MP High Court Refers Three Substantial Questions Of Law To Larger Bench Regarding Preventive Detention Under Provisions Of Black Marketing Act

The substantial questions of law referred by the division bench of the Court comprising of Justice Vivek Rusia and Justice A.N. Keshwarwani are as follows-

(1) Whether District Magistrate/ Competent Authority can prescribe the period of detention while passing the order under Section 3 and 4 of Black Marketing Act, 1980 ?

(2) Whether the period of detention is liable to be prescribed by State Government under section 12(1) of Black Marketing Act,1980 while confirming the order of detention ?

(3) In absence of passing of order for confirmation passed under Section 12(1) with specified period of detention, order of detention passed by the District Magistrate or competent authority can survive for more than 7 weeks as no time period is prescribed for giving an opinion by the Advisory Board under Section 11 of Black Marketing Act, 1980 and passing of order of confirmation under Section 12(1) of Black Marketing Act, 1980.

The aforesaid questions have been added to the two questions that were pending consideration of a larger bench, which are as follows-

1. Whether as per section 3(3) and (4) of the Black Marketing Act (or any other analogous provision of any other detention law) permits the District Magistrate/ competent authority to detain the person beyond the period of three months in one go. In other words, whether section 3(3) and (4) aforesaid restricts the competent authority to pass the order of detention at the first instance only for a period of three months ?

2. In view of the above cleavage of opinion in the judgment of the Apex Court (one of which was followed by the Division Bench of this Court), which view shall be binding precedent for this Court ?

Facts of the Case

The writ petition was filed by the father of the detenu whose son was under detention pursuant to Section 3 of the Black Marketing Act. The detenu was served with the detention order, whereby it was directed that he be kept under detention for six months, and accordingly, he was detained the very next day. The State Government approved his detention which was under challenge vide the petition.

The advisory board had submitted its opinion that there existed sufficient cause for the detention of detenue under the Black Marketing Act. Furthermore, the State justified its actions before the Court by submitting that they followed the procedure completely while passing the detention order and therefore, no interference of the Court was called for.

Considering the submissions of the parties and documents on record, the Court pointed out that no order of confirmation was passed by the State, which they were required to U/S 12(1) of the Act. The Court elucidated the procedure laid out by the Statute, starting from Section 3(1) of the Act when the directions are given by the appropriate authority to detain an individual, till Section 12(1) of the Act, whereby the Advisory Board submits its opinion regarding the detention order of the detenu. It further noted that U/S 13 of the Act, the maximum period of detention shall be six months from the date of detention.

The Court observed that despite the procedure laid out under the Act, the State, in the present case, did not adhere to the same. Instead of going step-wise from Section 3(1) to Section 12(1) of the Act, the District Magistrate straightaway determined the period of detention. Hence, the Detenu was liable to be released-

In this case, the respondents have produced a copy of the order of detention passed under Section 3(2) of the Black Marketing Act, 1980. Section 3(2) nowhere provides that the District Magistrate shall prescribe the period of detention in the said order. The District Magistrate or Commissioner of Police as the case may be can only pass an order of detention and sent it to the appropriate Government for its approval.

The Government grants approval under sub-section (4) of Section 3 of the Black Marketing Act and forwarded it to the Central Government together with all documents and grounds within seven days. Thereafter, it is mandatory for the Central and State governments to constitute an Advisory Board and place the matter before the Advisory Board. The role of the Advisory Board is only to give an opinion on whether the detention order is correct or not. As to whether or not there is sufficient cause for the detention of the person concerned. After completing all these procedures, the confirmation by the appropriate Government is mandatory under Section 12 of the Black Marketing Act, 1980 and while confirming the order, the State Government shall fix the period of detention. Section 12(1) of the Black Marketing Act, 1980 also gives the power to continue the order of detention but the period shall not exceed six months. In the present case, the respondents have not filed any order to be passed under Section 12(1) of the Black Marketing Act by the State Government, therefore, there is no confirmation of detention by the respondent. Hence, the Detenue is liable to be released forthwith.

The Court observed that the Petitioner had raised various grounds, out of which, some were referred to a larger bench. Since, the decision by a larger bench may take time, the Court thought it fit to grant the release of the Detenu as an interim measure-

As per the prevailing legal situation based on the judgment of the Apex Court in Cherukuri Mani Vs. Chief Secretary, Government of Andra Pradesh and Ors reported in (2015) 13 SCC 722, which was consistently followed by various Division Benches of this Court, the detention order passed by District Magistrate at a stretch for a period of more than three months becomes illegal and void from its inception. The constitution of the larger bench and its decision may take time. Considering a similar situation, the Principal Seat of this court in Kamal Khare Vs. State of MP passed in WP Nos.22290/2020 on 18.02.2020 and Lalchand Dasani Vs. State of MP passed in WP No.1298/2021 on 09.02.2021 granted benefit of the interim release.

With the aforesaid observations and considering that the State did not pass any order of confirmation U/S 12(1) of the Act, the Court ordered the release of the Detenu on furnishing a personal bond with surety and under the condition that he presented himself before the Registry, as and when required.