TaxTMI 
TaxTMI 
2021 (10) TMI 1378
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....ion 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 of an order of detention dated 11 May 2021 Under Section 3(2) of the NSA, f....
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....nbsp; (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 means of fake bills from a manufacturing company situated in Gujarat against whom an FIR had be....
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.... 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 upholding the detention order, inter alia, observed that: (i) There was no undue delay in sending t....
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....rected 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 of the rejection of representation should be made forthwith, according to this Court's decisions in Biren Dutta v. Chief Commissioner of T....
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.... 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 detention has to be seen on the grounds in the original detention order and cannot be supplemented by additional grounds; (xiv) The extension o....
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....ate 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 basis of evidence, as held by this Court in State of Tamil Nadu v. Nabila (2015) 12 SCC 127; (iv) The Covid-19 pandemic has resulted in devastating effects wor....
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....gency 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 person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of Clause (7). (5) When any person is detained in pursuance of an order mad....
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.... 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 detenu of the basis on which the order of detention has been made. The expression "as soon as may be" imports a requirement of immediacy. 22. The communication of the grounds is in aid of facilitating the right of the detenu t....
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....SA 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 detention has been made by the detaining authority "as soon as may be". Section 8(1) uses the expression "as soon as may be", qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and....
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....se 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,-- (a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government; &nbs....
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.... 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 representation to the State Government on 23 June 1969, which was rejected on 19 August 1969, as a reference regarding the detention order was pending before the Advisory Board. The Court held that there was an inordinate delay in considering the representation of the Petitioner. Justice AN Ray (as t....
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....nion 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 Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights w....
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....ur 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 does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a ma....
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....sentation 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 promptitude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation. In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, the further detention of the Appellant must be held illegal and he must be set at li....
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....ore 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 reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri.) 816], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Boa....
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.... 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 is alleged to have been communicated by a wireless message to the detenu on 28 June 2021. There was a one-and-a-half-month delay on the part of the Central Government in considering the representation dated 18 May 2021 and rejecting the same only on 24 June 2021. 43. The Appellant had also submitted a representation against the order of deten....
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....nsidered 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 action. 46. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu "as soon as may be" and the afford....
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....tion 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 Appellant having knowledge of the rejection of its representation by the State or Central Government before he filed his writ petition before the High Court. 49. Article 22(4), in guaranteeing a right to make a representation to the detenu, understandably creates a corresponding duty on the State machinery to render this right meaningingful. In Section D.1 of the....
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.... 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 detenu on February 20, 1989. The two intervening dates, namely, February 18, 1989 and February 19, 1989 being Saturday and Sunday were holidays. 38. It is clear from the above statement that there was no laches or negligence on the part of the detaining authority or the other authorities concerned in dealing with the representation of the detenu. In L.M.S. Ummu....
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....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 of detention stands invalidated, the consequential extensions would follow the same course. During the course of the proceedings, both parties have advanced submissions on the merits of the order of detention. In the view which we have taken, it is not necessary to consider these other grounds of challenge since the Appellant is entitled to succeed on the violation of his procedural rights und....