MADHYA PRADESH HIGH COURT
Mohammad Rafiq, C.J., Rajeev Kumar Dubey and Vijay Kumar Shukla, JJ.
Kamal Khare and Ors. – Petitioners
versus
State of M.P. and Ors. – Respondents
W.P. No.22290 of 2019 with W.P. No.717 of 2020 and W.P. No.28804 of 2019
Decided on 22.4.2021

IMPORTANT POINTS
(1) Order of preventive detention under NSA does not overlap with penal provisions under FSSA as it is not in lieu of that but is rather in addition to that.
(2) Life of order passed by District Magistrate or Commissioner of Police under Section 3(3) of NSA, is only up to twelve days.
(3) Preventive detention – Right to make representation – Denial of right under Article 22(5) of Constitution of India, renders detention illegal.
(4) In matter of preventive detention there is deprivation of liberty and safeguards provided by Article 22 of Constitution of India have to be scrupulously adhered to.
(5) An act by itself may not be a determinative factor of its gravity, but it is potentiality of its effect on even tempo of life of community that makes it prejudicial to maintenance of public order.

Headnote:

(A) Food Safety and Standards Act, 2006 – Sections 26(2)(ii) and 52 – National Security Act, 1980 – Section 3(2) – Preventive detention – Order of preventive detention under NSA does not overlap with penal provisions under FSSA as it is not in lieu of that but is rather in addition to that – Preventive detention law can operate side by side law which makes the offences punishable under substantive offences under IPC or FSSA – Preventive detention under NSA is only anticipatory action and is not a punitive measure – While FSSA only provides for penalty for offence made out under provisions of said Act, NSA provides for preventive detention if parameter enumerated in sub-section (2) of Section 3 are attracted – These two Acts have been enacted to achieve different object and for difference purpose – While former is based on act already done by him, latter is based on likelihood of his acting in a manner similar to his past acts and preventing him for repeating the same. (Para 18)

(B) National Security Act, 1980 – Sections 3 and 14 – General Clauses Act, 1897 – Section 21 – Preventive detention – Approval – Life of order passed by District Magistrate or Commissioner of Police under Section 3(3) of NSA, is only up to twelve days – Such order gets further life only upon approval of State Government, otherwise it would die its natural death on expiry of twelve days after its making – Till detention has not been approved by State Government, District Magistrate/Commissioner of Police, under whose order detenu has been kept under preventive detention, retains authority to revoke order made by him by virtue of Section 21 of General Clauses Act as envisaged by Section 14 of NSA. (Para 26)

(C) National Security Act, 1980 – Section 3 – Constitution of India – Article 22(5) – Preventive detention – Right to make representation – Denial of right under Article 22(5) of Constitution of India, renders detention illegal – District Magistrate or Commissioner of Police, is obliged to communicate to detenu about detenu’s right to make representation to him until detention order passed by him is approved by State Government within 12 days and non-communication thereof would vitiate detention order. (Paras 33 and 34)

(D) Preventive detention – Disturbance of Public Order – Whether an act would constitute simple breach of law and order, or breach of public order, would solely depend on degree and extent of its reach and effect upon society – Public order is even tempo of life of community of an area or even a locality, as a whole – Degree of disturbance upon life of community would determine whether it affects public order – An act by itself may not be a determinative factor of its gravity, but it is potentiality of its effect on even tempo of life of community that makes it prejudicial to maintenance of public order – If effect of act is restricted to certain individuals or a group of individuals, it merely creates a law and order problem but if effect, reach and potentiality of act is so deep and pervasive that it affects community at large and disturbs even tempo of community that it becomes a breach of public order – It cannot be said that a single act would in all and every circumstances not be sufficient to affect public order or even tempo of society – What is material is effect of act and not number of acts and what has to be seen is effect of act on even tempo of life of people and extent of its reach upon society and its impact. (Para 44)

(E) Constitution of India – Articles 21 and 22 – Preventive detention – Detaining authority is under obligation to ensure that personal liberty of an individual is the most precious and prized right guaranteed under Constitution – Personal liberty protected under Article 21 of Constitution of India is so sacrosanct and so high on scale of Constitution values that it casts an obligation on detaining authority to show that order of preventive detention it has passed meticulously accord with procedure established by law – Individual liberty is a cherished right which is one of the most valuable fundamental rights guaranteed by our Constitution to citizens of country – In scheme of Constitution, utmost importance has been given to life and personal liberty of individual – In matter of preventive detention there is deprivation of liberty and safeguards provided by Article 22 of Constitution of India have to be scrupulously adhered to. (Para 48)

Law laid down:

Question under reference in WP-22290-2019

Held:

• While the Food Safety and Standards Act, 2006 (FSSA) only provides for penalty for the offence made out under the provisions of the said Act, the National Security Act, 1980 (NSA) provides for the preventive detention if parameter enumerated in sub-Section (2) of Section 3 of the NSA are attracted. These two Acts have been enacted to achieve different object and for difference purpose. The provisions which makes the offence punishable under the FSSA is intended to punish the offender for the offence committed by him, but the object which the NSA seeks to achieve is to put the person concerned in detention so as to prevent him from doing an act but not to punish him for something which he has done. While the former is based on the act already done by him, the latter is based on the likelihood of his acting in a manner similar to his past acts and preventing him for repeating the same. We are therefore not persuaded to approve of the line of reasoning taken by the Division Bench in paragraph No.19 of the judgment in Sudeep Jain Vs. State of M.P. (W. P. No.21768/2019) decided on 8.11.2019 to that effect and paragraph No.8 of the dissenting order (dated 04.12.2019 in WP-22290-2019 – Kamal Khare vs. State of M.P.) by one of the Hon’ble Judges referred to above. Accordingly, judgment of the Division Bench in Sudeep Jain (supra) to the extent of what was held in its paragraph No.19 is overruled.

• In Principles of Statutory Interpretation by Justice G. P. Singh, the principles for resolving a conflict between two different Acts and in the construction of statutory rules have been discussed (See : page 146 13th Edition, 2012). They are: the maxims generalia specialibus non derogant (general things do not derogate from special things) and specialia generalibus derogant (special things derogate from general things). Considering thus, the Supreme Court in P. V. Hemalatha Vs. Kattamkandi Puthiya Maliackal Saheeda and another (2002) 5 SCC 548, in paragraph No.33 of the report held that: “When the Courts are confronted with such a situation, the Courts’ approach should be “to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific”.

Referred to:

AIR 1964 SC 260, (Kaushalya Rani Vs. Gopal Singh)

(1981) 1 SCC 315 (Life Insurance Corporation of India v. D.J. Bahadur)

(2002) 5 SCC 548 (P. V. Hemalatha Vs. Kattamkandi Puthiya)

• Degree of disturbance upon the life of the community would determine whether it affects public order. An act by itself may not be a determinative factor of its gravity, but it is potentiality of its effect on the even tempo of the life of community that makes it prejudicial to the maintenance of public order. If the effect of act is restricted to certain individuals or a group of individuals, it merely creates a law and order problem but if the effect, reach and potentiality of the act is so deep and pervasive that it affects the community at large and disturb the even tempo of the community that it becomes a breach of the public order. It therefore cannot be said that a single act would in all and every circumstances not be sufficient to affect public order or even tempo of the society. What is material is the effect of the act and not the number of acts and therefore what has to be seen is the effect of the act on even tempo of life of the people and the extent of its reach upon society and its impact.

Reliance placed upon:

AIR 1966 SC 740 (Dr. Ram Manohar Lohia Vs. State of Bihar)

(1972) 3 SCC 816 (S. K. Kedar Vs. State of West Bengal)

(1972) 3 SCC 831 (Kanu Biswas Vs. State of West Bengal)

(1979)4 SCC 14 (Kanchanlal Meneklal Chokshi Vs. State of Gujarat)

(1982) 2 SCC 403 (Ashok Kumar Vs. Delhi Administration and ors.)

(1982) 2 SCC 469 (Smt. Bimla Dewan vs. Lt. Governor of Delhi)

(1987) 2 SCC 490 (State of U.P. Vs. Hari Shankar Tewari)

(2004) 8 SCC 591 (State of U.P. Vs. Sanjai Pratap Gupta Alias Pappu)

Three Questions under reference in WP-28804-2019 (Manish vs. State) & WP-717-2020 (Laduram vs. State)

• All the three following questions which the Division Bench has formulated and referred for our consideration stands answered in the affirmative by the judgment of the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel vs. Union of India and others (1995) 4 SCC 51:-

(a) Whether a detainee, who is detained under the National Security Act, 1980 has got a right to make a representation to the District Magistrate who acts on behalf of the State Government as the State Government is the appropriate Government within the meaning of Section 2(a) of National Security Act, 1980 ?

(b) Whether the order of detention is a nullity in absence of such a communication informing the detainee about his right of making representation to the District Magistrate, even though the Detainee has been informed by the District Magistrate to make a representation to the State Government/to the Union of India/ Advisory Board ?

(c) Whether the District Magistrate keeping in view the scheme of the Act i.e. the National Security Act, 1980 has the power to revoke the order of detention once passed by him in view of Section 10 and Section 14 of the National Security Act, 1980 ?

Question No.(a)

• Individual liberty is a cherished right which is one of the most valuable fundamental rights guaranteed by our constitution to the citizens of the country. In the scheme of Constitution, utmost importance has been given to life and personal liberty of the individual. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. In the matter of preventive detention there is deprivation of liberty, therefore, safeguards provided by Article 22 of the Constitution of the India have to be scrupulously adhered to.

Question No.(b)

• The detaining authority i.e. the District Magistrate or the Commissioner of Police, is obliged to communicate to the detenu about detenu’s right to make representation to him until detention order passed by him is approved by the State Government within 12 days and non-communication thereof would vitiate the detention order. The Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) also analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal.

Question No.(c)

• So long as the detenu remains under preventive detention under the authority of the order passed by the detaining authority i.e. the District Magistrate or the Commissioner of Police, i.e. for a period of 12 days or till the approval of the preventive detention by the State Government, whichever is earlier, such District Magistrate/ Commissioner of Police continues to be the detaining authority. If and when the further detention of the detenu is approved by the order of the State Government, then onwards, it is the State Government which becomes the detaining authority. Therefore, till the detention has not been approved by the State Government, the District Magistrate/Commissioner of Police, under whose order the detenu has been kept under preventive detention, retains the authority to revoke the order made by him by virtue of Section 21 of the General Clauses Act as envisaged by Section 14 of the NSA.

Result: Reference answered.