National Security Act | Period Of Detention In Confirmatory Order Can't Be Extended By Review, Fresh Orders Needed For Further Detention: Allahabad HC

The Allahabad High Court has held that the period of detention prescribed in the confirmatory order passed by the State Government under Section 12 (1) of the National Security Act, 1980 cannot be reviewed or extended by reviewing such order.

The Court held that for detaining the person any further, a fresh detention order needs to be passed under Section 3(2) of the Act and such order has to be confirmed as per procedure prescribed under Sections 3, 10, 11 and 12 of the Act.

The bench comprising Justice Siddhartha Varma and Justice Anish Kumar Gupta allowed the plea and held

“The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention.”

Factual Background

Petitioner was detained under section 3(2) of the National Security Act, 1980 by an order passed by the District Magistrate- Kanpur Nagar having been authorised under Section 3(3) of the Act of 1980. The said order was approved by the State Government under Section 3(4) of the Act, 1980 and the matter was referred to the Advisory Board.

After receiving the report from the Advisory Board, the said detention order was confirmed in terms of Section 12 (1) of the Act, 1980 by the State Government detaining the petitioner for three months from the date of the initial detention order.

Thereafter, the detention was extended for six months, then nine months and then 12 months from the date of initial detention.

Counsel for the petitioner contended that the State has no right or power to review the period of detention as granted by order passed under Section 12(1) of the Act, 1980. It was argued that an order under Section 12(1) of the Act, 1980 is a final order and any modification and detention after an initial period of three months is liable to be set aside.

Additional Government Advocate appearing on behalf of the State relied on the decision of the Supreme Court in Cherukuri Mani v. State of A.P. to argue that the State Government cannot pass an order of detention for a period not exceeding 3 months under the Act of 1980. Accordingly, he contended that the period was extended by 3 months at the end of every three-month period.

High Court Verdict

The Court observed that the decision of the Supreme Court in Cherukuri Mani v. State of A.P. has been overruled by the Apex Court in Pesala Nookaraju vs. The Government of Andhra Pradesh & others wherein it has been held that “when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from the date of initial order of detention, but up to a maximum period of twelve months from the date of detention.”

It was noted that the Supreme Court further held that the confirmatory passed by the State Government need not mention the period of detention and that the same is not restricted to a 3-month period. The Court held that whatever period has been specified in the confirmatory order cannot be reviewed by the State Government. Further, it was held that if no period is specified then the detention can extend up to a maximum period of 12 months from the date of the detention.

The bench held that the State Government doesn't need to review the order of detention before the expiration of three months. The Court also held that the National Security Act, 1980 does not provide any provision for review of the detention order once the same has been confirmed by the Advisory Board and the confirmatory order is passed by the State Government.

The Court had further held that an order under Section 12 (1) passed by the State Government confirming the detention order cannot be reviewed and the period of detention cannot be extended. It noted that in case circumstances so demand, the State Government or the District Magistrate can pass a fresh order under Section 3(2) of the Act. Any such order has to be confirmed as per the procedure prescribed under Sections 3, 10, 11 and 12 of the Act, it said.

The Court held that since the confirmatory order was for three months only, the detention after the expiration of said period was illegal.

Accordingly, it directed for the petitioner to be set at liberty unless he is required in any other case.

Case Title: Mohd. Asim @ Pappu Smart And Another vs. Union Of India And 7 Others 2024 LiveLaw (AB) 108 [HABEAS CORPUS WRIT PETITION No. - 657 of 2023]

Case citation: 2024 LiveLaw (AB) 108

Counsel for Petitioner: Anoop Trivedi, senior counsel assisted by Ramesh Chandra Agrahari

Counsel for Respondent: Arvind Singh, counsel for Union of India, Ms. Archana Singh, A.G.A. for the State

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