The wide scope of sub-section (2) of section 3 of the NSA Act and its applicability in cases where 'public order' is breached or threatened.

ORDER SUJOY PAUL, J. – The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution to assail the order dated 17-5-2021 whereby the District Magistrate in exercise of power under section 3(2) read with (3) of National Security Act, 1980 (for short “NSA Act”) detained the petitioner.

2. The petitioner was detained by District Magistrate by stating that the petitioner indulged in black marketing of Remedesivir injections. Two such injections were recovered from him. In a situation when highest numbers of Covid patients were there at Indore, the act of petitioner has caused serious threat to the ‘public order’. In view of aforesaid conduct, the detention order was passed and the grounds therefor were supplied to him.

3. Criticizing this order Shri Maheshwari, learned counsel for petitioner submits that detention order was supplied to the uncle of the petitioner and it was not supplied to his parents. This runs contrary to the observations made by Supreme Court in A. K. Roy vs. Union of India, (1982) 1 SCC 271.

4. The next contention is that the petitioner was already in custody because of an FIR lodged prior in time. Subsequently, petitioner was formally arrested and detained under the NSA Act. The District Magistrate and State government in relevant documents mentioned the status of petitioner as “absconding”. This information was factually incorrect and had potential to adversely affect the process of application of mind by the State government, Advisory Board or Central Government. Reliance is placed on a recent order passed by this Court in W. P. No. 9792/2021, Yatindra Verma vs. State of M. P. decided on 24-6-2021.

5. Shri Maheshwari placed reliance on various social media posts of the Chief Minister of the State wherein he expressed his opinion that the persons indulged in black marketing of Remedesivir injections are liable to be detained under the NSA Act. The order of detention passed by District Magistrate amounts to acting under dictate is the next contention of Shri Maheshwari. Thus, subjective satisfaction and element of application of mind was absent on the part of the District Magistrate. By taking assistance of (1975) 2 SCC 81, Khudiram Das vs. State of W. B. and ors. and 2020 SCC Online Alld., Dr. Kafeel Khan vs. State of U. P. it is submitted that in a matter of this nature where fundamental rights and right of freedom of a citizen sought to be taken away, the authorities were required to act with utmost care and caution. Reliance is placed to ‘Explanation’ to sub-section (2) of section 3 of NSA Act. It is submitted that the Explanation, in no uncertain terms, makes it clear that if somebody acted in a manner which is prejudicial to the maintenance of supplies and services essential to the community but such act falls within the ambit of The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Blackmarketing Act) such person cannot be detained under the NSA Act. To elaborate, it is submitted that section 3(29) of General Clauses Act talks about “Indian Laws” which is wide enough to include the Essential Commodities Act, 1955 and also the Blackmarketing Act. The “drug” is the first entry in the Schedule appended to The Essential Commodities Act, 1955. Thus, the detention under the NSA Act runs contrary to the aforesaid explanation. Lastly, Shri Maheshwari submits that a person already arrested can very well be detained under the NSA Act, but in order to detain him further, certain conditions are to be fulfilled which were considered by this Court in extenso in Yatindra Verma (supra). These conditions were not satisfied in the instant case. It was not mentioned that there is a likelihood of petitioner’s indulging in the same activity or committing act of blackmarketing of Remedisivir injection again. For these cumulative reasons, the detention order is liable to be set aside.

6. Per contra, Shri Pushyamitra Bhargava, learned A.A.G for the St