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2021 Supreme(MP) 491
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
Mohammad Rafiq, CJ, Rajeev Kumar Dubey, Vijay Kumar Shukla, JJ.
Kamal Khare and Ors. - Appellants
Vs.
The State of M.P. and Ors. - Respondent
W.P. Nos. 22290/2019, 717/2020 and 28804/2019
Decided On : 22-04-2021
Subject
Constitutional Law - Preventive Detention
Act Referred
CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT: S.3, S.11, S.11(1)(a), S.11(1)(b)
CONSTITUTION OF INDIA: Art.22(5), Art.22, Art.19, Art.21
CRIMINAL PROCEDURE CODE: S.417(3), S.417(4)
FOOD SAFETY AND STANDARDS ACT: S.52, S.26
GENERAL CLAUSES ACT: S.21
MAHARASHTRA ACT: S.14, S.3
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT: S.12
NATIONAL SECURITY ACT: S.8(1), S.3(2), S.2(a), S.10, S.14
PIT NDPS Act: S.12
PREVENTION OF BLACK MARKETING AND MAINTENANCE OF SUPPLIES OF ESSENTIAL COMMODITIES ACT: S.3
Headnote
Findings of Court:
The court reiterated that preventive detention laws must be applied cautiously and only in cases where they genuinely serve to prevent threats to public order, rather than as a punitive measure for minor offenses. (Paras 46-48)
Issues: The court addressed whether offenses under the FSSA can justify preventive detention under the NSA, and the detainee's rights regarding representations against detention orders. (Paras 36-38)
Ratio Decidendi: Preventive detention may not be justified for petty offenses and must respect detainee's rights to fair process. The necessity of informing detainees about their right to representation was emphasized. (Paras 14, 36-47)
Result: Writ petitions were granted and referred for further hearing in the Division Bench.
For the Appellant :Naman Nagrath, Senior Advocate, Jubin Prasad, Sankalp Kochar and Rahul Diwaker, Advocates
For the Respondents:Ajay Pratap Singh, Deputy Advocate General and Akshay Pawar, Panel Lawyer
| Table of Content |
|---|
| 1. reference and questions for larger bench. (Para 1 , 2 , 3) |
| 2. analysis of legal principles and precedents. (Para 4 , 13 , 18 , 21 , 22 , 28 , 30 , 48) |
| 3. detention powers and rights of detainees. (Para 5 , 6 , 10 , 11 , 15) |
| 4. distinction between special and general laws. (Para 19 , 20 , 34) |
| 5. final ruling on detention legality. (Para 35 , 36) |
ORDER :
Mohammad Rafiq, CJ.
1. These three matters have been placed before the Larger Bench upon a reference by two separate orders passed by a Division Bench of this Court at Principal Seat at Jabalpur and another Division Bench of this Court at Indore Bench. The first order was passed by Division Bench at Principal Seat, Jabalpur on 04.12.2019 in W.P. No. 22290/2019 (Kamal Khare vs. State of M.P. and others) which is a writ petition filed in the nature of Habeas Corpus against an order dated 13.08.2019 passed by District Magistrate, Jabalpur in exercise of his powers under Section 3 (2) of the NATIONAL SECURITY ACT , 1980 (for short "the NSA") whereby the petitioner was directed to be detained for a period of three months from the date of his detention. When the matter was listed before the Division Bench on 04.12.2019, there was a difference of opinion between two Hon'ble Judges constituting the Division Bench. They have therefore made a reference to the Larger Bench for answering the following questions of law:-
"Where the offence is committed under Regulatory Act such as Food Safety and Standards Act, 2006 which contains penalty clause, under no circumstances, an action can be taken against a person whose activities are prejudicial to maintenance of public order under the National Security Act, 1980."
2. Subsequently, a Division Bench of this Court at Indore Bench in W.P. No. 28804/2019 ( Manish vs. State of M.P. and others ) and W.P. No. 717/2020 (Laduram vs. State of M.P. and others) vide order dated 13.02.2020 also made a reference to the Larger Bench for answering the following questions of law:
(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?
3. Both these matters i.e. Writ Petition No. 22290/2019 of Principal Seat, Jabalpur and Writ Petition Nos. 28804/2019 and 717/2020 of Indore Bench, were ordered to be combined and listed together by order of the Chief Justice of this Court on administrative side dated 14.02.2020. Arguments in both the sets of cases therefore were heard simultaneously. Referred questions are being answered by this common judgment.
4. We have heard Shri Naman Nagrath, learned Senior Counsel for the petitioner in WP No. 22290/2019, Shri Sankalp Kochar, learned counsel for the petitioner in WP No. 717/2020 and WP No. 28804/2019 and Shri Ajay Pratap Singh, learned Deputy Advocate General for the respondents/State.
5. Shri Naman Nagrath, learned Senior Counsel appearing for the petitioner in W.P. No. 22290/2019 submitted that the power under Section 3 (2) of the NSA has been invoked by the respondents for preventive detention of the petitioner for a petty offence inasmuch as the petitioner has been running the business of retail sale of milk and milk products in the name and style as "P.K. Paneerwala". He has got registrat
