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Detenu Has Constitutional Right To Make Representation To Detaining Authority Against Detention Order, Violation Makes It Illegal: MP HC

 

It is quite remarkable, quite refreshing, quite robust and quite reasonable that the Madhya Pradesh High Court while espousing the supreme value of human and constitutional rights has in a latest, learned, laudable and landmark judgment titled Yatindra Verma Vs State of MP & Ors. in WP No. 9792/2021 delivered on June 24, 2021 has held that it is a constitutional right of a detenu who has been detained under the National Security Act, to make representation to the detaining authority against the detention order, violation of it which vitiate and make the order as illegal. A Division Bench of Madhya Pradesh High Court at Indore comprising of Justice Sujoy Paul and Justice Shailendra Shukla also held that the expression “public order” under Section 3 of the Act is wide enough to include the event of black marketing of an essential drug namely Remdesivir. The Court rightly observed that, “In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order.”

We all saw how ruthlessly in case of a serving Army Officer Lt Col Prasad Shrikanth Purohit, he was kept in jail shamelessly, senselessly and stupidly for more than nine years and even chargesheet was not filed against him charged under draconian MCOCA which ultimately had to be dropped as his eminent senior lawyer Harish Salve convinced the court that he was behind bars for such a long time and he ultimately got bail also! Beyond doubt, this is nothing but the “worst ruthless torture worse than the physical torture which police and those in uniform inflicted on him as was written also in his medical report” and must be termed “worst judicial murder in cahoots with police and men in uniform” that a serving senior Army Officer of the rank of Lieutenant Colonel was kept behind bars inexplicably for such a long time and still no chargesheet even was filed against him which itself shows how strong the case was against him which is a national disgrace and cannot be justified under any circumstances! If this can happen with Colonel Purohit then what can happen with a common man who cannot hire senior lawyers like Harish Salve? Our legal system has to reform radically right now without wasting any more time and this commendable judgment has to be emulated by all the courts in all such similar cases so that no person is kept rotting in jail for 9 bloody years without even charge sheet not being filed against him as we saw in case of Lt Col Purohit! Most shameful and most disgraceful!

To start with, this brief, brilliant, balanced and bold judgment authored by Justice Sujoy Paul for himself and Justice Shailendra Shukla of Indore Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost pointing out in para 1 that, “This petition filed under Article 226 of the Constitution assails the order of State Govt. dt.06/04/2021 published in the gazette Notification issued under Section 3(3) of the National Security Act, 1980 (hereinafter called NSA Act) and the detention order dated 10.05.2021.”

While elaborating on the facts of the case, the Bench then points out in para 2 that, “Briefly stated, petitioner submits that he is a social worker and is a member of a political party namely, Indian National Congress. The petitioner held the post of General Secretary and Secretary of the said party in Indore. Petitioner has organized various camps for the welfare of people from time to time. In the pandemic era also, petitioner made various efforts to provide helping hand to suffering people of Indore. The proof of welfare activities undertaken by petitioner are cumulatively filed as Annexure P/2. The petitioner claims that he was vocal in expressing his dissatisfaction over the manner in which the Covid crisis has been handled by the State Government. The petitioner was active in social media and photocopy of many such posts showing petitioner’s criticism or dissent are cumulatively filed as Annexure P/3.”

To put things in perspective, the Bench then puts forth in para 3 that, “It is canvassed that the government of the day was annoyed with petitioner’s comments and, therefore, a false FIR dated 08/05/2021 (Annexure P/4) was lodged against the petitioner for allegedly committing offence under Sections 420 and 188 of IPC r/w Section 3 of Epidemic Diseases Act 1897. The petitioner was also arrested on 07/05/2021. The District Magistrate passed the detention order dated 10/05/2021 wherein it is mentioned that petitioner is already in custody. This order dated 10/05/2021 nowhere mentions that petitioner has a right to prefer representation before the District Magistrate.”

  Notification/Order dated 06/04/2021:-        

As it turned out, the Bench then observes in para 4 that, “The legality, validity and propriety of the order dated 06/04/2021 published in the gazette of MP is called in question by contending that this order is passed without application of mind. Reference is made to various similar orders issued from time to time by the government right from 2014. It is contended that main reason for issuance of such order is “threatening to communal harmony”. In the present scenario, there was no such threatening, yet order dated 06/04/2021 was passed which shows total non-application of mind.

Section 3(3) of NSA Act provides power of delegation to “a” Magistrate. Since “a” is used in the statute, the government intending to delegate powers under Section 3 needs to issue ‘officer specific’ and ‘area specific’ orders. Issuance of general order like 6th April 2021 (Annexure P/1) is outside the purview of the enabling provision. NSA Act gives draconian power which needs to be exercised with utmost care and caution.”

Be it noted, the Bench then very rightly states in para 5 that, “The power under Section 3(2) of NSA Act can be exercised in three eventualities:-

i)   for preventing him from acting in any manner prejudicial to the security of State.

ii)     for preventing him from acting in any manner prejudicial to the maintenance of public order.

iii)   for preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.”

As we see, the Bench then observes in para 6 that, “If Notification/order dated 06/04/2021 is read carefully, it will be clear that the eventuality (iii) aforesaid has not been mentioned in the said order and, therefore, any power exercised relating to said eventuality was outside the scope of delegation of power.”

           Non-Application of Mind:-               

It is worth noting that the Bench then specifies in para 7 that, “Article 22(4) of the Constitution of India was referred, to contend that it gives a constitutional right to the person under detention to prefer effective representation against his detention. The order of detention is served on the petitioner through Station House Officer (SHO) on 13/05/2021 which is evident from Annexure R/3. The factum of detention was not brought to the notice of State Govt. by the learned District Magistrate. Resultantly, the government presumed that petitioner is absconding. Reliance is placed on document dated 14/05/2021 (Annexure R/4) and another document of same date (Annexure R/5). It is urged that a conjoint reading of these documents, shows that State Govt. was carrying an impression that petitioner has not yet been detained and he is absconding. The same impression was given to the Central Govt. by communication dated 14/05/2021 (Annexure R/5) wherein it is mentioned that “the person concern is reported to be absconding”. The inevitable consequence of such misrepresentation is that State Govt. and Central Govt. did not deem it proper to examine the case of petitioner or in other words, examined the validity of the detention treating the petitioner to be an absconder. To buttress this contention “Proforma No.1” (page 33) was relied upon which is signed by Under Secretary to the Govt. of MP (Home Department) wherein on more than one occasion, it is mentioned that “detenue is absconding”.”

   Right to represent to District Magistrate against Detention Order:-                 

While dwelling on the contention of the petitioner, the Bench then mentions in para 9 that, “It is submitted that the order of detention dated 10/05/2021 shows that the District Magistrate has mentioned that the petitioner may submit representation before State Govt. and the Central Govt. There is no mention that petitioner has a valuable right to prefer representation against the order of detention before the same Authority namely, District Magistrate. Reliance is placed on the recent Full Bench judgment passed in WP No.22290/2019 (Kamal Khare Vs. State of MP). For these cumulative reasons, the order dated 06/04/2021 (Annexure P/1) and detention order dated 10/05/2021 are liable to be interfered with is the contention of Shri Chabra, learned counsel for petitioner.”

          Government’s Stand                

While mentioning about the Government’s stand, the Bench then points out in para 10 that, “Shri Pushyamitra Bhargav, learned Additional Advocate General submits that necessary requirements flowing from Article 22(5) of Constitution were fulfilled. The order was passed by Competent Authority. Petitioner was informed that he has a valuable right of representation before competent authorities. As per Section 3(4) of NSA Act, after passing the order of detention, the District Magistrate became functus officio. Hence, question of preferring representation before the same authority does not arise.”

Simply put, the Bench then states in para 11 that, “Learned AAG placed reliance on the definition of “appropriate govt.” and urged that cases arising out of NSA Act are difference than the COFEPOSA and PIT NDPS Act. The judgment of Full Bench is distinguishable which is based on other provisions of law.”

Furthermore, the Bench then enunciates in para 12 that, “The detention order was communicated to the petitioner on 13/05/2021. It was approved by State Govt. on 14/05/2021 i.e. within statutory limit. As per (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.), the petitioner was entitled to receive an information regarding grounds of detention and was further entitled to get an opportunity to represent against it. Both the requirements were taken care of. Hence, no interference is required by this Court. The report of Superintendent of Police shows that the likelihood of involvement of petitioner in similar acts was not ruled out. This report became basis for passing of detention order. The stand of the State is that there was no suppression or misrepresentation of fact regarding showing the status of corpus as “absconder”. The scope of judicial review in NSA matters is limited. Necessary parameters on which interference can be made are missing. Hence, interference may be declined.”

Findings

Quite remarkably, the Bench then propounds in para 15 that, “The power of preventive detention is duly recognized in our constitutional scheme. The constituent assembly composed of politicians, statesman, lawyers and social workers, who had attained a high status in their respective specialties and many of whom had experienced the travails of incarceration owing solely to their political beliefs, resolved to put Article 22, Clause (3) to (7) in the constitution, may be as a necessary evil (See: (1976) 2 SCC 521, Additional District Magistrate, Jabalpur vs. S.S. Shukla). Pertinently, this finding of Supreme Court has not been overruled in the subsequent judgment.”

Interestingly enough, the Bench then states in para 18 that, “Before dealing with the validity of said order, it is apposite to reproduce the enabling provision namely, Section 3(3) of NSA Act, 1980 which reads as under:- “(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.” Emphasis supplied.”

Truth be told, it cannot be glossed over that the Bench then observes in para 20: “That, in the order it is mentioned that in view of apprehension of threatening of “communal harmony” and committing of act prejudicial to the maintenance of public order and security of the State, the Govt. thought it proper to exercise power envisaged in Sub-Section 3 of Section 3 of NSA Act. If the reason for issuance of order dated 06/04/2021 is examined in juxtaposition with the similar orders passed right from 2014, we find substance in the argument of Shri Chhabra that said order has been mechanically passed without due application of mind by mentioning the threat regarding communal harmony. We are of the opinion that Sub-Section 3 of Section 3 does not mandate that reasons for issuance of such order must be mentioned. In order to maintain fairness, it is a good practice of mentioning reason for issuance of such administrative orders. The fairness is an integral part of good administration. It is said that “Sunlight is the best disinfectant”. Thus, in order to ensure fairness and to indicate the necessity for issuance of such delegation of power, mentioning of background reasons deserves appreciation. However, if an incorrect reason is mentioned in the order, but existence of actual/real reasons and circumstances cannot be doubted, the order cannot be interfered with solely because it partially contains a wrong reason. Putting it differently, the operative reason for issuance of such an order was to ensure the requirements ingrained of Sub-Section 2 of Section 3 of NSA Act. It is a matter of common knowledge that in the second wave of Corona, maintenance public order was a big challenge. However, we deem it proper to observe that it will be lawful for the State to issue such orders with due care and caution. The real reason for issuance of such order may be spelled out with clarity.

The first para of impugned order dated 06/04/2021 shows that apart from an anticipated threatening communal harmony, yet another reason for issuance of order was mentioned i.e……………. ‘commit act prejudicial to the maintenance of public order’. This reason is a relevant basis for issuance of such an order of delegation. Thus, we find no reason to interfere with the impugned order dated 06/04/2021 on this ground.

Another limb of argument to assail this order dated 06/04/2021 is that as per Sub-Section 3 of Section 3, the order should have been “area specific” and “authority specific”. Sub-Section 3 of aforesaid shows that keeping in mind the circumstances prevailing or likely to prevail in ‘any area’ within the jurisdiction of government, government can delegate its power of detention, to District Magistrate or to Commissioner of Police. Much emphasis is laid on use of “a” in two places in Sub-Section 3 of Section 3. We are unable to persuade ourselves with this line of argument of Shri Chhabra. The use of word “a” cannot be divorced from the remaining part of the provision. It is clearly mentioned in Section 3(3) that having regard to the circumstances in “any area”, a District Magistrate or a Commissioner of Police can be permitted to exercise power of detention. If “any area” covers the entire State in a situation like present one namely Covid-19 pandemic, ‘any area’ may be the entire State and in that situation, it is not necessary to issue the ‘area specific’ and ‘authority specific’ order. We find no such requirement in Sub-Section 3 of Section 3 for issuance of ‘area specific’ or ‘authority specific’ order. Thus, this argument must fail.”

No doubt, it would be apposite to mention here that the Bench then holds in para 22 that, “Last para of Annexure P/1 leaves no room for any doubt that the power so delegated was in relation to sub-section (2) of Sec.3 of the Act which, in our view, contains all the eventualities including the last one regarding which Shri Chhabra contended that it was not delegated. Apart from this, in our view, the expression ‘public order’ is wide enough which includes the aspect of black-marketing of an essential drug namely Remdesivir. On this account also, no interference is warranted by this Court.”

                       Non Application Of Mind

Quite pertinently, the Bench then notes in para 26 that, “In the instant case, as noticed, in the impugned order dated 06/04/2021, the State has partially mentioned the reason of “communal threat” in a mechanical manner. Similarly, we have noticed that despite recording a finding in the impugned detention order that the Corpus was already in custody, the State Govt. repeatedly mentioned that he is “absconding”. We are not impressed with the argument of learned AAG that it was not a mistake on the part of the government. We also find substance in the argument of Shri Chhabra that if State Govt. and Central Govt. carry an impression that detenu is absconding, this may have an adverse impact on their decision. Thus, utmost care and caution must be taken while giving a finding whether the person concern is really absconding or not.”

As a corollary, the Bench then states in para 27 that, “Thus, we have no hesitation to hold that the respondents have mechanically opined that Corpus was “absconding”. This is an example of non-application of mind or acting in a mechanical manner.”

Adding more to it, the Bench then points out in para 30 that, “In the instant case, the allegation against the Corpus was that he was black-marketing a single oxyflow meter. The stand of Corpus is that he is a social/political worker and it was his attempt to provide the oxyflow meter to a man in need. He is falsely trapped and implicated and arraigned in a criminal case. Since Corpus is facing a criminal case, we are not inclined to give any finding on this aspect which may have a bearing on the trial. In view of aforesaid three requirements, we are only inclined to observe that there was no material before the learned District Magistrate to believe that the Corpus will again indulge in similar activity of black-marketing.”

                      Law Laid Down

Most significantly, as stated in the very beginning, the law laid down which forms the backbone of this notable judgment is then mentioned which states that –

(1) Article 22(5) of Constitution of India – The right of detenu to represent against detention order is a valuable and constitutional right, violation of which can make the order of detention as illegal

(2) Constitution of India – Preventive Detention – is duly recognized in our constitutional scheme. The Constituent Assembly composed of politicians, statesman, lawyers and social workers who had experienced the imprisonment owing solely to their political beliefs resolved to put Article 22, Clause 3 to 7 in the Constitution.

(3) Section 3(3) of NSA Act, 1980 – Although there is no statutory requirement of mentioning the background reasons on the strength of which order of delegation is passed, if reasons are assigned, it encourages fairness. If partially wrong reason is assigned in the order of delegation, neither order of delegation nor order of detention will stand vitiated.

(4) The order of delegation dated 6/4/2021 – A mechanical reproduction of non existing reason namely “threat to communal harmony” is quoted, but court was alive of real situation because of second wave of corona and hence no interference was made. It was noted that order dated 6/4/2021 contains a correct reason to prevent a person to “commit act prejudicial to the maintenance of public order”.

(5) Section 3(2) and (3) of NSA Act – The expression “public order” is wide enough which includes the event of black listing of an essential drug namely Remdesivir. Thus, contention that the delegation order does not cover the reason of detention is not accepted. The use of “a” on two places in Sec.3(3) does not mean that an “area specific” and “authority specific” order must be passed in all circumstances.

(6) Preventive detention – of a person who is already in custody – Permissible but compelling reasons with cogent material must be shown by the detaining authority based on antecedent activities of detenu.

(7) Right of representation before the District Magistrate by detenu – Effect of non mentioning of this right in the detention order – The Constitution Bench judgment in Kamlesh Kumar was followed by Full Bench in Kamal Khare. It was clearly held that it violates valuable right of detenu to prefer representation before same authority.”

To be sure, the Bench then lays down in para 36 that, “In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.”

Before winding up, the Bench then minces no words to state in para 38 that, “Before parting with the matter, we deem it proper to observe that the main grievance of detenue/complainant was that the District Magistrate while passing the order of detention did not inform him about his valuable right to prefer a representation against the detention order before the same authority namely District Magistrate. Full Bench recognized the said right of the detenue in light of the constitutional bench judgment in the case of Kamleshkumar Ishwardas Patel (supra). Thus, in the fitness of things, it will be proper for the State to ensure that henceforth in the order of detention, it must be mentioned that the detenue has a right to prefer a representation before the same authority.”

                           Conclusion

In conclusion, all the courts must always strictly abide by what has been laid down in this case as also in many other similar such cases that the valuable rights of detenu also be respected and not thrown to the wind as we saw most disgracefully in case of serving Lieutenant Colonel and who is still serving –  Prasad Shrikanth Purohit by police with full complicity of the judiciary! Judiciary must always be free of bias and deliver such exceptional judgments as we see in this case also and speak up for the rights of the accused also apart from taking care of the right of the victims so that, “Justice is not only done but also seen to be done”! For this to happen, police and men in uniform must be held accountable and they cannot be allowed under any circumstances to keep a person in jail for 9 to 10 years without even charge sheet not being filed which is a disgrace not just on police but also on the judiciary!

Sanjeev Sirohi

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