Madhya Pradesh High Court
Shyam Dave vs Home Department on 15 July, 2021
Author: Rohit Arya
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Petition No.5302/2021
(Shyam Dave Vs. State of M. P. and Others)
-1-
Indore, dated 15/07/2021
Heard through Video Conferencing.
Shri Adarsh Muni Trivedi, learned Senior Counsel with Shri Ashish
Trivedi, learned counsel for the petitioner.
Shri Pushyamitra Bhargava, learned Additional Advocate General
for the respondent / State.
This writ petition under Article 226 of the Constitution of India is
directed against the order of detention dated 21/01/2021 passed in
exercise of powers under Sub-Section (2) read with Sub-Section (3) of
Section 3 of the National Security Act, 1980 by the District Magistrate,
District Indore, Indore (M.P.).
Twofold submissions related to jurisdictional error have been
advanced by learned Senior Advocate Shri Adarsh Muni Trivedi. First, the
impugned order does not specify the period of detention. Hence, suffers
from the vice of arbitrariness and in direct conflict with the judgment of this
Court in the case of Khurshid Vs. State of M.P. reported in MPWN
2016(3) Note 16. Second, the impugned order does not indicate right of
detenu entitling him to make representation before the Detaining Authority,
whereas the same is mandatory in light of the judgment of the Full Bench
rendered in Writ Petition No.22290/2019 (Kamal Khare Vs. State of
M.P.) decided on 22/04/2021 and Writ Petition No.9630/2021
(Gurbachan Singh Saluja Vs. State of M. P.) decided on 29/06/2021.
Per contra, Shri Pushyamitra Bhargava, learned Additional
Advocate General submits that so far as the first contention is concerned,
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Petition No.5302/2021
(Shyam Dave Vs. State of M. P. and Others)
the same runs contrary to the judgment of the Hon'ble Supreme Court
delivered in the case of T. Devaki Vs. Government of Tamil Nadu and
Others reported in (1990)2 SCC 456. Paragraph No.15 of the aforesaid
judgment is reproduced as under:-
"15. It is thus clear that the view taken in Gurbux
Bhiryani's case (1988 Supp SCC 568) on the interpretation of
Section 3 of the Maharashtra Act is incorrect. This Court has
while considering the question of the validity of the detention
order made under different Acts, consistently taken the view that
it is not necessary for the detaining authority or the State
Government to specify the period of detention in the order. In the
absence of any period being specified in the order the detenu is
required to be under detention for the maximum period
prescribed under the Act, but it is always open to the State
Government to modify or revoke the order even before the
completion of the maximum period of detention. We are,
therefore, of the opinion that the impugned order of detention is
not rendered illegal on account of the detaining authority's failure
to specify period of detention in the order."
He submits that in view of the aforesaid and for want of provision
under the Act to specify the period of detention the aforesaid requirement
is not mandatory. Therefore, the impugned order shall not become
pregnable and fall for this reason. He further submits that the aforesaid
judgment has been considered and followed by the Division Bench at
Indore in the case of Smt. Monica Tripathi Vs. State of M.P. (Writ
Petition No.9529/2021, decided on 24/06/2021).
However, learned Additional Advocate General fairly submits that in
light of the Full Bench judgment (Supra), the impugned order is vulnerable
and may not be sustained for want of prescription of right of detenu to
make representation before the Detaining Authority. Therefore, this Court
may consider the aforesaid submissions and dispose of the writ petition.
The first contention as raised cannot be countenanced in the light of
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Petition No.5302/2021
(Shyam Dave Vs. State of M. P. and Others)
the judgment of Hon'ble Supreme Court (Supra), where the Hon'ble
Supreme Court has held that for want of prescription of period of
detention, the detention order does not become vulnerable rendering it
illegal. It may be mentioned that there is no judgment so far brought to the
notice of this Court overruling the proposition as laid by the Hon'ble
Supreme Court in the case of T. Devaki (Supra).
Upon hearing learned counsel for the parties, in the considered
opinion of this Court, there is no further requirement to hear the counsel
for the petitioner on merits of the impugned order as the same suffers from
vice of patent jurisdictional error referable to submission No.02.
Consequently, this Court holds since the impugned order does not bear
the stipulation that the petitioner has right to make representation before
the Detaining Authority, the same suffers from jurisdictional error and
therefore, cannot withstand the test of reasonableness. Consequently, the
impugned order is quashed. However, the liberty is granted to the
Detaining Authority to pass fresh order with prescription of right of making
representation available to the detenu before the Detaining Authority.
With the aforesaid, writ petition is hereby allowed to the aforesaid
extent.
E-certified copy as per rules.
(ROHIT ARYA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Tej
Digitally signed by
TEJPRAKASH VYAS
Date: 2021.07.15
18:22:28 -07'00'
