Lalu Sohane @ Jaideep vs Union Of India
2021 Latest Caselaw 3264 MP

                            1
                                  WP. No.6112/2021, W.P. No.6241/2021,
                                 W.P. No.7713/2021 & W.P. No.8168/2021




HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
                AT JABALPUR


Case No.                        WP. No.6112/2021
Parties Name
                            Praveen Kumar Bisen
                                      vs
                           Union of India and others

                                W.P. No.6241/2021

                            Lalu Sohane @ Jaideep
                                      vs
                           Union of India and others

                                W.P. No.7713/2021

                                 Shoeb Khan
                                      vs
                           Union of India and others

                                W.P. No.8168/2021

                               Pankaj Deshmukh
                                      vs
                            State of M.P. and others
Date of Order           14/07/2021
Bench Constituted       Division Bench:
                        Justice Prakash Shrivastava
                        Justice Virender Singh
Judgment delivered by   Justice Prakash Shrivastava
Whether approved for    No
reporting
Name of counsels for    For the petitioner:
parties
                        Shri Manish Datt, Sr. Advocate
                        with Shri Ambar Mishra,
                        Advocate in WP No.6112/2021
                        and WP No.6241/2021, Smt.
                        Manjit P.S. Chuckal, Advocate in
                        WP No.7713/2021 and Shri
                        Rohit Pegwar, Advocate in WP
                        No.8168/2021.

                        For the respondents:

                        Shri A.P.   Singh,  Deputy
                        Advocate General with Shri
                                 2
                                     WP. No.6112/2021, W.P. No.6241/2021,
                                    W.P. No.7713/2021 & W.P. No.8168/2021



                           Rahul Deshmukh, Panel Lawyer
                           for the State and Shri Praveen
                           Dubey, Advocate for respondent
                           No.3 in WP No.8168/2021.
Law laid down                                 -
Significant paragraph                         -
numbers

                            ORDER

14.07.2021

Per: Prakash Shrivastava, J.

This order will govern the disposal of WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 and W.P. No.8168/2021 as it is jointly submitted by the learned counsel for the parties that all these petitions involve common question.

2. In these petitions, the petitioners have challenged the detention order dated 03.03.2021 passed under Section 3(1) read with Section 3(2) of the provision of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act of 1980'). The detention period is six months. In WP. No.6112/2021, the detenu is Naveen Bisen, in W.P. No.6241/2021, the detenu is Lalu Sohane @ Jaideep, in W.P. No.7713/2021, the detenu is Mohd. Razik Khan and in W.P. No.8168/2021, the detenu is Rinkaj Deshmukh. The allegation is that the detenu had diverted 300 bags of wheat (total 150 Quintals) from Balaji Warehouse Sawangi which was meant for the purpose of public distribution system at Government Fair Price Shop to a private outlet as the truck was partly unloaded at Gangotri Complex. The detenus have been detained in terms of the detention order.

3. As per the stand of the respondents, the detaining authority had informed the State about the detention order of the detenu vide communication dated 05.03.2021. The grounds of

WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 & W.P. No.8168/2021

detention alongwith the material were served on the detenus on 09.03.2021. The State Government had approved the detention order on 10.03.2021 and the Advisory Board opined that there exists sufficient ground to detain the detenus.

4. The first ground of challenge raised by the counsel for the petitioners is that the detaining authority had not informed the detenus about their right to make representation to the detaining authority.

5. This issue is covered by the Full Bench judgment of this Court dated 22nd of April, 2021 passed in WP No.22290/2019 (Kamal Khare vs. State of M.P.) whereby the Full Bench after taking note of the earlier judgements on the point has reached to the conclusion that the detenu is required to be informed about the right to make representation to the detaining authority himself. The Full Bench in the case of Kamal Khare(supra) has held as under:

"30. Now coming to the question as to what would be the effect of not informing the detenu that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) even examined this aspect in paragraph No.14 of the report and categorically held as under:-

"14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."

WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 & W.P. No.8168/2021

31. The Constitution Bench in Kamlesh Kumar Ishwardas Patel (supra) categorically negatived the argument, albeit in the context of the provisions of the COFEPOSA Act and PIT NDPS Act, that the detention therein does not require approval of an order made by the officer specially empowered by the State Government or by the Central Government and that the order passed by such officer has to be placed on the same footing as an order made by the State Government because the report has to be forwarded to the Central Government, therefore the order of detention would acquire deemed approval of the Government from the date of its issue.

Repelling such argument, the Supreme Court held that approval, actual or deemed, postulates application of mind to the action being approved by the authority giving approval. Approval of an order of detention would require consideration by the approving authority of the grounds and the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention. Unlike Section 3(4) of the National Security Act, there is no requirement in the COFEPOSA Act and the PIT NDPS Act that the officer specially empowered for the purpose of making of an order of detention must forthwith send to the Government concerned the grounds and the supporting material on the basis of which the order of detention has been made. Nor is it prescribed in the said enactments that after the order of detention has been made by the officer specially empowered for that purpose the Government concerned is not required to apply its mind to the grounds and the supporting material on the basis of which the order of detention was made. The only circumstances from which inference about deemed approval is sought to be drawn is that the order is made by the officer specially empowered for that purpose by the concerned Government. Merely because the order of detention has been made by the officer who has been specially empowered for that purpose would not, the Supreme Court held, justify the inference that the said order acquires deemed approval of the government that has so empowered him, from the date of the issue of the order so as to make the said government the detaining authority.

32. The Constitution Bench of Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) held that by specially empowering a particular officer under Section 3(2) of the COFEPOSA Act and Section 3(2) of the PIT NDPS Act, the Central Government or the State Government, confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person and he continues to be the detaining authority so long as the order of detention remains operative. The distinction between the detention order passed under COFEPOSA Act and PIT NDPS Act viz a viz those under NSA is that while in the former enactments the detaining authority ceases to be the detaining authority only when the order of detention ceases to operate, which would happen on expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act but in NSA he continues to be the detaining authority till the detention has not been approved by the appropriate Government. Once the detention order is approved by the Government, he ceases to be the detaining authority and it is the appropriate

WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 & W.P. No.8168/2021

Government which then assumes the role of the detaining authority.

33. In view of the above, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal. The relevant paragraph No.47 is reproduced hereunder:-

"47. In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenu was only informed that he can make a representation to the Central Government or the Advisory Board. The detenu was not informed that he can make a representation to the officer who had made the order of detention. As a result the detenu could not make a representation to the officer who made the order of detention. The Madras High Court, by the judgments under appeal dated 18-11-1994 and 17.1.1994, allowed the writ petitions filed by the detenus and has set aside the order of detention on the view that the failure on the part of the detaining authority to inform the detenu that he has a right to make a representation to the detaining authority himself has resulted in denial of the constitutional right guaranteed under Article 22(5) of the Constitution. In view of our answer to the common question posed the said decisions of the Madras High Court setting aside the order of detention of the detenus must be upheld and these appeals are liable to be dismissed."

34. This issue again came up for consideration before the Supreme Court later in Santosh Shankar Acharya (supra), in the context of order of preventive detention passed under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and dangerous Persons Act, 1981. Following the ratio of the Constitution Bench in Kamlesh Kumar Ishwardas Patel (supra), it was held that the detaining authority i.e. the District Magistrate or the Commissioner of Police, is obliged to communicate to the detenu about detenu's right to make representation to him until detention order passed by him is approved by the State Government within 12 days and non communication thereof would vitiate the detention order."

The Division Bench of this Court earlier also in the matter of Kalpna Nandesari vs. Union of India vide order dated 07.12.2016 passed in WP No.18318/2016 while examining the correctness of the order of preventive detention passed under the Act of 1980 has held that -

"The main ground of challenge of order of detention is that the District Magistrate did not communicate the petitioner that he has a right to submit a representation to the detaining authority before rejection of the representation by the State Government.

WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 & W.P. No.8168/2021

The petitioner has specifically pleaded this ground in ground No.C of para 6 of grounds of the writ petition, however, the respondents did not file any specific reply to this ground in the return. It is mentioned in the return that the District Magistrate after considering the facts of the case was of the opinion to detain the husband of the petitioner in exercise of powers conferred under Section 3 of the Act of 1980.

A Division Bench of this Court has held as under in regard to right of a detenue against the order of detention passed under the provisions of the Act of 1980:

"Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others vs. Santosh Shankar Acharya (2000) 7 SCC 463 in para 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that non- communication of the fact to the detenue that he could make a representation to the detaining Authority so long as order of detention has not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamleshkumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeraman's case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observed that the detention order and the disclosure of the fact that detenue could make representation to the detaining Authority before the State Government considered the proposal for approval has abridged the right of detenue under Article 22(5) of the Constitution. As a result, the continued detention of the detenue on the basis of such infirm order cannot be countenanced."

The Division Bench after relying on the judgment of the Apex Court has held that no disclosure of the fact in the order of detention that the detenue could make representation to the detaining authority before the State Government considered the proposal of approval amounts to abridgement of right of detenue guaranteed under Article22(5) of the Constitution and the order of detention is bad in law.

In this view of the matter, the petition is allowed, the impugned order Annexure P/1 is hereby quashed. The husband of the petitioner(detenue) be set forth at liberty if he is not required in any other case."

WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 & W.P. No.8168/2021

6. In the present case also, in the order of detention, nothing has been disclosed about the right of the detenu to make representation to the detaining authority. While deciding WP No.1830/2015 (Abhinav Dwivedi vs. State of M.P. and others) and connected batch of writ petitions by order dated 01.04.2015, the Division Bench of this Court has opined that the provisions of the Act of 1980 are pari materia with the provisions of COFEPOSA Act and also held that non-disclosure of the fact that detenu could make representation to the detaining authority before the State Government considers the proposal for approval abridges the right of the detenu under Article 22(5) of the Constitution of India. Same is the view taken by the Division Bench of this Court in the matter of Ram Niwas Urmalia vs. Union of India vide order dated 11.08.2016 passed in WP No.11863/2016 and in the matter of Shakeel vs. State of M.P. and others vide order dated 21.3.2017 passed W.P. No.1607/2017.

7. In the present petitions also, the detention orders clearly reflect that the detenus have not been informed about their rights to make representation to the detaining authority before the proposal for approval is considered by the State Government.

8. The petitioners have also raised the ground of non-supply of ground within the prescribed period of five days. Section 8 of the Act of 1980 provides that -

"8. Grounds of order of detention to be disclosed to person affected by the order. (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

WP. No.6112/2021, W.P. No.6241/2021, W.P. No.7713/2021 & W.P. No.8168/2021

9. In terms of the above Section, the detaining authority was required to communicate the detenu the grounds of detention not later than five days from the date of detention and in exceptional circumstances and for reasons to be recorded in writing not later than ten days. In the present case, grounds of detention have been supplied after five days. Neither any exceptional circumstances have been pointed out nor any reason has been recorded in writing. Hence, there is clear violation of Section 8 of the Act of 1980.

10. In view of the above analysis, we are of the opinion that the detention orders under challenge in these petitions cannot be sustained and are hereby set aside. The petitions are allowed accordingly. No costs.

                                    (PRAKASH SHRIVASTAVA)                          (VIRENDER SINGH)
                                          JUDGE                                         JUDGE

YS


Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.07.14 15:03:02 +05'30'