1 W.P. No.10085/2021

The High Court of Madhya Pradesh Bench at Indore

Case Number WP No.10085/2021

Parties Name Sarabjeet Singh Mokha

Vs.

The District Magistrate, Jabalpur & Ors.

Date of Order 24/08/2021

Bench Division Bench:

Justice Sujoy Paul

Justice Anil Verma

Judgment delivered

by

Justice Sujoy Paul

Whether approved

for reporting

YES

Name of counsel for

parties

Shri Sidharth Luthra, learned Sr.Counsel with

Shri Pankaj Dubey, learned counsel for

petitioner.

Shri Vivek Dalal, learned Additional Advocate

General assisted by Ms. Palak Joshi, learned

counsel for the respondents/State.

Shri Milind Phadke, learned counsel for

respondent/Union of India.

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.

2 W.P. No.10085/2021

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

3 W.P. No.10085/2021

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 prima-

facie 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

4 W.P. No.10085/2021

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.

5 W.P. No.10085/2021

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.

Significant

paragraph numbers

15 to 47

O R D E R

(Passed on 24

th

August, 2021)

Sujoy Paul, J:-

This petition filed under Article 226 of the Constitution assails

the detention order dated 11/5/2021 (Annexure P/1) passed under

National Security Act, 1980 (NSA), its extension by order dated

5/7/2021 (Annexure P/1A) and also the order dated 5/7/2021 passed

by Central Government whereby the representation of petitioner was

rejected. This matter was analogously heard with WP No.10177/2021

(Devesh Chourasia vs. State of MP). The petitioner was running a

hospital whereas Devesh Chourasia was working in the

pharmaceutical wing of the said hospital.

2.The stand of petitioner as canvassed by learned Senior Counsel

is that he is running a hospital. As per the detention order, police

received certain informations regarding blacklisting and misuse of

Remdesivir injections on 8/5/2021. Consequently, an FIR was

registered against the petitioner on 10/5/2021. The petitioner was

detained pursuant to order dated 11/5/2021 on 12/5/2021. On

13/5/2021 (Annexure R/2), the State government approved the order

6 W.P. No.10085/2021

of detention and send necessary information to the Central

Government. The petitioner preferred detailed representation under

the NSA on 18/5/2021. The Advisory Board affirmed the order of

detention on 29/6/2021. The present writ petition was filed on

3/7/2021. After getting the rejection order of Central Government

dated 5/7/2021, the petition was duly amended by assailing the order

of extension and the rejection order.

3.Shri Sidharth Luthra, learned Sr.Counsel assisted by Shri

Pankaj Dubey contended that the detention order is passed without

there being any cogent material. A stale incident of 2004 became

reason for passing the order of detention. The petitioner stood

acquitted on merits in the said case of 2004 mentioned in the

detention order. For the reasons best known to the learned District

Magistrate, he gave a strange and unacceptable finding that it is

because of petitioner’s financial influence that he got a judgment in

his favour in the said case of 2004. By placing reliance on (2018) 9

SCC 562 [Hetchin Haokip Vs. State of Manipur & Ors.), (2018) 12

SCC 150 [Sama Aruna Vs. State of Telangana & another] and

(2020) 13 SCC 632 [Khaja Bilai Ahmed Vs. State of Telangana &

Ors.], learned Sr. Counsel contended that the past record must have a

live and proximate link with the reason of detention. Otherwise, such

stale material/case cannot be a basis for passing the detention order.

The reference is made to the judgment of Hetchin Haokip (supra) for

yet another reason. It is submitted that there exists an unexplained

delay in reporting the detention order to the State Government. The

language of Sec.3(4) and 8 of NSA shows that the law makers have

used the word “forthwith” with an intention that order of detention

must be communicated to the State government with quite

promptitude. For the same purpose, a division bench judgment of this

Court in WP No.1118/2021 (Anshul Jain Vs. State) is relied upon. In

the instant case, there is an unexplained delay in communicating the

7 W.P. No.10085/2021

detention order to the government which vitiates the order of

detention.

4.The statement of certain witnesses recorded u/S.161 of Cr.P.C

are relied upon to bolster the submission that as per those statements

no case is made out against the petitioner for black marketing or

selling fake/duplicate Remdesivir injections. Heavy reliance is placed

on the statements of Shri Vijay Sehajvani, Devesh Chourasia, Kshitij

Rai and Yash Meindiratta. (2010) 9 SCC 618 (Pebam Ningol Mikoi

Devi Vs.State of Manipur & Ors.) is relied upon to show that the

statement recorded u/S.161 of Cr.P.C are not sufficient for invoking

power u/S.3 of the NSA. In the instant case, the whole action is

founded upon the statements recorded u/S.161 Cr.P.C which makes

the detention order as illegal.

5.The petitioner had no knowledge that injections were fake and

there exists no material to show that any such fake injections were

ever administered to the patients admitted in the hospital of the

petitioner.

6.The petitioner’s conduct by no stretch of imagination can create

public outrage or agitation because at Jabalpur the administration had

already imposed restrictions by invoking Sec.144 of Cr.P.C. The

offences are not serious and, therefore, there was no need to detain the

petitioner under the NSA. Furthermore, it is argued that in view of

(2019) 20 SCC 740 (PP. Rukhiya Vs. Joint Secretary, Government

and another), person who is already in jail should not be detained

under the NSA unless it is shown that (i) Authority is aware about his

arrest, (ii) there is likelihood of his getting bail by the court and (iii)

indulging in same activity.

7.The next contention of Shri Luthra is based on explanation to

Sec.3 of the NSA which excludes certain activities from the purview

of Sec.3 and attracts Prevention of Black Marketing and Maintenance

of Supplies of Essential Commodities Act, 1980 (Blackmarketing

8 W.P. No.10085/2021

Act). To elaborate, it is contended that if the allegation against the

petitioner is that he was black marketing the Remdisivir injections,

the act which can be invoked is the Black Marketing Act and not the

NSA. There is a marked difference between 'public order' and 'law

and order'. If ordinary penal law can take care of the alleged offences

committed by the petitioner, there was no justification in using drastic

power under the NSA against the petitioner. For this purpose, heavy

reliance is placed on (2011) 5 SCC 244 (Rekha Vs. State of Tamil

Nadu & another) followed in (2012) 2 SCC 386 (Munagala

Yadamma Vs. State of Andhra Pradesh & Ors.)

8.The validity of an order of a statutory authority needs to be

judged on the grounds mentioned in the detention order and it cannot

be supplemented by filing counter affidavit before this Court is the

next submission of Shri Luthra, Sr.Counsel based on the Constitution

bench judgment of Supreme Court in the case of (1978) 1 SCC 405

[Mohinder Singh Gill & another Vs. Chief E8lection Commissioner,

New Delhi & Ors.].

9.In rejoinder submissions, Shri Siddharth Luthra, learned Senior

Counsel contended that representation of petitioner was dispatched on

19/05/2021. The State Govt. received it on 24/05/2021. The decision

on the representation was belatedly taken by State Govt. on

05/08/2021. In the rejection order, it is mentioned that detenu failed to

show any new justifiable reason and hence, interference is declined.

This cryptic reason is sufficient to jettison the rejection order. The

rejection order was supplied to the petitioner along with return filed in

the instant case.

By placing reliance on (1982) 3 SCC 10 (Raj Kishore Prasad vs.

State of Bihar & Ors.), (1981) 2 SCC 710 (Harish Pahwa vs. State

of U.P. & Ors.), (2013) 4 SCC 435 (Abdul Nasar Adam Ismail vs.

State of Maharashtra & Ors.), (2010) 9 SCC 618 (Pebam Ningol

Mikoi Devi vs. State of Manipur & Ors.), it is urged that in these

9 W.P. No.10085/2021

matters the time consumed in taking the decision on the representation

was between 7 days to 28 days. In absence of explaining each day's

delay, the orders impugned became vulnerable.

(2020) 13 SCC 632 (Khaja Bilal Ahmed vs. State of Telengana

& Ors.) was relied upon to show that there is no finding in the

detention order that in all probabilities, the petitioner upon his release

may indulge in similar activity. For the same purpose (1981) 4 SCC

428 (Aidal Singh vs. State of M.P. & Anr.) and (1987) Cr.L.J. 893

(Allahabad High Court) (Santosh Kumar Mehotra vs.

Superintendent, Central Jail, Allahabad & Ors.) were relied upon.

Stand of Govt.:

10.Shri Vivek Dalal, learned AAG assisted by Ms. Palak Joshi,

learned counsel urged that in view of judgment of Supreme Court

reported in AIR 1951 SC 157 (State of Bombay vs. Atma Ram

Sridhar Vaidya), AIR 1964 SC 334 (Rameshwar Shaw vs. District

Magistrate, Burdwan & Anr.) and constitution bench judgment in

K.M. Abdulla Kunhi vs. Union of India (1991) 1 SCC 476, the order

of detention can be passed on the basis of information and materials

which may not be strictly admissible under Evidence Act. It depends

on the needs and exigencies of administration to take into account

some evidence to proceed against the detenu. The judgment of Atma

Ram (supra) was followed in Rameshwar Shaw (supra) and it was

ruled that scope of interference by High Court on a detention order is

limited. The detention order can be assailed if it is based on malafides

and if there is nothing to rationally support the conclusion drawn by

the District Magistrate. For the same purpose, the judgment of K.M.

Abdulla Kunhi (supra) was pressed into service. It is for the

government to consider the representation to ascertain whether the

order is in-conformity with the power under the law. The Advisory

Board considers the representation and the case of detenu to examine

whether there is sufficient case for detention. Based on these

10 W.P. No.10085/2021

judgments, it is contended that detention order is not assailed by

alleging malafide. It cannot be said that detention order is without

there being any rational basis at all.

11.Countering the argument that representation was required to be

decided immediately, the learned AAG relied on the expression used

in Clause-5 of Article 22 of the Constitution i.e. “as soon as may be”.

Reference is made to the judgment of K.M. Abdulla Kunhi (supra) to

contend that representation should be expeditiously considered and

disposed of with a sense of urgency without an avoidable delay.

However, there is no hard and fast rule in this regard. It depends upon

the facts and circumstances of each case. No statutory period is

prescribed either under the constitution or under the relevant detention

law within which representation was required to be decided. Thus, it

depends on the factual basis of each case whether representation is

decided within reasonable time. As per para-16 of aforesaid judgment

of Supreme Court, till the decision of Advisory Board, there was no

occasion and question for the State Govt. to take a decision on the

representation. There is no unreasonable delay in taking decision by

the State Govt. after the decision of the Advisory Board.

12.Lastly, it is submitted that in view of judgment of this Court in

Manikant Asati vs. State of MP (W.P. No.9846/2021) and Nitin

Vishwakarma vs. State of MP (WP No.11571/2021), the interference

on the ground of delay is not warranted. There is no flaw in decision

making process. The singular incident can become a reason to invoke

detention law. One singular incident of grave nature is sufficient to

detain a person. In pandemic like situation, even if some delay is

caused in deciding the representation, it is not fatal because the

authorities were working day and night to combat the corona

pandemic situation.

13.Parties confined their arguments to the extent indicated above.

14.We have heard the parties at length and perused the record.

11 W.P. No.10085/2021

Preventive Detention : Background :

15.Our constitutional scheme duly recognised the need and power

of preventive detention. The constituent assembly composed of

politicians, statesman, lawyers and social workers, who had attained a

high status in their respective specialties and many of them 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. [See: (1976) 2 SCC 521 (Additional

District Magistrate, Jabalpur vs. SS Shukla). Pertinently, this finding

of Supreme Court has not been overruled in the subsequent judgment.

16.In Ram Bali Rajbhar vs. State of W.B. (1975) 4 SCC Page 47,

the Apex Court opined as under:-

“The law of preventive detention, (…..) is

authorised by our Constitution presumably because it was

foreseen by the Constitution-makers that there may arise

occasions in the life of the nation when the need to

prevent citizens from acting in ways which unlawfully

subvert or disrupt the bases of an established order may

outweigh the claims of personal liberty.”

(Emphasis supplied)

17.The interesting and challenging quagmire before the Courts

relating to liberty of citizen and aspects of misuse of liberty was

wonderfully explained by Chief Justice Earl Warren as under:

“Our judges are not monks or scientists, but participants

in the living stream of our national life, steering the law

between the dangers of rigidity on the one hand and of

formlessness on the other. Our system faces no theoretical

dilemma but a single continuous problem; how to apply to

ever changing conditions on the never changing principles

of freedom.”

(Emphasis Supplied)

18.The same principle is also wonderfully explained by Justice KK

Mathew in 1975 (Supp.) SCC 1, Para-318 (Smt. Indira Nehru

Gandhi vs. Raj Narain) as under:

“318. The major problem of human society is to combine

12 W.P. No.10085/2021

that degree of liberty without which law is tyranny with

that degree of law without which liberty becomes licence;

and the difficulty has been to discover the practical means

of achieving this grand objective and to find the

opportunity for applying these means in the ever shifting

tangle of human affairs.”

(Emphasis Supplied)

19.Justice M.N. Venkatchaliah in (1989)1 SCC 374 (Ayya @ Ayub

vs. State of UP) held as under:-

“14.......the actual manner of administration of the law of

preventive detention is of utmost importance. The law

has to be justified by the genius of its administration

so as to strike the right balance between individual

liberty on the one hand and the needs of an orderly

society on the other.... The paradigms and value

judgments of the maintenance of a right balance are not

static but vary according as the 'pressures of the day'

and according as the intensity of the imperatives that

justify both the need for and the extent of the

curtailment of individual liberty. Adjustments and

readjustments are constantly to be made and reviewed. No

law is an end in itself. The 'inn that shelters for the night

is not journey's end and the law, like the traveller, must be

ready for the morrow.”

(Emphasis supplied)

20.Justice Savyasachi Mukherjee in (1986) 4 SCC 407 (Raj

Kumar Singh vs. State of Bihar) held as under:-

“22. Preventive detention as reiterated as hard law

and must be applied with circumspection rationally,

reasonably and on relevant materials. Hard and ugly

facts make application of harsh laws imperative.”

(Emphasis supplied)

In the light of these guiding principles, it is to be seen whether

the impugned detention order, its extension and rejection of

representation deserves interference by this Court.

Detention based on past record:

21.The detention order is pregnant with a criminal incident of 2004

from which petitioner has been admittedly acquitted. There is no live

13 W.P. No.10085/2021

nexus between the incident of 2004 and the alleged incident of

blackmarketing/using fake remedesivir injections. Thus, in view of

principles laid down by Apex Court in Sama Aruna (supra) and

Hetchin Haokip (supra), the said incident of 2004 could not have

been a reason to detain the petitioner.

Delay in sending Detention Order to State:

22.The impugned detention order was passed on 11/05/2021. It was

sent to the State Govt. by the District Magistrate and in turn, on

13/05/2021 the State Govt. approved it. There is no undue and

unexplained delay in sending the detention order to the State Govt.

Thus, the judgment of Supreme Court in the case of Hetchin Haokip

(supra) and of this Court in Anshul Jain (supra) are of no assistance

to the petitioner.

Blackmarketing of injections: NSA NOT ATTRACTED.

23.The another point raised by Shri Luthra, learned Senior Counsel

that alleged action of blackmarketing of remedesivir injections does

not fall within the ambit of Section 3 of NSA Act. Indeed,

Blackmarketing Act takes care of such conduct was recently decided

by this Court in WP No.9878/2021 (Sonu Bairwa vs. State of MP &

Ors.). This Court opined as under:-

“20.Section 3(2) of NSA Act and 'explanation' reads as

under:-

“The Central Government or the State Government

may, if satisfied with respect to any person that with a

view to preventing him from acting in any manner

prejudicial to the security of the State or from acting in

any manner prejudicial to the maintenance of public order

or from acting in any manner prejudicial to the

maintenance of supplies and services essential to the

community it is necessary so to do, make an order

directing that such person be detained.

Explanation.—For the purposes of this sub-

section, "acting in any manner prejudicial to the

maintenance of supplies and services essential to the

community" does not include "acting in any manner

prejudicial to the maintenance of supplies of commodities

14 W.P. No.10085/2021

essential to the community" as defined in the Explanation

to sub-section (1) of section 3 of the Prevention of

Blackmarketing and Maintenance of Supplies of Essential

Commodities Act, 1980 (7 of 1980), and accordingly, no

order of detention shall be made under this Act on any

ground on which an order of detention may be made

under that Act.”

(Emphasis supplied)

21.The use of “explanation” in a statute is an internal

aid to construction. Fazal Ali J in (1985)1 SCC 591 (S.

Sundaram Pillai & Ors. vs. V.R. Pattabiraman & Ors.)

culled out from various judgments of Supreme Court the

following as objects of an explanation to a statutory

provision:-

(a) to explain the meaning and intendment of the Act

itself;

(b) where there is any obscurity or vagueness in the

main enactment, to clarify the same so as to make it

consistent with the dominant object which it seems to

subserve,

(c) to provide an additional support to the dominant

object of the Act in order to make it meaningful and

purposeful;

(d) an Explanation cannot in any way interfere with or

change the enactment or any part thereof but where gap is

left which is relevant for the purpose of the Explanation,

in order to suppress the mischief and advance the object

of the Act it can help or assist the court in interpreting the

true purport and intendment of the enactment; and

(e) it cannot, however, take away a statutory right with

which any person, under a statute has been clothed or set

at naught the working of an Act by becoming an

hindrance in the interpretation of the same.

This principle is consistently followed by Supreme

Court in (2004) 2 SCC 249 (M.P. Cement

Manufacturers Association vs. State of MP & Ors.) and

(2004) 11 SCC 64 (Swedish Match AB vs. Securities &

Exchange Board of India).

22. These examples are illustrative in nature and not

exhaustive. An “explanation” may be added to include

something within or to exclude something from the ambit

of the main enactment or the connotation of some word

occurring in it (See: Controller of Estate Duty, Gujarat

Vs. Shri Kantilal Trikamlal AIR 1976 SC 1935).

15 W.P. No.10085/2021

Similarly a negative explanation which excludes certain

types of category from the ambit of enactment may have

the effect of showing that the category leaving aside the

excepted types is included within it (See First Income

Tax Officer, Salem Vs. Short Brothers (P) Ltd. AIR

1967 SC 81). Thus, the explanation in the instant case,

has a limited impact on main provision i.e. sub-section

(2) of Section 3 of NSA Act. It does not dilute or take

away the right of detaining authority under the NSA Act

regarding eventualities relating to maintenance of 'public

order' or security of the State.

23.A microscopic reading of Section 3(2) with

'Explanation' leaves no room for any doubt that Sub-

Section (2) is wide enough and deals with three

contingencies when a citizen can be detained:

i) for preventing him from acting in any manner

prejudicial to the security of 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 essential to the community.

24.The 'explanation' is limited to the contingency

(iii) aforesaid only. The argument of Shri Maheshwari

that since remedesivir is an essential drug/commodity,

therefore, obstruction to its supply or blackmarketing can

be a reason to invoke the blackmarketing act, but NSA

Act cannot be invoked, is liable to be discarded for the

simple reason that Sub-Section (2) of Section 3 is wide

enough which contains and deals with three

contingencies, whereas 'explanation' takes only one

beyond the purview of the NSA Act if it is covered by

Blackmarketing Act.

25.We find force in the argument of learned

Additional Advocate General that blackmarketing of

remedesivir creates a threat to “public order”. We have

taken this view recently in the case of Yatindra Verma

(supra) also. If 'public order' is breached or threatened, in

order to maintain 'public order', NSA Act can very well

be invoked. Thus, “explanation” appended to Sub-Section

2 of Section 3 of NSA Act will not exclude the operation

of NSA Act in a case of this nature where 'public order' is

breached, threatened and put to jeopardy.

26.Interpretation of a statute must depend on the text

and the context. Neither can be ignored. Both are

important. That interpretation is best which makes the

16 W.P. No.10085/2021

textual interpretation match the contextual. A statute is

best interpreted when we know why it was enacted. (See:

1987(1) SCC 424- RBI vs. Peerless General Finance

and Investment Co. Ltd.)

27.The Apex Court in (2013) 3 SCC 489 (Ajay

Maken vs. Adesh Kumar Gupta & Anr.) held as under:-

“Adopting the principle of literal construction of the

statute alone, in all circumstances without examining the

context and scheme of the statute, may not subserve the

purpose of the statute. In the words of V.R. Krishna Iyer,

J., such an approach would be “to see the skin and miss

the soul”. Whereas, “The judicial key to construction is

the composite perception of the deha and the dehi of the

provision.” (Board of Mining Examination v. Ramjee

(1977) 2 SCC 256, Para-9)”

28.Sub-Section 2 of Section 3 is very wide and as

noticed above, deals with three eventualities (See: Para-

23).

“Explanation” to Sub-Section 2 deals with a small part of

it. The intention of law makers in inserting the

'explanation' is to take out cases of blackmarketing from

NSA Act to some extent, to the extent it is covered by the

Black Marketing Act. 'Explanation', by no stretch of

imagination can eclipse the entire main provision namely,

Sub-Section 2 of Section 3. The plain and unambiguous

language of Sub-Section 2 of Section 3 makes it clear that

the Competent Authority/Govt. can pass order of

detention if one of the eventuality out of said three is

satisfied. In the instant case, the District Magistrate has

taken a plausible view that 'public order' is being

threatened by petitioner. Thus, we are unable to hold that

order of detention is beyond the purview of Sub-Section 2

of Section 3 of NSA Act.”

(Emphasis Supplied)

In view of this finding in Sonu Bairwa (supra), this argument

cannot cut any ice. Apart from this, allegation against petitioner is

relating to blackmarketing and using fake injections in the hospital

which certainly falls within the ambit and scope of 'public order'.

Ordinary penal law is sufficient : NSA can't be invoked and no

past record

24.The judgment of Rekha (supra) was pressed into service to

17 W.P. No.10085/2021

contend that when ordinary penal law is sufficient to punish the

petitioner, there was no justification in detaining the petitioner. The

argument in the first blush appears to be attractive, but lost its

complete shine on closure scrutiny. This argument was advanced

coupled with another argument that single incident was not sufficient

to invoke Section 3 of NSA Act. It is profitable to examine the legal

journey on this aspect. In (1974) 4 SCC 135 (Debu Mahto vs. State of

West Bengal), the Supreme Court opined thus:-

“2.…...We must, of course, make it clear that it is

not our view that in no case can a single solitary act

attributed to a person form the basis for reaching a

satisfaction that he might repeat such acts in future and in

order to prevent him from doing so, it is necessary to

detain him. The nature of the act and the attendant

circumstances may, in a given case be such as to

reasonably justify an inference that the person concerned,

if not detained, would be likely to indulge in commission

of such acts in future. The order of detention is

essentially a precautionary measure and it is based on a

reasonable prognosis of the future behaviour of a person

based on his past conduct judged in the light of the

surrounding circumstances.”

(Emphasis Supplied)

25.The ratio decidendi of this case was consistently followed by

Supreme Court in catena of judgments including (1975) 3 SCC 292

(Israil Sk. vs. Distt. Magistrate of West Dinajpur), (1986) 1 SCC 404

(Shiv Ratan Makim vs. Union of India, (1991) 1 SCC 144 (M.

Mohd. Sulthan vs. Jt. Secy. to Govt. of India, (1992) 4 SCC 154

(David Patrick Ward vs. Union of India), (2009) 5 SCC 296 (Pooja

Batra vs. Union of India) and (2010) 1 SCC 609 (Gimik Piotr vs.

State of T.N.). A Full Bench of this Court recently considered this

aspect by taking note of Supreme Court judgments in WP

No.22290/2019 (Kamal Khare vs. State of MP) 2021(2) MPLJ 554

and opined as under:-

“44. What can therefore be culled out from all the afore-

discussed judgments is that whether an act would

18 W.P. No.10085/2021

constitute simple breach of law and order, or breach of

public order, would solely depend on the degree and

extent of its reach and effect upon the society. Public

order is even tempo of the life of the community of an

area or even a locality, as a whole. Degree of disturbance

upon the life of the community would determine whether

it affects public order. An act by itself may not be a

determinative factor of its gravity, but it is potentiality of

its effect on the even tempo of the life of community that

makes it prejudicial to the maintenance of public order. If

the effect of act is restricted to certain individuals or a

group of individuals, it merely creates a law and order

problem but if the effect, reach and potentiality of the act

is so deep and pervasive that it affects the community at

large and disturbs the even tempo of the community that

it becomes a breach of the public order. It therefore

cannot be said that a single act would in all and every

circumstances not be sufficient to affect public order or

even tempo of the society. What is material is the effect

of the act and not the number of acts and therefore what

has to be seen is the effect of the act on even tempo of

life of the people and the extent of its reach upon society

and its impact.”

(Emphasis Supplied)

26.In view of these authoritative pronouncements, it cannot be

said that a singular act cannot be a reason to attract Section 3 of NSA.

Order of detention on a solitary act can be passed keeping in view the

conduct of person concern in view of the facts and circumstances

prevailing at the relevant time.

27.In Yatindar Verma (supra), this Court opined that the act of

blackmarketing remedesivir injections in the era of extreme crisis of

pandemic is sufficient to invoke the preventive law.

28.The judgment of Rekha (supra) was again considered by

Supreme Court in (2012) 2 SCC 176 (Yumman Ongbi Lembi Leima

vs. State of Manipur & Ors.). The Apex Court by taking note of

factual position and activities of detenu violating the provisions of

IPC, the A.P. Act and Rules opined that he was damaging the wealth of

the nation. In the instant case, the reason mentioned in the detention

19 W.P. No.10085/2021

order has a relation with the health of the nation. The full bench of this

Court in Kamal Khare (supra) considered the judgment of Rekha

(supra) and dealt with the question of invoking detention law when

ordinary penal law is also applicable. It was held:

“18. Before embarking on the examination of the

arguments advanced by learned counsel for both the sides

on the referred questions, we must clarify that the

invocation of the principle generalia specialibus

nonderogant by one of the learned Judges (Mr. Justice

Atul Sreedharan) in paragraph No.8 of the dissenting

order that the general law shall not prevail over the

provisions of the special law, on the basis of what was

held in paragraph No.19 of the judgment of Sudeep Jain

Vs. State of Madhya Pradesh and others (W. P.

No.21768/2019) decided on 8.11.2019, does not stand on

sound legal foundation and has no relevance to the

question that we are dealing with. That principle, in our

considered opinion, would not be attracted to the facts of

the present case. The order of preventive detention under

NSA does not overlap with the panel provisions under the

FSSA as it is not in lieu of that but is rather in addition to

that. The preventive detention law can operate side by

side the law which makes the offences punishable under

the substantive offences under the IPC or the FSSA. The

preventive detention under the NSA is only anticipatory

action and is not a punitive measure. The law that is

generally applied to the cases of preventive detention is

that if an offence committed by an offender, which

merely effect the law and order situation, can be dealt

with under ordinary penal laws, the extraordinary

provisions of preventive detention ought not to be

invoked, but it cannot deduced from this that the ordinary

penal laws, would for that purpose, be considered general

law and the relevant laws of the preventive detention,

which in this case would be NSA, would be considered as

a special law or vice versa. While FSSA only provides for

penalty for the offence made out under the provisions of

the said Act, the NSA provides for the preventive

detention if parameter enumerated in sub-Section (2) of

Section 3 are attracted. These two Acts have been enacted

to achieve different object and for difference purpose.

The provisions which makes the offence punishable

under the FSSA is intended to punish the offender for the

offence committed by him, but the object which the NSA

20 W.P. No.10085/2021

seeks to achieve is to put the person concerned in

detention so as to prevent him from doing an act but not

to punish him for something which he has done. While

the former is based on the act already done by him, the

latter is based on the likelihood of his acting in a manner

similar to his past acts and preventing him for repeating

the same.

(Emphasis Supplied)

29.It is a matter of common knowledge that during second wave

of pandemic, there was severe scarcity of essential medicines, hospital

beds, oxygen etc. This kind of pandemic broke up almost after 100

years from the previous pandemic of 'Spanish flu' which threatened

the humanity during 1918-1920. The Supreme Court in Ayya @ Ayub

(supra) made it clear that there is no straight jacket formula for

applying the NSA. It depends on the factual backdrop of each case.

There cannot be any static formula for invoking NSA because it varies

according to the pressures of the day and according to the intensity of

imperatives. In a pandemic like situation, where people were dying for

want of essential drugs, treatment and other facilities, singular act of

blackmarketing of remedesivir injections is sufficient to maintain the

detention order. Moreso, when allegation is that the remedesivir

injections were fake/duplicate. The respondents by filing reply have

rightly explained the basis for passing the detention order. The

necessary ingredients on the strength of which a detention order can

be passed are very much available in the impugned detention order

and in the counter affidavit. Pertinently, in Yumman Ongbi Lembi

Leima (supra), it was held that in a matter of detention, the law is

clear that as far as subjective satisfaction is concerned, it should either

be reflected in the detention order or in the affidavit justifying the

detention order. In this view of the matter, the judgment of Supreme

Court in Mohinder Singh Gill (supra) cannot be pressed into service.

Scope of judicial review of detention order:

30.In the connected matter, in the case of employee of petitioner's

21 W.P. No.10085/2021

hospital namely, Devesh Chourasiya (WP No.10177/2021), this Court

has dealt with this aspect in sufficient detail. It is apposite to

reproduce the same.

“24.The learned Senior Counsel for the petitioner

placed reliance on certain judgments to submit that

subjective satisfaction of detaining authority must be

based on legally admissible cogent material. It is apposite

to examine the legal journey in this regard. In 1951 SCR

167, (State of Bombay v. Atma Ram Sridhar Vaidya) a

six judges Bench of Supreme Court held thus:-

“6.....By its very nature, preventive detention is

aimed at preventing the commission of an offence or

preventing the detained person from achieving a certain

end. The authority making the order therefore cannot

always be in possession of full detailed information

when it passes the order and the information in its

possession may fall far short of legal proof of any

specific offence, although it may be indicative of strong

probability of the impending commission of a prejudicial

act....”

(Emphasis supplied)

25.B.K. Mukherjea, J. in 1954 SCR 418 (Shibban Lal

Saksena vs. State of U.P.) followed the said principle and

opined as under:-

“8..............I t has been repeatedly held by this Court

that the power to issue a detention order under Section 3

of the Preventive Detention Act depends entirely upon the

satisfaction of the appropriate authority specified in that

section. The sufficiency of the grounds upon which such

satisfaction purports to be based, provided they have a

rational probative value and are not extraneous to the

scope or purpose of the legislative provision cannot be

challenged in a court of law, except on the ground of

malafides [Vide The State of Bombay v. Atma Ram

Sridhar Vaidya , 1951 SCR 167]. A court of law is not

even competent to enquire into the truth or otherwise

of the facts which are mentioned as grounds of

detention in the communication to the detenue under

Section 7 of the Act..............The detaining authority gave

here two grounds for detaining the petitioner. We can

neither decide whether these grounds are good or bad,

nor can we attempt to assess in what manner and to

what extent each of these grounds operated on the

mind of the appropriate authority and contributed to

22 W.P. No.10085/2021

the creation of the satisfaction on the basis of which

the detention order was made. To say that the other

ground, which still remains, is quite sufficient to sustain

the order, would be to substitute an objective judicial test

for the subjective decision of the executive authority

which is against the legislative policy underlying the

statute.......”

(Emphasis supplied)

26.A constitution Bench of Apex Court (1964)4 SCR

921 (Rameshwar Shaw vs. District Magistrate) ruled

that:-

“8. It is, however, necessary to emphasise in this

connection that though the satisfaction of the detaining

authority contemplated by Section 3(1)(a) is the

subjective satisfaction of the said authority, cases may

arise where the detenu may challenge the validity of his

detention on the ground of mala fides and in support of

the said plea urge that along with other facts which show

mala fides the Court may also consider his grievance that

the grounds served on him cannot possibly or rationally

support the conclusion drawn against him by the

detaining authority. It is only in this incidental manner

and in support of the plea of mala fides that this question

can become justiciable; otherwise the reasonableness or

propriety of the said satisfaction contemplated by

Section 3(1)( a ) cannot be questioned before the

Courts.”

(Emphasis supplied)

27.A three judges Bench in (1973) 3 SCC 250 (Mohd.

Subrati vs. State of West Bengal) held as under:-

“3........This jurisdiction is different from that of

judicial trial in courts for offences and of judicial

orders for prevention of offences. Even unsuccessful

judicial trial or proceeding would, therefore, not operate

as a bar to a detention order, or render it mala fide. The

matter is also not res integra.”

(Emphasis supplied)

28.Reference may be made to 1988 (1) SCC 296 (K.

Aruna Kumari vs. Govt. of A.P.) wherein the Court held

that :-

“8.......It is true that it may not be a legally recorded

confession which can be used as substantive evidence

against the accused in the criminal case, but it cannot be

completely brushed aside on that ground for the purpose

of his preventive detention.....”

(Emphasis supplied)

23 W.P. No.10085/2021

29.In (1990) 1 SCC 35 (State of Punjab vs. Sukhpal

Singh), it was again held that:-

“9. ….. The High Court under Article 226 and Supreme

Court under Article 32 or 136 do not sit in appeal from

the order of preventive detention. But the court is only to

see whether the formality as enjoined by Article 22(5)

had been complied with by the detaining authority, and if

so done, the court cannot examine the materials before

it and find that the detaining authority should not

have been satisfied on the materials before it and

detain the detenu. In other words, the court cannot

question the sufficiency of the grounds of detention for

the subjective satisfaction of the authority as pointed

out in Ashok Kumar v. Delhi Administration [(1982) 2

SCC 437 : 1982 SCC (Cri) 466 : AIR 1982 SC 1143 :

(1982) 3 SCR 707] . Those who are responsible for the

national security or for the maintenance of public order

must be the judges of what the national security or public

order requires. Preventive detention is devised to afford

protection to society. The object is not to punish a man

for having done something but to intercept before he does

it and to prevent him from so doing. The justification for

such detention is suspicion or reasonable probability

and not criminal conviction which can only be

warranted by legal evidence. Thus, any preventive

measures even if they involve some restraint or hardship

upon individuals, do not partake in any way of the nature

of punishment, but are taken by way of precaution to

prevent mischief to the State. There is no reason why

executive cannot take recourse to its powers of preventive

detention in those cases where the executive is genuinely

satisfied that no prosecution can possibly succeed against

the detenu because he has influence over witnesses and

against him no one is prepared to depose....”

(Emphasis supplied)

30.In Ram Bali Rajbhar (supra), M.H. Beg, J.

expressed the view on behalf of the bench :-

“13. We think that the High Court of Calcutta, while

dismissing the writ petition, need not have expressed any

opinion about the worth of the affidavit sworn by Lal

Mohan Jadav, the tea shop owner. That, we think, is the

function of authorities constituted under the Act for

deciding questions of fact. On a habeas corpus petition,

what has to be considered by the Court is whether the

detention is prima facie legal or not, and not whether the

detaining authorities have wrongly or rightly reached a

24 W.P. No.10085/2021

satisfaction on every question of fact....”

(Emphasis supplied)

31.Before dealing with aforesaid judgments of

Supreme Court, it is apposite to mention that an order of

detention was treated to be an administrative order by

Supreme Court in 1975(2) SCC 81 (Khudiram Das vs.

State of West Bengal). This principle was followed by

Full Bench of Allahabad High Court in 1985 SCC Online

608 (Mannilal vs. Superintendent of Central Jail,

Naini, Allahabad). This Court in 1989 CRLJ 978

(Brajraj vs. District Magistrate, Gwalior & Anr.)

followed the dicta aforesaid and opined that order of

detaining authority is an administrative order.”

(Emphasis Supplied)

31.In view of aforesaid judgments of Supreme Court, we may cull

out the principles 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 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

25 W.P. No.10085/2021

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 prima-facie 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.

32.We have carefully examined the statements of the persons

recorded by the administration. We are unable to hold that there is no

probative value of the statements and on the strength of those

statements the detention order could not have been passed. There

definitely exists some probative material sufficient for passing the

detention order. The correctness and sufficiency of evidence is

beyond the scope of judicial review. Thus, the impugned detention

order cannot be said to be irrational or illegal because statements of

witnesses recorded during investigation were relied upon.

Basis for Detention Order – Whether Section 161 of Cr.P.C.

statement can form basis.

33.This point raised in the present petition was also raised in the

connected matter (Devesh Chourasia's case). This Court opined as

26 W.P. No.10085/2021

under:-

“39.By placing heavy reliance on the judgment of

Pebam Ningol Mikoi Devi (supra), it was contended that

confessional statement of petitioner or any other

statement of other persons recorded under Section 161 of

Cr.P.C. cannot form basis for issuance of detention order.

No doubt, in para-30 and 31 of said judgment, the Apex

Court has taken note of certain documents including a

confessional statement of petitioner therein recorded

under Section 161 of Cr.P.C. and opined that such

documents do not provide any reasonable basis for

passing of detention order. It was further held that Section

161 statements are not considered substantive evidence,

but can only be used to contradict the witness in the

course of a trial. It is noteworthy that in the said case,

after examining these documents, a finding was given by

Apex Court on merits that the documents do not

substantiate the involvement of detenu in any unlawful

activity.

40. As noticed above, a six judge Bench of Supreme Court in

Atma Ram Sridhar Vaidya (supra), poignantly held that the

detaining authority while passing the detention order cannot

always be in possession of complete information. The

information so gathered may fall short of legal proof of any

specific offence, although it may be indicative of strong

probability of impending commission of a prejudicial act. It was

further held in the said case that the material on the basis of

which detention order was passed may not be strictly admissible

as evidence under the Evidence Act in a Court, but said material

can very well be considered sufficient for forming subjective

decision of the government. Similarly, in K. Aruna Kumari

(supra), a Division Bench made it clear that even a confessional

statement under Section 161 of Cr.P.C. which may not be

admissible in a criminal case can be a reason for passing an

order of detention. In Pebam Ningol Mikoi Devi (supra), the

previous judgment of Division Bench of Supreme Court in K.

Aruna Kumari (supra) and judgment of six judge bench in case

of Atma Ram Sridhar Vaidya (supra) were not brought to the

notice of the Division Bench. A special bench (five judges) of

this Court in (2003) 1 MPLJ 513 (Jabalpur Bus Operators

Association & Ors. vs. State of MP & Ors.) opined that if two

different views are taken by different Benches of Supreme

Court, the 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

27 W.P. No.10085/2021

prevail. In view whereof, we are unable to hold that statements

recorded under Section 161 of Cr.P.C. cannot form basis for

passing the detention order. The inevitable consequence of this

finding is that the argument of Shri Dutt, learned Senior

Counsel that detention order is passed without cogent material

or there existed no objective material for recording subjective

satisfaction cannot be accepted.”

(Emphasis Supplied)

34.Apart from this, reference may be made to (1975) 3 SCC 845

(Tulshi Rabidas vs. State of West Bengal) (3 Judge bench) which

makes it clear that some evidence gathered during investigation can

very well become basis for passing the detention order. It needs no

emphasis that statements recorded under Section 161 Cr.P.C. can

certainly provide “some evidence/material” collected during

investigation. Thus, we are unable to agree with the contention that

Section 161 statement cannot become basis for passing the detention

order.

Further Detention of Petitioner, already arrested

35.This point is also similar to what has been decided in Devesh

Chourasia (supra). Para-39 reads thus:-

"39.Shri Dutt, learned Senior Counsel has rightly

pointed out catena of judgments to contend that a person

already arrested under any penal law can still be detained

under NSA Act if certain parameters are satisfied which

are rightly pointed out as i) the detaining authority must

be aware that detenu is already in custody, ii) there is

likelihood of his getting bail, iii) there is possibility of his

indulging into similar activity. If on these parameters, the

present matter is tested, it will be clear from plain

reading of detention order that detaining authority was

aware that petitioner is already under detention. He has

duly recorded his apprehension which is not unfounded

that there exists a likelihood of petitioner's getting bail.

The District Magistrate recorded his satisfaction that if

petitioner is not detained, there is every likelihood of

misusing the liberty. Thus, we are of the opinion that

necessary ingredients for detaining a person, who was

already under arrest were satisfied. The detention order is

not in the breach of principles laid down in the

judgments cited by the petitioner.”

28 W.P. No.10085/2021

(Emphasis Supplied)

36.During the course of hearing in this matter and in various

similar matters, the learned counsel for the petitioners argued that the

offence mentioned in the FIR are trivial in nature and such offences

are triable by a Magistrate. For example, reference is made to Section

420 & 188 of IPC, Section 3 of Epidemic Disease Act, 1897 and

Section 3 & 7 of Essential Commodities Act. Suffice it to say that if

this argument is accepted, no fault can be found in the opinion formed

by District Magistrate that there is a likelihood of petitioner's release

on bail. Thus, necessary ingredients for detaining a person, who is

already arrested are satisfied.

D.M.'s order solely based on SP's recommendation: Mechanical

Action:

37.The contention that District Magistrate has mechanically and

without application of mind relied upon SP's report is also dealt with

in Devesh Chourasia (supra). This Court opined that:

“37.By placing reliance on the language employed by

Superintendent of Police in his recommendation and the

order of detention and its extension etc., it was argued

that there was no independent application of mind by

District Magistrate and he has mechanically reproduced

the language employed by S.P. We do not see much merit

in this contention. It is not the form which is decisive for

examining the validity of detention order. Indeed,

whether contents of detention order are sufficient and

satisfy the necessary ingredients for invoking detention

law is material and important. V.R. Krishna Iyer, J.

speaking for a 3 judges bench of Supreme Court in

(1975) 3 SCC 845 (Tulshi Rabidas vs. State of West

Bengal) opined as under:-

“7.......Even so, we are unable to void the order on this

score, especially because the District Magistrate may

well have acted on the police report. Whether the

investigation was conducted properly or not, whether

the District Magistrate should have pinned his faith

on the result of the investigation and like questions,

are not for the Court to consider. But the minimum

which must be placed before the Court is that there was

some evidence gathered during investigation which, in

29 W.P. No.10085/2021

some manner, roped in the petitioner. We are prepared to

hold that there is some evidence for the District

Magistrate to act and there we pause.”

(Emphasis Supplied)

38.The principle laid down in the said judgment is i)

the defect in the investigation cannot be a reason to

disturb a detention order. ii) It is subjective satisfaction

and faith of District Magistrate on the investigation which

matters and it is not for the Court to sit in an appeal and

reweigh it. iii) If some evidence is gathered during

investigation in some manner, it is sufficient to invoke

detention law. Thus, merely because language of

detention order matches with that of recommendation,

detention order cannot be jettisoned.”

(Emphasis Supplied)

38.It is noteworthy that in the case of Tulshi Rabidas (supra), one

of the main ground to assail the detention order was that it is “psycho

styled” and mechanically passed on the recommendation of inferior

authority. As noticed above, V.R. Krishna Iyer, J. speaking for the

bench, did not agree with this contention because it is not the form

which matters, indeed it is the substance and existence of necessary

ingredients which will determine the validity of a detention order.

Thus, we are unable to persuade ourselves with this line of argument

of the petitioner.

Detention order deserves interference because stale matter is

relied upon?

39.As noticed in para 17 of this order, this Court opined that

criminal antecedent of 2004 has no live nexus with the reasons of

detention and, therefore, said incident could not have been a reason to

issue detention order. However, it is noteworthy that merely because

said unjustifiable reason finds place in the detention order, the whole

detention order will not become vulnerable. If minus the incident of

2004, the other portion of detention order is in-consonance with the

requirement of NSA, by applying doctrine of severability, the

detention order deserves to be upheld.

30 W.P. No.10085/2021

40.Section 5A of the NSA reads as under:-

“5A. Grounds of detention severable.—Where a

person has been detained in pursuance of an order of

detention [whether made before or after the

commencement of the National Security (Second

Amendment) Act, 1984] under section 3 which has been

made on two or more grounds, such order of detention

shall be deemed to have been made separately on each of

such grounds and accordingly-

(a) such order shall not be deemed to be invalid or

inoperative merely because one or some of the grounds is

or are

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with

such person, or

(v) invalid for any other reason whatsoever, and it is not,

therefore, possible to hold that the Government or officer

making such order would have been satisfied as provided

in section 3 with reference to the remaining ground or

grounds and made the order of detention;

(vi) the Government or officer making the order of

detention shall be deemed to have made the order of

detention under the said section after being satisfied as

provided in that section with reference to the remaining

ground or grounds.”

(Emphasis Supplied)

41.This provision was inserted by Act 60 of 1984 w.e.f.

21/06/1984. The law makers by inserting Section 5A aforesaid made it

clear that the order of detention cannot be axed or declared void for

the reasons/grounds mentioned in Clause (i) to (v). There is no cavil

of doubt that on the ground of vagueness, irrelevancy, absence of

proximity with person etc cannot be a ground to set aside the entire

order of detention. Thus, in our view, the doctrine of severability is

given statutory recognition and shape by inserting Section 5A.

42.The Apex Court laid down the Doctrine of Severability on the

anvil of which the impugned order can be tested. In 1960 2 SCR 146

(Y.Mahaboob Sheriff Vs. Mysore State Transport Authority), the

31 W.P. No.10085/2021

Apex Court held that it is open to sever the illegal part of the order

from the part which is legal. This principle was followed in 1966 2

SCR 204 (R. Jeevarantnam Vs. State of Madras). It was held that

two parts of composite order are separable. The first part of the order

operates as a dismissal of the appellants as from October 17, 1950.

The invalidity of the second part of the order, assuming this part to be

invalid, does not affect the first part of the order. The order of

dismissal as from October 17, 1950 is valid and effective. The

appellant has been lawfully dismissed, and he is not entitled to claim

that he is still in service. The same principle was followed in (1976) 2

SCC 495 (State of Mysore Vs. K. Chandrasekhara Adiga). It was

clearly held that where valid and invalid portion of the order are

severable, the test is whether after excision of the invalid part, the rest

remains viable and self-contained. The deletion cannot render rest of

the order illegal or ineffective if it can survive independently and

found to be valid. In 2014 (12) SCC 106 (State Bank of Patiala Vs.

Ram Niwas Bansal), it was again held that two parts of the order are

clearly severable assuming that second part of the order is invalid.

There is no reason that the first part of the order should not be given

the fullest effect. Reliance can be placed on another judgment of Apex

Court in the case of Gujarat Mineral Development Corporation Vs.

P.H Brahmbhatt reported in 1974 (3) SCC 601. Pertinently,

Allahabad High Court in Gajendra Prasad Saxena, VS. State of UP

reported in 2015 SCC OnLine ALL 8706 applied the Doctrine of

“Partial Quashing” and opined that the principle of unconstitution

provision of a statue being severed and struck down leaving other

parts untouched is well known. The said principle of severability has

been extended to administrative orders also.

43.If the Doctrine of Severability duly recognised in S.5A above is

applied on the impugned order, it will be clear that even if ground

related to the incident of 2004 is deleted or treated as invalid, the

32 W.P. No.10085/2021

contents of rest of the order will be sufficient to uphold the action

under the NSA. In other words, if order to the extent it refers to

incident of 2004 is treated as invalid, after excision of this invalid

part, the remaining part is found to be self-contained and can be a

reason to uphold the invocation of power under section 3(2) of the

NSA. Thus, two parts of the order are severable. The invalid part will

not eclipse the entire order of detention dated 11.05.2021.

44.Another limb of argument of petitioner is that by the time

period of detention order was extended, the crisis of corona related

risk was substantively reduced and there was no justification in

extending the period of detention. A three judges bench of Supreme

Court in 1975 (3) SCC 858 (Sheoraj Prasad Yadav vs. State of Bihar

& Ors.) held as under:-

“7. Coming to the third submission made on behalf of the

petitioner we would like to observe that there seems to be

justification in the petitioner's grievance that he is being

unnecessarily detained even after the agitation had

been withdrawn and there is no likelihood of his

indulging in acts prejudicial to the maintenance of

supplies and services essential to the Community. But this

is a matter which is not within our domain to decide. It is

for the State Government to consider the question as to

whether the continuance of detention of the petitioner is

necessary or not. In the facts and circumstances of the

case, however, we think it desirable that the State

Government should as soon as possible review the case of

the petitioner to find out whether any further detention in

his case is necessary or not.”

(Emphasis Supplied)

45.In view of this judgment, this Court is not inclined to interfere

on the detention or extension order. We are only inclined to observe

that it will be open to the government to review the case of the

petitioner in accordance with the law.

If the salt has lost its savour, wherewith shall it be salted.

46.A conjoint reading of statement of witnesses recorded under

33 W.P. No.10085/2021

Section 161 of Cr.P.C. and detention order shows that background

story is that a drug/injection manufacturer at Surat indulged in

manufacturing fake remedesivir injections in order to earn undue

profit. In turn, said injections were sold to a person at Indore. The said

drug dealer of Indore supplied it to the distributor, the petitioner

(hospital owner) and petitioner of connected matter (Devesh

Chourasia) who was an administrator of the hospital. Covid pandemic

created a compete chaos which became a serious threat to normal life.

At the cost of repetition it is apt to remember that the people were

struggling for getting oxygen, hospital beds, necessary drugs etc. This

kind of crisis is faced by humanity after almost 100 years from the

Spanish flu which broke out in 1918-1920. The administration across

the nation has worked tirelessly during this period. Multi tasking was a

routine those days. The administration was required to take care of law

and order situation, ensure supply of electricity, oxygen and other

amenities to the people. There are other factors on which they were

required to devote their time. If drug manufacturer, supplier,

distributor, hospital owner and administrator indulge into such activity

of blackmarketing remedesivir or using fake remedesivir, it was

necessary to prevent them to maintain 'public order' because as per

famous adage “if salt has lost its savour, wherewith shall it be salted”.

We make it clear that this observation of ours should not be treated as

finding against the petitioner on the merits of the case. The trial Court

is best suited to decide the matter on merits.

47.We are unable to hold that there was no material at all to invoke

detention law. The Court cannot interfere if there was some evidence

before the detaining authority upon which a reasonable man could

have formed the satisfaction which is the sine qua non for the

detention. (See: Ram Bali Rajbhar vs. State of W.B. (1975) 4 SCC

47) There is no flaw in the decision making process. Delay in taking

decision on representation cannot be measured by taking a stop watch

34 W.P. No.10085/2021

in the hand. The explanation of delay depends on the factual

background in which delay occasioned. Pertinently, in Ayya Ayub

(supra), the Apex Court considered this aspect and poignantly held

that the Court should not be oblivious of the “pressures of the day”

and according to the intensity of imperatives which may justify the

need and extent of curtailment of individual liberty. Similarly, in Raj

Kumar Singh (supra), the Court ruled that hard and ugly facts make

application of harsh laws imperative. The blackmarketing and use of

fake remedesivir injections in pandemic crisis, in our opinion is such

hard and ugly fact which makes application of detention law

imperative.

48.In view of foregoing analysis, we find no reason to interfere in

the impugned orders. Petition fails and is hereby dismissed.

(SUJOY PAUL) (ANIL VERMA)

JUDGE JUDGE

soumya