Detenu Has Constitutional Right To Make Representation To Detaining Authority Against Detention Order, Violation Makes It Illegal: Madhya Pradesh HC

The Madhya Pradesh High Court has held that it is a constitutional right of a detenu, who has been detained under the National Security Act, to make representation to the detaining authority against the detention order, violation of it which vitiate and make the order as illegal.

A division bench comprising of Justice Sujoy Paul and Justice Shailendra Shukla also held that the expression "public order" under sec. 3 of the Act is wide enough to include the event of black marketing of an essential drug namely Remdesivir. 

"In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order." The Court observed.

Furthermore, it said:

"In our view, the expression 'public order' is wide enough which includes the aspect of black-marketing of an essential drug namely Remdesivir."

The development came in a plea filed by Yatendra Verma, Congress Leader Challenging the detention orders dated 6th April and 10th May 2021 issued against him under the NSA for indulging in acts of black marketing covid life saving drugs.

It was thus submitted that the detention order did not mention that Verma has a right to prefer representation before the District Magistrate.

It was also stated that the factum of detention was not brought to the notice of State Govt. by the, District Magistrate, after which the government presumed that Verma was absconding.

In view of the facts of the case, the Court observed thus:

"The power of preventive detention is duly recognized in our constitutional scheme. The constituent assembly composed of politicians, statesman, lawyers and social workers, who had attained a high status in their respective specialties and many of whom had experienced the travails of incarceration owing solely to their political beliefs, resolved to put Article 22, Clause (3) to (7) in the constitution, may be as a necessary evil."

On the aspect of the detention orders being reasoned, the Court observed that sec. 3(3) of the Act doesn't mandate that reasons for issuance of such order must be mentioned. 

"In order to maintain fairness, it is a good practice of mentioning reason for issuance of such administrative orders. The fairness is an integral part of good administration. It is said that "Sunlight is the best disinfectant".Thus, in order to ensure fairness and to indicate the necessity for issuance of such delegation of power, mentioning of background reasons deserves appreciation."

Furthermore, it observed:

"It is a matter of common knowledge that in the second wave of Corona, maintenance public order was a big challenge. However, we deem it proper to observe that it will be lawful for the State to issue such orders with due care and caution. The real reason for issuance of such order may be spelled out with clarity."

Observing that utmost care and caution must be taken while giving a finding whether the person concern is really absconding or not, the Court held that the respondents have mechanically opined that Verma was "absconding". 

"This is an example of non-application of mind or acting in a mechanical manner." The Court said.

"In the instant case, the allegation against the Corpus was that he was black-marketing a single oxyflow meter. The stand of Corpus is that he is a social/political worker and it was his attempt to provide the oxyflow meter to a man in need. He is falsely trapped and implicated and arraigned in a criminal case. Since Corpus is facing a criminal case, we are not inclined to give any finding on this aspect which may have a bearing on the trial. In view of aforesaid three requirements, we are only inclined to observe that there was no material before the learned District Magistrate to believe that the Corpus will again indulge in similar activity of black-marketing." The Court observed.

Making the aforesaid observations, the Court set aside the Detention order dated 10th May 2021 by observing that "there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order."

Title: Yatindra Verma Vs. State of MP & Ors.

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