IMPORTANT POINT
Preventive detention – Expressive function of punishment or preventive measure like detention under NSA are both retributive and utilitarian.

ORDER

Sushrut Arvind Dharmadhikari, J.—Heard finally, with the consent of the parties. The present petition under Article 226 of the Constitution of India is filed by the brother of the detenu assailing the order dated 14.09.2023 passed by the respondent No.2 – District Magistrate, Khargone, whereby the brother of the petitioner (detenu) has been kept under detention by invoking the provisions of National Security Act, 1980 (hereinafter referred to as ‘the NSA’). The petitioner has also challenged the orders dated 30.11.2023, 04.12.2023 & 07.03.2024.

2. Briefly stated facts of the case are that the brother of the petitioner namely Adeeb S/o Mohammad Pathan was detained in Crime No.0002/NSA/2023 under Section 3(2) of the NSA for a period of three months from the date of detention and was sent to the Central Jail, Ujjain. The action of the respondents is contrary to the mandate of NSA and it violates Articles 14 & 21 of the Constitution of India. The right to life with dignity of the detenu has been infringed by issuance of mechanical orders of detention. The impugned orders have been passed without application of mind without recording any subjective satisfaction, therefore, the orders falls within the purview of illegal detention. Even the respondents have denied the basic rights depriving of the opportunity of hearing amounting to violation of principle of natural justice. The petitioner is the resident of District – Khargone and is living within the territorial jurisdiction of this Court.

3. It appears from the pleadings that since 2012, detenu is facing different cases / charge-sheeted alleging commission of different offences, particular of which are placed with writ petition and on the basis of those cases as well as apprehension of the authorities that detenu may commit breach of public order, proceedings were initiated under the Act against the detenu which culminated into passing of impugned order dated 14.09.2023 by the District Magistrate, District – Khargone.

4. From the pleadings, it appears that the Superintendent of Police, Khargone has recommended the District Magistrate, Khargone to initiate action under Section 3(2) of the NSA against the detenu since he is continuous which are threat to public peace and law & order. The District Magistrate after considering the fact situation, recommendation as well as the statement of prosecution witnesses passed the impugned order of detention in exercise of power under Section 3(2) of the NSA. Being aggrieved by the said order of detention, petitioner has preferred this petition.

5. Learned counsel appearing for the petitioner contended that the order of detention has been passed on the basis of false complaints and allegations. He further submits that Article 21 of the Constitution of India provides for right to life and personal liberty and the same is infringed in view of the impugned order of detention.

6. In support of his contention regarding the order of detention, he relied upon the full Bench judgment passed by this Court in the case of Kamal Khare v/s The State of Madhya Pradesh reported in 2021(2) MPLJ 554.

7. Per contra, learned Government Advocate for the respondents / State vehemently opposed the prayer by referring to the documents and argument in place that the detenu is a history sheeter indulged in various crimes including heinous crimes. The detenu is a person of criminal proclivity as despite being charge-sheeted for offences under various sections of IPC, there is no change in his behaviour. The detenu is in the habit of destroying the public property, threatening for public at large with deadly weapons, attempt to murder which clearly reveals that the detenu became a threat to the public order because of his audacity and desperate criminal disposition. Therefore, the impugned orders do not deserve any interference.

8. In support of his contention, learned Government Advocate for the respondents / State referred Division Bench judgment of Delhi High Co