MP HC Quashes Order Detaining Person For Participating In Muharram Procession

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Reading into Section 3(4) of the National Security Act, 1980, the Madhya Pradesh High Court directed the NSA to set free the detained person on the ground that the detention order passed had not been confirmed within the statutory period of 12 days from passing of such order.

Section 3(4) of the National Security Act, 1980 states that,

When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detentions, this sub-section shall apply subject to the modification, that, for the words “twelve days”, the words “fifteen days” shall be substituted.

A divisional bench of the MP HC comprising of Justice S. C. Sharma and Justice Shailendra Shukla quashed the order for detention while hearing four writ petitions on September 16, 2020. The Divisional Bench quashed the orders passed by the District Magistrate on the grounds of non-application of mind.

The HC noted that the impugned order passed had reference to news published in Nai Duniya, Peoples Samachar, and Dainik Bhaskar and had formed his opinion based on the reporting by media. The bench made strong remarks stating that it was unfortunate that media trial has become so very common and moreover the adjudicating authorities are now delivering judgments and passing orders based on these baseless media trials.

The petitioner in this case argued that the order of detention did not mention the period for detention, and in absence of a mention of such period of detention the order is bad in law. Reliance was placed on Lahu Shrirang Gatkal v. State of Maharashtra for this argument. Furthermore, the counsel learned submitted that there was a violation of Section 3(4) of the National Security Act, 1980 the State of Madhya Pradesh had not confirmed the order till date.

The bench observed that the impugned order reflects that on account of violation of prohibitory passed by the District Magistrate under Section 144 of the CrPC, the petitioner had committed offenses under Sections 188, 269, and 270 of the IPC and the consequent reaction published in newspapers reflects that there is a great protest in the society on account of the procession.

The court said that it was not justified that the District Magistrate formed his opinion on the basis of newspaper clippings in the absence of other cogent evidence.

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On the point of Section 3(4) of the National Security Act, 1980, the Bench noted,
“The reply has been filed today by the State of Madhya Pradesh and today the stand of the State Government is that process of passing the order of confirmation is under process.”
The Court, thus, declared that as the order has not been confirmed within “twelve days”, it is no longer in force keeping in view Section 3(4) of the National Security Act.

The Bench further observed that,

…preventive detention involves a serious encroachment on the right of personal liberty. The law of preventive detention is strictly construed, and compliance with procedural safeguards is insisted upon.

The court relied on Icchu Devi v. Union of India wherein the Supreme Court set aside a detention order under the COFEPOSA on account of procedural irregularities.

-Dhananjai Shekhawat (LC Content Writer)


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