an exception empowering the Executive Authority to exercise this extraordinary power of preventive detention to prevent occurrences of breach of public order. Thus by itself very nature the power of preventive detention is preventive in nature and not punitive. Since this power is exception to the fundamental rights of personal liberty, the law governing the same is to be strictly construed and any breach of the procedure laid down is not only to be frowned upon but struck down by the superior courts as and where it is found. Explaining the nature and object of this power of preventive detention, the Apex court in the case of State of Tamil Nadu Through Secretary to Government, Public (law And Order-F) And Another Vs. Nabila And Another [ (2015) 12 SCC 127 ], has held thus:- "12. Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence. However, the detaining authority must keep in mind while passing the order of detention the civil and constitutional right granted to every citizen by Article 21 of the Constitution of India inasmuch as no person shall be deprived of life and liberty except in accordance with the procedure established by law. The laws of preventive detention are to be strictly construed and the procedure provided must be meticulously complied with." 3. From the above discussion, what comes out loud and clear is that the order of preventive detention has been passed in clear violation of Sec. 3(4) & Sec. 8 of the NSA as detailed above and therefore stands vitiated. 4. In view of above ground of violation of Sec. 3(4) and Sec. 8 of NSA having been found in favour of petitioner this Court refrains from entering into other grounds raised especially ones on merits. 5. 4. In view of above ground of violation of Sec. 3(4) and Sec. 8 of NSA having been found in favour of petitioner this Court refrains from entering into other grounds raised especially ones on merits. 5. Consequently, the petition is allowed to the following extent:- (1) The impugned order dated 28/1/2021 passed by District Magistrate, Gwalior (M.P.) is quashed. (2) Since the due process of law under NSA has not been followed by State resulting into deprivation of fundamental right of personal liberty to the petitioner, respondent No. 4-District Magistrate Gwalior is liable to be fastened with cost of this litigation which is quantified at Rs. 10,000/- (Rs. Ten Thousand) which shall be paid to petitioner by District Magistrate, Gwalior within a period of 30 (Thirty) days from today by way of digital transfer in the account of petitioner and receipt thereof shall be filed in the Registry, failing which matter shall be put up by the Registry in "Direction Matters". 6. With these directions, the petition stands allowed.