Banwari Singh Yadav vs The State Of Madhya Pradesh
2022 Latest Caselaw 5498 MP

                                   1                    WP-28190-2021

        THE HIGH COURT OF MADHYA PRADESH
                            WP-28190-2021
    (BANWARI SINGH YADAV VS. STATE OF M ADHYA PRADESH &
                         OTHERS)


Gwalior dated : 18/04/2022

      Shri Amit Lahoti, learned counsel for the petitioner.

      Shri Ankur Mody, learned Additional Advocate General for

respondents/State.

Petitioner, a resident of District Bhind, is before this Court taking

exception to the impugned order dated 3/12/2021 (Annexure P/1) passed

by respondent No.2/District Magistrate, Bhind in exercise of powers

under sub-Section (2) r/W sub-section (3) of Section 3 of the National

Security Act, 1980 (for brevity 'the 1980 Act') r/W Government of

Madhya Pradesh, Home Department, Bhopal Order No.F.31-5-98-II-C-I,

Bhopal, dated 17/09/2021. By the said order, petitioner has been

directed to be detained for three months and kept in Central Jail,

Gwalior.

So far petitioner has avoided service of the order. The order

remains un-executed. The instant petition has been filed taking exception

to the impugned order at a pre-arrest stage.

On perusal of the writ petition, we are constrained to observe that

it is a skeleton petition and the grounds of challenge are technical with

no factual foundation alleging non-compliance of Section 3(4) and

Section 3(5) of the 1980 Act. For ready reference and convenience,

ground No.(F) is quoted below:

                                        2                       WP-28190-2021

        "F.     That it is pertinent to mention here that after passing the

impugned order respondents has not complied with Section 3(4) of the Act, the detention order has not been approved within 12 days and further same has not been approved by the Central Government under Section 3(5) of the Act, therefore, noncompliance of Section 3(4) & (5) the detention order can not sustain in the eyes of law, deserved to be set aside."

On notice, respondents/State has filed a detailed counter affidavit.

In para 5.3 of the reply, details of factual foundation have been reiterated

based on the relevant facts supplied by S.P., Bhind dated 25/11/2021.

The said document is Annexure A/1.

Bare perusal of Annexure A/1, indeed, suggests the nature of the

activities being carried out by the petitioner prima facie are prejudicial

to the maintenance of supplies and services essential to the community

necessitating issuance of the detention order. For ready reference, it may

be stated that petitioner is found to be indulged in an activity of milk

adulteration in huge quantity mixing the milk with Maltodextrin Powder

injurious to public health. Besides, in reply to grounds 6.A to 6.G (which

impugned ground "F"), it is denied that order of detention was not

approved by the State Government within time. In fact, the detention

order has been approved by the State Government on 13/12/2021 i.e.

within 12 days as contemplated under Section 3(4) of the 1980 Act.

Besides, it has also been pleaded that thereafter, approval of the State

Government has been communicated to the Central Government. There

is no rejoinder to the counter affidavit placed on record.

Shri Amit Lahoti, learned counsel for the petitioner though fairly

concedes that in this Writ petition at pre-arrest stage, relevant and 3 WP-28190-2021

necessary facts are not pleaded except the ground "F" to assail the

impugned order for alleged non compliance of Section 3(4) and Section

3(5) of the 1980 Act; however, he tries to bolster his submission with

the help of judgment of Hon'ble Supreme Court in the case of Hetchin

Haokip Vs. State of Manipur and Others reported in 2018 (9) SCC 562.

We have carefully perused the said judgment and are of the view

that the law laid down thereunder is beyond cavil of doubt, nevertheless,

the same is of no assistance to the petitioner regard being had to the

factual matrix in hand. In that case, the detenu was already in jail

incarceration from 30/05/2017. The detention order was passed on

12/07/2017. Apprehending detenu was likely to be released on bail. On

17/07/2017, the District Magistrate served the detenu with the grounds

for his detention. On 20/07/2017, the State Government of the concerned

State has passed the detention order.

The Hon'ble Supreme Court while reiterating the law on the word

"forthwith" used in Section 3(4) of the 1980 Act, relied upon the

judgment of the Supreme Court in Keshav Nilkanth Joglekar Vs.

Commr. of Police reported in AIR 1957 SC 28. Para 10 thereof quoted

thereunder is quoted below as well;

"10. ...Under Section 3(3) it is whether the report has been sent at the earlier point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided."

and likewise the judgment of Hon'ble Supreme Court in Bidya Deb

Barma V. Distt. Magistrate, Agartala reported in AIR 1969 SC 323 4 WP-28190-2021

Para 4 thereof is quoted below;

"4. ... 'When a statute requires something to be done "forthwith", or "immediately" or even " instantly", it should probably be understood as allowing a reasonable time for doing it.'"

Both these paragraphs have been quoted in paragraphs 9 & 10 of the

judgment in Hetchin Haokip (Supra).

Based upon the aforesaid judgments, the Hon'ble Supreme Court

has reiterated the view that the expression "forthwith" under Section 3(4)

of the 1980 Act must be interpreted to mean within reasonable time and

without any undue delay and that is to be ascertain from the facts of the

case.

Besides, delay, if any, must be followed by explanation

perceivable in legal parlance.

Hence, in our opinion, there has to be a factual matrix in hand to

ascertain if the reporting of the fact to the State Govt. together with the

grounds on which the order has been made and such other particulars

was made forthwith.

There is nothing on record to conclude that the fact of detention

along with grounds and other particulars were not sent to State

Government forthwith.

In other words, the argument advanced in the context of non-

compliance of Section 3(4) and Section 3(5) of the 1980 Act without

factual pleadings, is a self pleasing argument without factual basis.

Consequently, we see no reason to interfere with the order of

detention on such ground (Ground "F"). Even otherwise, having perused 5 WP-28190-2021

the material available with the District Magistrate before issuance of

detention order was relevant and the detention order on merits also can

not be taken exception to.

Consequently, the present Writ Petition sans merits and is hereby

dismissed.

                (Rohit Arya)                       (Milind Ramesh Phadke)
                  Judge                                     Judge


(Dubey)