The Jabalpur Bench of the Madhya Pradesh High Court has quashed an order under the National Security Act for the detention of a businessman for three months.
“The detaining authority has also not applied his mind in respect of the petitioner’s possibility of being released and on being so released his possibility or probability of indulging into prejudicial activities, hence, the order passed by the detaining authority suffers from the defect of non-application of mind to that extent,” the Division Bench of Justice Prakash Shrivastava and Justice Virender Singh said.
Senior Advocate Pradeep Singh, counsel for petitioner Mayank Khatri, a businessman, has submitted that the detention order suffers from non-application of mind and it has been passed in the mechanical manner verbatim mentioning the reports submitted by the respondents. He further submitted that on the date of passing of the detention order, the petitioner was in custody, but, this fact has not been considered nor the possibility of release of the petitioner on bail has been taken note of. He has also submitted that Section 3(5) of the Act has not been complied with and the intimation was not sent to the Central Government within seven days.
The counsel for the respondents contended that the detention order was passed after due application of mind and that the detaining authority was aware of the fact that the petitioner was in custody and that provisions of Section 3(5) of the Act have been duly complied with.
The bench noted the State Government had sent the copy of the detention order, grounds of detention and other material to the Central Government within seven days. Hence, the ground of the petitioner that provisions of Section 3(5) of the Act has not been complied with, does not survive.
The Court cited the judgment of Supreme Court in the matter of Binod Singh Vs. District Magistrate, Dhanbad, Bihar, and others, (1986) 4 SCC 416 which has held that if the detenu is already in jail at the time of service of the order and detenu is released or prospects of his imminent release not considered then the continued detention are illegal on the ground of non-application of mind to the relevant factors, even if detention order otherwise found to be justified.
In the matter of Abdul Razak Abdul Wahab Sheikh Vs. S.N. Sinha, Commissioner of Police, Ahmedabad and another, (1989) 2 SCC 222, it has been held that if the detenu is already in jail then the bald statement made by the detaining authority that the detenu was likely to be released on bail and thereafter there were full possibilities of continuance of prejudicial activities is not enough as the detaining authority was unaware that the bail application has been rejected and thereafter no further application for bail was moved by the detenu.
The Court further cited the Judgement of Supreme Court in the matter of Kamarunnissa Vs. Union of India and another, (1991) 1 SCC 128 where Apex Court after taking note of the earlier judicial pronouncements on the issue has reached to the conclusion that even in a case where a person is in custody, the detention order can be passed but has laid down the circumstances when such an order can be passed.
“In the present case, the ground of detention does not reflect that the detaining authority was aware of the fact that the petitioner was actually in custody at the time of passing of the impugned order. The detaining authority has also not applied his mind in respect of the petitioner’s possibility of being released and on being so released his possibility or probability of indulging into prejudicial activities, hence, the order passed by the detaining authority suffers from the defect of non-application of mind to that extent.”
“We are of the opinion that the order of detention suffers from the illegality of non-application of mind by the detaining authority inasmuch as the detaining authority has not considered the fact that at the time of passing of the detention order and the service thereof, the detenue was already in jail and had not moved any application for bail,” the order reads.
Petitioner Mayank Khatri’s case is that he has a business selling agricultural equipment, fertilizers, and pesticides. On November 21, 2020, his premises were inspected by the SDM and the Deputy Director, Agriculture, and his team, and fertilizers and pesticides were seized. The FIR dated December 22, 2020, was lodged against the petitioner and other persons alleging commission of an offense under Section 417, 420 of the Indian Penal Code, Section 3-13 and 18 of the Insecticides Act, 1968 and Rules of 1971 as well as Section 7-12-13 and 19- 21 of the Fertilizer (Control) Order, 1985 and Section 3 and 7 of the Essential Commodities Act on the premise that the Petitioner was manufacturing fake/sub-standard fertilizers and pesticides by mixing material like salt, coal, marble powder, color, etc. which was harmful to the crop and causing damage to the agriculturists. The Petitioner was taken into custody on 22.12.2020. The samples collected from the Petitioner’s premises were found to be misbranded. The District Magistrate thereafter had passed the order dated 03.01.2021 booking him under Section 3(2) of the NSA.