HM Journal

Can Delay in a Detenu’s Representation be Fatal to the Detention Order?

Introduction:

A petition under Article 226 of the Constitution of India was rejected by a Division Bench at the Indore Bench of the High Court of Madhya Pradesh challenging a detention order passed against the appellant under Section 3(2) of the National Security Act 1980.

Facts:

The Fake Remdesivir Injections were administered to the Patients during the Covid-19 pandemic to make illegal profits by endangering the lives of the patient. The fake injections were stated to have been administered to 50 patients. The appellant had ordered worth Rs.15 lakhs of fake Remdesivir injections.

Submission/ Contentions of Appellant/s:

  • The respondents did not have a copy of the acknowledgement since the appellant had never received the rejection of his representation.
  • In Ankit Ashok Jalan Union of India, this Court has held that “a delay in considering a detenu’s representation could be fatal to the detention order”.
  • According to this Court’s decisions in Khaja Bilal Ahmed State of Telangana stated that “Approval of the detention order and communication of the rejection of representation should be made forthwith”.
  • In this case The Central Government had to seek the aforementioned report from the District Magistrate but the High Court of Madhya Pradesh in Anshul Jain The State of Madhya Pradesh interpreted that “Section 3(5) of the NSA Act to hold that original record produced from the office of the District Magistrate should contain the exact date of dispatch and receipt by the Central Government of the order of approval of the State Government along with grounds”.
  • As Section 3(2) of the NSA states that no order of detention can be made under it if the order can be made under the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act 1980; thus the extension of the appellant’s detention under the NSA on 15 July 2021 for alleged black-marketing of Remdesivir is illegal.
  • Mere allegations of media outrage or purported public agitation cannot be the basis of detention as this court had stated in Ghanshyam Upadhyay State of Uttar Pradesh and the Madhya Pradesh High Court’s decision in Tanveer Patel v. State of Madhya Pradesh. Further, an order under Section 144 of the CrPC was in force at the time. So the ground of public order could not be justified for detention.
  • The detention order on 11 May 2021 is based upon the past antecedents without it having any proximate link with the present allegations. It is a breach of this Court’s decisions in Rameshwar Shaw v. District Magistrate for stale reliance on past antecedents to justify detention.
  • As adhered by this Court in Ramveer Jatav State of Uttar Pradesh that “the detention is based on a solitary action and ought to be set aside”.
  • The appellant’s right to life and personal liberty is violated under Article 21. The extension of the order of detention on 15 July and 30 September 2021 is unjustified.

Submission/ Contentions of Respondent/s:

  • The detaining authority does not have to prove an offence or formulate a charge when an order of preventive detention is challenged. As adhered by this Court in State of Tamil Nadu Nabila, the justification for an order of detention at best can be established on the basis of suspicion and reasonability, there being no criminal conviction on the basis of evidence.
  • The detention was required to prevent further sale of fake Remdesivir that would be prejudicial to public order as the Covid-19 pandemic has resulted in devastating effects worldwide.
  • A valid order of detention can be based on a solitary act of commission and omission.
  • The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 do not apply. The case is not an act of black marketing, but it involves the purchase and administration of fake Remdesivir vials for Covid-19 patients.
  • There was no violation of the provisions of Section 3(5) of the NSA since the State Government had approved the order of detention on 13 May 2021 and reported immediately to the Central Government.
  • The order rejecting the representation by the Central Government was communicated as dated on 24 June 2021 which is clearly stated in the counter affidavit filed before the High Court.

Principles and Observations of the Court:

  1. Delay in considering the representation
  • The order rejecting the representation of the State Government has not been filed before the Court.
  • The issue is whether the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were sufficiently protected in the case.
  • The State Government by delaying its decision on the representation deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously.
  • While violating the procedural guarantees of the detenu which are fundamental laws of preventive detention the State Government cannot expect the Court to uphold its powers of subjective satisfaction to detain a person.
  1. Failed to communicate the decision on the representation
  • Before he filed his writ petition in the High Court there is no proof of the appellant having knowledge of the rejection of its representation by the State or Central Government.
  • It is a right of the detenu to receive a timely communication on the status of its representation whether acceptance or rejection by the appropriate Government.

Judgement:

The order of detention is invalid on two grounds: The State Government has not explained the delay in deciding the representation of the appellant, and the rejection of the representation was not communicated to the appellant in time by the State and the central Government.

The order of detention of date 11 May 2021 and the extensions of 15 July 2021 and 30 September 2021 shall accordingly stand quashed and set aside.

Opinion:

The delay by the State Government in disposing of the representation and the communication by the Central and State Government of rejection strikes the procedural rights and guarantees granted to the detenu.

Judgement Name:  Sarabjeet Singh Mokha Vs the District Magistrate, Jabalpur & Ors.

Judgement Date: 29 October 2021

Judges/Bench:  J. Dr Dhananjaya Y Chandrachud, J. Vikram Nath, J. B V Nagarathna

Name of Writer: Sakshi Sharma

College: Akola Law College

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