Saurabh Agrawal vs The State Of Madhya Pradesh
2021 Latest Caselaw 4594 MP

                                              Writ Petition No.13000/2021
                                     -1-


      HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE


                      Writ Petition No.13000/2021

                           Saurabh Agrawal

                                   versus

                 The State of Madhya Pradesh & Others


Coram :
       Justice Sujoy Paul, Judge
       Justice Anil Verma, Judge
Presence :

       Shri Sankalp Kochar, learned counsel for the petitioner.
       Shri Vivek Dalal, learned Additional Advocate General for the
respondent / State.

       Whether approved for reporting ?


                           ORDER

(Delivered on this 24th day of August, 2021 )

Sujoy Paul, J.

This hebeas corpus writ petition is filed by the brother of the detenu i.e. Punit Agrawal who was detained by impugned order dated 22.05.2021 under Section 3(2) of the National Security Act, 1980 (NSA Act).

02. In short, the case of the detenu is that an F.I.R. was lodged at Crime No.504/2021 for committing offences under Sections 420 and 188 of the Indian Penal Code, Section 3 of the Epidemic Diseases Act, 1897 and 3/7 of the Essential Commodities Act, 1955 on 17.05.2021. The police authorities by Writ Petition No.13000/2021

communication dated 20.05.2021 recommended for detention of detenu by invoking the NSA Act. In turn, the respondent No.2 by order dated 22.05.2021 (Annexure-P/1) detained the detenu. The grounds of detention were also supplied to him on 22.05.2021 (Annexure-P/2).

03. Shri Sankalp Kochar, learned counsel for the petitioner submits that the detenu was engaged in wholesale and retail business of various foodgrains. His father-in-law was suffering from COVID - 19 because of which detenu made earnest efforts for procurement of vial of Remdesivir injection for the solitary purpose of saving the life of his family member. Medical prescription to support his contention is filed as Annexure-P/3.

04. The detenu has no criminal record and based on a solitary incident, he was illegally detained. The detenu was already in custody since 17.05.2021 because of the said F.I.R. As per story of the prosecution, two vials of Remdesivir injection were unauthorizedly found in possession of the detenu. The offences mentioned in the F.I.R. are not grave offence and are triable by the Magistrate.

05. A conjoint reading of recommendation and detention order shows that there is no independent application of mind by the learned District Magistrate. He mechanically passed the order of detention.

06. A citizen already arrested can still be detained under the detention law provided (i) the detaining authority is conscious of the fact that detenu is already under arrest (ii) there is likelihood of his release on bail (iii) on such release, there is probability of his indulging in same activity. The detention order nowhere Writ Petition No.13000/2021

shows that these necessary ingredients were addressed by the District Magistrate. Reliance is placed on (2007) 15 SCC 208 (Sayed Abul Ala v/s Union of India & Others), (1986) 4 SCC 416 (Vinod Singh v/s District Magistrate, Dhanbad, Bihar & Others), (1989) 4 SCC 418 (N. Meera Rani v/s Government of Tamilnadu & Another) and judgment of this Court in W.P. No.25986/2018 (Smt. Kamini Yadav v/s The State of Madhya Pradesh & Others).

07. Shri Sankalp Kochar, learned counsel for the petitioner further submits that Punit Agrawal was arrested on 17.05.2021, detention order was passed on 22.05.2021 and the detention order was affirmed by the State Government on 28.05.2021, whereas detention order was served on the detenu on 14.06.2021. The detention order was not forthwith sent to the State Government which violates Section 3 (4) of the NSA Act. For this reason alone the order of detention deserves to be interfered with in view of judgment Division Bench judgment of this Court in W.P. No.1362/2020 (Vivek Khurana v/s The State of Madhya Pradesh & Others).

08. The rejection order dated 28.05.2021 (Annexure-R/5) is relied upon to contend that the State Government was totally oblivious of the fact of detenu's detention much before the date of passing of detention order. Therefore, following sentence of the order is relevant : "please intimate the actual date of detention to this department as soon as he is detained". Shri Kochar urged that the State appears to be of the view that detenu is still absconding. To support this argument, next reliance is on State Government's communication to the Central Government dated 28.05.2021 Writ Petition No.13000/2021

(Annexure-R/6), wherein it is mentioned that "the person concerned is reported to be absconding". These findings are example of total non-application of mind urged counsel for the petitioner.

09. The order of the State Government dated 19.07.2021 was criticized, whereby period of detention of three months was counted from the date detention order was served on the detenu and not from the date the detention order was passed. To clarify, it is submitted that the detenu was arrested on 17.05.2021 and detention order was passed on 22.05.2021. The detenu was already in custody on the date of passing of detention order. The detention order was passed for a period of three months. Three months must be calculated in factual backdrop of this case from the date of detention order i.e. 22.05.2021, and therefore, the detenu will complete three months' detention on 22.08.2021. The order dated 19.07.2021 (Annexure-R/7) shows that they are counting the period after the date detention order was served on the detenu i.e. 14.06.2021 and hence, it is mentioned that he will remain in detention up to 14.09.2021.

10. Lastly, Shri Snakalp Kochar submits that detention order shows that there is no discussion of facts. The grounds of detention were not supplied to the Central Government. In view of recent order passed in W.P. No.9799/2021 (Rajeev Kumar Jain v/s The State of Madhya Pradesh), the detention order must be set aside.

11. Shri Vivek Dalal, learned Additional Advocate General submits that there is no defect in the decision making process. The District Magistrate is the competent authority. The delay Writ Petition No.13000/2021

occasioned in communicating the detention order is not fatal in view of recent order of this Court in W.P. No.10274/2021 (Aasefa Khan v/s The State of Madhya Pradesh & Others). He also placed reliance on the judgment of Rajeev Kumar Jain (supra).

12. No other point is pressed by learned counsel for the parties.

13. We have heard the parties at length and perused the record.

14. The word "forthwith" used in Section 3(4) of NSA Act is of great significance. The word "forthwith" used to ensure the compliance of Article 22 (5) of the Constitution of India.

15. Shri Dalal placed reliance on judgment of this Court in Aasefa Khan (supra). However, it is noteworthy that in the said case, this Court considered the aspect of delay in communicating the detention order to the detenu, whereas the bone of contention of petitioner's counsel is that in the instant case, delay also occasioned in sending the order to the State Government. The detention order was passed on 22.05.2021, whereas it was sent to the State Government on 25.05.2021.

16. The orders of Statement Government dated 28.05.2021 (Annexure-R/5 and R/6) clearly show that there is total lack of application of mind on the detention status of the detenu. Mechanically it is recorded that detenu is 'absconding'. This casual finding can certainly have adversely affect on the prospects of detenu regarding release because if authorities are of the opinion that detention order could not be executed, there is every likelihood that they will affirm the detention order. Thus, Writ Petition No.13000/2021

this material information regarding actual detention must be given with accuracy and precision. We deprecate such orders, where without any basis it was recorded that the detenu is absconding.

17. It is also seen that document dated 28.05.2021 (Annexure-R/6) nowhere mentions that grounds of detention were supplied to the Central Government. The non-supply runs contrary to the statutory mandate ingrained in the NSA Act. It runs contrary to the law laid down by this Court in the case of Vivek Khurana (supra). Paragraph - 8 of judgment of Vivek Khurana (supra) reads as under:-

"8. The State has replied to the same in paragraph 9 of its reply. According to the State, the communication of the report to the Central Government need not be made to the Petitioner as that is not a requirement u/s. 3(5) of the NSA. However, there is no categorical assertion by the State that the requirement of S. 3(5) of the NSA has been satisfied. Annexure R/5 at page 19 of the reply is the order of approval of the detention dated 17/01/2020. In the list of persons to whom the said order has been forwarded at the base of the order, is the Under Secretary to the Ministry of Home Affairs, New Delhi at S.No.3.Annexure R/5 is the copy of the approval u/s/ 3(4) of the NSA sent to the District Magistrate, Katni. The State has not filed a copy of the intimation specifically marked to the Central Government. Besides, it is also mandatory to enclose the grounds of detention and understandably so. The Communication of the approval to the Central Government u/s. 3(5), relating to a detenu's detention under the NSA, is not an empty formality but a solemn act to ensure that the Central Government is in a position to appreciate the necessity of detaining the Petitioner under S. 3(2) of the NSA Act. The non-dispatch of the grounds of detention to the Central Government can render further detention unlawful. In this case, the state has not find any document to reveal that (a) approval of the State Government dated 10/01/2020 has been dispatched to the Central Government as mandated under section 3 (5) of the NSA and (b) if sent, whether the said Writ Petition No.13000/2021

intimation included the grounds of detention pertaining to the Petitioner here."

(Emphasis supplied)

18. We find force in the argument of Shri Sankalp Kochar that since detenu was under detention w.e.f. 17.05.2021 and detention order was passed subsequently on 22.05.2021, the period of detention must be counted from 22.05.2021 and not from the date detention order was belatedly served on him. Thus, even otherwise, period of detention of detenu would be over on 22.08.2021. We disapprove the mathematical calculation / formula adopted by the respondents in calculating the period of detention from the date of service of detention order.

19. The respondents have committed a serious breach of law in not communicating the grounds of detention to the Central Government. The period of detention of detenu will even otherwise expire on 22.08.2021. Nothing was pointed out to this Court to show that respondents intended to extend the period of detention. In view of this analysis, other grounds raised by the petitioner are not required to be decided.

20. In view of foregoing analysis, the detention order dated 22.05.2021 cannot be permitted to stand. The order of detention dated 22.05.2021 is set aside.

The Writ Petition is allowed.

   (SUJOY PAUL)                                     (ANIL VARMA)
     JUDGE                                            JUDGE

Ravi
Digitally signed by RAVI PRAKASH
Date: 2021.08.24 15:12:46 +05'30'