Satynarayan @ Narayan Luniya vs State Of Madhya Pradesh And Another

01- The petitioner before this Court has filed present petition being aggrieved by order dated 28/01/2019 passed by respondent No.2 - District Magistrate, Indore.

02- Learned Senior Counsel has argued before this Court that the impugned order of detention is an illegal order as it has been passed for an indefinite period and the same deserves to be quashed in light of the judgment delivered by the apex Court in the case of Commissioner of Police and Another Vs. Gurbux Anandram Bhiryani reported in 1988 (Suppl) SCC 568.

03- It has also been argued that at the time the impugned order was passed, the petitioner was already in jail in respect of some other criminal case. He was arrested on 17/01/2019 and he was in custody in respect of a criminal case relating to murder of one Sandeep Agrawal @ Sandeep Tel. He was in police custody from 17/01/2019 and the order of detention has been passed under the National Security Act, 1980.

04- It has also been argued before this Court that earlier also an order was passed under the National Security Act, 1980 based upon old stale cases and the Division Bench of this Court has allowed the writ petition i.e. Writ Petition No.6103/2017 by an order dated 13/10/2017. It has been stated that on the basis of almost same offence again the impugned order has been passed and therefore, the act of the respondent / State is nothing but a colourable exercise of power contrary to the statutory provisions as contained under the National Security Act, 1980. A prayer has been made for quashment of the impugned order.

05- The respondent / State filed a detailed reply and it has been stated that the order has rightly been passed by the District Magistrate, Indore on the basis of the report submitted by the Superintendent of Police dated 28/01/2019 (Annex.-R/1) and they have enclosed a chart in respect of criminal cases registered / decided against the petitioner from time to time. It has been argued that in light of the material produced before the Magistrate, the order of detention has rightly been passed in the matter. Learned counsel for the State Government has also argued before this Court that the petitioner is having alternative remedy for redressal of his grievance under the Section 8 of the National Security Act, 1980.

06- Heard learned counsel for the parties at length and perused the record.

07- Undisputedly, earlier also an order i.e. order dated 17/07/2017 was passed by the District Magistrate, Indore in respect of the petitioner in exercise of powers conferred under the National Security Act, 1980. The Division Bench of this Court, in the earlier case i.e. Writ Petition No.6103/2017 on 13/10/2017 has passed the following order:-

"He has also placed reliance upon a judgment delivered by the Division Bench in the case of Usman Vs. State of M.P. & Ors. (W.P. No.903/2012) reported in ILR (2012) M.P. 1594. He has also placed reliance upon the judgment delivered in the case of Khurshid Vs. State of M.P. and others reported in 2016(2) MPLJ, (Cri.), 551.

In all the three cases, it has been held that a counter affidavit in respect of a habeas corpus petition has to be filed along with the affidavit of District Magistrate, who has passed the detention order. Paragraph Nos.2 to 8 of the order passed in the case of Khurshid (supra) read as under:-

"2. A case for the offence under Section 429, 379 of IPC as well as under Section 4/9 of M.P. Govadh Pratished Adhiniyam, 2004 was registered against the petitioner by Police Station Sironj vide crime No. 129/2016. The petitioner was arrested in connection with the aforesaid offence on 24/4/2016 and was produced before the Judicial Magistrate and was sent on judicial remand. On 25/4/2016 , the Station House Officer, Police Station, Sironj, sent a letter to the Superintendent of Police for initiating proceedings under the provisions of Act of 1980 against the petitioner. Thereafter, on 26/4/2016, the Superintendent of Police, Vidisha informed the District Magistrate, Vidisha about the activities of the petitioner and a proposal was sent that the petitioner be detained under the provisions of Act of 1980. The District Magistrate on 28/4/2016, passed an order in purported exercise of powers under Sections 3 (2) and 3 (3) of the Act of 1980. In the aforesaid factual background, the petitioner has approached this Court.

Learned counsel for the petitioner submitted that the order of detention is vitiated in law inasmuch as no period of detention in order of detention is mentioned. It is further submitted that at the time when the order of detention was passed, the petitioner was already in judicial custody since 24/4/2016 and admittedly had not applied for grant of bail, therefore, there was no likelihood of the petitioner to come out of the jail and to disturb the public order. However, the detaining authority has failed to take into account the aforesaid aspect of the matter while passing the order of detention which vitiates the order of detention. It is also urged that the order of detention has been passed in violation of Section 3 (3) and 3 (4) of the Act of 1980 inasmuch as the approval of the State Government has not been accorded in respect of order of detention. Lastly, it is urged that the return filed on behalf of the respondents is not supported by an affidavit of the District Magistrate which is mandatory in law. On the other hand, learned Government Advocate has supported the order of detention and has submitted that the order of detention as per the averments made in the return has been passed for a period of one year.

We have considered the rival submissions made at the Bar and have perused the record. Before proceedings further, it is considered apposite to take note of the provisions of Section 3 (3) and 3 (4) of the Act of 1980 which are reproduced below for the facility of reference:

"3. Power to make orders detaining certain persons.

(1) xxx xxx xxx (2) xxx xxx xxx

(3) If, having regard to the circums tances 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 of 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 the 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 to extend such period from  time  to  time  by  any  period  not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved, by the State Government:

Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub- section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted."

The Supreme Court in the case of Commissioner of Police and Anr. Vs. Gurbux Anandram Bhiryani, 1988 (supp) SCC 568 has held that the period of detention has to be mentioned in the order of detention and the order of detention cannot be passed for an indefinite period. A Division bench of this Court in the case of Bhaiya alias Bhaiyalal alias Arvind Vs. State of M.P., 2013 (2) JLJ 300 after careful scrutiny of provisions of Section 3 of the Act of 1980 has held that order of detention is required to be passed for a specific period. Similar view has been taken by another Division Bench of this Court in the case of Pradeep Vs. State of M.P. & Ors., 2016 (1) JLJ 252. Admittedly, in the instant case, in the order of detention the period of detention has not been specified, therefore, the order of detention is vitiated in view of aforesaid enunciation of law.

Admittedly, at the time when the order of detention was passed, petitioner was in judicial custody. The Supreme Court in the case of Rekha Vs. State of Tamilnadu through Secretary to Government and Anr., (2011) 5 SCC 244 while taking note of the decision in the case of Union of India Vs. Paul Manickam, (2003) 8 SCC 342 has held that the detaining authority in a case of a detenu, who is already in jail, has to form an opinion that in case the detenu files an application for bail, there is likelihood of detenu's being released on bail and taking into account his antecedents, he must be detained in order to prevent him to indulge in prejudicial activities which are detrimental to public order. Similar view has been taken by the Supreme Court in the case of Huidrom Konungjo Singh Vs . State of Manipur & Or., AIR 2012 SC 2002. In the instant case, admittedly, the petitioner has not filed any application for bail and in the order of detention, there is no whisper that there is likelihood of petitioner being released on bail. Thus, the order of detention is vitiated in law on this count also.

We find force in the submissions made by learned counsel for the petitioner that the return filed by the respondents was required to be supported by the affidavit of District Magistrate. A Division Bench of this Court in the case of Usman Vs. State of M.P. & Ors, ILR (2012) MP 1594 has held that the detention of a person without trial is a serious matter and the order of detention must be justified by the detaining authority and in answer to rule issued in a Habeas Corpus petition, the counter affidavit filed by the State should be sworn by District Magistrate, who passed the detention order. Admittedly, in the instant case, the District Magistrate who passed the order of detention has not filed his affidavit, but the same has been sworn in by Sub Divisional Magistrate, Sironj. Thus, the order of detention is vitiated in law on this count also.

In view of the preceding analysis, the impugned order cannot be sustained in eye of law. Accordingly, it is quashed. In the result petition is allowed."

In light of the aforesaid judgment delivered by the Division Bench, this Court is of the opinion that the impugned order cannot be sustained in the eyes of law. In the case of Usman (supra), similar view has been taken. Paragraph No.5 of the order reads as under:-

"5. In the instant case, the District Magistrate who passed the order of detention has not filed his affidavit. It is well established by catena of decisions of the Supreme Court that in answer to a Rule issued in a habeas corpus petition, the counter affidavit on behalf of the State should be sworn by the District Magistrate who had passed the detention order. In the present case, there is a direct allegation that the detention order was passed without application of mind and there was no material before the detaining authority to reach the subjective satisfaction. There is no para-wise reply. The affidavit in support of the reply does not say that the City Superintendent of Police personally dealt with the matter. He has merely sworn the affidavit on the information gathered from the record. No explanation has been offered for not filing the affidavit of the District Magistrate. The reply also does not show that all procedural steps, as required under the Act, were taken within the specified time. Except for news-paper cuttings (which have no evidentiary value), no other cogent material has been placed before us to judge the legality of the detention order. In this unsatisfactory state of affairs, we have no hesitation to hold that the District Magistrate passed the detention order in a most cavalier manner without any application of mind, and was confirmed by the State Government in equally callous manner as such,it is difficult for us to sustain the detention order. Yet there is another ground which makes the detention order unsustainable. In this connection, we may refer to the earlier division Bench decision of this Court in W.P. No.3426/2008 decided on 22.7.2008 wherein it is held that the detenue must be appraised of his right to make representation to Central Government. We find even this was not fulfilled in the case on hand."

Resultantly, the writ petition stands allowed. The impugned order dated 17.07.2017 passed by the District Magistrate under the provisions of National Security Act, 1980 (No.65 of 1980) is hereby quashed. The petitioner be set free forthwith at liberty."

In the earlier round of litigation this Court has taken into account the judgment delivered in the case of Gurbux (Supra) wherein the apex Court has quashed the order of detention as the period of detention was not mentioned in the order.

08- Section 3 of National Security Act, 1980 reads as under:-

"3. Power to make orders detaining certain persons.-

(1) The Central Government or the State Government may,-

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India,

or

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government may, if satisfied with respect to any person that 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 sub -section, "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 Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 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 of 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 to extend such period from time to time by any period not exceeding three months at any one time.

(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government:

Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words "twelve days", the words "fifteen days" shall be substituted.

(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."

The aforesaid statutory provision of law makes it very clear that the State Government is under an obligation to pass an order of detention, at the first instance, for a period not exceeding three months. In the present case, the period of detention is not mention at all.

09- A categoric question was asked to learned Government Advocate i.e. whether, the order has been approved by the State Government or not. He has categorically told this Court that he does not have instruction on this subject. The another question was raised to learned Government Advocate i.e. whether, a reference has been made to the Advisory Board or not. He has again categorically stated that he does not have instruction on this subject also. However, as the period of detention is not mention in the order of detention, the order is bad in law as held by the apex Court in the case of Gurbux (Supra).

10- There is another important ground raised by the petitioner i.e. that the order does not apprise the detenu to make a representation to the Central Government.

11- In light of the aforesaid and also keeping in view that the period of detention has not been mentioned in the order of detention, the impugned order dated 28/01/2019 certainly deserves to be quashed and is accordingly quashed. The respondent / State is directed to release the petitioner forthwith, in case he is not required to be detained in any other criminal case.

12- With the aforesaid, writ petition stands allowed. No order as to costs.

Certified copy as per rules.