NSA Detention Order Passed Without Knowledge That Subject Is Already In Custody Is Bad In Law: MP HC [Read Judgment]

In a judgment delivered last week, the Madhya Pradesh High Court has ruled that an order for detention passed under the National Security Act of 1980 without the knowledge that the subject is already in custody is bad in law.

The petitioner before the bench of Justice S. C. Sharman and S. K. Awasthi was aggrieved by order dated 07.05.2020 passed by the District Magistrate, District Dewas (MP) in exercise of powers conferred under the provisions of National Security Act, 1980. The petitioner's contention was that on the date the detention order was passed, the petitioner was already in judicial custody and the Detaining Authority, at the time of passing of the detention order, was not aware of the fact that the detenu is in jail.

It had been urged that the Police has registered three First Information Reports against the present petitioner and based upon the FIRs, which are for commission of offence punishable under Sections 294, 323 and 506 of the Indian Penal Code, 1860, an order under the provisions of National Security Act, 1980 has been slapped upon the petitioner. It had also been stated that the petitioner is in judicial custody since 04.05.2020 and the factum of his judicial custody has not been taken into account by the District Magistrate. It had also been argued that based upon cases of minor / trivial nature, an order of NSA has been slapped upon the petitioner.

The Division Bench appreciated that the statutory provisions governing the field as contained under Section 3 (2) of the National Security Act, 1980 reads, as under: - "The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained"

The Court noted that the impugned order certainly does not reveal that the District Magistrate has taken into account the fact that the petitioner is already in jail.

The other important aspect of the case which, as per the bench, was required to be considered was the nature of the criminal cases registered against the present petitioner.

Perusal of the criminal record of the petitioner made it very clear to the Court that three cases which were registered in the year 2005 have already been decided. Three cases (out of total seven cases) registered against the petitioner are for commission of offences punishable under Sections 294, 323 and 506 of Indian Penal Code, 1860.

"The case reflected at Item No.6 registered against the petitioner is for commission of offences punishable under Sections 147, 148, 353, 332, 333, 336, 506, 188, 269 and 270 of the Indian Penal Code, 1860; and later on offence under Section 307 of IPC has also been added", recorded the bench.

The Court understood this to mean that most of the cases have been registered against the petitioner within 2-3 months for offences punishable under Sections 294, 323 and 506 of Indian Penal Code, 1860.

"Keeping in view the fact that cases of 2005, which have already been decided, from the year 2005 to 2019 there is not a single criminal case registered against the petitioner and the cases which have been registered against the petitioner in the year 2020 are mostly for commission of offence punishable under Sections 294, 323 and 506 of Indian Penal Code, 1860, this Court is of the opinion that the District Magistrate has slapped the order of detention upon the petitioner with total non-application of mind", concluded the bench.

The Court proceeded to observe that the petitioner has not filed any bail application in respect of one of the criminal case and he is in jail, and therefore, it is really strange to believe that a person, who is in detention, is going to cause law and order problem and even though he is in jail, his activities are going to be detrimental to the public order.

Appreciating several authorities of the Apex Court as well as the High Court, the bench noted that the order of detention can be passed validly by the Competent Authority, if the Competent Authority is aware of the fact that the detenu is really in custody, and if he has reason to believe on the basis of reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities .

"The order passed by the Competent Authority in the present case does not reveal that the District Magistrate was aware of the fact that the detenu is in jail. In the light of the aforesaid, the order of detention is bad in law", declared the bench, setting aside the order.

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