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MADHYA PRADESH HIGH COURT
S.K. Gangele and D.K. Paliwal, JJ.
Maikal @ Shahid v. State of M.P. and others
Writ Petition No.4866 of 2013 (Gwalior) against order dated 27.4.2013, passed by District Magistrate, Gwalior; Decided on 10.2.2014.
(2) National Security Act, 1980 -- Ss.8 and 14 -- detention order -- apprised to detenu about right of representation before State Government and Central Government -- is mandatory -- detenu apprised about right of representation only before State Government and not Central Government -- such mandatory provision not complied with -- detention order cannot be sustained -- same quashed.
Held : In the instant case the order passed by the District Magistrate does not disclose that the detenu was apprised of his right to make his representation also to the Central Government. The order passed by the District Magistrate reveals that detaining authority mentioned only that against the detention order detenu has right to file his representation before the Secretary, Home Department,Government of M.P. nowhere the detenu was apprised of his right to submit his representation before the Central Government, who also has power as per the provisions of section 14 of the Act.
Taking into consideration that the Central Government is also authorized to revoke the detention at any time, the detention order passed by the District Magistrate under section 3(2) of the Act read with section 3(3) of the Act does not reveal that detenu was apprised of his right to make representation before the Central Government we are of the considered opinion that mandatory provision has not been complied with while passing the order Annexure P-1.
The impugned order deserves to be quashed solely on the ground that the petitioner was not apprised of his right to make his representation also to the Central Government. [Para 11
¼1½ jk”Vªh; lqj{kk vf/kfu;e] 1980 && /kkjk 3] 8] 12 rFkk 14 && mica/kks ds v/khu vf/kdkfjrk && fujks/k vkns’k && jkT; ljdkj }kjk okil fy;k tk ldrk gS && blds vfrfjDr ;g dsaUnzh; ljdkj }kjk Hkh okil fy;k tk ldrk gSA ¼iSjk 6
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;g fopkj djus ij fd dsanz ljdkj Hkh fdlh Hkh le; fujks/k vkns’k dks okil ysus ds fy, vf/kd`r gS] ftyk eftLVsªV }kjk vf/kfu;e dh /kkjk 3¼2½ ds lgifBr /kkjk 3¼3½ ds v/khu ikfjr fujks/k vkns’k ls izdV ugh gS fd fu:) dks dsanz ljdkj ds le{k vH;kosnu djus ds mlds vf/kdkj ls voxr djk;k x;k FkkA ge lqfopkfjr jk; es gSa fd mikca/k ih&1 vkns’k ikfjr djus le; vkKkid mica/k dk vuqikyu ugh fd;k x;k gSA
vk{ksfir vkns’k ,dek= blh vk/kkj ij vikLr fd, tkus ;ksX; gS fd ;kph dks dsnz ljdkj ds le{k Hkh vH;kosnu djus ds mlds vf/kdkj ls mls voxr ugh djk;k x;k FkkA
Paliwal, J. -- 1. This petition has been filed by the petitioner for quashing the order of detention Annexure P-3 passed by District Magistrate, Gwalior on 27.4.2013 under section 3(2) of National Security Act 1980, (hereinafter referred to as the Act), whereby the petitioner has been taken into custody and detained and the order passed by the State of M.P. (Annexure P-1) approving the detention order passed by the District Magistrate, Gwalior.
2. Factual matrix in brief is that the District Magistrate, Gwalior has passed the order on 27.4.2013 (Annexure P-3) in exercise of powers under section 3(2) of the National Security Act, 1980 detaining the petitioner for one year. The order passed by the District Magistrate has been approved by the State Government vide order dated 1.7.2013 (Annexure P-1). The order of detention is based on the ground referred to in order Annexure P-3 that the petitioner is engaged in criminal activities including operation of Satta. It is further mentioned that twenty six cases under the Public Gambling Act, five cases under various sections of IPC viz. 323, 324, 504, 506, 327 of IPC, one case under sections 3, 4, 5 of the Explosives Act, two cases of externment and seven cases under sections 41(2), 110 of CrPC, section 4 of the Satta Adhiniyam etc. have been registered against the petitioner. It is further stated that due to the engagement of the petitioner in criminal activities, there is likelihood of breach of peace. Even after taking preventive action against the petitioner, no improvement has been shown in the criminal activities of the petitioner, therefore, there is no alternative, except to take action under section 3(2) of the National Security Act, 1980 for preventing the criminal activities of the petitioner. The aforesaid order has been passed on the recommendation of the Superintendent of Police, Gwalior and after recording statement of witnesses, petitioner was directed to be detained for one year from the date of order. The petitioner was also informed to make representation against the detention order to the State Secretary (Home Department) Government of Madhya Pradesh vide order dated 1.7.2013 has confirmed the order of detention dated 27.4.2013 by passing the order Annexure P-1 under section 12 of the National Security Act, 1980. Being aggrieved the petitioner has filed this petition.
3. Learned counsel for the petitioner has submitted that the impugned order is arbitrary, illegal and contrary to law. It is further submitted that the petitioner has not been apprised to make representation before the Central Government thus the right of petitioner has adversely been affected. It is further submitted that in most of the criminal cases registered against the petitioner the petitioner has been acquitted. There is no allegation against the petitioner that petitioner is engaged in criminal activities. Hence, the impugned order deserves to be set aside.
4. The learned Government Advocate for the State supported the impugned order.
5. We have considered the submission of the learned counsel for the parties and perused the record. From the record it appears that the petitioner has not been informed that the petitioner has right to make representation before the Central Government. Section 14 of the National Security Act, 1980 provides as under :
“14. Revocation of detention orders. -- (1) Without prejudice to the provisions of section 21 of the Central Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified, --
(a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of section 3, by the State Government to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central Government.
(2) The expiry or revocation of a detention order (hereafter in this sub section referred to as the earlier detention order) shall not [whether such earlier det
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