TMI Blog2021 (10) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the statute. The impugned judgment of the High Court dated 24 August 2021 shall stand set aside. The order of detention dated 11 May 2021 and the extensions dated 15 July 2021 and 30 September 2021 shall accordingly stand quashed and set aside - Appeal allowed. - Criminal Appeal No. 1301 of 2021 - - - Dated:- 29-10-2021 - Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ. JUDGMENT Dr. D.Y. Chandrachud, J. A. Facts B. Submissions of counsel C. Right to make a representation: Constitutional safeguards and legislative scheme of the NSA D. Analysis D.1 Delay in considering the representation D.2 Failure to communicate decision on the representation E. Conclusion PART A 1. By a judgment dated 24 August 2021, a Division Bench at the Indore Bench of the High Court of Madhya Pradesh rejected a petition Under Article 226 of the Constitution of India challenging a detention order passed against the Appellant Under Section 3(2) of National Security Act 1980 [1] . The detenu is in appeal. A. Facts 2. The Appellant is a Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P reiterated the allegations against the Appellant of having procured and administered fake Remdesivir injections to Covid-19 patients. The Appellant is alleged to have procured 500 injections worth Rs. 15 lakhs. The SP stated that the newspapers had widely reported that there was a public outcry following the Appellant's actions, which were likely to disturb the public order. Following the recommendation of the SP, the District Magistrate passed an order on 11 May 2021 Under Section 3(2) of the NSA, detaining the Appellant for a period of three months. The grounds of detention which were supplied to the Appellant were to the following effect: (i) Spurious Remdesivir injections had been administered to patients which resulted in several untimely deaths; (ii) The spurious injections had caused casualties which had been reported in the newspapers; (iii) There was anger and resentment in the public in Jabalpur and its adjoining districts which may explode at any time; (iv) The Appellant had criminal antecedents but had been acquitted in certain cases due to his 'money power'. The criminal cases against the Appellant were: (a) FIR No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s affidavit submitted before the High Court, the Central Government stated that it rejected the representation of the Appellant on 24 June 2021, which was communicated to the Superintendent of the Jail and the State Government by a wireless message on 28 June 2021. Pursuant to the report of the Advisory Board, the State Government approved the order of detention, Under Section 12(1), on 29 June 2021. 8. On 29 June 2021, the SP recommended to the District Magistrate to extend the order of detention which had initially been passed for a period of three months. By an order dated 5 July 2021, the District Magistrate Jabalpur [8] extended the detention of the Appellant by a further period of three months, to end on 12 November 2021 and forwarded the order of extension to the State Government. 9. Meanwhile, on 3 July 2021, the Appellant instituted a petition Under Article 226 of the Constitution to challenge the order of detention. The writ petition before the High Court was amended to challenge both-the original order of detention dated 11 May 2021 as well as the extension dated 5 July 2021. 10. On 15 July 2021, the State Government allegedly rejected the first representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of representation dated 24 June 2021, only in the form of an annexure in their counter affidavit dated 26 July 2021 to the Appellant's writ petition before the High Court; and (b) The Appellant's representation dated 18 May 2021 was forwarded by the District Magistrate on 20 May 2021 and received by the Central Government on 24 May 2021. Thereafter, the Central Government sought para-wise comments from the District Magistrate and the State Government on 2 June 2021. The Central Government's wireless message dated 28 June 2021 rejecting the representation by order dated 24 June 2021, directed the Jail Superintendent to forward the Appellant's acknowledgement. The Respondents do not have a copy of this acknowledgement since the Appellant has never received the rejection of his representation; (ii) The State Government also did not furnish a reply to the Appellant's representation, allegedly rejected by it on 15 July 2021, except in its additional reply that was filed before the High Court on 12 August 2021; (iii) This Court has held that a delay in considering a detenu's representation could be fatal to the detention order in An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stale reliance on past antecedents to justify detention is in breach of this Court's decisions in Khaja Bilal Ahmed v. State of Telangana, 2020 (13) SCC 632 Sama Aruna v. State of Telangana, (2018) 12 SCC 150 Ramesh Yadav v. District Magistrate Etah, (1985) 4 SCC 232 Lakshman Khatik v. State of West Bengal, (1974) 4 SCC 1 Yumman Ongbi Lembi Liema v. State of Manipur: (2012) 2 SCC 176 and Rameshwar Shaw v. District Magistrate Burdwan AIR 1964 SC 334; (x) The detention is based on a solitary action and ought to be set aside, as held by this Court in Ramveer Jatav v. State of Uttar Pradesh (1986) 4 SCC 726 and Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14; (xi) A mere apprehension of the grant of bail in the FIR cannot be the cause for detention, as held by this Court in P.P. Rukhiya v. Joint Secretary (2019) 20 SCC 740. In any event, this apprehension is unfounded since the Appellant has not applied for bail; (xii) There is no substantial evidence of death/harm due to the allegedly fake Remdesivir injections procured by the Appellant. As held by this Court in Pebam Ningol Mikoi Devi v. State of Manipur 2010 (9) SCC 618 and Rajendra Singh v. State of Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate on 2 June 2021. The District Magistrate forwarded comments on 10 June 2021 and they were received by the Central Government on 11 June 2021. After due consideration, the Central Government rejected the Appellant's representation on 24 June 2021 and communicated it to him by a wireless message dated 28 June 2021. The State Government rejected the Appellant's representation on 15 July 2021. In any event, the Appellant has not urged the delay in consideration of its representation before the High Court; (ii) It is well settled that the subjective satisfaction of the detaining authority is not justiciable, as held by this Court in Rameshwar Shah v. District Magistrate (1964) 4 SCR 921. Neither can the reasonableness of its satisfaction be questioned in a court of law, nor can the adequacy of the material be scrutinized. The Respondents relied on this Court's decisions in State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 and Pebam Ningol Mikoi Devi v. State of Manipur (2010) 9 SCC 618; (iii) When an order of preventive detention is challenged, the detaining authority does not have to prove an offence or formulate a charge. The justification for an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of retaining the concept of preventive detention in the present circumstances of the country . [11] However, the discontinuity from the colonial regime lay in the introduction of strict countervailing measures that ensured that exigency of liberty of the individual [is not] placed above the interests of the State in all cases. [12] 18. The specific provisions relating to preventive detention Under Article 22 were framed in the following terms: (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this Sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the most clinching aspect of this case-the failure of the Central Government and the State Government to consider his representation dated 18 May 2021 in a timely manner. 21. Article 22(5) of the Constitution mandates that (i) the authority making the order shall as soon as may be communicate the grounds on which the order has been made to the person detained; and (ii) the detaining authority shall afford to the person detained the earliest opportunity of making a representation against the order [16] . Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu an earliest opportunity of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression as soon as may be imports a requirement of immediacy. 22. The communication of the grounds is in aid of facilitating the right of the detenu to submit a representation against the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the disclosure of the grounds of detention. Section 8 is in the following terms: 8. Grounds of order of detention to be disclosed to persons affected by the order.--(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than [ten days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. As noticed earlier, Article 22(5) of the Constitution provides for the communication of the grounds on which the order of detention has been made by the detaining authority as soon as may be . Section 8(1) uses the expression as soon as may be , qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith. 28. Section 14 provides for the revocation of detention orders in the following terms: 14. Revocation of detention orders.-- (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,-- (a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding that the order has been made by a State Government, by the Central Government. (2) The expiry or revocation of a detention order (hereafter in this Sub-section referred to as the earlier detention order) shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board. In Jayanarayan Sukul v. State of West Bengal (1970) 1 SCC 219, a Constitution Bench of this Court laid emphasis on the expeditious consideration of the representation by the appropriate government. In that case, a representation was made by the Petitioner against an order of detention passed Under Section 3(2) of the Preventive Detention Act 1950. The Petitioner made a representation to the State Government on 23 June 1969, which was rejected on 19 August 1969, as a reference regarding the detention order was pending before the Advisory Board. The Court held that there was an inordinate delay in considering the representation of the Petitioner. Justice AN Ray (as the learned Chief Justice then was), speaking for the Bench, observed: 18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the power which is entrusted to the Advisory Board. The Court observed: 24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention. 35. In Frances Coralie Mullin v. W.C. Khambra: (1980) 2 SCC 275 a Bench of two judges of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the representation from June 13, 1980 to June 16, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986 was no explanation at all why the Chief Minister did not attend to the representation made by the Appellant till November 17, 1986 i.e. for a period of 25 days. There was no reason why the representation submitted by the Appellant could not be dealt with by the Chief Minister with all reasonable promptitude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation. In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, the further detention of the Appellant must be held illegal and he must be set at liberty forthwith. 39. In a recent decision of a three judge Bench of this Court in Ankit Ashok Jalan v. Union of India (2020) 16 SCC 127 [ Ankit Ashok Jalan ], Justice UU Lalit revisited the body of precedent on the subject and noticed the qualitative difference between the consideration of a representation by the appropriate government on the one hand and by the Advisory Board on the other. Justice UU Lalit, speaking for himself and Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri.) 816], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. 17.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition. 18. [...] it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is also qualitatively different, there is no reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant dated 18 May 2021, along with the comments of the District Magistrate, were processed for consideration by the Union Home Secretary on 14 June 2021. On 24 June 2021, the Union Home Secretary rejected the representation of the Appellant, which is alleged to have been communicated by a wireless message to the detenu on 28 June 2021. There was a one-and-a-half-month delay on the part of the Central Government in considering the representation dated 18 May 2021 and rejecting the same only on 24 June 2021. 43. The Appellant had also submitted a representation against the order of detention to the State Government on 18 May 2021. An additional reply was filed by the District Magistrate on 12 August 2021 before the High Court. Paragraph 2 of the reply is extracted below: 2 That it is submitted that against the impugned order dated 11.05.2021, the Petitioner Sarabjeet Singh Mokha submitted a representation on (sic)18.05.201 (Annexure RI.IP..) through Amarjit Mokha before the District Magistrate, State Government and the Central Government. The learned District Magistrate received the representation and communicated the same to the Secretary, Home Department, Govt. of M.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021, the State Government took another one month in arriving at a decision on the Appellant's representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of action. 46. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu as soon as may be and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant's representation on 15 July 2021. However, with the exception of the rejection order forming a part of the annexures to the Respondents' additional reply before the High Court, there is no proof of the Appellant having knowledge of the rejection of its representation by the State or Central Government before he filed his writ petition before the High Court. 49. Article 22(4), in guaranteeing a right to make a representation to the detenu, understandably creates a corresponding duty on the State machinery to render this right meaningingful. In Section D.1 of the judgment, we have detailed this Court's settled precedent on the detenu's right to make a representation and for it to be considered expeditiously-failing which the detention order would be invalidated. However, this right would ring hollow without a corollary right of the detenu to receive a timely communication from the appropriate government on the status of its representation-be it an acceptance or a rejection. 50. This Court, in considering claims of delay in the appropriate government's dealing with the representation of a detenu, has included delays in communication of such rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... POSA, and was sent to the Minister of State (Revenue). The file was received back after the rejection of the representation and such rejection was communicated to the detenu on February 20, 1989. The two intervening dates, namely, February 18, 1989 and February 19, 1989 being Saturday and Sunday were holidays. 38. It is clear from the above statement that there was no laches or negligence on the part of the detaining authority or the other authorities concerned in dealing with the representation of the detenu. In L.M.S. Ummu Saleema v. B.B. Gujaral[(1981) 3 SCC 317 : 1981 SCC (Cri.) 720] it has been observed that the time imperative can never be absolute or obsessive, and that the occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. In the instant case, the detaining authority has explained the delay in the disposal of the representation made by the detenu and, accordingly, the order of detention cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been issued on 15 July 2021 and 30 September 2021, finds its genesis in the original order of detention dated 11 May 2021. Once the order of detention stands invalidated, the consequential extensions would follow the same course. During the course of the proceedings, both parties have advanced submissions on the merits of the order of detention. In the view which we have taken, it is not necessary to consider these other grounds of challenge since the Appellant is entitled to succeed on the violation of his procedural rights under the Constitution and the statute. 56. For the reasons we have indicated above, the appeal is accordingly allowed. The impugned judgment of the High Court dated 24 August 2021 shall stand set aside. The order of detention dated 11 May 2021 and the extensions dated 15 July 2021 and 30 September 2021 shall accordingly stand quashed and set aside. 57. Pending application(s), if any, shall stand disposed of. [1] NSA [2] IPC [3] CrPC [4] SP [5] State Government [6] Central Government [7] first representation [8] District Magistrate [9] second representati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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