The Allahabad High Court held that the period of detention prescribed in the confirmatory order passed by the State Government under Section 12 (1) of the National Security Act, 1980 cannot be reviewed or extended by reviewing such order.
Brief Facts:
The Petitioner was detained under section 3(2) of the National Security Act, 1980 by an order passed by the District Magistrate- Kanpur Nagar having been authorised under Section 3(3) of the Act of 1980. The said order was approved by the State Government under Section 3(4) of the Act, 1980 and the matter was referred to the Advisory Board. After receiving the report from the Advisory Board, the said detention order was confirmed in terms of Section 12 (1) of the Act, 1980 by the State Government detaining the petitioner for three months from the date of the initial detention order. Thereafter, the detention was extended for six months, then nine months and then 12 months from the date of initial detention.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that since the order dated 9.5.2023 passed under Section 12(1) of the Act, 1980 is a final order, the State has no right to review the said order in terms of provisions of Section 12 of the Act, 1980, therefore, the orders extending detention of the petitioner are without any authority of law and could not be sustained. Therefore, the detention of the petitioner (detenue) herein in terms of orders dated 13.7.2023, 12.10.2023 and 5.1.2024 after the expiry of three months from the date of initial detention are illegal and therefore, the petitioner is liable to be released forthwith.
Contentions of the Respondent:
The learned counsel appearing on behalf of the state submitted that in view of the judgement of the Apex Court in Cherukuri Mani v. State of A.P., the State Government could not have passed an order of detention at a time for more than a period of three months, therefore, initially the confirmatory order dated 9.5.2023 was passed for detention of the petitioner herein for a period of three months and subsequently, the same was extended vide orders dated 13.7.2023, 12.10.2023 and 5.1.2024. Therefore, there is no illegality either in the initial detention order dated 20.4.2023 and the confirmatory order dated 9.5.2023 and the subsequent extension orders dated 13.7.2023, 12.10.2023 and 5.1.2024
Observations of the court:
The court served that the decision of the Supreme Court in Cherukuri Mani v. State of A.P. has been overruled by the Apex Court in Pesala Nookaraju vs. The Government of Andhra Pradesh & others wherein it has been held that “when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from the date of the initial order of detention, but up to a maximum period of twelve months from the date of detention.”
The court held that whatever period has been specified in the confirmatory order cannot be reviewed by the State Government. Further, it was held that if no period is specified then the detention can extend up to a maximum period of 12 months from the date of the detention. Further, it was held that the State Government doesn't need to review the order of detention before the expiration of three months and the National Security Act, 1980 does not provide any provision for review of the detention order once the same has been confirmed by the Advisory Board and the confirmatory order is passed by the State Government.
Further, it was stated that an order under Section 12 (1) passed by the State Government confirming the detention order cannot be reviewed and the period of detention cannot be extended and in case circumstances so demand, the State Government or the District Magistrate can pass a fresh order under Section 3(2) of the Act and any such order has to be confirmed as per the procedure prescribed under Sections 3, 10, 11 and 12 of the Act.
The decision of the Court:
The court held that since the confirmatory order was for three months only, the detention after the expiration of said period was illegal and directed for the petitioner to be set at liberty unless he is required in any other case.
Case Title: Mohd. Asim @ Pappu Smart And Anr. vs Union of India and Ors.
Coram: Hon’ble Mr. Justice Siddhartha Varma and Hon’ble Mr. Justice Anish Kumar Gupta
Case No.: HABEAS CORPUS WRIT PETITION No. - 657 of 2023
Advocate for the Petitioner: Ramesh Chandra Agrahari
Advocate for the Respondent: A.S.G.I., Arvind Singh, C.S.C.
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