Madhya Pradesh High Court
Mohd Sohel Patel vs Ministry Of Home Affairs on 24 June, 2021
Author: Sujoy Paul
1 W.P. No.9529/21 & 3 Ors.
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
WP No.9529/2021
Smt. Monica Tripathi ......................... Petitioner
Vs.
State of M.P. ..........................Respondent
WP No.9561/2021
Mohammad Irshad Qazi ......................... Petitioner
Vs.
State of M.P. ..........................Respondent
WP No.9564/2021
Yusuf Khan ......................... Petitioner
Vs.
State of M.P. ..........................Respondent
WP No.9566/2021
Mohammad Sohel Patel ......................... Petitioner
Vs.
State of M.P. ..........................Respondent
...............................................................................................................
Coram:
Justice Sujoy Paul, Judge
Justice Shailendra Shukla, Judge
...............................................................................................................
Presence :
Shri Abhinav Dhanodkar, Advocate for the petitioners.
Shri Pushyamitra Bhargav, learned Additional Advocate
General along with Shri Amit Singh Sisodiya, learned Govt. Advocate
for the respondent/State.
...............................................................................................................
Whether approved for reporting : No
...............................................................................................................
Heard on :22/06/2021 through video conferencing
2 W.P. No.9529/21 & 3 Ors.
...............................................................................................................
ORDER
(Passed on this 24th day of June, 2021)
Sujoy Paul, J. :
Regard being had to the similitude of the questions involved,
on the joint request of the parties, these writ petitions were
analogously heard and are decided by this common order.
WP No.9529/2021
2) This petition is filed under Article 226 of the Constitution. The
petitioner has assailed the order dated 12/05/2021 (Annexure P/1)
whereby the District Magistrate, Indore by invoking the provisions of
National Security Act, 1980 (NSA Act) detained the husband of
petitioner namely, Dr. Vinay Shankar Tripathi. The stand of petitioner
is that petitioner's husband was arrested on 15/04/2021 for allegedly
committing offences under Section 420, 274, 275, 276, 188 of IPC
and Section 18A, 18a(i), 18(a)(iv) and Section 27 of Drug and
Cosmetic Act, 1940 r/w Section 3 of Epidemic Diseases Act 1987.
The allegation against the corpus is that he was illegally possessing
and black marketing 400 remdesivir injections.
3) Shri Abhinav Dhanodkar, learned counsel for petitioner submits
that if the act of Corpus is punishable under various provisions of the
enactments on which offences are registered and he was arrested, he
cannot be detained under the NSA Act. Reliance is placed on para-48
of Full Bench judgment passed in WP No.22290/2019 (Kamal Khare
vs. State of MP & Ors.) Since alleged offence committed by Corpus
is punishable under the provisions of aforesaid enactments, his
detention under the NSA Act is wholly impermissible.
4) The second attack on the impugned order is that in the
detention order, the District Magistrate has not mentioned the period
of detention. This runs contrary to the judgment of Supreme Court
reported in (2017) 13 SCC 519 (Lahu Shrirang Gatkal vs. State of
Maharashtra) and another judgment reported in (2018) 12 SCC 150
(Sama Aruna vs. State of Telangana & Anr.). He submits that a
Division Bench of this Court in WP No.2695/2019 (Shri Akash
Yadav vs. State of MP) took the same view and opined that if
detention order passed under NSA Act does not mention the period of
detention, the order stands vitiated.
5) Criticizing the detention order, learned counsel for the
petitioner urged that the operative reason for invoking NSA Act and
detaining the Corpus is the apprehension of District Magistrate that
the Corpus may get bail from the Court of competent jurisdiction.
This singular reason makes the order vulnerable.
6) On merits, Shri Dhanodkar, learned counsel for petitioner
submits that in the detention order, it is mentioned that sizable
number of remdesivir injections were found in possession of the
Corpus, but it is not mentioned as to whom, where and in which
amount he intended to black-market the same. The Corpus is a highly
educated person running a pharmaceutical business. He intended to
get the remdesivir injections patented in his name for which he
preferred application before the Competent Authority namely,
Controller General of Patent, Designs and Trade Marks. A receipt
thereof (Annexure P/3) shows that a process for synthesis of
remdesivir was going on. Form 2 prepared under The Patents Act,
1970 (page 46) is also relied upon for this purpose. In this view of the
matter, the detention of Corpus is bad-in-law.
7) Per contra, Shri Pushyamitra Bhargav, learned AAG submitted
that under Section 3(3) of NSA Act, the District Magistrate is under
no obligation to mention the period of detention. Non-mentioning of
period will not vitiate the detention order. Reference is made to
(1990) 2 SCC 456 (T. Devki vs. Govt. of T.N.) and order of this Court
passed in WP No.8212/2014 (Narendra Verma vs. State of MP)
decided on 13/02/2015. It is submitted that judgment of Akash Yadav
passed in WP No.2695/2019 cannot be pressed into service because it
is passed without taking into account the binding judgment of
Supreme Court in T. Devki and Division Bench judgment in
Narendra Verma (supra).
8) The conditions on which NSA can be imposed are reiterated by
Shri Bhargav, learned AAG by contending that necessary ingredients
for invoking NSA Act are very much available. A wholesome reading
of detention order will show that the singular reason for detention is
not the apprehension of District Magistrate about release of Corpus on
bail. He has taken into account the relevant factors while invoking
Section 3(3) of NSA Act.
9) The learned AAG placed reliance on relevant portions of the
FIR and pointed out and urged that 400 vials of remdesivir were
recovered from the Corpus. In each vial, the manufacturing license
number, batch number, manufacturing date etc. were specifically
mentioned. The defence put forth by petitioner/Corpus is not
trustworthy on the face of it because before getting the patent in the
name of Corpus, there was no occasion to mention the batch number,
manufacturing date, expiry date etc. It is further informed that in
furtherance of said FIR, the Corpus is already facing a criminal case
where prosecution will produce the entire material against the said
person.
10) No other point is pressed by the learned counsel for the parties.
11) We have heard the parties at length and perused the record.
12) A Division Bench of this Court in Akash Yadav (supra) came to
hold that in absence of mentioning the period of detention, detention
order becomes illegal. A careful reading of the order of Akash Yadav
shows that the authoritative pronouncement of Supreme Court on this
aspect in T. Devki (supra) was not brought to the notice of the
Division Bench. In T. Devki (supra), Apex Court held as under:-
"12. Section 3 of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers and
Drug Offenders Act, 1981 is identical in terms to Section
3 of the Tamil Nadu Act. Section 3 of Maharashtra Act
does not require the State Government, District
Magistrate or a Commissioner of Police to specify period
of detention in the order made by them for detaining any
person with a view to preventing the detenu from acting
in any manner prejudicial to the maintenance of public
order. Section 3(1) which confers power on the State
Government to make order directing detention of a
person, does not require the State Government to specify
the period of detention. Similarly, sub-sections (2) or (3)
of Section 3 do not require the District Magistrate or the
Commissioner of Police to specify period of detention
while exercising their powers under sub-section (1) of
Section 3. The observations made in Gurbux Bhiryani
case [1988 Supp SCC 568 : 1988 SCC (Cri) 914] that the
scheme of the Maharashtra Act was different from the
provisions contained in other similar Acts and that
Section 3 of the Act contemplated initial period of
detention for three months at a time are not correct. The
scheme as contained in other Acts providing for the
detention of a person without trial, is similar. In this
connection we have scrutinised, the Preventive
Detention Act, 1950, the Maintenance of Internal
Security Act, 1971, COFEPOSA Act, 1974, National
Security Act, 1980, but in none of these Acts the
detaining authority is required to specify the period of
detention while making the order of detention against
a person."
Emphasis supplied
13) Pertinently, the judgment of Akash Yadav (supra) was pressed
into service before another Division Bench of this Court in the case of
Narendra Verma (supra). The Division Bench opined as under:-
"16. From the discussion herein before, it is evident that
T. Devki's case was earlier in point of time and it is a
decision of Apex Court by three Hon'ble Judges holding
that it is not necessary to specify the period of detention
in the detention order. The subsequent decision of Apex
Court is also delivered by two Hon'ble Judges but there is
no reference or mention of the earlier decision of T.
Devki's case therein. It appears that the same was not
brought to the notice of Hon'ble Judges of the Apex
Court. As stated herein before that in case of conflict as
held in the case of Jabalpur Bus Operator (supra), the
earlier decision will prevail hence as per decision in T.
Devki's case, we hold that it is not necessary to specify
the period in the detention order and detention order
cannot be held illegal for not specifying the period of
detention in detention order."
Emphasis supplied
14) We are in respectful agreement with view taken by Division
Bench in Narendra Verma (supra) because it is based on the binding
judgment of 3 Judges Bench of Supreme Court in the case of T. Devki.
Interestingly, the judgment of T. Devki was not brought to the notice
of subsequent Benches in the case of Lahu Shrirang Gatkal and in
Sama Aruna. These two judgments are delivered by two Judges
Bench of Supreme Court. In both these matters, on which heavy
reliance is placed by Shri Dhanodkar, a different statute was subject
matter of interpretation. NSA Act was not the subject matter nor the
judgment of T. Devki in which NSA Act was interpreted was
considered. Thus, we are unable to hold that for not mentioning the
period of detention, detention order will vanish in thin air. In R.P.
No.1372/2019 (State vs. Sahil Khan), the Division Bench further held
as under:-
"7. In light of the aforesaid and also keeping in view the
judgment delivered in the case of Secretary to
Government of Tamil Nadu Public (Law and Order)
Revenue Department (supra), as the judgement delivered
in the case of Gurbux Anandram Bhiryani (supra) was
overruled and the aforesaid fact was not brought to the
attention of this Court by either side, order passed in W.P.
No.17650/2019 is hereby recalled.
8. The writ petition No.17650/2019 is restored to its
original number. The same be listed on 04.11.2019.
9. The review petition stands disposed of accordingly."
15) In view of foregoing analysis, the detention order cannot be
interfered with for not mentioning the period of detention. Thus, this
contention of Shri Dhanodkar must fail.
16) Our understanding about the Sub-section 3 of Section 3 of NSA
Act is that this provision deals with delegation of power of State
Government to the District Magistrate or Commissioner of Police for
the purpose of detention. The expression "during such period as may
be specified in the order", in our opinion talks about the period during
which the order delegating the power shall remain alive. In other
words, Sub-section 3 of Section 3 deals with the period relating to the
order of delegation and not a period to be mentioned in the order of
detention.
17) A careful reading of detention order shows that argument of
learned AAG has substantial force. By no stretch of imagination, it
can be said that singular and operative reason for detaining the Corpus
is the apprehension of District Magistrate regarding grant of bail in
future to the Corpus. On the contrary the grounds of detention shows
that District Magistrate has taken care of grave situation because of
Covid-19 pandemic. He recorded that Indore is the worst affected
town in the State. The whole city is under Lock-down and curfew.
Govt. and private offices are closed. In this difficult situation, there is
serious problem of supply of remdesivir injections. Since 400
injections were found in possession of Corpus, who intended to black-
market it, it has caused serious dent to the 'public order'. Since action
of Corpus was prejudicial to the maintenance of 'public order' and
maintenance of 'supplies essential to the public', the District
Magistrate decided to pass the detention order. We are unable to
persuade ourselves with the line of argument of Shri Dhanodkar that
singular reason to detain the petitioner is the apprehension that
detenue may get the bail. This argument, therefore, deserves rejection.
18) A question of law cropped up before the Larger Bench which
reads as under:-
"Where the offence is committed under Regulatory
Act such as Food Safety and Standards Act, 2006 which
contains penalty clause, under no circumstances, an
action can be taken against a person whose activities are
prejudicial to maintenance of public order under the
National Security Act, 1980."
19) Learned counsel for the petitioner placed reliance on para-48 of
the Full Bench decision wherein it was held that personal liberty is a
cherished and valuable right flowing from Article 21 of the
Constitution. This right cannot be taken away in a manner which is
unknown to law. However, the Full Bench in para-18 opined as
under:-
"18. Before embarking on the examination of the
arguments advanced by learned counsel for both the sides
on the referred questions, we must clarify that the
invocation of the principle generalia specialibus
nonderogant by one of the learned Judges (Mr. Justice
Atul Sreedharan) in paragraph No.8 of the dissenting
order that the general law shall not prevail over the
provisions of the special law, on the basis of what was
held in paragraph No.19 of the judgment of Sudeep Jain
Vs. State of Madhya Pradesh and others (W. P.
No.21768/2019) decided on 8.11.2019, does not stand on
sound legal foundation and has no relevance to the
question that we are dealing with. That principle, in our
considered opinion, would not be attracted to the facts of
the present case. The order of preventive detention under
NSA does not overlap with the panel provisions under the
FSSA as it is not in lieu of that but is rather in addition to
that. The preventive detention law can operate side by
side the law which makes the offences punishable under
the substantive offences under the IPC or the FSSA. The
preventive detention under the NSA is only anticipatory
action and is not a punitive measure. The law that is
generally applied to the cases of preventive detention is
that if an offence committed by an offender, which
merely effect the law and order situation, can be dealt
with under ordinary penal laws, the extraordinary
provisions of preventive detention ought not to be
invoked, but it cannot deduced from this that the ordinary
penal laws, would for that purpose, be considered general
law and the relevant laws of the preventive detention,
which in this case would be NSA, would be considered
as a special law or vice versa. While FSSA only provides
for penalty for the offence made out under the provisions
of the said Act, the NSA provides for the preventive
detention if parameter enumerated in sub-Section (2) of
Section 3 are attracted. These two Acts have been enacted
to achieve different object and for difference purpose.
The provisions which makes the offence punishable
under the FSSA is intended to punish the offender for the
offence committed by him, but the object which the NSA
seeks to achieve is to put the person concerned in
detention so as to prevent him from doing an act but not
to punish him for something which he has done. While
the former is based on the act already done by him, the
latter is based on the likelihood of his acting in a manner
similar to his past acts and preventing him for repeating
the same. We are therefore not persuaded to approve of
the line of reasoning taken by the Division Bench in
paragraph No.19 of the judgment in Sudeep Jain (supra)
to that effect and paragraph No.8 of the dissenting order
by one of the Hon'ble Judges referred to above."
Emphasis supplied
20) A bare reading of this para makes it clear that preventive
detention is a different facet than the punishment under a penal
provision. Both operate in different fields. It cannot be said as a Rule
of thumb or as a State Jacket Formula that if a person is tried for
committing an offence under a penal provision, in no circumstances,
he can be detained under the NSA Act. Thus, this argument of
petitioner cannot cut any ice and deserves to be rejected.
21) Indisputably, in both the waves of Corona, Indore was the worst
affected town in the province. There was scarcity of beds, hospitals,
oxygen and medicines. The administration was struggling to ensure
proper supply of medicines and for providing other medical facilities
to the citizen.
22) The scope of interference against detention order is limited. It is
the subjective satisfaction of detaining authority which matters.
Unless it is shown that decision making process adopted by said
authority is vitiated or runs contrary to the provisions of the Act, no
interference is warranted. It cannot be forgotten that the detention
under the NSA Act is an exercise for prevention and not for
punishment. Whether Corpus has actually committed any offence or
not will be subject matter of adjudication and decision by the criminal
Court. We are satisfied that necessary ingredients for invoking NSA
Act were available in the instant case and no flaw in decision making
process could be established. Thus, question of interference by this
Court does not arise.
Petition fails and is hereby dismissed.
Writ Petition No.9564/2021
23) In this petition, the detention order dated 06.05.2021 is called in
question, whereby corpus is detained for possessing Remdesivir
injection without licence and authority. It is mentioned that the corpus
was trying to black-market the injection in Rs.28,000/-.
Writ Petition No.9561/2021
24) In this petition, the challenge is mounted to the detention order
dated 06.05.2021, whereby corpus - Yusuf Khan was detained for the
same reason the corpus of connected matter, Arshad was detained.
25) Shri Abhinav Dhanodkar borrowed the arguments which was
advanced in W.P. No.9529/2021 relating to period of detention etc. In
addition, it is submitted that the detention order is passed without any
justifiable reasons. A corpus cannot be detained because alleged
offences are punishable under the different enactments. He placed
reliance on para - 48 of the Full Bench Judgment for this purpose.
26) In both the matters, the contentions of the petitioners are that
the Remdesivir injection was in fact prescribed by the doctor which
was required for treatment of family member. The corpus were
possessing said injection for that purpose. Hence, NSA has wrongly
been invoked.
27) Shri Pushyamitra Bhargav, learned Additional Advocate
General opposed the contentions and borrowed his previous
arguments advanced in W.P. No.9529/2021.
28) As noticed, the detention order cannot be set aside because (i) it
does not mention the period of detention (ii) the corpus are liable to be
punished under other provisions of the Act.
29) No fault could be established against the decision making
process by the petitioners. This Court is not obliged to sit in appeal
against the detention order and examine the factual aspects of the
matter. If decision making process is not defective, no interference is
warranted. We see no merits in these petitions.
30) The petitions fail and are hereby dismissed.
W.P. No.9566/2021
31) This petition takes exception to the detention order dated
07.05.2021 Annexure P/1, whereby the petitioner's brother is detained
under the NSA Act for illegal possession and black marketing of
Remdesivir Injection, Fabiflue medicine strips and Meropenem
Injections. This order is also criticized by contending that the corpus
cannot be detained by invoking NSA Act because the said offence
allegedly committed by him are triable and punishable under different
penal provisions.
32) In addition, it is urged that in absence of mentioning the period
of detention in the detention order, the impugned order deserves to be
interfere with.
33) We have already dealt with these aspects in great detail
hereinabove.
34) Hence, no interference can be made on these counts. The
petitioner has miserably failed to show any defect in the decision
making process adopted by the District Magistrate.
35) No case is made out for interference on the merits of the case.
The petitions fail and are hereby dismissed.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
soumya
Digitally signed
by SOUMYA
RANJAN DALAI
Date: 2021.06.24
15:34:43 +05'30'
