Madhya Pradesh High Court Quashes Order Of Preventive Detention As District Magistrate Failed To Forward The Order To Govt. Forthwith

The division bench of Justice Sheel Nagu and Justice D.D. Bansal was essentially dealing with a writ petition filed by the Petitioner, wherein he was challenging the order of preventive detention passed by the District Magistrate (DM), Bhopal, by invoking Section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter, 'Act of 1980').

The case of the Petitioner was that he was served with a show cause notice regarding certain irregularities in procedure and distribution of the essential commodities. In pursuance to the notice, he submitted the reply, and even prior to the cut-off date, the order was passed. He contended that the FIR was also registered against him U/S 3/7 of Essential Commodities Act. He then moved an application for grant of anticipatory bail before the Court and the same was allowed. He further submitted that upon appearing before the police station concerned for furnishing the bail, the police arrested him on the same day i.e., on 07.12.2021 and sent him to jail. He also mentioned that the order of preventive detention was passed by the DM on 25.6.2021, but the matter was sent to the State Government on 05.7.2021 for approval.

The State, on the other hand, submitted that communication of the aforesaid order could not be made to the Petitioner as he was absconding and that he could only be physically detained/arrested on 07.12.2021. Accordingly, only then could the DM have forwarded the case thereafter, along with grounds of detention to the State Government for approval U/S 3(3) of the Act of 1980.

The Court examined the provisions U/S 3 of the Act of 1980 and observed-

From a bare perusal of sub-section (3) of Section 3 of the Act of 1980, the expression "forthwith" employed in the said provision obliges the District Magistrate passing the order to report the fact of having passed the order of preventive detention to the State Government immediately without unnecessary delay. This obligation cast upon the District Magistrate is in regard to the order of preventive detention but not in regard to the act of physical arrest of the detenu. The reason is obvious; the State Government is required to approve the decision of detention and not the detention per-se.

Applying its understanding of the said provisions, the Court held that the DM failed to discharge his obligation U/S 3(3) of the Act of 1980, in as much as forwarding the case to the State Government after nearly 10 days of passing the impugned order. The Court stressed on the term 'forthwith', noting that the same is different from 'as soon as maybe'. For the said observation, the Court placed its reliance on the decision of the Apex Court in Hetchin Haokip v. State of Manipur & Ors. Analysing the case at hand in this context, the Court held-

In view of above, the period between passing of order of preventive detention i.e. 25.6.2021 to 5.7.2021 can by no stretch of imagination fall within the expression "forthwith". More so, there is no explanation for the delayed communication by the District Magistrate to the State Government and, therefore, the impugned order of preventive detention stands vitiated.

With the aforesaid observations, the Court quashed the order of preventive detention passed by the DM, and ordered the release of the Petitioner from custody, provided he was not required in detention qua any other offence.

Case Title: Suresh Upadhyay vs. State of Madhya Pradesh & others

Citation: 2022 LiveLaw (MP) 47

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