NSA | Detention Can't Be Extended Merely For Crime Committed By Some Other Member Of 'Gang': MP High Court

Madhya Pradesh High Court has made it clear that 'gang' is not defined under the penal law and a person's preventive detention cannot be extended merely because his alleged gang member committed further crimes.

While setting aside extension of Petitioner's detention under the National Security Act (NSA), the division bench of Justice Vivek Rusia and Justice Binod Kumar Dwivedi observed,

“There is no such definition of ''gang'' in the penal law, there is only a provision of formation of unlawful assembly. The petitioner is not the member of that unlawful assembly which has committed the Crime No.119/2024 and he is not the accused in the aforesaid crime.”

The Court noted that the detention orders had been extended several times, with the State justifying the extensions on the basis of illegal activity allegedly committed by the petitioner's accomplices. However, the court concluded that there was no direct evidence linking the petitioner to the offences. The petitioner was not a member of the unlawful assembly responsible for the Ratlam murders, which were used to justify his ongoing arrest.

“Therefore, for the crime committed by some other person, the period of detention has wrongly been done in the name of public interest and maintenance of law & order,” it observed.

The case concerned that whether the State could extend the detention of petitioner under the NSA solely based on past criminal activities and alleged association with a gang, even though he was not directly involved in the specific crime cited as the reason for the extension.

The petitioner was detained under Section 3(2) of NSA and filed the present petition challenging the order of extension only, on the ground that once the confirmation order has been passed under Section 12(1) of the NSA for the period of three months, the same cannot be reviewed after expiry of three months by the State Government. The petitioner's counsel argued that the initial three-month detention period had expired and that the state could not extend it based solely on the activities of others.

The Supreme Court case of Pesala Nookaraju v. Government of Andhra Pradesh was cited, which clarified that once a detention order has been confirmed, there is no need for further reviews unless new evidence comes to light.

The court observed that though the NSA enables the state to extend a custody period but only when the individual continues to pose a real threat to public order. In this case, the petitioner was not directly tied to the Azad Gang's activities.

The court overturned the order to extend the detention and barred the government from issuing any further orders respecting the petitioner's imprisonment. The court ordered the petitioner's immediate release, unless otherwise needed.

“The impugned order of extension of detention period dated 16.07.2024 and all consequential orders are hereby quashed”

Case title: Harsh @ Harshvardhan Versus Union Of India Through Principal Secretary And Others

Case No: WRIT PETITION No. 21535 of 2024

Citation: 2024 LiveLaw (MP) 262

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