Yatindra Verma Vs. State of MP & Ors.

Madhya Pradesh High Court (Division Bench (DB)- Two Judge)

WRIT PETITION, 9792 of 2021, Judgment Date: Jun 24, 2021

Law laid down -

(1) Article 22(5) of Constitution of India - The right of detenu to represent against detention order is a valuable and constitutional right, violation of which can make the order of detention as illegal.

(2) Constitution of India - Preventive Detention – is duly recognized in our constitutional scheme. The Constituent Assembly composed of politicians, statesman, lawyers and social workers who had experienced the imprisonment owing solely to their political beliefs resolved to put Article 22, Clause 3 to 7 in the Constitution.

(3) Section 3(3) of NSA Act, 1980 - Although there is no statutory requirement of mentioning the background reasons on the strength of which order of delegation is passed, if reasons are assigned, it encourages fairness. If partially wrong reason is assigned in the order of delegation, neither order of delegation nor order of detention will stand vitiated.

(4) The order of delegation dated 6/4/2021 – A mechanical reproduction of non existing reason namely “threat to communal harmony” is quoted, but court was alive of real situation because of second wave of corona and hence no interference was made. It was noted that order dated 6/4/2021 contains a correct reason to prevent a person to “commit act prejudicial to the maintenance of public order”.

(5) Section 3(2) and (3) of NSA Act - The expression “public order” is wide enough which includes the event of black listing of an essential drug namely Remdesivir. Thus, contention that the delegation order does not cover the reason of detention is not accepted.

The use of “a” on two places in Sec.3(3) does not mean that an “area-specific” and “authority specific” order must be passed in all circumstances.

(6) Preventive detention - of a person who is already in custody - Permissible but compelling reasons with cogent material must be shown by the detaining authority based on antecedent activities of detenu.

(7) Right of representation before the District Magistrate by detenu - Effect of non mentioning of this right in the detention order - The Constitution Bench judgment in Kamlesh Kumar was followed by Full Bench in Kamal Khare. It was clearly held that it violates valuable right of detenu to prefer representation before same authority.

Yatindra Verma Vs. State of MP & Ors.