TaxTMI 
TaxTMI 
2021 (10) TMI 1378
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....nclusion PART A 1. By a judgment dated 24 August 2021, a Division Bench at the Indore Bench of the High Court of Madhya Pradesh rejected a petition Under Article 226 of the Constitution of India challenging a detention order passed against the Appellant Under Section 3(2) of National Security Act 1980[1]. The detenu is in appeal. A. Facts 2. The Appellant is a Director of City Hospital, Jabalpur. On 10 May 2021, FIR No. 252/2021 was registered at Police Station Omti, Jabalpur Under Sections 274, 275, 308, 420 and 120B of the India Penal Code 1860[2]; Section 53 of the Disaster Management Act 2005; and Section 3 of the Epidemic Diseases Act 1897. The Appellant was arrested in connection with the FIR on 26 May 2021. After the investigation, a final report Under Section 173 of the Code of Criminal Procedure 1973[3] was submitted on 6 August 2021. The allegation against the Appellant is that in connivance with certain others, he procured fake Remdesivir injections which were administered to patients during the Covid-19 pandemic in order to make illegal profits thereby endangering the life of the general public. 3. On 12 May 2021, the Appellant was detained in pursuance o....
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....ous injections had caused casualties which had been reported in the newspapers; (iii) There was anger and resentment in the public in Jabalpur and its adjoining districts which may explode at any time; (iv) The Appellant had criminal antecedents but had been acquitted in certain cases due to his 'money power'. The criminal cases against the Appellant were: (a) FIR No. 252 of 2021 dated 10 May 2021, relating to the sale of spurious Remdesivir injections in the midst of the Covid-19 pandemic; (b) Crime No. 400 of 2004 dated 23 May 2004 Under Sections 395, 397, and 120B of the Indian Penal Code, and Sections 25 and 27 of the Arms Act 1959 registered at Police Station Gorakhpur, in which the Appellant was Accused of attacking a person with deadly weapons. The Appellant was acquitted in this case; (v) City Hospital and Research Centre owned by the Appellant had ordered 500 fake Remdesivir injections worth Rs. 15 lakhs at the rate of Rs. 3,000/- per piece by an invoice No. 0063 dated 20 April 2021, which were procured by mea....
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....lpur[8] extended the detention of the Appellant by a further period of three months, to end on 12 November 2021 and forwarded the order of extension to the State Government. 9. Meanwhile, on 3 July 2021, the Appellant instituted a petition Under Article 226 of the Constitution to challenge the order of detention. The writ petition before the High Court was amended to challenge both-the original order of detention dated 11 May 2021 as well as the extension dated 5 July 2021. 10. On 15 July 2021, the State Government allegedly rejected the first representation of the Appellant and extended the order of detention till 12 November 2021. The District Magistrate, by a letter dated 22 July 2021, informed the Appellant, who was in custody, of the extension of the order of detention by the State Government. Another representation[9] of the Appellant against the extension of his detention was rejected by the State Government on 5 August 2021 and was communicated to the Appellant by the District Magistrate on the same day. 11. The writ petition of the Appellant was dismissed by the High Court by the impugned judgment on 24 August 2021. The Division Bench of the High Court, in upholdi....
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....ne 2021. The Central Government's wireless message dated 28 June 2021 rejecting the representation by order dated 24 June 2021, directed the Jail Superintendent to forward the Appellant's acknowledgement. The Respondents do not have a copy of this acknowledgement since the Appellant has never received the rejection of his representation; (ii) The State Government also did not furnish a reply to the Appellant's representation, allegedly rejected by it on 15 July 2021, except in its additional reply that was filed before the High Court on 12 August 2021; (iii) This Court has held that a delay in considering a detenu's representation could be fatal to the detention order in Ankit Ashok Jalan v. Union of India 2020 (16) SCC 127, Harish Pahwa v. State of Uttar Pradesh 1981 (2) SCC 710, Raj Kishore Prasad v. State of Bihar 1982 (3) SCC 10 and Wasiuddin Ahmed v. District Magistrate, Aligarh 1981 (4) SCC 521. (iv) The Appellant was not served with a copy of the State Government's approval of the detention order dated 13 May 2021; (v) Approval of the detention order and communication ....
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....ipur: (2012) 2 SCC 176 and Rameshwar Shaw v. District Magistrate Burdwan AIR 1964 SC 334; (x) The detention is based on a solitary action and ought to be set aside, as held by this Court in Ramveer Jatav v. State of Uttar Pradesh (1986) 4 SCC 726 and Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14; (xi) A mere apprehension of the grant of bail in the FIR cannot be the cause for detention, as held by this Court in P.P. Rukhiya v. Joint Secretary (2019) 20 SCC 740. In any event, this apprehension is unfounded since the Appellant has not applied for bail; (xii) There is no substantial evidence of death/harm due to the allegedly fake Remdesivir injections procured by the Appellant. As held by this Court in Pebam Ningol Mikoi Devi v. State of Manipur 2010 (9) SCC 618 and Rajendra Singh v. State of Uttar Pradesh 2007 (7) SCC 378, statements recorded Under Section 161 of the Code of Criminal Procedure cannot be relied on to pass a detention order; (xiii) In view of this Court's decision in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi (1978) 1 SCC 405, the validity of the deten....
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....onsideration, the Central Government rejected the Appellant's representation on 24 June 2021 and communicated it to him by a wireless message dated 28 June 2021. The State Government rejected the Appellant's representation on 15 July 2021. In any event, the Appellant has not urged the delay in consideration of its representation before the High Court; (ii) It is well settled that the subjective satisfaction of the detaining authority is not justiciable, as held by this Court in Rameshwar Shah v. District Magistrate (1964) 4 SCR 921. Neither can the reasonableness of its satisfaction be questioned in a court of law, nor can the adequacy of the material be scrutinized. The Respondents relied on this Court's decisions in State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 and Pebam Ningol Mikoi Devi v. State of Manipur (2010) 9 SCC 618; (iii) When an order of preventive detention is challenged, the detaining authority does not have to prove an offence or formulate a charge. The justification for an order of detention at best can be established on the basis of suspicion and reasonability, there being no criminal conviction on the bas....
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.... detention "in the present circumstances of the country".[11] However, the discontinuity from the colonial regime lay in the introduction of strict countervailing measures that ensured that "exigency of liberty of the individual [is not] placed above the interests of the State" in all cases.[12] 18. The specific provisions relating to preventive detention Under Article 22 were framed in the following terms: (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this Sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or (b) such pers....
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....'s evaluation of a detenu's writ petition alleging, inter alia, a denial of the timely consideration of his representation. While several arguments have been preferred by the Appellant to argue for his release from preventive detention, we are confining our analysis to the most clinching aspect of this case-the failure of the Central Government and the State Government to consider his representation dated 18 May 2021 in a timely manner. 21. Article 22(5) of the Constitution mandates that (i) the authority making the order shall "as soon as may be" communicate the grounds on which the order has been made to the person detained; and (ii) the detaining authority shall afford to the person detained "the earliest opportunity of making a representation against the order"[16]. Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu "an earliest opportunity" of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the det....
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....tion 3, it is under a mandate Under Section 3(5) to report the fact to the Central Government within seven days, together with the grounds on which the order has been made and other necessary particulars. 24. Section 8 of the NSA contains statutory provisions governing the disclosure of the grounds of detention. Section 8 is in the following terms: "8. Grounds of order of detention to be disclosed to persons affected by the order.--(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than [ten days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose." As noticed earlier, Article 22(5) of the Constitution provides for the communication of the grounds on which the order of deten....
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....nks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith. 27. When the Advisory Board has reported that in its opinion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith. 28. Section 14 provides for the revocation of detention orders in the following terms: 14. Revocation of detention orders.-- (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,-- &....
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....ected the representation of the Appellant on 15 July 2021. Thus, the representation made by the Appellant on 18 May 2021, was allegedly rejected after almost two months on 15 July 2021 by the State Government. The State Government's order rejecting the representation has not been filed before this Court. 32. The issue that arises for our consideration is whether the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were sufficiently protected in the present case. 33. The requirement Under Section 8 of the disclosure and communication of the grounds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board. In Jayanarayan Sukul v. State of West Bengal (1970) 1 SCC 219, a Constitution Bench of this Court laid emphasis on the expeditious consideration of the representation by the appropriate government. In that case, a representation was made by the Petitioner against an order of detention passed Under Section 3(2) of the Preventive Detention Act 1950. The Petitioner made a representatio....
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.... release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. (emphasis supplied) 34. A Constitution Bench in Haradhan Saha v. State of West Bengal (1975) 3 SCC 198 ["Haradhan Saha"] made a clear distinction between the right of the detenu to have their representation considered by the appropriate government and the power which is entrusted to the Advisory Board. The Court observed: 24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the ....
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....order dated 16 May 1980, a representation by the detenu dated 3 June 1980 and the rejection of such representation on 24 June 1980, which was communicated to the detenu within two days. Justice AD Koshal held the unexplained delay as fatal to the detention by holding the following: 5. In our opinion, the manner in which the representation made by the Appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representations made by persons detained without trial. There is no explanation at all as to why no action was taken in reference to the representation on June 4, 5 and 25, 1980. It is also not clear what consideration was given by the government to the representation from June 13, 1980 to June 16, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court do....
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.... September 22, 1986, forwarded by the Superintendent, Aurangabad Central Prison on the 24th, was received in the Home Department on the 26th which in its turn forwarded the same to the detaining authority i.e. the District Magistrate on the same day i.e. 26th for his comments. The District Magistrate returned the representation along with his comments dated October 3, 1986 which was received by the government on the 6th. It is said that thereafter the representation was processed together with the report of the Advisory Board and was forwarded to the Chief Minister's Secretariat where the same was received on October 23, 1986. It is enough to say that the explanation that the Chief Minister was "preoccupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986" was no explanation at all why the Chief Minister did not attend to the representation made by the Appellant till November 17, 1986 i.e. for a period of 25 days. There was no reason why the representation submitted by the Appellant could not be dealt with by the Chief Minister with all reasonable prompt....
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.... received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri.) 92] and Haradhan Saha [Haradhan Saha v. State of W.B.,: (1975) 3 SCC 198 : 1974 SCC (Cri.) 816] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3. If the representation is received after the ref....
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....ent on 13 May 2021, upon which the State Government submitted the order of detention to the Central Government on the same day. On 18 +May 2021, the detenu submitted a simultaneous representation before the District Magistrate, State Government and the Central Government. The representation was communicated by the District Magistrate to the State Government and the Central Government on 20 May 2021. According to the Appellant, the records of the Department of Post and Telegraph indicate that service was effected on the Central Government on 24 May 2021. However, the Central Government, in its counter affidavit before the High Court, has submitted that it was received in the concerned Section on 1 June 2021. 42. On 2 June 2021, the Central Government sought para-wise comments from the detaining authority. The District Magistrate forwarded comments on 10 June 2021 which were received on 11 June 2021. The representation made by the Appellant dated 18 May 2021, along with the comments of the District Magistrate, were processed for consideration by the Union Home Secretary on 14 June 2021. On 24 June 2021, the Union Home Secretary rejected the representation of the Appellant, which i....
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....ourt has neither been provided with a copy of such rejection or proof of communication of this rejection to the detenu, nor an explanation for the almost 60 day delay in considering the Appellant's representation. 45. There is absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021. As we have indicated on the basis of the precedents of this Court, the consideration of the representation by the State Government is qualitatively different from the reference to the Advisory Board. This Court, Ankit Ashok Jalan (supra) had held that in State Government is not bound to wait on the Advisory Board's report before deciding the representation and must do so, as expeditiously as possible. In spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the Appellant's representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of ac....
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....detenu, a specific ground to that effect was raised in the rejoinder filed before the High Court. Be that is it may, there is absolutely no material coming forthwith to indicate that the rejection of the representation by the Central Government was communicated to the detenu. The Appellant has submitted that it was notified of the rejection of its representation by the Central Government, only when such rejection was furnished as an annexure to the Central Government's counter-affidavit before the High Court. The Central Government's wireless message dated 28 June 2021 directed the SP to collect the Appellant's acknowledgement of receipt. However, the Respondents were unable to furnish any proof of such acknowledgement. This lends credibility to the Appellant's contention that he was never served with a copy of Central Government's rejection of his representation. 48. Similarly, the AAG has submitted that the State Government rejected the Appellant's representation on 15 July 2021. However, with the exception of the rejection order forming a part of the annexures to the Respondents' additional reply before the High Court, there is no proof of the Appe....
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....bsp; 37. At the hearing of this appeal, the learned Counsel for the Respondents handed over to us a list of dates showing that a number of holidays intervened between one date and Anr. and hence the apparent delay. It appears that the Collector of Central Excise & Customs received the representation for his comments on January 23, 1989 and handed over the same to the dealing officer for comments on January 24, 1989 and the Collector's comment was made on February 9, 1989. Between January 25, 1989 and February 8, 1989 a number of holidays intervened, namely January 26, 1989 (Republic day), January 28, 1989 and January 29, 1989 (Saturday and Sunday), and February 4, 1989 and February 5, 1989 (Saturday and Sunday). On February 9, 1989, it was sent to the Ministry of Finance (COFEPOSA Cell), New Delhi, and was received by that Ministry on February 10, 1989. February 11, 1989 and February 12, 1989 being Saturday and Sunday were holidays. On February 13, 1989, it was put up before the Joint Secretary, COFEPOSA, and was sent to the Minister of State (Revenue). The file was received back after the rejection of the representation and such rejection was communicated to the de....
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....sion in Saleena (supra) does not find application in the facts of the present case. 54. The AAG has furnished no reasons for the failure to communicate the State Government or Central's government rejection of the Appellant's representation. This failure in timely communication of the rejection of representation is a relevant factor for determining the delay that the detenu is protected against Under Article 22(5). Based on the precedents of this Court, we hold that the failure of the Central and the State Government to communicate the rejection of the Appellant's representation in a time-bound manner is sufficient to vitiate the order of detention. E. Conclusion 55. Accordingly, the order of detention is invalidated on two grounds: first, the unexplained delay on part of the State Government in deciding the representation of the Appellant and second, the failure of the Central and State Governments to communicate the rejection of the representation to the Appellant in a timely manner. The basis of the extensions which have been issued on 15 July 2021 and 30 September 2021, finds its genesis in the original order of detention dated 11 May 2021. Once the order o....