Madhya Pradesh High Court
Akbar @ Lala S/O Raees Bose Through Nazma vs The State Of Madhya Pradesh on 6 September, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 6 th OF SEPTEMBER, 2024
WRIT PETITION No. 20071 of 2024
AKBAR @ LALA S/O RAEES BOSE THROUGH NAZMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mitesh Jain - advocate for the petitioner.
Shri Bhuwan Gautam, learned counsel for the respondents.
ORDER
Per: Justice Vijay Kumar Shukla
The present petition is filed under Article 226 of the Constitution of
India in the nature of habeas corpus challenging the orders dated 20.03.2024
(Annexure P/1) passed by District Magistrate, Indore and also the order dated
09.07.2024 (Annexure P/2) passed by the District Magistrate, Indore.
2. The present petition is filed by the detenue through the mother
challenging the aforesaid orders by order dated 20.03.2024, the respondent
No.2 has passed an order of detention under Section 3(2) of National
Security Act, 1980 (hereinafter referred as the Act ) and also the order dated
09.07.2024 whereby the period of detention has been extended for further
period of three months from 12.07.2024 till 12.10.2024 by the respondent
No.1. The detention order Annexure P/1 is challenged mainly on three
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grounds:-
(i) That, the period of detention is not mentioned in the impugned
order, therefore, the detention is illegal as required under Section 3 of the
Act.
(ii) The provisions of Section 8 has not been complied with as the
petitioner has not been afforded opportunity to make a representation against
the order to the appropriate government.
(iii) The provisions of Section 10 of the Act has not been complied
with as the detention order has not been placed before the advisory board
constituted under Section 9 within a period of three weeks from the date of
detention of person.
3. Per contra, Counsel for the State supported the impugned order and
argued that the impugned orders are passed as per the provisions of the Act
and there is no illegality in the same.
4 . After hearing learned counsel for the parties, it is apposite to
consider the grounds raised by the counsel for the petitioner one by one. The
first point raised that in the impugned order, the period of detention is not
mentioned and, therefore, the impugned order is illegal. In support of his
submissions, he has placed reliance on the judgment passed by the Division
Bench in the case of Siddharth Jain vs. State of MP & Ors. (W.P.
No.18047/2019) decided on 24.09.2019. The Division Bench relying on the
judgment passed by the Apex Court in the case of Commissioner of Police
and Anr. vs. Gurubux Anandram Bhiryani, 1998 SCC (Cri) 914 and also the
order dated 28.03.2019 passed in the case of Satyanarayan @ Narayan
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Luniha vs. State of MP & Anr. (W.P. No.3154/2019) held that if no period of
detention is mentioned and the detention is for indefinite period in the order
is illegal.
5. In regard to the aforesaid counsel for the State submitted that mere
non-mentioning of the period of detention in the order would not render the
order of detention is illegal. The minimum and maximum period under
Section 3 of the Act would apply by implication. In support of his
submissions, he has placed reliance on the judgment passed by the Apex
Court in the case of T. Devaki vs. Government of Tamil Nadu, 1990 (2)
SCC 456 and also the order passed by the Division Bench in State of M.P.
vs. Sahil Khan, 2019 SCC OnLine MP 6715.
6. In order to appreciate the rival submissions in regard to the ground
No.1 regarding non-mentioning of period in the detention order, it is
appropriate to reproduce the relevant part of Section 3 of the Act:-
“3. Power to make orders detaining certain persons.
(1) The Central Government or the State Government may-
(a) if satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers, or the
security of India, or
(b) if satisfied with respect to any foreigner that with a view to
regulating his continued presence in India or with a view to
making arrangements for his expulsion from India, it is necessary
so to do, make an order directing that such person be detained.
(2) The Central Government or the State Government may, if
satisfied with respect to any person that with a view to preventing
him from acting in any manner prejudicial to the security of the
State or from acting in any manner prejudicial to the maintenance
of public order or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community it
is necessary so to do, make an order directing that such person be
detained.
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Explanation.–
For the purposes of this sub-section, “acting in any manner
prejudicial to the maintenance of supplies and services essential to
the community” does not include “acting in any manner
prejudicial to the maintenance of supplies of commodities
essential to the community” as defined in the Explanation to sub-
section (1) of section 3 of the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act, 1980 (7
of 1980), and accordingly, no order of detention shall be made
under this Act on any ground on which an order of detention may
be made under that Act.
(3) If, having regard to the circumstances prevailing or likely to
prevail in any area within the local limits of the jurisdiction of a
District Magistrate or a Commissioner of Police, the State
Government is satisfied that it is necessary so to do, it may, by
order in writing, direct, that during such period as may be
specified in the order, such District Magistrate or Commissioner
of Police may also, if satisfied as provided in sub-section (2),
exercise the powers conferred by the said sub-section:
Provided that the period specified in an order made by the State
Government under this sub-section shall not, in the first instance,
exceed three months, but the State Government may, if satisfied as
aforesaid that 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.”
7 . Considering the provisions of Section 3 of the Act, in the case of
Siddharth Jain (supra) relying the judgment of Gurbux Anandram Bhiryani
(supra) it was held that if no period of detention is mentioned in the detention
order and the same is for indefinite period, the order of detention is illegal.
The judgment passed in Gurbux Anandram Bhiryani (supra) has been
overruled in the case of T. Devaki (supra) and again in the case of Secretary
to Government of Tamil Nadu Public (Law and Order) Revenue Department
& Anr. vs. Kamala & Anr., 2018(5) SCC 322 . The relevant para of the
judgment in the case of T. Devaki (supra) reproduced as under:-
11. Mr. R.K. Garg placed strong reliance on the decision of this
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Court in Gurbux Bhiryani’s case (supra) to support his submission.
In that case the detenu had been detained under the Maharashtra
Prevention of Dangerous Activities of Slum- lords, Bootleggers
and Drug Offenders Act 55 of 1981. The High Court quashed the
detention order on the ground that the detenu had been released in
criminal prosecution under Section 8(c) read with Section 21 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 and he
had been released on bail, but that fact had not been placed before
the detaining authority. On appeal by special leave a Division
Bench of this Court consisting of two Judges., dismissed the
appeal without going into the merits of the case on the sole ground
that the detention order was bad as the period of detention was not
specified in the detention order. The Court observed as under:
“The order is bad on another ground, namely, the period
of detention has not been indicated by the detaining
authority. The scheme of this Act differs from the
provisions contained in similar Acts by not prescribing
a period of detention but as Section 3 of the Act
indicates, there is an initial period of detention which
can extend upto three months and that can be extended
for periods of three months at a time. It was open to the
detaining authority to detain the detenu even for a
period of lesser duration than three months. That
necessitated the period of detention to be specified and
unless that was indicated in the order, the order would
also be vitiated. In scores of decisions this Court has
been emphasising the necessity of strict compliance
with the requirements of the preventive detention law;
yet authorities on whom the power is conferred have not
been complying with the requirements and even if there
be merit to support the order of detention, the
procedural defects lead to quashing thereof as a result of
which the purpose of the Act if frustrated and the
suffering in the community does not abate.”
With great respect we do not agree with the view expressed by the
learned Judges.
12. Section 3 of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers and Drug-offenders Act, 198
1 is identical in terms to Section 3 of the Tamil Nadu Act. Section
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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’s case 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, COFEPOSA Act, National
Security Act 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. 13. This Court has consistently
taken the view that an order of detention is not rendered illegal
merely because it does not specify the period of detention. A
Constitution Bench of this Court in Ujagar Singh v. The State of
Punjab, [1952] 3 SCR 756 while considering validity of detention
order made under Section 3 of the Preventive Detention Act 1950
held that non-specification of any definite period in a detention
order made under Section 3 of the Act was not a material omission
rendering the order invalid. In Suna Ullah Butt v. State of Jammu
& Kashmir, [1973] 1 SCR 870 validity of detention order made
under Jammu and Kashmir Preventive Detention Act 1964 was
under challenge on the ground that the State Government while
confirming the detention order under Section 12 of the Act had
failed to specify the period of detention. The Court held that since
the State Government had power to revoke or modify the
detention order at any time before the completion of the maximum
period prescribed under the Act, it was not necessary for the State
Government to specify the period of detention. In Suresh Bhojraj
Chelani v. State of Maharashtra, [1983] 1 SCC 382 while
considering the validity of the detention order made under Section
3(1) of the Conservation of Foreign Exchange and Prevention of
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Smuggling Activities Act, 1974 this Court rejected similar
submission made on behalf of the detenu that order of detention
was vitiated as the Government had failed to mention the period
of detention while confirming the order of detention. The Court
held that the COFEPOSA Act did not require the
detaining authority to mention the period of detention in the order
of detention. When no period is mentioned in an order, the
implication is that the detention is for the maximum period
prescribed under the Act. 14. In A.K. Roy V. Union of India &
Ors., [1982] 1 SCC 271 a Constitution Bench of this Court
considered the validity of the National Security Act (65 of 1980),
Chandrachud, CJ (as he then was) speaking for the Bench rejected
the arguments made on behalf of the petitioner that the absence of
provision requiring the detaining authority to provide for maxi-
mum period of detention was illegal. The learned Chief Justice,
observed: “There is no substance in this grievance because, any
law of preventive detention has to provide for the maximum
period of detention, just as any punitive law like the Penal Code
has to provide for the maximum sentence which can be imposed
for any offence. We should have thought that it would have been
wrong to fix a minimum period of detention, regardless of the
nature and seriousness of the grounds of detention. The fact that a
person can be detained for the maximum period of 12 months
does not place upon the detain- ing authority the obligation to
direct that he shall be detained for the maximum period. The
detaining authority can always exercise its discretion regarding the
length of the period of detention. It must also be mentioned that,
under the proviso to Section 13, the appropriate Government has
the power to revoke or modify the order of detention at any earlier
point of time.” On the basis of the above observations validity of a
detention order passed under Section 3 of the National Security
Act was challenged before this Court in Ashok Kumar v. Delhi
Administration & Ors., [1982] 2 SCC 403 on the ground that the
Commissioner of Police, as well as the Administrator of Delhi
Administration who confirmed the detention order failed to
specify the period of detention while making the order of
detention. A three ‘Judge’s Bench of this Court rejected the
detention and upheld the validity of the detention order. A.P. Sen,
J. observed:
“It is plain from a reading of Section 3 of the Act that
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that the detaining authority had the duty to specify the
period of detention. It will be noticed that subsection (1)
of Section 3 stops with the words “make an order
directing that such person be detained”, and does not go
further and pre- scribe that the detaining authority shall
also specify the period of detention. Otherwise, there
should have been the following words added at the end
of this sub-section “and shall specify the period of such
detention”. What is true of subsection (1) of Section 3 is
also true of sub-section (2) thereof. It is not permissible
for the courts, by a process of judicial construction, to
alter or vary the terms of a Section. Under the scheme
of the Act, the period of detention must necessarily vary
according to the exigencies of each case i.e. the nature
of the prejudicial activity complained of. It is not that
the period of detention must in all circumstances
extended to the maximum period of 12 months as laid
down in Section 13 of the Act.”
15. It is thus clear that the view taken in Gurbux Bhiryani’s case
on the interpretation of Section 3 of the Maharashtra Act is
incorrect. This Court has while considering the question of the
validity of the detention order made under different Acts,
consistently taken the view that it is not necessary for the
detaining authority or the State Government to specify the period
of detention in the order. In the absence of any period being
specified in the order the detenu is required to be under detention
for the maximum period prescribed under the Act, but it is always
open to the State Government to modify or revoke the order even
before the completion of the maximum period of detention. We
are, therefore, of the opinion that the impugned order of detention
is not rendered illegal on account of the detaining authority’s
failure to specify period of detention in the order.”
8 . Relying the aforesaid judgments of the Supreme Court, the
Division Bench in the case of Sahil Khan (supra) held that non-mentioning
of period of detention would not render the same illegal and the judgment
passed in the writ petition was recalled and the order of detention was
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upheld. In view of the aforesaid enunciation of law, the argument of counsel
for the petitioner that the order of detention is illegal for not mentioning the
period is repelled/rejected. It is further held that by implication the minimum
and maximum period has to be read in the order of detention as per Section 3
of the Act, however the detention order cannot be beyond the maximum
period prescribed under the Act.
9. Counsel for the petitioner argued that the provisions of Section 8 of
the Act has not been complied with as he has not been given opportunity of
making representation against the order to the appropriate government. In
support of his submissions, he has placed reliance on the judgment passed by
this Court in the case of Maikal @ Shahid vs. State of MP & Ors. 2014(3)
JLJ 387 and also the judgment passed by the Apex Court in the case of
Kamleshkumar Ishwardas Patel vs. Union of India & Ors. (1995) 4 SCC 51
wherein it has been held that the detenu must be apprised of his right to
submit representation before the State Government as well as the Central
Government.
10. Counsel for the respondent submits that in the impugned order
itself it was mentioned that the petitioner has a right to represent and support
his case in front of Collector, Indore, Secretary Department of Home,
Government of India, New Delhi, Secretary, Government of Madhya
Pradesh, Home Department, Bhopal and Advisory Board. It is further argued
that the said order of detention was served to the petitioner in hindi also.
11. Counsel for the petitioner does not dispute the aforesaid fact that
the detention order was served to him mentioning his right to make
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representation against order of detention. Thus, this Court does not find that
there is any violation of Section 8 of the Act. In the case of Amin
Mohammed Qureshi vs. Commissioner of Police, Greater Bombay (1994) 2
SCC 355, it has been held that the detaining authority is not obliged to tell
the detenu that he can make a representation against the detention order. In
the detention order itself, it was mentioned that the petitioner has a right to
make the representation before the authorities and it is not in dispute that the
order of detention was served on the petitioner in hindi language also which
he understands in view of the aforesaid, the provisions of Section 8 are
complied with and the order of detention cannot be hold illegal and invalid
on the said ground.
12. The next submission of the learned counsel for the petitioner is
that the respondents have not followed the provisions of Section 10 of the
Act as the reference was not made within three weeks from the date of
detention of the petitioner before the Advisory Board constituted under
Section 9.
13. In compliance to the order of this Court, counsel for the State
produced the copy of the letter dated 19.04.2024 written by the Additional
Secretary, Government of M.P., Home Department to the Deputy Registrar-
cum-Secretary to the Chairman of the Advisory Board.
14. Counsel for the petitioner submits that as per the provisions of
Section 10, it is not in dispute that the aforesaid letter of reference was issued
within the period of three weeks from the date of detention of the petitioner
as the petitioner was detained on 13.04.2024 and the reference was made on
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19.04.2024, however, it is argued that as per the provisions of Section 10, the
matter has to be placed before the Advisory Board and mere sending the case
to the Board is not the compliance of the aforesaid provisions. This Court
does not find any merit in the aforesaid contention. The word place cannot be
interpreted to mean that the Board has to consider and decide the case within
three weeks. The provision of Section 10 cannot be read in isolation. It has to
be read along with Section 11, 12 & 13 of the Act which prescribes
procedure of the Advisory Board. On harmonious consideration of the
provisions of Section 10, 11, 12 & 13 of the Act. The Court is of the view
that no period is prescribed under the Act to take a decision on the reference
within 3 weeks by the Board. However, under Section 13, the maximum
period of detention is prescribed which is 12 months from the date of
detention, therefore, the entire procedure has to be completed before
maximum period of 12 months.
15. In view of the aforesaid, this Court does not find any illegality in
the detention order. The period of three months has to be read in the
detention order by implication in view of judgments of the Supreme Court in
the case of T. Devaki (supra) and Secretary to Government of Tamil Nadu
Public (Law and Order) Revenue Department (supra). The State Government
has extended the period for three months from 12.07.2024 till 12.10.2024
which is not beyond 12 months which is maximum period of detention under
the Act. Thus, there is no illegality in the order dated 20.03.2024 (Annexure
P/1) passed by District Magistrate, Indore and also the order dated
09.07.2024 (Annexure P/2) passed by the District Magistrate, Indore in
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which the reasons has been assigned for extending the detention period for
further period of three months.
16. With regard to the scope of jurisdiction Hon’ble Apex Court in the
case of Deepak Bajaj Vs. State of Maharashtra and another, (2008) 16 SCC
14 has cautioned the High Courts regarding scope of jurisdiction and scope
of High Court to grant relief in such matters. According to Apex Court;
scope is very narrow and limited and subjective satisfaction of the detaining
authority cannot be looked by the High Court as appellate authority. In the
said case, the Apex Court reiterated the observation made by the Apex Court
in the case of State of Bihar Vs. Rambalak Singh Balak, AIR 1967 SC 1441
as well as Khudiram Das Vs. State of West Bengal, (1975) 2 SCC 81 .
17. In view of the aforesaid, the petition sans merit and is hereby
dismissed.
(VIJAY KUMAR SHUKLA) (DUPPALA VENKATA RAMANA)
JUDGE JUDGE
soumya
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