Can NSA Be Invoked In A Case Of Trading Adulterated Food, Harmful And Dangerous To Large Number Of Citizens? MP High Court (FB) Answers

A Full Bench of the Madhya Pradesh High Court on Thursday delivered a significant judgment pertaining to the power of detaining authorities to invoke the stringent provisions of National Security Act, when offence is committed under a particular Act. A Bench comprising of Chief Justice Mohammad Rafiq, Justice Rajeev Kumar Dubey and Justice Vijay Kumar Shukla has held that personal liberty of an individual is the most precious and prized right guaranteed under the Constitution. Thus, the detaining authority is under an obligation to ensure that it exercises its powers with due caution as well as upon a proper appreciation of the facts as to whether the impugned acts are indeed in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order. "If the offences complained of against the person are of a nature which can be dealt with under the ordinary law of land, taking recourse to the provisions of prevention detention would be contrary to the Constitutional guarantees enshrined in Articles 19 and 21 of the Constitution of India," the Full Bench said. The Bench was answering a reference emanating from two separate orders passed by a Division Bench of the High Court at Principal Seat at Jabalpur and another Division Bench of at the Indore Bench. The case in Jabalpur pertained to invocation of the NSA Act against a milk retailer, booked under the Food Safety and Standards Act, 2006 for selling sub-standard quality of milk products. The question before the Court was whether the provision of preventive detention under the NSA can be invoked in a case of trading or manufacturing of adulterated food stuff, harmful and dangerous to the large number of citizens? The Full Bench has come to a finding that the order of preventive detention under NSA does not overlap with the panel provisions under the FSSA, as it is not in lieu of that but is rather in addition to that. "The preventive detention law can operate side by side the law which makes the offences punishable under the substantive offences under the IPC or the FSSA. The preventive detention under the NSA is only anticipatory action and is not a punitive measure," the Full Bench held. It highlighted that the NSA intends, not to punish the offender for the offence committed by him, but to prevent him from doing an act. "These two Acts have been enacted to achieve different object and for difference purpose. The provisions which makes the offence punishable under the FSSA is intended to punish the offender for the offence committed by him, but the object which the NSA seeks to achieve is to put the person concerned in detention so as to prevent him from doing an act but not to punish him for something which he has done. While the former is based on the act already done by him, the latter is based on the likelihood of his acting in a manner similar to his past acts and preventing him for repeating the same," it was held. Thus, the ratio is that if an offence committed by an accused under Food Safety and Standards Act, 2006 whose activities are prejudicial to maintenance of public order, can be detained under NSA. "It would however depend on the facts and situation of a given case," the Bench added. Further, the Bench said that whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and extent of the reach of the act upon the Society. Reliance was laced on Supreme Court's verdict in Kanu Biswas v. State of West Bengal (1972) 3 SCC 831. "Public order is even tempo of the life of the community of an area or even a locality, as a whole. Degree of disturbance upon the life of the community would determine whether it affects public order. An act by itself may not be a determinative factor of its gravity, but it is potentiality of its effect on the even tempo of the life of community that makes it prejudicial to the maintenance of public order. If the effect of act is restricted to certain individuals or a group of individuals, it merely creates a law and order problem but if the effect, reach and potentiality of the act is so deep and pervasive that it affects the community at large and disturbs the even tempo of the community that it becomes a breach of the public order. It therefore cannot be said that a single act would in all and every circumstances not be sufficient to affect public order or even tempo of the society. What is material is the effect of the act and not the number of acts and therefore what has to be seen is the effect of the act on even tempo of life of the people and the extent of its reach upon society and its impact," the Full Bench has held. The second case, emanating from Indore Bench, raised the following questions: Whether a detainee has a right to make a...

Can NSA Be Invoked In A Case Of Trading Adulterated Food, Harmful And Dangerous To Large Number Of Citizens? MP High Court (FB) Answers

Akshita Saxena

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