Madhya Pradesh High Court
Atul S/O Shri Ashok Patel Through His ... vs Union Of India on 9 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:9783
1
W.P. No.9022 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 9th OF APRIL, 2025
WRIT PETITION No. 9022 of 2025
ATUL S/O SHRI ASHOK PATEL THROUGH HIS MOTHER AND
REPRESENTATIVE SMT. LALU PATEL
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Makbook Ahmad Mansoori, learned counsel for the petitioner.
None for the respondent / Union of India.
Shri Sudeep Bhargava, learned Deputy Advocate General for respondents No.2
to 7 / State.
ORDER
Per : Justice Vivek Rusia
With the consent, heard finally.
The petitioner has filed the present petition under Article 226
of the Constitution of India challenging the validity of order of
detention dated 24.10.2024 passed by the Commissioner, Indore
Division under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs & Psychotropic Substances Act, 1988 (in short 'the
PIT NDPS Act') and order dated 03.03.2025, whereby the State
Government has confirmed the order of detention for a period of six
months.
02. Facts of the case are that vide letter dated 04.09.2024, the
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Deputy Commissioner of Police, Zone - 1 submitted a report to the
Additional Commissioner recommending detention of the petitioner.
Vide letter dated 10.10.2024, the Additional Commissioner
forwarded the said report to the Commissioner with its
recommendation. As per the report, four criminal cases have been
registered against the petitioner, details of the same are reproduced
below:-
Sr. No. Police Station Provisions & Act
1 Bhawarkuan Section 8/21,29 of the NDPS Act
2 Tilak Nagar Section 8/22 of the NDPS Act
3 Aazad Nagar Section 8/22 of the NDPS Act
4 Vijay Nagar Section 34 of the M.P. Excise Act
03. The petitioner is a habitual offender, especially offences
under the NDPS Act, hence, the Commissioner, after considering the
report, found that the petitioner is liable to be detained for a period of
six months in order to control his criminal activities. He was formally
arrested on 17.01.2025 at 09:45 pm as he was already in police
custody in Crime No.827/2024 registered under Section 8/22,29 of
the NDPS Act. The order of detention as well as the ground of the
detention was served on the petitioner on 17.01.2024.
04. After completing the formalities, the matter was sent to the
State Government for confirmation on 22.01.2025. The State
Government forwarded the matter to the Central Government per
Section 3(ii) of the PIT NDPS Act. The State Government vide letter
dated 27.02.2025 informed the Commissioner that the matter has
been sent to the Advisory Board. Vide letter dated 03.03.2025, the
Advisory Board has approved the order of detention in the exercise of
power conferred under Section 9(f) of the PIT NDPS Act. Now, the
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State Government has affirmed the impugned order of detention.
Hence, the present writ petition is before this Court.
05. Shri M.A. Mansoori, learned counsel for the petitioner
submits that the petitioner is assailing the impugned order of
detention only on the ground that the learned Commissioner in the
order dated 24.10.2024 has wrongly mentioned the period of six
months, which has prejudiced the Advisory Board as well as the State
Government. The power lies with the State Government to prescribe
the period of detention in the order of confirmation. In support of the
aforesaid contention, learned counsel has placed reliance upon a
judgment delivered in the case of Pesala Nookaraju v/s The
Government of Andhra Pradesh (Criminal Appeal No.2304 of 2023)
reported in Live Law (SC) 678.
06. Learned Deputy Advocate General for the respondents / State
has argued in support of the impugned order of detention and prayed for
dismissal of the writ petition. It is further submitted that no prejudice
has been caused to the petitioner by mentioning the period of detention
by the Commissioner, especially when the same has been approved by
the learned Advisory Board after hearing the petitioner.
07. We have heard learned counsel for the parties and perused the
record.
08. As per the scheme of 'the PIT NDPS Act', the Central
Government or State Government, as the case may be, may pass an
order under Section 3(2) directing that such person be detained. In this
sub-section (3) the period of detention is not specified hence there is no
requirement for the authority to mention the period of detention in an
order. The State Government is required to send the order to the Central
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Government within 10 days which is mandatory. Under Section 9(b), in
every case where a detention order has been made under the 'PIT
NDPS Act' the appropriate Government shall within five weeks from
the date of detention of such person, place before the Advisory Board.
Thereafter under Section 9(c) the Advisory Board shall, after
considering the materials placed before it record its opinion about the
confirmation of detention order in 11 weeks from the date of detention
which is also mandatory in nature . In case the Advisory Board is of the
opinion that sufficient cause for the detention of a person is there, under
Section 9(f) the appropriate Government may confirm the detention
order and continue the detention of the person concerned for such period
as it thinks fit. Section 11 of the PIT NDPS Act provides for maximum
period of detention i.e. 12 months from the date of detention.
Therefore, the State Government has the power to fix the period of
detention upto 12 months in its order of confirmation irrespective of the
period proposed or fixed by the detaining authority depending upon the
opinion given by the Advisory Board. Even if the authority has fixed the
period of detention in the order of detention passed under 3(2) of the
PIT NDPS Act, there is no question that the State Government will be
influenced by it.
09. The Apex Court in the case of Pesala Nookaraju (supra) has
held that when the State Government passes a confirmatory order under
Section 12 of the Act after receipt of the report from the Advisory Board
then, such a confirmatory order need not be restricted to a period of
three months only. It can be beyond a period of three months from the
date of the initial order of detention, but up to a maximum period of
twelve months from the date of detention. It is also said that the period
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of three months stipulated in Article 22(4)(a) of the Constitution is
relatable to the initial period of detention up to the stage of receipt of the
report of the Advisory Board and does not have any bearing on the
period of detention, which is continued subsequent to the confirmatory
order being passed by the State Government on receipt of the report of
the Advisory Board. Hence, we do not find any substance in the
submission of Shri Mansoori, learned counsel for the petitioner. The
relevant paragraphs - 42, 43 & 44 of the judgment passed in the case of
Pesala Nookaraju (supra) are reproduced below:-
"42. Hence, Article 22(4)(a) in substance deals with the order of
detention and has nothing to do with the delegation of the
power of detention by the State Government to an Officer as
stipulated under Section 3(2) of the Act. In fact, under Section 9
of the Act, the State Government has to refer the matter to the
Advisory Board within three weeks from the date of detention,
irrespective of whether the detention order is passed under
Section 3(1) or Section 3(2) of the Act and the Advisory Board
has to give its opinion within seven weeks from the date of
detention. That would totally make it ten weeks. As stipulated
in Article 22(4)(a) of the Constitution, if in a given case, once
the Advisory Board gives its opinion within the stipulated
period of three months, then in our view, Article 22(4)(a) would
no longer be applicable. Thus, Article 22(4)(a) applies at the
initial stage of passing the order of detention by the State
Government or by an officer who has been delegated by the
State Government and whose order has been approved by the
State Government within a period of twelve days from the date
of detention and not at the stage subsequent to the report of the
Advisory Board. Depending upon the opinion of the Advisory
Board, under Section 12 of the Act, the State Government can
revoke the order of detention and release the detenu forthwith
or may confirm the detention order and continue the detention
of the person concerned for any period not exceeding the
maximum period of twelve months, which is stipulated in
Section 13 of the Act. Therefore, when the State Government
passes a confirmatory order under Section 12 of the Act after
receipt of the report from the Advisory Board then, such a
confirmatory order need not be restricted to a period of three
months only. It can be beyond a period of three months from
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the date of the initial order of detention, but up to a maximum
period of twelve months from the date of detention.
43. We reiterate that the period of three months stipulated in
Article 22(4)(a) of the Constitution is relatable to the initial
period of detention up to the stage of receipt of report of the
Advisory Board and does not have any bearing on the period of
detention, which is continued after the confirmatory order being
passed by the State Government on receipt of the report of the
Advisory Board. The continuation of the detention pursuant to
the confirmatory order passed by the State Government need
not also specify the period of detention; neither is it restricted to
a period of three months only. If any period is specified in the
confirmatory order, then the period of detention would be up to
such period, if no period is specified, then it would be for a
maximum period of twelve months from the date of detention.
The State Government, in our view, need not review the orders
of detention every three months after it has passed the
confirmatory order.
44. Thus, in our view, the period of three months specified in
Article 22(4)(a) of the Constitution of India is relatable to the
period of detention prior to the report of the Advisory Board
and not to the period of detention subsequent thereto. Further,
the period of detention in terms of Article 22(4)(a) cannot be in
force for a period beyond three months, if by then, the Advisory
Board has not given its opinion holding that there is sufficient
cause for such detention. Therefore, under Article 22(4)(a), the
Advisory Board would have to give its opinion within a period
of three months from the date of detention and depending upon
the opinion expressed by the Advisory Board, the State
Government can under Section 12 of the Act, either confirm the
order of detention or continue the detention of the person
concerned for a maximum period of twelve months as specified
in Section 13 of the Act or release the detenu forthwith, as the
case may be. If the order of detention is confirmed, then the
period of detention can be extended up to the maximum period
of twelve months from the date of detention. With respect, we
observe that it is not necessary that before the expiration of
three months, it is necessary for the State Government to
review the order of detention as has been expressed by this
Court in Cherukuri Mani (supra). The Act does not contemplate
a review of the detention order once the Advisory Board has
opined that there is sufficient cause for detention of the person
concerned and on that basis, a confirmatory order is passed by
the State Government to detain a person for the maximum
period of twelve months from the date of detention. On the
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other hand, when under Section 3(2) of the Act, the State
Government delegates its power to the District Magistrate or a
Commissioner of Police to exercise its power and pass an order
of detention, the delegation in the first instance cannot exceed
three months and the extension of the period of delegation
cannot also be for a period exceeding three months at any one
time. [See: Abdul Razak v. State of Karnataka, ILR 2017 Kar
4608 (FB)]."
10. The petitioner, who is aged about 21 years has been found
involved in three cases under the provisions of the NDPS Act and one
case under M.P. Excise Act. After being released on bail, he has been
continuously committing the crime of illicit trafficking of narcotic
drugs, therefore, the impugned order of detention is desirable and in the
interest of the society. Hence, no case for interference is made out.
11. In view of the above, the Writ Petition stands dismissed.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
