Preventive Detention -MP High Court Directs Govt. To Issue Guidelines To Strictly Adhere To The Provisions Of National Security Act

Highlighting that in many cases, on account of procedural lapses in following due process of law under the NSA, the orders of preventive detention (passed on justified grounds) suffer annulment, the Madhya Pradesh High Court issues a slew of directions for the State Government. The Bench of Justice Sheel Nagu and Justice Anand Pathak was hearing the plea filed assailing the order of preventive detention passed by District Magistrate Guna (M.P.) on directing detaining of petitioner for a period of three months. Arguments put forth by the Petitioner The detention order revealed the seizure of certain misbranded and adulterated items from the premises of the petitioner. The petitioner challenged the detention order primarily to the extent that the offence registered pursuant to the said raid did not lead to a situation that may give rise to prejudice to public order. It was also submitted that the food items were not found to be unsafe for human consumption and lastly failure of the State to demonstrate actual communication of the order of detention and its grounds to the Central Govt. thereby raising ground of Secs. 3(2), (4), and 3(5) of the NSA.Court's observations At the outset, the Court noted that the State Govt. had not brought out any material to show that after forwarding approval order along with grounds to the Central Govt., the same was actually received by the Central Govt. or not. Thus, the Court said, "This Court is left with no option but to draw adverse inference that the Central Govt. did not receive the said letter thereby violating the provision of Sec. 3(5) of NSA." The Court further observed that the order of preventive detention was passed on 18th December 2020, whereby District Magistrate Guna took 3 long days time to forward the case to the State Govt. for approval. "Neither in the return nor in additional return of State there is any explanation as to why the case was lying idle for 3 days from 19th December 2020 to 21st December 2020 in the office of District Magistrate, Guna", the Court further observed. Significantly, the Court directed the State Government to issue guidelines to all District Magistrates so that timeline provided in following due process of law u/S. 3 and other provisions of NSA are strictly adhered to by all District Magistrates/State Govt. The Court further said that it is also seen that original record produced from the office of concerned District Magistrate ordinarily does not contain the following materials: - The exact date of forwarding with proof of dispatch by the District Magistrate to the State for approval. The exact date with material to show receipt of the order of preventive detention by the State. The exact date of dispatch along with material of forwarding the order of approval by the State to the Central Govt. The exact date of receipt by the Central Govt. of the order of approval of the State Govt. along with the ground. When an order of preventive detention is passed by District Magistrate/State against a person already in custody, then the order of preventive detention does not reveal in specific words that the competent authority was conscious of this fact and yet for reasons to be recorded in the order deems it necessary to preventively detain the person concerned. Lastly, the Court also stressed that the satisfaction of competent authority is to reflect from the order of preventive detention or else it may not stand the test of law laid down by Apex Court in Shashi Aggarwal Vs. State of U.P. and others [AIR 1988 SC 596]. Consequently, allowing the petition Consequently, the Registry of this Court was directed to communicate copy of the order to the Chief Secretary of Govt. of M.P. and Principal Secretary of Law and Legislative Affairs, Bhopal, M.P., for information and remedial action. Case title - Anshul Jain Vs. State of M.P. and others [WP.1118.2021] Click Here To Download OrderRead Order

Preventive Detention -MP High Court Directs Govt. To Issue Guidelines To Strictly Adhere To The Provisions Of National Security Act

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Preventive Detention -MP High Court Directs Govt. To Issue Guidelines To Strictly Adhere To The Provisions Of National Security Act

Sparsh Upadhyay

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