1. Detention under Section 3(2) of the National Security Act — Alleged procurement and administration of spurious essential drugs — Challenge to detention and extension orders. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 )
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2021 Supreme(SC) 654
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, VIKRAM NATH, B.V.NAGARATHNA, JJ.
SARABJEET SINGH MOKHA - APPELLANT
VERSUS
THE DISTRICT MAGISTRATE, JABALPUR & ORS. - RESPONDENTS
CRIMINAL APPEAL NO. 1301 OF 2021
DECIDED ON : 29-10-2021
Important Points
A detention order under the National Security Act is vitiated if there is an unexplained delay in considering the detenu's representation or a failure to communicate the rejection of such representation in a timely manner, violating procedural safeguards under Article 22(5) of the Constitution.
Subject
Constitutional Law - Preventive Detention
Act Referred
ARMS ACT: S.25, S.27
CONSTITUTION OF INDIA: Art.226, Art.136, Art.22
CRIMINAL PROCEDURE CODE: S.173, S.161, S.144
DISASTER MANAGEMENT ACT: S.53
EPIDEMIC DISEASES ACT: S.3
INDIAN PENAL CODE: S.274, S.275, S.308, S.420, S.120(b), S.395, S.397
NATIONAL SECURITY ACT: S.3(2), S.10, S.8(2)
PREVENTIVE DETENTION ACT: S.3(2)
CONSTITUTION OF INDIA: Art.226, Art.136, Art.22
CRIMINAL PROCEDURE CODE: S.173, S.161, S.144
DISASTER MANAGEMENT ACT: S.53
EPIDEMIC DISEASES ACT: S.3
INDIAN PENAL CODE: S.274, S.275, S.308, S.420, S.120(b), S.395, S.397
NATIONAL SECURITY ACT: S.3(2), S.10, S.8(2)
PREVENTIVE DETENTION ACT: S.3(2)
Headnote
Constitution of India,1950 - Articles 226, 21, 136 , 22 , 22(5) and 22(4) - National Security Act 19801 - Sections 3(2) and 3(5) - India Penal Code 1860 - Sections 274, 395, 397, 120B, 275, 308, 420 and 120B - Disaster Management Act 2005 - Section 53 - Epidemic Diseases Act 1897 - Section 3 - Code of Criminal Procedure 1973 - Sections 173, 144 and 161 - Arms Act 1959 - Sections 25 and 27 - General Clauses Act, 1897 - Section 21 - Cheating and dishonesty - fake Remdesivir injections - Epidemic Diseases - Alleged that Police Station of ‘B’ Division in District Morbi of seized fake Remdesivir injections from a factory where they were manufactured and an FIR was registered in that regard - Statement under Section 161 of the CrPC of a co-accused by who was running a pharmacy in hospital owned by appellant, was recorded to effect that appellant had procured fake Remdesivir injections without a bill - Appellant is said to have collected injections through a person from Indore, who sent cartons through a transporter fake Remdesivir injections were stated to have been administered to 50 patients at City Hospital on 30 April 2021 - Appellant’s son had asked him to send the fake Remdesivir injections– Held, Let alone order rejecting the representation, even the outcome of representation, that is whether it has been rejected or not, was not communicated to appellant - Appellant and second, the failure of Central and State Governments to communicate rejection of the representation to the appellant in a timely manner - Basis of the extensions which have been issued and 30 September 2021, finds its genesis in the original order of detention - Once order of detention stands invalidated, the consequential extensions would follow the same course - It is not necessary to consider these other grounds appellant is entitled to succeed on the violation of his procedural rights under the Constitution and the statute - Appeal is accordingly allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s):Sidharth Luthra, Ashwani Kumar Dubey, Manish Kumar, Akshat Kumar, Lakshay Mehta, Ankita Tiwari, Mayank Nagar, Advocates
For the Respondent(s):Saurabh Mishra, Ankita Choudhary, Sunny Choudhary, Advocates
For the Petitioner(s):Sidharth Luthra, Ashwani Kumar Dubey, Manish Kumar, Akshat Kumar, Lakshay Mehta, Ankita Tiwari, Mayank Nagar, Advocates
For the Respondent(s):Saurabh Mishra, Ankita Choudhary, Sunny Choudhary, Advocates
Table of Contents
2. Validity of detention order — Delay in considering representation — Non-communication of rejection — Reliance on stale antecedents — Solitary act as basis for detention. (Para 14 , 15 )
3. Analysis of Article 22(5) and Section 8, NSA — Requirement of immediacy in disposing of representations — Independence of government's consideration from Advisory Board's report. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 31 , 32 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 )
4. Unexplained delay in considering a representation and failure to communicate the decision in a timely manner violate Article 22(5), rendering the detention order invalid. (Para 46 , 54 )
5. Appeal allowed — Impugned judgment set aside — Order of detention and subsequent extensions quashed. (Para 55 , 56 )
6. Is the government's consideration of a detenu's representation dependent on the Advisory Board's report?
No. The consideration of the representation by the appropriate government is qualitatively different and must be completely independent of any action or report by the Advisory Board. (Para 34 , 35 , 36 , 39 , 45 )
7. What is the legal effect of an unexplained delay in considering a detenu's representation?
Such delay is considered unconstitutional as it violates the fundamental right to have a representation considered expeditiously under Article 22(5), which can render the detention order invalid. (Para 37 , 38 , 46 )
8. Does the failure to communicate the outcome of a representation vitiate a detention order?
Yes. The right to make a representation is meaningless without a corollary right to receive timely communication of the decision; failure to communicate the rejection in a time-bound manner vitiates the order. (Para 49 , 50 , 54 )
9. What does the expression as soon as may be imply regarding the communication of grounds and representations?
It imports a requirement of immediacy to ensure the detenu is informed of the basis of detention and can exercise the right to represent against the order without delay. (Para 21 , 22 , 24 )
JUDGMENT :
Dr Dhananjaya Y. Chandrachud, J.
| A. Facts .................................................................................................................... 3 | |
| B. Submissions of counsel .................................................................................... 9 | |
| C. Right to make a representation: Constitutional safeguards and legislative scheme of the NSA ................................................................................................. 17 | |
| D. Analysis ............................................................................................................. 25 | |
| D.1 Delay in considering the representation .................................................. 25 | |
| D.2 Failure to communicate decision on the representation ........................ 38 | |
| E Conclusion ........................................................................................................ 43 | |
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 19801[“NSA”]. The detenu is in appeal.
A Facts
2. The appellant is a Director of City Hospital, Jabalpur. On 10 May 2021, FIR No. 252/2021 was registered at Police Station Omti, Jabalpur under Sections 274, 275, 308, 420 and 120B of the India Penal Code 18602[“IPC”]; Section 53 of the Disaster Management Act 2005; and Section 3 of the Epidemic Diseases Act 1897. The appellant was arrested in connection with the FIR on 26 May 2021. After the investigation, a final report under Section 173 of the Code of Criminal Procedure 19733[“CrPC”] was submitted on 6 August 2021. The allegation against the appellant is that in connivance with certain others, he procured fake Remdesivir injections which were administered to patients during the Covid-19 pandemic in order to make illegal profits thereby endangering the life of the general public.
3. On 12 May 2021, the appellant was detained in pursuance of an order of detention dated 11 May 2021 under Section 3(2) of the NSA, for a period of three months.
4. It is alleged that the Police Station of ‘B’ Division in District Morbi of Gujarat seized fake Remdesivir injections from a factory where they were manufactured and an FIR was registered in that regard. On 10 May 2021, the statement under Section 161 of the CrPC of a co-accused by the name of Devesh Chaurasia, who was running a pharmacy in the hospital owned by the appellant, was recorded to the effect that the appellant had procured fake Remdesivir injections without a bill. The appellant is said to have collected the injections through a person named Prakhar Kohli from Indore, who sent the cartons through a transporter called Amba Travels. The fake Remdesivir injections were stated to have been administered to 50 patients at the City Hospital on 30 April 2021. In his statement under Section 161 of the CrPC recorded on 10 May 2021, Prakhar Kohli stated that the appellant’s son had on 21 April 2021 asked him to send the fake Remdesivir injections from Indore to Jabalpur. Prakhar Kohli was made to speak to the appellant in that connection. Prakhar Kohli is stated to have sent the fake injections through Amba Travels, and these injections were received at Jabalpur by the co-accused, Devesh Chaurasia, on behalf of the appellant.
5. On 11 May 2021, the Superintendent of Police, Jabalpur4[“SP”] made a request to the District Magistrate to take action against the appellant under the NSA. The SP 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 appella
