Madhya Pradesh High Court
Ankit Through His Brother And ... vs Union Of India on 6 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025: MPHC-IND:397
1 W.P. No. 18978 of 2024
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 6th OF JANUARY, 2025
WRIT PETITION No. 18978 of 2024
ANKIT THROUGH HIS BROTHER AND REPRESENTATIVE
ANKUR SHARMA
Versus
UNION OF INDIA AND OTHERS
---------------------------------------------------------------------------------------------------------
Appearance:
Shri Makbool Ahmed Mansoori- Advocate for the petitioner.
Shri Himanshu Joshi - Dy. Solicitor General for respondent No.1
Shri Sudeep Bhargava - Dy. A.G. for respondents/State.
ORDER
Per: Justice Vivek Rusia
The petitioner has filed this present petition under Article 226
of the Constitution of India challenging the orders dated 25.06.2024
and 19.09.2024 whereby the Additional Secretary, Home Department
Bhopal of State of Madhya Pradesh has extended the period of
detention for the period of 3 months - 3 months. Now after expiry of
period on 27.12.2024, again vide order dated 20.12.2024 the State
Government has extended the period of detention for a further period of
three months.
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2. Vide initial order of detention dated 23.03.2024, the District
Magistrate, Indore passed under Section 3(2) of the National Security
Act, 1980 by which the petitioner was directed to be detained for the
period of three months. Thereafter, the petitioner filed a W.P. No.
13705/2024 challenging the aforesaid order on various grounds. Vide
order dated 27.05.2024 the writ petition was dismissed by Division
Bench of this Court as well as the order passed by the State
Government confirming the detention order dated 01.05.2024.
3. Thereafter, on 25.06.2024 the Additional Secretary, Home
Department, State of Madhya Pradesh has extended the period of
detention for a period of three months i.e. from 27.06.2024 to
27.09.2024. Hence, the petitioner has filed this present petition.
4. The respondents have filed the return raising preliminary
objection about maintainability of this writ petition because of
dismissal of W.P. 13705/2024.
The parties are heard on the question of maintainability of this
writ petition.
5. Shri Makbool Ahmed Mansoori, learned counsel appearing on
behalf of the petitioner submits that although the original order of
detention has been affirmed which was issued only for a period of three
months but the order of extension of period of detention for further
period of 3-3 months has given fresh cause of action to the petitioner to
challenge the same. The respondent No.2 has passed the order of
extension of detention for a period of three months mechanically
without recording its satisfaction and in absence of any additional
material against the petitioner, therefore, the writ petition is
maintainable and liable to be entertained as maintainable.
NEUTRAL CITATION NO. 2025: MPHC-IND:397
6. In support of his contention, learned counsel for the petitioner
has placed reliance on a judgment passed by the Apex Court in the case
of Shri Lallubhai Jogibhai Patel vs. Union of India and Others
reported in (1981) 2SCC 427, in which the Apex Court has held that
"the subsequent writ petition on fresh additional ground to challenge
the legality of the continued detention of the detenu is not barred as
Res-judicata".
7. Learned counsel for the petitioner has also placed reliance on a
judgment passed by Division Bench of this Court in the case of
Karandeep Singh and Others Vs. State of M.P. and Ors. reported in
MANU/MP/0199/2021, in which this Court has held that "Proviso to
sub-section (3) of Section 3 of the Act, though empowers the detaining
to amend the original detention order and extend for three months at
any one time but it casts an obligation of recording of satisfaction
preceding extension of detention order".
8. Learned counsel has also placed reliance on judgment passed
by this Bench in the case of Manish Vs. Union of India and others in
W.P. No.25178 of 2024.
9. Shri Sudeep Bhargawa, Dy. A.G. appearing on behalf of
respondent Nos. 2 to 5 submits that once the order of detention has
been affirmed by the Advisory Board under Section 12 of the National
Security Act 1980, the State Government may extend the period of
detention upto twelve months for which no satisfaction is required to be
recorded. He has placed reliance on a judgment passed by Apex Court
in the case of Pesala Nookaraju Vs. Government of Andhra Pradesh
and others reported in 2023 SCC OnLine SC 1003.
Heard
NEUTRAL CITATION NO. 2025:MPHC-IND:397
10. Section 3(3) of the National Security Act, 1980 empowers the
District Magistrate and the Commissioner of Police to pass an order of
detention of any person. But as per proviso in the first instance, the
period of detention shall not exceed three months, but the State
Government if satisfied as aforesaid and it is necessary so to do, amend
such order to extend such period from time to time by any period not
exceeding three months at any one time. The order so passed under
Section 3(3) is liable to be placed before the Advisory Board by way of
reference under Section 10. The Advisory Board shall submit a report
under sub-section 2 as to whether or not there is sufficient cause for the
detention of the person concerned. In case where the Advisory Board
has given an opinion that there is a sufficient cause for detention of
person, the appropriate Government may confirm the detention order
and continue the detention of the person concerned for such period as it
thinks fit. For the purpose of continuation of detention of person, there
is no requirement of recording the satisfaction by the State
Government. Section 13 prescribes the maximum period of detention
i.e. twelve months from the date of detention.
11. The Apex Court in the case of Pesala Nookaraju (supra) has
considered this provisions of extension of period by the State
Government and held that "if the order of detention is confirmed then
the period of detention can be extended upto the maximum period of
twelve months from the date of detention and for that it is not necessary
that the before expiration of three months for the State Government to
review the order of detention". The Act does not contemplate a review
of the detention order once the Advisory Board has opined that there is
a sufficient cause for detention of person concerned. The Apex Court
NEUTRAL CITATION NO. 2025: MPHC-IND:397
has also held that the initial period of three months under Section 3(1)
and Section 3(2) r/w Article 22(4)(a) applies at the initial stage of
passing of 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. The Relevant paragraphs of the
aforesaid judgment are reproduced below:-
"42. A reading of Article 22(4)(a) would clearly indicate that no
law providing for preventive detention shall authorize the
detention of a person for a period beyond three months. Thus, an
order of detention cannot be for a period longer than three months
unless, the Advisory Board has reported before the expiration of
the said period of three months that there is, in its opinion such
sufficient cause for detention. Article 22(4)(a) clearly indicates
that even if the order of detention does not prescribe any period of
detention, such an order of detention cannot be in force for a
period beyond three months, unless the Advisory Board before the
expiration of three months opines that there is sufficient cause for
detention. In other words, if the Advisory Board does not give its
opinion within a period of three months from the date of
detention, in such a case, the order of detention beyond the period
of three months would become illegal and not otherwise. If within
the period of three months, the Advisory Board opines that there
was no sufficient cause for such detention then, the State
Government would have to release the detenu forthwith.
43. 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
NEUTRAL CITATION NO. 2025:MPHC-IND:397
in our view, Article 22(4)(a) would no longer be applicable. Thus,
Article 22(4)(a) applies at the initial stage of passing of 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 the
date of initial order of detention, but up to a maximum period of
twelve months from the date of detention.
44. 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 subsequent to the confirmatory order being
passed by the State Government 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 upto 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.
45 Thus, in our view, the period of three months specified in
Article 22(4)(a) of 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
NEUTRAL CITATION NO. 2025: MPHC-IND:397
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 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)]
12. In view of above, the contention of Shri Maqbool Ahmed
Mansoori is liable to be rejected that the State Government is required
to record its satisfaction in the order of extension of detention. Once the
order of detention has been approved by the Advisory Board and
confirmed by the State Government then the period of detention can be
extended upto the period of twelve months by the State Government in
exercise of powers conferred under Section 12 of the National Security
Act, 1980. The writ petition challenging the orders of detention and
confirmation has already been dismissed; therefore, the orders of
extension do not give fresh cause of action hence, fresh writ petition is
not maintainable.
NEUTRAL CITATION NO. 2025:MPHC-IND:397
13. So far as the facts of case of Shri Lallubhai Jogibhai Patel
(supra) are concerned, the writ petition challenging the order of
detention was dismissed by the Apex Court by an order dated
09.05.1980 but the reasons for that order was announced later on on
04.08.1980. After the dismissal of the petition, the petitioner on July
21st, 1980 filed additional ground and he was permitted by the Supreme
Court to file a fresh petition on additional ground. In such
circumstances, the Apex Court has held that the subsequent petition is
maintainable because during pendency of first petition, the order of
extension was passed.
14. In view of above, the present writ petition is not maintainable
and is hereby dismissed.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Vatan
