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No "Live Link" With Past Incidents: MP High Court Quashes Preventive Detention Order U/S 3(2) Of National Security Act, Awards 10K Cost

Zeeshan Thomas
1 July 2022 11:45 AM GMT
MP High Court Rejects Application For Cancellation Of Bail As Order Granting Bail Had Not Conditioned Accused To Not Get Involved In Any Other Criminal Case

The Madhya Pradesh High Court, Indore Bench recently set aside an order of Preventive Detention under the National Security Act and further imposed a cost of Rs. 10,000, payable to the Petitioner/Detenu.

The Court observed that there was no live link between the earlier alleged incidence on the part of the Petitioner and the incidence in respect of which his detention order had been passed.

The division bench of Justice Vivek Rusia and Justice A.N. Kesharwani also noted that considering the grounds taken by the authority while passing the impugned order, the Petitioner was directed to be detained merely on "surmises and speculation" -

Under the National Security Act, a person is liable to be detained if there is an apprehension that with a view to preventing him from acting in any manner prejudicial to the security of the State for maintenance of public order. It means his free movement in society is liable to be curbed out by passing the order of detention. But in the present case, the petitioner was already under custody and the order of detention has been passed only on the basis of the strong possibility that he would be released on bail and thereafter would repeat the crime. Even in the case of which has been strongly relied on by the Govt. Advocate i.e. Kamini Yadav (Supra) in similar facts and circumstances the order of the detention has been quashed as the detenu was already in custody at the time of passing of the detention order.

The facts of the case were that the police authority had written to the District Magistrate, requesting him to initiate detention proceedings against the Petitioner on account of four criminal cases registered against him. After drawing proceedings under Section 3 of the National Security Act, 1980 ("NSA"), the District Magistrate passed an order of detention without prescribing the period of detention. The Petitioner was supplied the grounds, whereby he was communicated that there would be a possibility of creating a dispute in relation to political and communal matters after his release from jail on bail. Aggrieved by the impugned order, the Petitioner moved the Court to challenge the same.

The Petitioner submitted before the Court that the provisions under Section 3(2) of NSA ought to be exercised in a very cautious manner and after granting fair opportunity to the aggrieved person. He further submitted that he was not convicted in any of the criminal cases. He argued that out of the four cases registered against him, two were registered recently with the intention to initiate proceedings against him under NSA. It was pointed out by the Petitioner that he was the only earning member in the family and at the time passing the order of detention, he was already in jail. Therefore, he concluded, there was no need to detain him in the apprehension of disturbance of public order and thus, the impugned order was liable to be set aside.

To strengthen his submissions, the Petitioner relied on the decision of the Supreme Court in Arun Ghosh v. State of West Bengal, wherein a distinction was drawn between public order and law and order. He also placed reliance on the observations of the Apex Court in Yumman Ongli Lembi Leima v. State of Manipur & Ors. The Petitioner further placed reliance on the decision of the Court in Ravi Tiwari & Ors. v. Union of India & Ors., wherein the order of detention was set aside as the same was held to be not based upon proper application of mind, relevant document etc.

Per contra, the State argued that the petition was premature as the order of detention had not been approved by the advisory board and confirmed by the State Government. It was further argued that even while a person was under arrest, an order of detention can be passed under the apprehension of disturbance of public order if they were granted bail. It was also submitted that Petitioner was actively indulged in criminal activities prejudicial to the public order and public safety and hence, the District Magistrate had rightly passed the impugned order. The State pointed out that the Petitioner had the right to submit a representation challenging the order of detention and therefore, the petition was liable to be dismissed.

Examining the submissions of the parties and documents on record, the Court opined that a person may be detained by the authorities under the provisions of NSA to prevent the Detenu from acting in a manner prejudicial to maintenance of public order. However, the Court noted, considering the facts of the case in hand, the Petitioner could not be categorised as a threat to public order-

All the criminal cases against the petitioner are not of such nature that it has ever affected or disturbed the society or the community which has further caused disturbance to the public order The court has held that it is not justified to detain a person as he is likely to be released on bail. In the present case, a criminal case under section 354 of the IPC was registered in the year 2016 and the detention order has been passed after 6 years after the said incident. Hence, there is no live link between the earlier incidence and the incidence in respect of which the detention order had been passed.

With the aforesaid observations, the Court held that the impugned order was unsustainable and accordingly, the petition was allowed and the order of detention was quashed.


Citation: 2022 LiveLaw (MP) 168

Click Here To Read/Download Order

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