Case BriefsHigh Courts

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.

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission India has taken suo motu cognizance of media reports that a 13-year-old girl belonging to Scheduled Caste was gang-raped and killed when she had gone to relieve herself on the farmland owned by one of the accused on 15-08-2020. Reportedly the victim was tortured before strangled to death. It is mentioned in the news report that there is a toilet in the victim’s house but it’s not functional.

The Commission has issued notices to the Chief Secretary and DGP, Government of Uttar Pradesh calling for detailed reports in the matter within 06 weeks including disbursement of the statutory relief as per rules framed under provisions of the SC/ST (POA) Act to the family of the victim, action taken against the guilty and the status of the FIRs registered in the matter. The Chief Secretary is also expected to sensitize the district authorities in the State to create awareness that the toilets should not be constructed for mere fulfillment of the government records, they are to be actually made functional.

The Commission found it appropriate to forward a copy of the news item to the Secretary, Union Ministry of Jal Shakti, which is the Nodal Ministry for the ‘Swachchh Bharat Abhiyan.’ It is expected from the Ministry to issue guidelines to all the States and Union Territories to ensure that the toilets are not only constructed but also used to make the country clean and save the women from the heinous crimes committed by anti-social elements when they go out to relieve themselves. He is also expected to respond within 6 weeks.

According to the media reports, both the accused have been arrested by the police. The Senior Superintendent of Police, Kheri has reportedly stated that the FIR has been registered under relevant sections of IPC and POCSO Act. He has further added that the National Security Act will be slapped against the accused who were arrested by the police within few hours after the incident.


National Human Rights Commission

[Press Release dt. 17-08-2020]

COVID 19Legislation UpdatesNotifications

No. F.2/1/88-HP-II/ Pt.-I/775-78.—Whereas the Lt. Governor of the National Capital Territory of Delhi is satisfied that it is necessary to do so;

Now, therefore, in exercise of the powers conferred by sub-section (3) of section 3, read with clause (e) of Section 2 of the National Security Act, 1980, the Lt. Governor of the National Capital Territory of Delhi is pleased to direct that during the period 19/04/2020 to 18/07/2020 the Commissioner of Police, Delhi may also exercise the powers of detaining authority under sub-section (2) of the section 3 of the aforesaid Act.


HOME (POLICE-II) DEPARTMENT

[Notification dt. 07-04-2020]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]