Ghanshyam Parmar vs The State Of Madhya Pradesh
2021 Latest Caselaw 8150 MP

W.P. No.25019/2021                                       1

 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
Case Number                      W.P.No. 25019/2021
Parties Name                      Ghanshyam Parmar
                                            Vs.
                                  State of MP & Ors.
Date of Order        03/12/21
Bench                Division Bench:
                     Justice Sujoy Paul
                     Justice Pranay Verma
Judgment delivered   Justice Sujoy Paul
by
Whether approved     No
for reporting
Name of counsel for Shri Abhishek Tugnawat, learned counsel for
parties             the petitioner.
                     Shri Vivek Dalal, learned Addl. Advocate
                     General for the respondents/State.
                           ORDER

(Passed on 3rd December, 2021)

Sujoy Paul, J.:

This petition filed under Article 226 of the Constitution takes exception to the order dated 04/11/2021 whereby the District Magistrate, Mandsaur by invoking Section 3 of National Security Act , 1980 (NS Act) detained the petitioner.

02. Shri Tugnawat, learned counsel for the petitioner, at the outset submits that petitioner is not assailing the decision making process pursuant to which impugned order of detention is passed. He categorically urged that the decision making process is in accordance with law. The singular point on which he assails the impugned order is

that the impugned order, at best shows that petitioner has committed something which may be a 'law and order' problem and by no stretch of imagination can be treated to be an act of infringing 'public order'. It is submitted that petitioner has no criminal record. The Full Bench in its recent judgment in Kamal Khare vs. State of MP reported in 2021 (2) MPLJ 554 held that the 'law and order' and 'public order' are two different facets. If an act is in breach of 'law and order', the ordinary penal provisions are sufficient to take care of the person, who has breached the law. However, for invoking preventive detention law, the authority has to examine whether act is of that magnitude which affects the 'public order'. Reliance is placed on para 18 and 44 of the judgment.

03. To elaborate, Shri Tugnawat, learned counsel for the petitioner urged that the grounds of detention dated 04/11/2021 shows that the singular reason assigned is that from the premises of petitioner, 328 bags of fertilizers were found. The petitioner did not have any licence. This act at best, as per contention of Shri Tugnawat, attracts 'law and order' and not 'public order'.

04. Per contra, Shri Vivek Dalal, learned AAG supported the detention order. He submits that in view of constitution Bench judgment reported in AIR 1964 SC 334 (Rameshwar Shaw vs. District Magistrate, Burdwan & Anr.), this Court has limited jurisdiction to examine the validity of a detention order. The subjective satisfaction of the District Magistrate cannot be subject matter of judicial review. The recent Division Bench judgment of this Court

passed in WP No.9878/2021 (Sonu Bairwa vs. State of MP) is also relied upon to contend that even when few injections of remedisivir were found in the possession of petitioner therein, this Court opined that detention law can be invoked.

05. Parties confined their arguments to the extent indicated above.

06. We have bestowed our anxious consideration on rival contentions and perused the record.

07. The contention of learned counsel for the petitioner was that the act of petitioner at best may amount to breach of law and order and does not fall within the ambit of 'public order'. The detaining authority invoked the detention law by treating the act of the petitioner affecting the 'public order'.

08. Learned Additional Advocate General for the respondent / State placed reliance on para - 8 of the Constitution Bench judgment of Supreme Court in Rameshwar Shaw (supra) and the same reads as under:-

"8. It is, however, necessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by s. 3(1)(a) is the subjective satisfaction of the said authority, cases may arise where the detenu may challenge the validity of his detention on the ground of mala fides and in support of the said plea urge that along with other facts which show mala fides, the Court may also consider his grievance that the grounds served on him 'cannot possibly or rationally support the conclusion drawn against him by the detaining authority. It is only in this incidental manner and in support of the plea of mala fides that this question can become justiciable; otherwise the reasonableness or propriety of the said satisfaction contemplated by s. 3(1)(a) cannot be questioned before the Courts."

[Emphasis supplied]

09. Learned counsel for the petitioner did not assail the impugned order on the ground of malafides. However, para

- 8 of the judgment of Rameshwar Shaw (supra) needs to be read along with para - 7 of the said judgment. In para -

7, it was clearly held that if grounds furnished to the detenu are found to be irrelevant on the touch stone of relevant statutory provision and in that sense are foreign to the act, the satisfaction of the detaining authority on which the order of detention is based is certainly open to challenge and in such cases, detention order is liable to be axed.

10. The ratio decidendi of said Constitution Bench judgment was consistently followed. In Gopiram v/s The State of Rajasthan reported in AIR 1967 SC 241, the another Constitution Bench held as under:-

The essential thing is that the legislature has left it to the detaining authority to be satisfied about the necessity of detention and that in the absence of mala fides on the part of that authority the Court cannot go into the question of the propriety of the subjective satisfaction of the detaining authority.

[Emphasis supplied]

11. In Anil Dey v/s The State of West Bengal reported in (1974) 4 SCC 514, it was held as under:-

"Of course, the veil of subjective satisfaction of the detaining authority cannot be lifted by the Courts with a view to appreciate its objective sufficiency. Never the less, the opinion of the officer must be honest and real, and not so fanciful or imaginary that on the facts alleged no rational individual will entertain the, opinion necessary to justify detention. So also if the grounds relied on have nothing to do with the prejudicial purposes stipulated to the statute, no nexus exists and the order in bad. Even if the incident attributed to the detenu has some connection with the obnoxious activities., it should not be too trivial in substance nor too stale in point of time as to snap the rational link that. must exist between the vicious episode and the prejudicial

activity sought to be interdicted."

[Emphasis supplied]

12. In Sadhu Roy v/s The State of West Bengal reported in (1975) 1 SCC 660, it was held as under:-

"One test to check upon the colourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulated 'grounds' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality. The Court must see through mere sleights of mind played by the detaining authority."

[Emphasis supplied]

13. In view of the acid test laid down in these judgments, it is clear that the smoke screen of subjective satisfaction need not be removed by the Court in order to appreciate the actual and objective sufficiency. At the cost of repetition, it is noteworthy that the petitioner has not challenged the detention order on the ground of malice. In Kamal Khare (supra), the Full Bench in no uncertain terms made it clear that merely because the act attracts penal provision also, it cannot be said that detention law cannot be applied. The common string in all the judgments is that validity of detention order depends upon the gravity and magnitude of the action which became reason for invoking detention law.

If the magnitude is very high and it affects the tempo of people or 'public order', detention law can be invoked.

14. If aforesaid acid test is applied in the factual backdrop of this case, it will be clear that the allegation against the petitioner is that he without there being any licence and authority kept 328 bags of Urea / fertilizer and was caught red handed while balckmarketing the said fertilizer. The detaining authority has mentioned that the farmers were facing severe scarcity of fertilizer in the farming season.

The act of petitioner has adversely affected the 'public order'.

15. We have gone through the grounds of detention carefully and are of the opinion that the factual backdrop is sufficient to invoke suspicious jurisdiction under the detention law. The hoarding and blackmarketing of huge quantity of fertilizer certainly affects 'public order'. We are unable to persuade ourselves with the line of argument of learned counsel for the petitioner that the act in question, at best affects 'law and order' and not 'public order'. Thus, we find no reason to interfere in this matter.

Resultantly, the petition fails and is hereby dismissed.

    (SUJOY PAUL)                             (PRANAY VERMA)
      JUDGE                                      JUDGE

Ravi
Digitally signed by RAVI PRAKASH
Date: 2021.12.06 12:41:30 +05'30'