Bharat Dave vs The State Of Madhya Pradesh
2021 Latest Caselaw 3335 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                         Writ Petition No.4937/2021
                  (Bharat 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.4937/2021 (Bharat 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 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Petition No.4937/2021 (Bharat Dave Vs. State of M. P. and Others)

of 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
18:21:54 -07'00'