Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed a petition which was filed challenging the order of preventive detention passed by the District Magistrate detaining the petitioner for a period of three months by invoking the provisions of Section 3(3) of the National Security Act (“NSA”).

Petitioner dealt in the business of snacks (Namkeen) at Guna for which he had obtained licence under the Food Safety and Standards Act, 2006 for running such business. On receiving complaint, the SDM along with the food squad under “Food Adulteration Removal Drive” and on further investigation it was found that food stuffs and raw material lying thereat were prima facie found to be substandard, misbranded and not according to the provisions of FSSAI. Samples taken were sent for analysis. On 08-02-2021 itself the

State had forwarded the impugned order along with grounds and the supportive relevant material to the Central Government. Petitioner had challenged the impugned order of preventive detention on the ground that reasons for passing the impugned order do not pass the test of breach of public order.

The Court refrained from going into the said grounds of merits rather commented that the petition deserved to be allowed. The Court explained that,” The concept of preventive detention is not punitive. Its purpose is to prevent the breach of public order or its likelihood in future. Thus, by its very nature, power of preventive detention is exercised to prevent and not to punish.”

The Court further observed that the order of preventive detention passed by the District Magistrate Guna was forwarded to the Central Govt after 10 days of passing of the order which breaches the maximum limit of 5 days prescribed in Section 8 of NSA in ordinary circumstances. The Court referred to the Supreme Court judgment in A.K. Roy v. Union of India, (1982) 1 SCC 271 wherein it was mentioned that,

            “76. The objection of the petitioners against the provision contained in S.8 (1) is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenue as late as five days and in exceptional cases 10 days after the date of detention. This argument overlooks that the primary requirement of S.8 (1) is that the authority making the order of detention shall communicate the grounds of detention to the detenue “as soon as may be”. The normal rule, therefore, is that the grounds of detention must be communicated to the detenue without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by S. 8 (1) to record its reason in writing. We do not think that this provision is open to any objection.”

The Court further relied on the judgment of Supreme Court in Hetchin Haokip v. State of Manipur, (2018) 9 SCC 562 and explained that in the instant case, the State in its affidavit had disclosed that after passing of the order of preventive detention on the case was forwarded by the District Magistrate to the State Government under Section 3 (4) after four days. Neither in the order impugned nor in the reply filed by the State there was any explanation for not forwarding the case to the State Government earlier. The delay of four days had not been explained by the official respondents.

The Court allowed the petition and further stated that “The law of preventive detention is an exception to the fundamental right to personal liberty u/Art.21 of the Constitution and therefore has to be strictly construed. Any aberration by the Competent Authority in complying with the statutory procedure laid down under the NSA is not only to be frowned upon but interfered with by the superior court.”[Sulabh Sharma v. State of M.P., 2021 SCC OnLine MP 572, decided on 17-03-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

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