Can NSA Be Invoked In A Case Of Trading Adulterated Food, Harmful And Dangerous To Large Number Of Citizens? MP High Court (FB) Answers

A Bench comprising of Chief Justice Mohammad Rafiq, Justice Rajeev Kumar Dubey and Justice Vijay Kumar Shukla has held that personal liberty of an individual is the most precious and prized right guaranteed under the Constitution.

Thus, the detaining authority is under an obligation to ensure that it exercises its powers with due caution as well as upon a proper appreciation of the facts as to whether the impugned acts are indeed in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order.

"If the offences complained of against the person are of a nature which can be dealt with under the ordinary law of land, taking recourse to the provisions of prevention detention would be contrary to the Constitutional guarantees enshrined in Articles 19 and 21 of the Constitution of India," the Full Bench said.

The Bench was answering a reference emanating from two separate orders passed by a Division Bench of the High Court at Principal Seat at Jabalpur and another Division Bench of at the Indore Bench.

The case in Jabalpur pertained to invocation of the NSA Act against a milk retailer, booked under the Food Safety and Standards Act, 2006 for selling sub-standard quality of milk products.

The question before the Court was whether the provision of preventive detention under the NSA can be invoked in a case of trading or manufacturing of adulterated food stuff, harmful and dangerous to the large number of citizens?

The Full Bench has come to a finding that the order of preventive detention under NSA does not overlap with the panel provisions under the FSSA, as it is not in lieu of that but is rather in addition to that.

"The preventive detention law can operate side by side the law which makes the offences punishable under the substantive offences under the IPC or the FSSA. The preventive detention under the NSA is only anticipatory action and is not a punitive measure," the Full Bench held.

It highlighted that the NSA intends, not to punish the offender for the offence committed by him, but to prevent him from doing an act.

"These two Acts have been enacted to achieve different object and for difference purpose. The provisions which makes the offence punishable under the FSSA is intended to punish the offender for the offence committed by him, but the object which the NSA seeks to achieve is to put the person concerned in detention so as to prevent him from doing an act but not to punish him for something which he has done. While the former is based on the act already done by him, the latter is based on the likelihood of his acting in a manner similar to his past acts and preventing him for repeating the same," it was held.

Thus, the ratio is that if an offence committed by an accused under Food Safety and Standards Act, 2006 whose activities are prejudicial to maintenance of public order, can be detained under NSA. "It would however depend on the facts and situation of a given case," the Bench added.

Further, the Bench said that whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and extent of the reach of the act upon the Society.

Reliance was laced on Supreme Court's verdict in Kanu Biswas v. State of West Bengal (1972) 3 SCC 831.

"Public order is even tempo of the life of the community of an area or even a locality, as a whole. Degree of disturbance upon the life of the community would determine whether it affects public order.

An act by itself may not be a determinative factor of its gravity, but it is potentiality of its effect on the even tempo of the life of community that makes it prejudicial to the maintenance of public order.

If the effect of act is restricted to certain individuals or a group of individuals, it merely creates a law and order problem but if the effect, reach and potentiality of the act is so deep and pervasive that it affects the community at large and disturbs the even tempo of the community that it becomes a breach of the public order.

It therefore cannot be said that a single act would in all and every circumstances not be sufficient to affect public order or even tempo of the society.

What is material is the effect of the act and not the number of acts and therefore what has to be seen is the effect of the act on even tempo of life of the people and the extent of its reach upon society and its impact," the Full Bench has held.

The second case, emanating from Indore Bench, raised the following questions:

Whether a detainee has a right to make a representation to the detaining authority?

Whether the order of detention is a nullity in absence of such a communication informing the detainee about his right of making representation?

Whether the District Magistrate has the power to revoke the order of detention once passed by him under the NSA?

At the outset, the Full Bench noted that all the three questions which the Division Bench has formulated stand answered in the affirmative by the judgment of the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel v. Union of India & Ors., (1995) 4 SCC 51.

It was held:

• The life of the order passed by the District Magistrate or the Commissioner of Police under Section 3(3) of the NSA, is only up to 12 days and that such order gets further life only upon approval of the State Government, otherwise it would die its natural death on the expiry of twelve days after its making
• Section 3 (4) of the NSA casts a duty on the District Magistrate or the Commissioner of Police, whoever has made the order of detention, to forthwith report the factum about such detention to the State Government together with the grounds on which such order has been made and other particulars as, in his opinion, have bearing on the matter.
• It is then for the State Government who has to take into consideration the grounds and material while giving its approval to the order of detention.

Who is the detaining authority?

The Full Bench has opined that the District Magistrate continues to be the detaining authority till the detention has not been approved by the State Government, and till that time the District Magistrate retains the authority to revoke the order made by him.

"Individual liberty is a cherished right which is one of the most valuable fundamental rights guaranteed by our constitution to the citizens of the country. In the scheme of Constitution, utmost importance has been given to life and personal liberty of the individual. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established. In the matter of preventive detention there is deprivation of liberty, therefore, safeguards provided by Article 22 of the Constitution of the India have to be scrupulously adhered to," the Full Bench ruled.

What would be the effect of not informing the detenu that he has a right of making representation?

Answering the second question raised by the Division Bench, the Full Bench has held that the District Magistrate is obliged to communicate to the detenu about his right to make representation to him until detention order passed by him is approved by the State Government within 12 days and non-communication thereof would vitiate the detention order.

"The Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) also analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal," said the Full Bench.

Whether District Magistrate has power to revoke order of detention?

The last question was also answered in the affirmative as follows:

• So long as the detenu remains under preventive detention under the authority of the order passed by the detaining authority i.e. the District Magistrate or the Commissioner of Police, i.e. for a period of 12 days or till the approval of the preventive detention by the State Government, whichever is earlier, such District Magistrate/Commissioner of Police continues to be the detaining authority.
• If and when the further detention of the detenu is approved by the order of the State Government, then onwards, it is the State Government which becomes the detaining authority.
• Therefore, till the detention has not been approved by the State Government, the District Magistrate/Commissioner of Police, under whose order the detenu has been kept under preventive detention, retains the authority to revoke the order made by him by virtue of Section 21 of the General Clauses Act as envisaged by Section 14 of the NSA.

Case Title: Kamal Khare v. State of MP & Ors.

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