The Gwalior bench of Madhya Pradesh High Court, set aside a detention order under National Security Act (NSA) owing to procedural lapses and observed that such lapses had become commonplace and needed to be remedied. The division bench of Justice Sheel Nagu and Anand Pathak observed that the procedure laid down for preventive detention needs to be strictly followed “else it would render the order of preventive detention nullity”.
The petition was filed against the order of preventive detention under National Security Act (NSA) passed by District Magistrate, Guna. The counsel for the petitioner initially submitted that seizure of certain mis-branded and adulterated items from the petitioner did not lead to a situation which may give rise to prejudice to public order. The petition was further amended to include grounds that the food items were not found to be unsafe for human consumption and the State had failed to demonstrate actual communication of order of detention to the Central government.
The court was inclined to allow the petition as the State failed to communicate the order of detention to the Central government and that the Magistrate took 3 days’ time from the date of detention order to forward the case to the state government for approval. Under NSA, the Magistrate is required to forward the detention order “forthwith” to the state government.
“The expression “forthwith” found in Sec. 3(4) of NSA obliges the State to explain each day’s delay in forwarding the case to the State Govt. for approval. Absence of explanation or the same being not satisfactory, renders the order of preventive detention, vitiated,” the court observed.
The court also commented on the practice of preventive detention while calling it an “anathema to the fundamental right of personal liberty”. The court emphasised that the procedure laid down for preventive detention needs to be strictly followed “else it would render the order of preventive detention nullity”. The court also said that it came across cases where on account of procedural lapses in following due process of law under NSA, detention order which may have been passed on justified grounds was nullified.
The court stressed upon the need to issue guidelines to all District Magistrates so that timeline provided in following due process of law. The court also made a general observation that original record produced from office of concerned District Magistrate missed out on essential elements and listed them out:
(i) The exact date of forwarding with proof of dispatch by the District Magistrate to the State for approval.
(ii) The exact date with material to show receipt of the order of preventive detention by the State.
(iii) The exact date of dispatch alongwith material of forwarding the order of approval by the State to the Central Govt.
(iv) The exact date of receipt by the Central Govt. of order of approval of the State Govt. alongwith ground.
(v) 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.
The court stressed that 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. U.P. and ors [AIR 1988 SC 596]. The court decided to quash the detention order.
The court further directed that a copy of the order be sent to Chief Secretary of Govt. of MP and Principal Secretary of Law and Legislative Affairs, Bhopal for information and remedial action.
The complete order may be read here:
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