Detention Order Must Contain Prospects Of Detenu's Release On Bail & Apprehension Of Indulgence In Prejudicial Activities: MP High Court

The Bench of Justice Prakash Shrivastava and Justice Vishal Dhagat further observed that the detaining order must also contain details regarding the apprehension that the detenu would indulge in prejudicial activities in case of release on bail.

"The non-application of mind by the Detaining Authority or non-recording of satisfaction in this regard vitiates the detention order. If the detenu is in jail then the compelling necessity justifying the detention must be reflected to sustain the order," added the Court.

The case before the Court

By way of a writ petition, the petitioner challenged the order dated May 3, 2021 passed by the District Magistrate, Satna, for his detention under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. He also challenged the affirming order of the State Government.

An FIR had been registered against him on the basis of the written complaint of Drug Inspector, Satna, alleging that the petitioner (the Manager of M/s Vindhya Engineering Company) had illegally stocked oxygen cylinders in his warehouse and was selling oxygen cylinders at a higher price to the general public.

The raid in the premises of the petitioner was conducted and oxygen cylinders along with LPG cylinders were seized and thereafter the impugned detention order dated 3.5.2021 was passed.

The petitioner submitted that the FIR was registered and the petitioner was taken in custody on May 2, 2021 and at the time of passing the detention order the petitioner was already in custody.

It was further contended that the fact that the petitioner was in custody and his likelihood of release on bail had not been considered by the detaining authority, therefore, the order of detention suffered from nonapplication of mind.

The Court referred to a catena of Judgments including Huidrom Konungjao Singh Vs. State of Manipur and others (2012)7 SCC 181 of the Supreme Court to come to the conclusion that if the detenu is already in jail then the order of detention can be passed if :

• It is based on facts relating to detaining authority's knowledge of detenu's custody,
• real possibility of detenu's release on bail, and
• necessity of preventing him from indulging in activities prejudicial to the security of State and maintenance of public order upon his release on bail.

Further, the Court found that the impugned order of detention suffered from non-application of mind by the Detaining Authority as the petitioner was undisputedly in custody at the time of passing of the detention order; but, the Detaining Authority has not applied its mind to this fact and has also not applied its mind to the possibility of the petitioner being released on bail.

Hence, the Court opined that order cannot be sustained and was liable to be set aside on the solitary ground of non-application of mind by the Detaining Authority while passing the detention order in respect to the fact that the petitioner was already in custody at that time and his possibility of being released on bail.

Case title - Rajeev Kumar Jain Vs. State of Madhya Pradesh and others

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