Madhya Pradesh High Court
Mrs. Aasefa Khan vs The State Of Madhya Pradesh on 16 July, 2021
Author: Sujoy Paul
1 WP No.10274/2021
High Court of Madhya Pradesh: Bench at Indore
WRIT PETITION No.10274/2021
Mrs.Aasefa Khan Vs. State of MP & Ors.
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Coram:
Justice Sujoy Paul, Judge
Justice Anil Verma, Judge
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Presence :
Shri.R.S.Chhabra, learned counsel for petitioner.
Shri Vivek Dalal, learned A.A.G for respondent/ State.
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Whether approved for reporting :
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ORDER
(Passed on 16th July, 2021)
Sujoy Paul, J:-
The petitioner has invoked the jurisdiction of this Court under
Article 226 of the Constitution to assail the detention order dated
19/5/2021 (Annexure R/4) passed by District Magistrate, Indore
whereby corpus is detained in exercise of power u/S.3 of the National
Security Act, 1980 (NSA Act).
2. The stand of petitioner is that FIR dated 1/5/2021 (Annexure
R/2) was lodged against the detenue on 1/5/2021. The detenue was
arrested in pursuant to said FIR on 13/5/2021. The detention order was
passed on 19/5/2021. Detenue was formally arrested in furtherance of
detention order under NSA Act on 5/6/2021.
3. Shri R.S.Chhabra, learned counsel for petitioner submits that no
Remdesivir injection was recovered from the detenue. An amount of
Rs.1200/- was allegedly recovered from him. Detenue was arraigned
solely on the basis of a memorandum of co-accused prepared u/S.27 of
the Indian Evidence Act. The report of Superintendent of Police
(Annexure R/7) dated 18/5/2021 shows that there exists an enclosure to
it namely "Aparadh Parishist". This enclosure was neither produced
before the District Magistrate nor supplied to the detenue. Thus, in
view of Union of India Vs. Ranu Bhandari (2008) 17 SCC 348, the
detention order stands vitiated.
4. The next contention of learned counsel for petitioner is that in
two documents (Annexure R/5) and (Annexure R/6), the respondents
have erroneously mentioned the detenue as "absconding" whereas
detenue was admittedly in custody since 13/5/2021. Although this
aspect is considered by this Court in recent cases of WP No.9792/2021
Yatindra Verma Vs State of MP and WP No.9878/2021 Sonu Bairwa
Vs. State of MP & Ors., but the effect of wrong mentioning of
"absconding" were not decided by this Court in the teeth of Sec.7,14
and 15 of NSA Act. In addition, Article 22(5) of Constitution also
protects the petitioner in this regard. (1980) 4 SCC 531 [Icchu Devi
Choraria Vs. Union of India] is relied upon to submit that a
constitutional court is under an obligation to examine whether
detention order is legal and justified in all respects or not. This is
solemn duty of this Court to examine whether memorandum of co-
accused which was enclosure to SP's report was ever provided to
District Magistrate and the detenue. Reliance is also placed on A.
Mohammed Farook Vs. Jt. Secy. To G.O.I. & Ors. (2000) 2 SCC 360
to bolster the submission that impugned order runs contrary to settled
legal position.
5. Another limb of argument of learned counsel for petitioner is
that the Full Bench in Kamal Khare Vs. State of MP & Ors (WP
No.22290/2019) opined that if the District Magistrate has not apprised
the detenue that he has a valuable right to prefer representation against
the detention order before the same authority namely District
Magistrate, the detention order is bad in law. The said principle is
followed by this Court in catena of cases. Shri Chhabra submits that
although the detention order in hand recognises the right of detenue to
prefer representation before the District Magistrate, the events show
that the said right became an empty formality because the detention
order as per petitioner's contention is served on the detenue on
5/6/2021 whereas as per the stand of respondents it was served on
2/6/2021. Much before that on 28/5/2021, the detention order was
approved by the State Government. Thus, after approval of detention
order by State government, the detention order was actually served on
detenu which practically resulted into deprivation of a meaningful
right to prefer representation against the detention order. Thus,
detention order is liable to be set aside. Reliance is placed on para 26
of judgment of Full Bench in Kamal Khare (supra) to contend that the
detaining authority has jurisdiction to entertain a representation as long
as said detention order is not approved by higher forum/State
government. Since State government approved it before service of
detention order on the petitioner, the right to prefer representation
against the detention order, in the peculiar facts and circumstances of
this case became a nullity. For this reason, interference is warranted.
6. Shri Vivek Dalal, learned A.A.G supported the impugned order
and contended that no doubt, erroneously in various documents the
detenu's status was shown as "absconding" whereas he was actually
arrested on 13/5/2021 and was in the custody. Shri Dalal submits that
in the case of Yatindra Verma (supra), this Court has not interfered
with the detention order on the ground that respondents have
erroneously mentioned the status as absconding. Thus, on this count
no interference may be made.
7. The stand of learned A.A.G is that there is no flaw in the
decision making process. The detenu was arrested on 13/5/2021. The
detention order was passed on 19/5/2021. The detention order can be
served as per procedure prescribed in Sec.4 of NSA Act. Accordingly,
an application was preferred before the concerned Magistrate on
25/5/2021 seeking permission to formally arrest and serve the
detention order to the detenu. The said permission could be granted by
the Magistrate only on 1/6/2021. On the next day i.e. on 2/6/2021 it
was served on the detenu. In the mean time, the State Government
approved the detention order. The District Magistrate was obliged to
forthwith communicate the detention order to the State Government
which was complied with and in turn, State government approved it
with quite promptitude. This chain of events are in consonance with
the scheme and object of NSA Act and for this reason, no interference
is warranted.
8. An attempt was made to distinguish (2008) 17 SCC 348 (Union
of India Vs. Ranu Bhandari) by contending that in the peculiar facts
of the said case, the detenu demanded documents on four occasions,
yet relevant documents were not given. In this peculiar factual
backdrop, interference was made. The judgments cited by Shri
Chhabra are not applicable in the present case. He fairly submitted that
the "Aparadh Parishist", the enclosure of SP's report was not
communicated to the District Magistrate. This "Aparadh Parishist"
was not supplied to the detenu also. This statement was made by
learned A.A.G after perusal of the original record. He submits that in
view of grave situation of pandemic prevailing in Indore, little
unintentional delay in communicating the detention order is not fatal to
the detention order.
9. Shri Chhabra in his rejoinder submissions, urged that there is
delay of six days in approaching the Magistrate by the respondents. No
satisfactory explanation is given for this inordinate delay in a matter
where the question of life and liberty of detenu was involved. It is also
not clear whether Magistrate was apprised about the urgency of the
matter. In absence thereof, the detention order cannot sustain judicial
scrutiny.
10. The parties confined their arguments to the extent indicated
above.
11. We have heard the parties at length and perused the record.
12. The first point raised by Shri Chhabra is that for not supplying
the "Aparadh Parishist" to the District Magistrate and to the detenue,
the impugned order stands vitiated. The reliance was placed on the
judgment of Ranu Bhandari (supra). In Ranu Bhandari (supra) the
apex Court followed the principle laid down in (2000) 9 SCC 170
(Radhakrishnan Prabhakaran Vs. State of T.N.). Relevant para of
said judgment reads as under:-
"8. We may make it clear that there is no
legal requirement that a copy of every document
mentioned in the order shall invariably be supplied
to the detenu. What is important is that copies of
only such of those documents as have been relied
on by the detaining authority for reaching the
satisfaction that preventive detention of the detenu
is necessary shall be supplied to him."
(emphasis supplied)
13. In the instant case, the District Magistrate has not placed reliance
on any particular document nor his satisfaction is founded upon
"Aparadh Parishisht". In absence thereof, it cannot be said that there
was any legal requirement of supplying said document to the petitioner
and non supply has vitiated the impugned order. In Ranu Bhandari
(supra), the detaining authority relied upon certain documents and
since those documents which had direct bearing on the detention orders
were not supplied to the detenu, it was held that detenu was prevented
from making an effective representation against his detention. As
noticed above, in the present case, in the detention order, the authority
has not placed any reliance on the memorandum/"Aparadh Parishist".
Thus, the first point deserves to be decided against the petitioner.
14. The second point raised is regarding mentioning of detenue's
status erroneously as "absconding". This Court has considered this
aspect in the case of Yatindra Verma (supra).
15. The detenue is shown to be absconding in certain documents
which were prepared after issuance of the detention order. For this
reason, detention order will not stand vitiated even in the teeth of
Sec.7,14 and 15 of NSA Act. Thus, this argument must also fail. It is
noteworthy that in the case of Sonu Bairwa (supra) it was held that the
main and operative reason for interference in the detention order in
Yatindra Verma (supra) was based on Full Bench decision in Kamal
Khare (supra). In other words, the main reason was that in the said
case, the detention order did not contain any stipulation that the
petitioner therein had an opportunity to prefer representation before
District Magistrate himself. Thus, this point will not improve the case
of the petitioner.
16. The next contention of Shri Chhabra was that before detention
order could be served on the detenue, the order was approved by the
State government which resulted into deprivation of right to prefer
representation before the District Magistrate. The argument on the first
blush appears to be attractive but lost much of its shine when examined
carefully. No doubt, the detention order needs to be served to the
detenue at the earliest. However, the reason for delay needs to be
examined in each case. There is no rule of thumb that in every case
where delay has taken place, irrespective of reasons, the detention
order should be interfered with. It depends on the facts and
circumstances of each case whether delay is justifiable and plausible.
In the instant case, the detention order was passed on 19/5/2021
(Annexure R/4). The respondents requested the Magistrate to permit
them to formally arrest the petitioner and serve upon him the detention
order. The permission came to be issued only on 1/6/2021. From
25/5/2021 to 1/6/2021 the delay is not attributable to the respondents.
The delay between 19/5/2021 to 25/5/2021 is sought to be explained by
Shri Dalal by contending that during this time at Indore, the
administration was having multiple problems. Indore had highest
number of Corona patients and deaths in the province. There was
severe scarcity of beds, oxygen, Remdesivir injections and other
facilities. The "lock down" was going on. The police and
administration was involved in multiple tasking. Because of multiple
responsibilities, the delay has occurred. We find substance in the
argument of Shri Dalal. In normal days, perhaps we would not have
agreed with the similar arguments, but we are not oblivious of the fact
that the administration at Indore was facing multiple challenges on
various counts. The administration was hard pressed and was busy in
maintaining law and order, ensure supply of oxygen, ensure availability
of beds and other facilities to the public. In the aforesaid factual
backdrop, the delay in communicating the detention order will not
cause any dent to the impugned order. We are satisfied that justifiable
reasons have been assigned for belatedly communicating the detention
order to the detenue. Time consumed in communicating the detention
order or in taking decision on the representation need not be measured
by using a stop watch. Mathematical precision/accuracy is not the test
on the anvil of which each day's delay is to be measured. It is not the
span of time which is always decisive. Indeed, it is the explanation
offered which will determine whether delay is because of any
bureaucratic redtapism or lethargy. We find support in our view from
the judgments of Supreme Court. It is profitable to refer to few of
them as under:-
Kamarunnissa v. Union of India, (1991) 1 SCC 128
"7.....Our attention was drawn to the case law in
this behalf but we do not consider it necessary to refer to
the same as the question of delay has to be answered in
the facts and circumstances of each case. Whether or
not the delay, if any, is properly explained would depend
on the facts of each case and in the present case we are
satisfied that there was no delay at all as is apparent
from the facts narrated above. We, therefore, do not find
any merit in this submission."
(emphasis supplied)
Ahamed Nassar v. State of T.N; (1999) 8 SCC 473
"8.....In a given case even a few days' delay may
be fatal while in another set of circumstances a longer
delay may still be held to be for valid reasons.
Expeditious disposal of any representation only means
which could be expeditiously disposed of by the
authority concerned but should not be with any unexplained
delay or delay through carelessness. This would depend on
the facts and circumstances of each case; In L.M.S. Ummu
Saleema v. B.B. Gujaral [(1981) 3 SCC 317, para 7: 1981
SCC (Cri) 720] [SCC (para 7)] the Court held that the
explanation of each day's delay is not a magical formula.
It only means it should be done with the utmost
expedition: (SCC Headnote).
"The time imperative can never be absolute or
obsessive.' The occasional observations made by the
Supreme Court that each day's delay in dealing with the
representation must be adequately explained are meant to
emphasise the expedition with which the representation
must be considered and not that it is a magical formula, the
slightest breach of which must result in the release of the
detenu."
(emphasis supplied)
Senthamilselvi v. State of T.N; (2006) 5 SCC 676
"6.....There can be no hard-and-fast rule as to the
measure of reasonable time and each case has to be
considered from the facts of the case and if there is no
negligence or callous inaction or avoidable red tapism on
the facts of a case, the Court would not interfere. It needs
no reiteration that it is the duty of the Court to see that the
efficacy of the limited, yet crucial, safeguards provided in
the law of preventive detention is not lost in mechanical
routine, dull casualness and chill indifference, on the part
of the authorities entrusted with their application. When
there is remissness, indifference or avoidable delay on the
part of the authority, the detention becomes vulnerable."
(emphasis supplied)
Vinod K.Chawla v. Union of India, (2006) 7 SCC 337
"14.....The subsequent decisions of this Court are
also on the same lines and we do not consider it
necessary to refer to them as the principle is well settled
that there should be no inaction or lethargy in
consideration of the representation and where there is a
proper explanation for the time taken in disposal of
representation even though it may be long, the continued
detention of the detenu would not be rendered illegal in
any manner."
(emphasis supplied)
17. Shri Chhabra also placed reliance on the judgment of Supreme
Court in Icchu Devi (supra) to contend that this Court is obliged to
examine the legality of the decision of detaining authority. During the
course of hearing, on a specific query from the bench Shri R.S.Chhabra
fairly admitted that there is no iota of pleading in the writ petition
regarding non supply of "Aparadh Parishist" to the District Magistrate
and to the detenue by the S.P. No doubt, in a habeus corpus petition
challenging detention order, we cannot apply the strict principles of
pleading, but at the same time, there should be some
foundation/pleading on the strength of which a factual aspect can be
converted into a legal issue. We are not required to deal with this
aspect any further because we have already turned down the point
relating to non supply of "Aparadh Parishist" to the petitioner.
18. The Apex Court in (1986) 4 SCC 407 (Raj Kumar Singh Vs.
State of Bihar) opined as under:-
"Preventive detention as reiterated as hard law
and must be applied with circumspection rationally,
reasonably and on relevant materials. Hard and ugly
facts make application of harsh laws imperative."
(emphasis supplied)
19. Indulging in black marketing of a drug like Remdesivir in days
of extreme crisis is certainly such an ugly act and fact which can very
well be a reason for invoking Sec.3 of NSA Act against the petitioner
by the District Magistrate. No other flaw could be pointed out in the
decision making process adopted by learned District Magistrate. Thus,
we find no reason to interfere in the impugned order dated 19/5/2021.
20. The petition fails and is hereby dismissed.
(SUJOY PAUL) (ANIL VERMA)
JUDGE JUDGE
vm
Digitally signed by
VARGHESE MATHEW
Date: 2021.07.16
15:46:06 -07'00'
