Sarabjeet Singh Mokha Vs. The District Magistrate, Jabalpur & Ors.
Madhya Pradesh High Court (Division Bench (DB)- Two Judge)
WRIT PETITION, 10085 of 2021, Judgment Date: Aug 24, 2021
Law laid down -
1. Detention order – based on stale incident – the detention order dated 11.05.2021 refers an old case of 2004 from which petitioner has been admittedly acquitted. There is no live nexus between the incident of 2004 and action for which detention order is passed. To this extent, the detention order is bad in law.
2. Preventive detention laws – background – law of preventive detention is recognized and authorized by Constitution because Constitution makers visualized that there may arise occasion in the life of the nation when the need to prevent citizen may arise from acting in ways which unlawfully subvert or disrupt the public order.
3. Blackmarketing of injection – whether National Security Act, 1980 is attracted – Section 3(2) – 'explanation' – a citizen can be detained under the NSA - (i) for preventing him from acting in any manner prejudicial to the security of the State ; (ii) for preventing him from acting in any manner prejudicial to the maintenance of public order ; (iii) for preventing him from acting in any manner prejudicial to the maintenance of supplies and services to the community. The 'explanation' to Section 3(2) deals with contingency (iii) only. Blackmarketing or using fake Remdesivir injection during pandemic era certainly threatens 'public order', and therefore, NSA can be invoked.
4. Ordinary Panel Law applicable – whether NSA can be invoked – the ordinary panel law and detention law operate for different purpose. The preventive detention is an anticipatory/preventive action and not punitive in nature. The preventive law can be invoked to prevent somebody from acting in a manner prejudicial to the security of State, public order or to maintain supplies and services essential to the communities.
5. Single Act – no past record – whether NSA can be invoked – the nature of Act and background circumstances in which such Act has taken place is material and merely because there is no past record, the detention order can not be interfered with.
6. Scope of judicial review of detention order – the law laid down by Supreme Court is summarized by the Court as under:-
[1] It is not necessary that authority passing the detention order must always be in possession of complete information at the time of passing the order.
[2] The information on the strength of which detention order is passed may fall far short of legal proof of any specific offence. If order indicates strong probability of impending commission of a prejudicial act, it is sufficient for passing a detention order.
[3] The Court is not obliged to enquire into the correctness/truth of facts which are mentioned as grounds of detention.
[4] Whether grounds of detention mentioned in the order are good or bad is within the domain of competent authority.
[5] The satisfaction of competent authority in passing the detention order can be assailed on limited grounds including the ground of mala-fide and no evidence at all.
[6] The jurisdiction under the NSA Act is different from that of judicial trial in courts for offence and of judicial orders for prevention of offence. Even unsuccessful judicial trial would not operate as a bar to a detention order or make it mala-fide.
[7] An improperly recorded confession u/S.161 of Cr.P.C cannot be used as substantive evidence against the accused in criminal case but it cannot be completely brushed aside on that ground for the purpose of preventive detention.
[8] The Court cannot examine the materials before it and give finding that detaining authority should not have been satisfied on the material before it. The sufficiency of ground of detention can not be subject matter of judicial review.
[9] The justification for detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, it is called as 'suspicious jurisdiction' .
[10] In a habeas corpus petition, Court needs to examine whether detention is primafacie legal or not and is not required to examine whether subjective satisfaction on a question of fact is rightly reached or not.
[11] The statements/evidence gathered during investigation falls within the ambit of “some evidence” which can form basis for detaining a person.
[12] The detention order is an administrative order.
7. NSA – Evidence Act – Degree of Proof – whether statement under Section 161 of the Cr.P.C. can form basis of passing detention order. The detention order can be passed on the basis of material which may not be strictly admissible as evidence under the Evidence Act in a Court. The said material can form basis for forming subjective satisfaction of the Government. Even a confessional statement under Section 161 of the Cr.P.C. which may not be admissible in a criminal case can be a reason for passing an order of detention. Some evidence gathered during investigation, which includes statements recorded under Section 161 of the Cr.P.C. can become basis for passing the detention order.
8. Precedent – previous judgments of Supreme Court delivered by Benches of six, five, three and two Judge Bench were not brought to the notice of the subsequent Bench which decided the case of Pebam Ningol Mikoi Devi v/s The State of Manipur & Others. In view of judgment of five judges Bench of this Court in Jabalpur Bus Operator Association it is held that if two different views are taken by different Benches of Supreme Court, view taken by a Bench of larger strength will prevail. If Bench strength is same and previous judgment is not taken into account by subsequent Bench, the previous judgment will prevail.
9. Detention order solely based on S.P's recommendation – even if the language employed in both the orders is same, it cannot be a reason to interfere into detention order because necessary ingredients for invoking detention law were taken into account in the detention order.
10. Section 5A of the NSA – The doctrine of severability is statutorily recognized by inserting this section in the Act. The grounds of detention are severable. Detention order cannot become invalid or inoperative because of availability of any of the grounds mentioned in Clause (a) of Section 5A.
11. The doctrine of severeability – if some portion of detention order is bad in law and minus that portion, the detention order is not vulnerable, by applying doctrine of severeability, the order can be upheld.
Sarabjeet Singh Mokha Vs. The District Magistrate, Jabalpur & Ors.