Vinod Goyal vs The State Of Madhya Pradesh
2021 Latest Caselaw 599 MP

                                      1                  WP.3019.2021

                The High Court of Madhya Pradesh
                           WP.3019.2021
              [Vinod Goyal Vs. State of M.P. and others]
Gwalior dated : 10.03.2021

      Shri Sanjay Kumar Bahirani, learned counsel for the

petitioner.

      Shri MPS Raghuvanshi, learned Additional Advocate

General for the State.

      Learned counsel for the rival parties are heard.

1.    The present petition filed u/Art. 226 of the Constitution

assails the order of preventive detention passed by District

Magistrate Gwalior on 23/1/2021 by exercising powers u/S. 3(2)

of National Security Act, 1980 (for brevity NSA) directing for

detaining the petitioner for a period of three months.

2.    Bare skeleton facts necessary for adjudication are that on

16/1/2021 Food Safety Officer carried out inspection of flour mill

belonging to petitioner. Adulterated food articles alongwith

packing material were seized. FIR bearing Crime No. 48/2021 at

police station Dabra, District Gwalior was registered on 19/1/2021

alleging offenes punishable u/Ss. 272, 273 and 420 IC against

petitioner. Petitioner was arrested on 20/1/2021 and was remanded

to police custody for 2 days whereafter on 22/1/2021 petitioner was

released on bail by order of the court of competent jurisdiction.

Whereafter impugned order of preventive detention was passed on
                                       2                WP.3019.2021

28/1/2021 and on next day i.e. 29/1/2021 petitioner was taken into

custody. On 29/1/2021 itself petitioner was supplied with grounds

for detention. Whereafter, District Magistrate, Gwalior on 1.2.2021

forwarded the case to the State Government for approval. The State

Government thereafter approved the order of preventive detention

on 4/2/2021. It is submitted by the State counsel that copy of order

of confirmation passed by the State Govt was forwarded to the

Central Government by letter dated 4/2/2021 alongwith grounds for

detention.

2.1    From the aforesaid undisputed facts, what is evident as

daylight is as follows:-

      (1)    That after passing the impugned order on
      28/1/2021 the District Magistrate, Gwalior forwarded the
      same for reporting to the State Govt on 01.2.2021 i.e.
      after 4 days with no explanation either in the impugned
      order or in the reply filed to this petition as to what
      prevented the District Magistrate Gwalior to forward the
      case to the State Govt for confirmation earlier so as to
      follow the mandate of expression ".....shall forthwith
      report the fact to the State Government . ....." found in
      Sec. 3(4) of the NSA. This in the considered opinion of
      this court amounts to unexplained and inordinate delay in
      forwarding the matter to the State Govt for seeking
      approval thereby violating the mandatory provision of
      Sec. 3(4) and also mandate of Apex court in the case of in
      the case of Hetchin Haokip Vs. State of Manipur and
      others [(2018) 9 SCC 562] relevant portion of which is
                                  3                 WP.3019.2021

reproduced below:-
      "15. The expression "forthwith" under Section 3(4),
      must be interpreted to mean within reasonable time
      and without any undue delay. This would not mean
      that the detaining authority has a period of twelve
      days to submit the report (with grounds) to the
      State Government from the date of detention. The
      detaining authority must furnish the report at the
      earliest possible. Any delay between the date of
      detention and the date of submitting the report to
      the State Government, must be due to unavoidable
      circumstances beyond the control of the authority
      and not because of administrative laxity.

      16. In the present case, the District Magistrate
      submitted the report to the State Government on the
      fifth day (17.7.2017), after the date of the detention
      order (12.7.2017). The reason for the delay of five
      days is neither mentioned in the State Government's
      order confirming the detention order, nor in the
      impugned judgment. It was for the District
      Magistrate to establish that he had valid and
      justifiable reasons for submitting the report five
      days after passing the order of detention. As the
      decision in Keshav Nikanth Joglekar Vs. Commnr.
      of Police, 1956 SCR 653:AIR 1957 SC 28, holds,
      the issue is whether the report was sent at the
      earliest time possible or whether the delay in
      sending the report could have been avoided.
      Moreover, as the decision in Salim Vs. State of
      W.B., (1975) 1 SCC 653: 1975 SCC (Cri) 290,
      holds, there should be no laxity in reporting the
      detention to the Government. Whether there were
      administrative exigencies which justify the delay in
      sending the report must be explained by the
      detaining authority. In the present case, as we shall
      explain, this was a matter specifically placed in
      issue before the High Court. The District
      Magistrate offered no explanation. This would
      vitiate the order of detention."

(2)   That the order of preventive detention passed by
the District Magistrate Gwalior on 28/1/2021 was
forwarded to the Central Govt by letter dated 4/2/2021
                                       4                 WP.3019.2021

      i.e. after 6 days of passing of the order which breaches
      the maximum limit of 5 days prescribed in Sec. 8 of NSA
      in ordinary circumstances. No explanation has been
      pointed out either in the impugned order or in the reply to
      this petition to enable the respondents to take advantage

of extended period of 10 days provided in Sec. 8 of the NSA. Thus, the impugned order stands vitiated by violation of the mandatory provision u/Sec. 8 of the NSA. In this connection Constitution Bench decision of Apex court in A.K.Roi Vs. Union of India & Another (AIR 1982 SC 710), can be profitably referred to wherein in para 76 it is held thus:-

"76.The objection of the petitioners against the provision contained in S.8 (1) is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenue as late as five days and in exceptional cases 10 days after the date of detention. This argument overlooks that the primary requirement of S.8 (1) is that the authority making the order of detention shall communicate the grounds of detention to the detenue "as soon as may be". The normal rule therefore is that the grounds of detention must be communicated to the detenue without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily, and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by S.8 (1) to record its reason in writing. We do not think that this provision is open to any objection."

2.2 From the above, it is evident that mandatory provision laid

down in Sec. 3(4) and Sec. 8 of the NSA has been breached by

unexplained delay in carrying out the mandatory duties by 5 WP.3019.2021

respondents.

2.3 The concept of preventive detention is an anathema to the

fundamental rights of personal liberty. However, Art. 22 of

Constitution carves out an exception empowering the Executive

Authority to exercise this extraordinary power of preventive

detention to prevent occurrences of breach of public order. Thus by

itself very nature the power of preventive detention is preventive in

nature and not punitive. Since this power is exception to the

fundamental rights of personal liberty, the law governing the same

is to be strictly construed and any breach of the procedure laid

down is not only to be frowned upon but struck down by the

superior courts as and where it is found. Explaining the nature and

object of this power of preventive detention, the Apex court in the

case of State of Tamil Nadu Through Secretary to Government,

Public (law And Order-F) And Another Vs. Nabila And Another

[(2015) 12 SCC 127], has held thus:-

"12. Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence. However, the detaining authority must keep in mind while passing the order of detention the civil and constitutional right granted to every citizen by 6 WP.3019.2021

Article 21 of the Constitution of India inasmuch as no person shall be deprived of life and liberty except in accordance with the procedure established by law. The laws of preventive detention are to be strictly construed and the procedure provided must be meticulously complied with."

3. From the above discussion, what comes out loud and clear is

that the order of preventive detention has been passed in clear

violation of Sec. 3(4) & Sec. 8 of the NSA as detailed above and

therefore stands vitiated.

4. In view of above ground of violation of Sec. 3(4) and Sec. 8

of NSA having been found in favour of petitioner this Court

refrains from entering into other grounds raised especially ones on

merits.

5. Consequently, the petition is allowed to the following

extent:-

(1) The impugned order dated 28/1/2021 passed by District Magistrate, Gwalior (M.P.) is quashed. (2) Since the due process of law under NSA has not been followed by State resulting into deprivation of fundamental right of personal liberty to the petitioner, respondent No.4-District Magistrate Gwalior is liable to be fastened with cost of this litigation which is quantified at Rs. 10,000/-(Rs. Ten Thousand) which shall be paid to petitioner by District Magistrate, Gwalior within a period of 30 (Thirty) days from today by way of 7 WP.3019.2021

digital transfer in the account of petitioner and receipt thereof shall be filed in the Registry, failing which matter shall be put up by the Registry in "Direction Matters".

6. With these directions, the petition stands allowed.

                                                 (Sheel Nagu)                              (Anand Pathak)
                                                   Judge                                       Judge

                 (Bu)

DHANA Digitally signed by DHANANJAY BUCHAKE DN: c=IN, o=HIGH COURT OF

NJAY MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001,

BUCHA st=Madhya Pradesh, 2.5.4.20=6489e9ca230b3031a4b4 4a621934281f589875c02fb2a20e 4220aebc8a3ba7ec,

KE cn=DHANANJAY BUCHAKE Date: 2021.03.12 19:45:33 +05'30'