Madhya Pradesh High Court
Sudheer Soni @ Rahul Soni vs Union Of India on 16 August, 2021
Author: Sujoy Paul
WP Nos.11876/2021 and 11548/2021
(1)
The High Court Of Madhya Pradesh,
Bench At Indore
Case No. WP No.11876/2021
Parties Name Bharat Singh Thakur
Vs.
State of MP and Ors.
Case No. WP No.11548/2021
Sudheer Soni @ Rahul Soni
Vs.
Union of India and Ors.
Date of Judgment 16/08/2021
Bench Constituted Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for Shri Sankalp Kochar, learned
parties counsel for the petitioners.
Shri Milind Phadke, learned
counsel for the respondent.
Shri Vivek Dalal, learned AAG
for the respondent/State.
ORDER
( 16.08.2021)
Sujoy Paul, J.
1. These petitions were heard and reserved on 11.08.2021.
One of the main point raised by learned counsel for the
petitioners is that the impugned detention orders passed by
District Magistrate are liable to be axed because the said
authority has prescribed the period of detention as six months in
one go. This runs contrary to section 3(3) and (4) of the
Prevention of Black Marketing & Maintenance of Supplies of
Essential Commodities Act, 1980 (for short Black Marketing
Act).
WP Nos.11876/2021 and 11548/2021
2. Per contra, learned AAG urged that section 3(3) and
article 22(4) of the Constitution nowhere mandates that the
detention period at a stretch cannot be longer than three months.
3. Shri Sankalp Kochar, learned counsel for the petitioner
submits that a conjoint reading of section 3(4) of Black
Marketing Act and Article 22 (4) of the Constitution of India
makes it crystal clear that that detaining authority/District
Magistrate cannot pass an order of detention for a period longer
than three moths in one go. In support of this contention, he
placed reliance on the judgment of the Apex Court reported in
(2015) 13 SCC 722 (Cherukuri Mani Vs. Chief Secretary,
Government of Andra Pradesh and Ors.). Relevant portion of
the judgment reads as under:-
"10. To answer the above issue, it is necessary to
examine the relevant provisions of the Act. Section 3 of
the Act empowers the detention of certain category of
persons, as defined under the Act. Apart from conferring
of power, the section regulates the manner of passing
the orders of detention as well as their duration. It reads
thus:
Section 3: Power to make orders detaining
certain persons : (1) The Government may, if
satisfied with respect to any bootlegger,
dacoit, drug-offender, goonda, immoral traffic
offender or land-grabber that with a view to
preventing him from acting in any manner
prejudicial to the maintenance of public order,
it is necessary so to do, make an order
directing that such person be detained.
(2) 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 Government are satisfied that it is
necessary so to do, they 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
WP Nos.11876/2021 and 11548/2021
(1), exercise the powers conferred by the said
sub-section:
Provided that the period specified in the
order made by the Government under this
sub-section shall not in the first instance,
exceed three months, but the 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.
(3) When any order is made under the
section by an officer mentioned in Sub-
section (2), he shall forthwith report the fact
to the Government 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
Government.
11. A reading of the above provisions makes it clear
that the State Government, District Magistrate or
Commissioner of Police are the authorities, conferred
with the power to pass orders of detention. The only
difference is that the order of detention passed by the
Government would remain in force for a period of three
months in the first Instance, whereas similar orders
passed by the District Magistrate or the Commissioner
of Police shall remain in force for an initial period of 12
days. The continuance of detention beyond 12 days
would depend upon the approval to be accorded by the
Government in this regard. Sub-section (3) makes this
aspect very clear. Section 13 of the Act mandates that
the maximum period of detention under the Act is 12
months.
12. Proviso to Sub-section (2) of Section 3 is very
clear in its purport, as to the operation of the order of
detention from time to time. An order of detention
would in the first instance be in force for a period of
three months. The Government alone is conferred with
the power to extend the period, beyond three months.
Such extension, however, cannot be for a period, not
exceeding three months, at a time. It means that, if the
Government intends to detain an individual under the
WP Nos.11876/2021 and 11548/2021
Act for the maximum period of 12 months, there must
be an initial order of detention for a period of three
months, and at least, three orders of extension for a
period not exceeding three months each. The expression
"extend such period from time to time by any period not
exceeding three months at any one time" assumes
significance in this regard.
13. The requirement to pass order of detention from
time to time in the manner referred to above, has got its
own significance. It must be remembered that restriction
of initial period of detention to three months, is nothing
but implementation of the mandate contained in Clause
(4)(a) of Article 22 of the Constitution of India. It reads
as under:
Clause 4 : No law providing for preventive
detention shall authorize the detention of a person
for a longer period than three months unless -
(a) an Advisory Board consisting of persons
who are or have been, or are qualified to be
appointed as, Judges of a High Court has reported
before the expiration of the said period of three
months that there is in its opinion sufficient cause
for such detention:
Provided that nothing in this sub-clause shall
authorize the detention of any person beyond the
maximum period prescribed by any law made by
Parliament under Sub-clause (b) of Clause (7); or
(b) such person is detained in accordance
with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of
Clause (7).
14. Where the law prescribes a thing to be done in a
particular manner following a particular procedure, it
shall be done in the same manner following the
provisions of law, without deviating from the prescribed
procedure. When the provisions of Section 3 of the Act
clearly mandated the authorities to pass an order of
detention at one time for a period not exceeding three
months only, the Government Order in the present case,
directing detention of the husband of the appellant for a
period of twelve months at a stretch is clear violation of
the prescribed manner and contrary to the provisions of
law. The Government cannot direct or extend the period
of detention up to the maximum period of twelve
months, in one stroke, ignoring the cautious legislative
intention that even the order of extension of detention
WP Nos.11876/2021 and 11548/2021
must not exceed three months at any one time. One
should not ignore the underlying principles while
passing orders of detention or extending the detention
period from time to time. "
(emphasis supplied)
4. Learned counsel for the respondent/State took a
diametrically opposite stand and contended that this point was
dealt with by the Apex Court in the case of T.Devaki Vs.
Government of Tamil Nadu reported in (1990) 2 SCC 456).
5. In a recent judgment in State of Maharashtra Vs. Balu
passed in Cri.Appeal No.1681/2019, the Apex Court followed
the dicta of T.Devaki (supra) and opined that the detaining
authority is competent to pass an order of detention detaining a
citizen for a period of 12 months in one go.
6. As noticed, the parties are at loggerheads on the
interpretation of section 3(4) of Black Marketing Act and placed
reliance on the aforesaid Supreme Court's judgment wherein,
different views is taken by the Court while interpreting the
analogous provision contained in other detention laws. Thus,
this point deserves serious consideration.
7. Before dealing with the rival contentions, we deem it
apposite to reproduce the relevant provision in juxtaposition for
ready reference:- National Security Act, 1980 (NSA Act), The
Tamil Nadu Prevention Of Dangerous Activities Of
Bootleggers, Cyber Law Offenders, Drug Offenders, Forest-
Offenders, Goondas, Immoral Traffic Offenders, Sand
Offenders, Sexual offenders, Slum-Grabbers And Video Pirates
Act, 1982 (Tamil Nadu Act) (considered in T.Devaki case),
Andhra Pradesh Prevention of Dangerous Activities of Boot-
leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic
Offenders and Land-Grabbers Act, 1986 (Andra Pradesh Act)
(considered in Cherukuri Mani case) and The Maharashtra
WP Nos.11876/2021 and 11548/2021
Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug Offenders, Dangerous Persons and Video Pirates Act,
1981, Sand Smugglers and Persons Engaged in Black Marketing
of Essential Commodities Act, 1981 (Maharashtra Act)
(considered in the case of Balu). Relevant provisions of the said
detention laws are as under :-
National Security Act, 3. Power to make orders detaining certain persons.--
1980 (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.
Tamilnadu Act 3. Power to make orders detaining certain persons. - (1) The State Government
may, if satisfied with respect to any bootlegger or drug offender (or forest
offender) or goonda or immoral traffic offender or slum grabber that with a view
to prevent him from acting in any manner prejudicial to the maintenance of
public order, it is necessary so to do, make an order directing that such person be
detained.
(2) 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
WP Nos.11876/2021 and 11548/2021
to do, they 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 (1), exercise the powers conferred by
the said sub-section;
Provided that the period specified in the 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 net
exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-
section (2), he shall forthwith report the fact to the State Government 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.
Maharashtra Act 3. Power to make orders detaining certain persons. - (1) 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 maintenance of
public order, it is necessary so to do, make an order directing that such person be
detained.
(2) 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 (1), exercise that powers conferred by
the said sub-section.
Provided that the period specified in the order made by the State Government
under this sub-section shall not, in the first instance, exceed six 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 six months at any on time.
(3) When any order is made under this section by an officer mentioned in sub-
section (2), he shall forthwith report the fact to the State Government, 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.
Andhra Pradesh Act 3. Power to make orders detaining certain persons. - (1) The Government
may, if satisfied with respect to any bootlogger, dacoit, drug offender, goonda,
immoral traffic offender or land grabber that with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order, it is
necessary so to do, make an order directing that such person be detained.
(2) 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 Government are satisfied that it is necessary so to
do, they 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 (1), exercise the powers conferred by
the said sub-section.
Provided that the period specified in the order made by the Government under
this sub-section shall not in the first instance, exceed three months, but the
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.
(3) When any order is made under the section by an officer mentioned in sub-
section (2), he shall forthwith report the fact to the Government together with
WP Nos.11876/2021 and 11548/2021
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 Government.
Prevention of (3) When any order is made under this section by an officer mentioned in sub-
Blackmarketing and section (2), he shall forthwith report the fact to the State Government to which
Maintenance of he is subordinate together with the grounds on which the order has been made
Supplies of Essential and such other particulars as in his opinion have a bearing on the matter, and no
Commodities Act, 1980 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 authority 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 word "fifteen days"shall be
substituted.
(4) When any order is made or approved by the State Government under this
section or when any order is made under this section by an officer of the State
Government and below the rank of Secretary to that State Government specially
empowered under sub-section (1), 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.
8. A comparative reading of all the aforesaid provisions
makes it clear that they are analogous in nature.
9. In T.Devaki (supra), the three judges bench of the Apex
Court in para 10 as opined as under :-
"Provisions of the aforesaid Sections are inbuilt safe-
guards against the delays that may be caused in
considering the representation. If the time frame, as
prescribed in the aforesaid provisions is not adhered,
the detention order is liable to be struck down and the
detenu is entitled to freedom. Once the order of
detention is confirmed by the State Government,
maximum period for which a detenu shall be detained
can not exceed 12 months from the date of detention.
The Act nowhere requires the detaining authority to
specify the period for which the detenu is required to
be detained. The expression "the State Government
are satisfied that it is necessary so to do. they may. by
order in writing direct that during such period as may
be specified in the order" occurring in sub-section (2)
of Section 3 relates to the period for which the
order of delegation issued by the State
Government is to remain in force and it has no
relevance to the period of detention. The
Legislature has taken care to entrust the power of
detention to the State Government, as the detention
without trial is a serious encroachment on the
WP Nos.11876/2021 and 11548/2021
fundamental right of a citizen, it has taken further
care to avoid a blanket delegation of power, to
subordinate authorities for an indefinite period by
providing that the delegation in the initial instance
will not exceed for a period of three months and it
shall be specified in the order of delegation. But if the
State Government on consideration of the situation
finds it necessary, it may again delegate the power of
detention to the aforesaid authorities from time to
time but at no time the delegation shall be for a
period of more than three months. The period as
mentioned in Section 3(2) of the Act refers to the
period of delegation and it has no relevance at all
to the period for which a person may be detained.
Since the Act does not require the detaining authority
to specify the period for which a detenu is required to
be detained, order of detention is not rendered invalid
or illegal in the absence of such specification. "
(emphasis supplied)
10. A two judges of the Apex Court in the case of Cherukuri
Mani (supra) opined as under :-
"10. To answer the above issue, it is necessary to
examine the relevant provisions of the Act. Section 3
of the Act empowers the detention of certain category
of persons, as defined under the Act. Apart from
conferring of power, the section regulates the manner
of passing the orders of detention as well as their
duration. It reads thus:
Section 3: Power to make orders detaining
certain persons : (1) The Government may, if
satisfied with respect to any bootlegger,
dacoit, drug-offender, goonda, immoral
traffic offender or land-grabber that with a
view to preventing him from acting in any
manner prejudicial to the maintenance of
public order, it is necessary so to do, make an
order directing that such person be detained.
(2) 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 Government are satisfied that it is
necessary so to do, they may, by order in
writing direct that during such period as may
be specified in the order, such District
WP Nos.11876/2021 and 11548/2021
Magistrate or Commissioner of Police may
also, if satisfied as provided in Sub-section
(1), exercise the powers conferred by the said
sub-section:
Provided that the period specified in the
order made by the Government under this
sub-section shall not in the first instance,
exceed three months, but the 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.
(3) When any order is made under the
section by an officer mentioned in Sub-
section (2), he shall forthwith report the fact
to the Government 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
Government.
11. A reading of the above provisions makes it clear
that the State Government, District Magistrate or
Commissioner of Police are the authorities, conferred
with the power to pass orders of detention. The only
difference is that the order of detention passed by
the Government would remain in force for a period
of three months in the first Instance, whereas
similar orders passed by the District Magistrate or the
Commissioner of Police shall remain in force for an
initial period of 12 days. The continuance of detention
beyond 12 days would depend upon the approval to be
accorded by the Government in this regard. Sub-
section (3) makes this aspect very clear. Section 13 of
the Act mandates that the maximum period of
detention under the Act is 12 months.
12. Proviso to Sub-section (2) of Section 3 is very
clear in its purport, as to the operation of the order of
detention from time to time. An order of detention
would in the first instance be in force for a period
of three months. The Government alone is conferred
with the power to extend the period, beyond three
months. Such extension, however, cannot be for a
WP Nos.11876/2021 and 11548/2021
period, not exceeding three months, at a time. It
means that, if the Government intends to detain an
individual under the Act for the maximum period of
12 months, there must be an initial order of
detention for a period of three months, and at least,
three orders of extension for a period not exceeding
three months each. The expression "extend such
period from time to time by any period not exceeding
three months at any one time" assumes significance in
this regard.
13. The requirement to pass order of detention from
time to time in the manner referred to above, has got
its own significance. It must be remembered that
restriction of initial period of detention to three
months, is nothing but implementation of the
mandate contained in Clause (4)(a) of Article 22 of
the Constitution of India. It reads as under:
Clause 4 : No law providing for preventive
detention shall authorize the detention of a
person for a longer period than three months
unless -
(a) an Advisory Board consisting of persons
who are or have been, or are qualified to be
appointed as, Judges of a High Court has
reported before the expiration of the said
period of three months that there is in its
opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall
authorize the detention of any person beyond
the maximum period prescribed by any law
made by Parliament under Sub-clause (b) of
Clause (7); or
(b) such person is detained in accordance
with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of
Clause (7).
14. Where the law prescribes a thing to be done in a
particular manner following a particular procedure, it
shall be done in the same manner following the
provisions of law, without deviating from the
prescribed procedure. When the provisions of Section
3 of the Act clearly mandated the authorities to pass
an order of detention at one time for a period not
exceeding three months only, the Government Order
in the present case, directing detention of the husband
of the appellant for a period of twelve months at a
WP Nos.11876/2021 and 11548/2021
stretch is clear violation of the prescribed manner and
contrary to the provisions of law. The Government
cannot direct or extend the period of detention up to
the maximum period of twelve months, in one stroke,
ignoring the cautious legislative intention that even
the order of extension of detention must not exceed
three months at any one time. One should not ignore
the underlying principles while passing orders of
detention or extending the detention period from time
to time. "
(emphasis supplied)
11. Various Division Benches of this Court followed the
judgment of Cherukuri Mani (supra). It is apt to take a birds
eye view on the relevant paras of the said judgments and
interpretation of relevant provision of detention law and
interpretation of relevant provisions of detention law:-
"Mohaseen v. State of M.P., (2014) 4 MP LJ 459 :-
6. Keeping in view the law laid down by the Supreme
Court in the case of Cherukuri Mani (supra), holding
that the State Government cannot at one time, pass an
order of detention for a period of more than three
months and since by the impugned order, the petitioner
has been ordered to be detained for a period of twelve
months at one stroke, in our considered opinion, the
impugned order of detention, which is for 12 months at
first instance, is liable to be and is hereby quashed. The
petitioner be set at liberty forthwith, if not required in
any other case
Manoj Singh Jadhone - V/s - State of Madhya Prdesh & Ors.
(W.P. No: 5637 OF 2015) :-
13. The words passing of the detention order for a
period of 12 months at a stretch without proper review
being detrimental to the right of the detenu when read
along with the requirement of Article 22(4)(a) and the
legislative intent providing for a mechanism of
Advisory Board to review the detention of a person
clearly goes to show that every order of detention
whether the original one for the initial period of three
months or the subsequent one extending the detention
has to pass through the mechanism of Advisory Board
as provided for in the statute. That could be the only
WP Nos.11876/2021 and 11548/2021
meaning which can be attributed to the statutory
provision when read in its totality particularly with
reference to the observations made by the Supreme
Court in para 13 and 16 in the case of Cherukuni
Mani (supra) as reproduced herein above. 15. When
the Supreme Court says that a detention can be
initially only for a period of three months and,
thereafter, it has to be assessed and reviewed from
time to time and if the review of detention through the
mechanism of Advisory Board is to prevent illegal
detention for a period of 12 months at one stretch, the
only conclusion that we draw would be that for every
detention beyond the original period of detention i.e.
three months approval on review by the Advisory
Board is necessary, when the State Government passes
an order extending the detention, there has to be
review of detention every time by the Advisory Board,
otherwise the subsequent detention beyond the
original period of three months would be contrary to
the rights of the detenu and not in accordance with
law.
16. Accordingly, we are of the considered view that if
the requirement of law as laid down by the Supreme
court in the case of Cherukuri Mani (supra) and the
principles discussed by the Supreme Court from
Paragraph-13 to 16 are analyzed, there is no doubt in
our mind that the Supreme Court infact lays down a
principle to say that a detention under the National
Security Act can initially be only for a period upto
three months and every time when this period is to
be extended, the same can be only for three months
at a time subject to the maximum of 12 months and
there has to be a review of the reason for detention
every time. This can be only conclusion which we can
draw if we read the principle laid down by the
Supreme Court particularly, the directions issued in
Paragraph-16 reproduced herein above.
17. Accordingly, we hold that the detention in the
present case beyond the first period of three months
vide Annexure-P5 & P6, contrary to the principle of
law as discussed as herein above, is illegal and the
same is liable to quashed and is accordingly, quashed.
18. With the aforesaid observations, this petition
stands allowed and disposed of. Certified copy as per
rules.
Raju @ Rajesh vs. State of MP & Ors. W.P. No.25629/2018 :-
WP Nos.11876/2021 and 11548/2021
5. In the light of the aforesaid judgment, it can be
safely gathered that the State Govt. could have
passed an order of detention initially for a period of
3 months and thereafter could have passed
subsequent orders directing detention for the period
beyond 3 months. The exercise of powers by
passing an order at the first instance for a period of
six months certainly violation of the statutory
provisions as contained in National Security Act,
1980 as well as the constitution mandates dealing
with life and liberty. 6. In the light of the aforesaid,
this Court is of the opinion that the impugned order
dated 17/10/2018 deserves to be set aside and is
accordingly set aside. The respondent/State is
directed to release the detenue forthwith, in case, he
is not required in any other criminal case.
In Akash yadav v. State of M.P., 2019 SCC OnLine MP 6990
another Division Bench has taken the same view.
12. Pertinently, the judgment of T.Devaki (supra) was not
brought to the notice of the Apex Court in the case of
Cherukuri Mani (supra). In the recent judgment, in the case of
State of Maharashtra Vs. Balu decided on 13.11.2019 (2019
SCC OnLine 1457) (supra), the Apex Court based its
interpretation on para 10 of the judgment of T.Devaki (supra) in
para 5.2 of the judgment of Balu (supra), the Court opined that
identical question came to be considered by the Apex Court in
the case of T.Devaki (supra). Relevant para of this judgment are
reproduced below:-
"5.1 Now, so far as the impugned Judgment and Order
passed by the High Court quashing and setting aside
the order of detention is concerned, having gone
through the impugned Judgment and Order passed by
the High Court, we are of the view that the same is not
required to be interfered with by this Court in exercise
of powers under Article 136of the Constitution of
India. However, at the same time,one of the grounds
on which the detention order is set aside, namely, that
in the detention order the detaining authority
prescribed the period of detention for 12 months and
the same is in breach of Section 3 of the Act is
WP Nos.11876/2021 and 11548/2021
concerned, considering the provisions of Section 3
read with Section 13 of the Act, the same cannot be
sustained. Sections 3 and 13 of the Act read as under:
"3. Power to mAke orders detaining
certain persons.-- (1) 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 maintenance of public
order, it is necessary so to do, make an order
directing that such person be detained.
(2) 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 subsection (1), exercise the
powers conferred by the said subsection:
Provided that the period specified in the
order made by the State Government under
this sub section shall not, in the first instance,
exceed six 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 six months at any one
time.
(3) When any order is made under this
section by an officer mentioned in subsection
(2), he shall forthwith report the fact to the
State Government, 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."
"13. Maximum period of detention.-- The
maximum period for which any person may
WP Nos.11876/2021 and 11548/2021
be detained, in pursuance of any detention
order made under this Act, which has been
confirmed under section 13, shall be twelve
months from the date of detention."
On fair reading of Section 3 of the Act, more
particularly, sub section (2) of Section 3 of the Act,
upon which much reliance has been placed by the
High Court, subsection (2) of Section 3 relates to
the period for which the order of delegation issued
by the State Government is to remain in force. It
has no relevance to the period of detention. The
Legislature has entrusted the power of detention to
the State Government. However, those powers can be
delegated to the Jurisdictional District Magistrate or
the Commissioner of Police, as provided in sub-
section (2) of Section 3 of the Act. As per Section 13
of the Act, a person can be detained under the Act
for such period not exceeding the maximum
period of 12 months from the date of detention.
The order of detention passed by the authorities
mentioned in sub section (2) of Section 3 of the Act is
required to be confirmed by the State Government. As
per Section 13 of the Act, once the order of detention
is confirmed by the State Government, the maximum
period for which the detenu shall be detained
cannot exceed 12 months from the date of detention.
The Act nowhere requires the detaining authority to
specify the period for which the detenu is required to
be detained.
5.2.An identical question came to be considered by this
Court in the case of T. DevAki (supra).
5.3. Applying the law laid down by this Court in the
aforesaid decision and, even otherwise, considering the
provisions of Section 3 read with Section 13 of the Act,
the High Court has committed a grave error in
holding that as the period of detention of 12 months
was mentioned in the order of detention, the same is
contrary to Section 3 of the Act and, therefore, the
same is liable to be quashed and set aside.
5.4. The High Court has wrongly relied upon and
misinterpreted Section 3 (2) of the Act with respect to
the period of detention. As observed hereinabove,
subsection (2) of Section 3 of the Act relates to the
period for which the order of delegation issued by the
State Government is to remain in force and does not
relate to the period of detention. Under the
WP Nos.11876/2021 and 11548/2021
circumstances, the observations made by the High Court
in paragraph 33 of the impugned Judgment and Order
and one of the grounds on whichthe order of detention is
set aside, namely, that as in the detention order the
period of detention for 12 months is mentioned, the same
is illegal, the same is contrary to sub section (2) of
Section 3 of the Act, cannot be sustained and deserves to
be quashed and set aside.
(emphasis supplied)
13. The aforesaid paragraphs of judgments show that there is
a cleavage of opinion regarding interpretation of relevant
sections of detention law. As per the judgment of T.Devaki
(supra) and Balu (supra) section 3(4) gives power of delegation
to State Government pursuant to which power can be delegated
in favour of District Magistrate or Commissioner of Police etc.
This delegation of power, in one go cannot be for a period
beyond three months. It is held that the act nowhere requires the
detaining authority to specify the period for which the detenue is
required to be detain. It was clearly laid down that section 3(2)
relates to the period for which the order of delegation issued by
the government is to remain in force and it has no relevance to
the power of detention. In Balu (supra) it was held that the
detention order can be passed in one go for 12 months
(maximum period of detention prescribed under the statue).
14. In Cherukuri Mani (supra), the Court opined that the
order of detention would remain in force for a period of three
months in the first instance. As noticed, the Division Benches
of this Court have followed the judgment of Cherukuri Mani
(supra).
15. In view of above divergent views taken by the Courts, an
interesting conundrum and substantial questions of law of
general importance have arisen. Hence, as per Chapter 4, Rule 8
of High Court of MP Rules, 2008, we recommend constitution
of the larger bench to consider following questions :-
WP Nos.11876/2021 and 11548/2021
1. Whether as per section 3 (3) and (4) of the Black
Marketing Act (or any other analogous provision of any other
detention law) permits the District Magistrate/competent
authority to detain the person beyond the period of three
months in one go. In other words, whether section 3 (3) and
(4) aforesaid restricts the competent authority to pass the
order of detention at the first instance only for a period of
three months?
2. In view of above cleavage of opinion in the
judgment of the Apex Court (one of which was followed by the
Division Benches of this Court), which view shall be binding
precedent for this Court?
16. Let this matter be placed before Hon'ble Chief Justice for
constitution of a larger bench to consider the aforesaid
questions. The Registry of this Court is directed to place the
matter before the Hon'ble Chief Justice forthwith so that these
questions touching upon life and liberty of citizen can be
answered at the earliest.
(Sujoy Paul) (Anil Verma)
Judge Judge
sourabh
Digitally signed by SOURABH YADAV
Date: 2021.08.16 14:57:55 +05'30'
