Detention order should mention if detenu is in custody, directs Madhya Pradesh High Court

The Madhya Pradesh High Court has recently said that if a detenu is in custody at the time of passing a detention order, then it is necessary for the Detaining Authority to mention it in such order.

The Division Bench of Justice Prakash Shrivastava and Justice Vishal Dhagat passed this order while hearing a petition filed by Rajeev Kumar Jain. In this petition, the petitioner has challenged the order dated May 3, 2021 passed by the District Magistrate, Satna, for his detention under section 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

The Petitioner has also challenged the order dated May 10, 2021 passed by the State Government approving the detention order dated May 3, 2021.

The case of the Petitioner is that he is running a business with the trade name of M/s Vindhya Engineering Company at Rewa and Satna and also having GST registration certificate. The FIR was lodged against the Petitioner in Police Station Kolgawan, Satna, on May 2, 2021 alleging commission of offence under section 420 of the I.P.C., section 53 and 57 of the Disaster Management Act, 2006, section 3 of the Epidemic Diseases Act, 1897, section 3 and 7 of the Essential Commodities Act, 1955 and section 5 and 13 of the M.P. Drugs Control Act, 1949.

The FIR has been registered on the basis of the written complaint of Drug Inspector, Satna, alleging that the petitioner who is the Manager of M/s Vindhya Engineering Company had illegally stocked oxygen cylinders in his warehouse and was selling oxygen cylinders at higher price to the general public. The raid in the premises of the Petitioner was conducted and oxygen cylinders along with LPG cylinders were seized and thereafter the impugned detention order dated May 3, 2021 was passed by the respondents.

The respondents have filed their reply disclosing that on May 2, 2021 the Drug Inspector had submitted the application that the Petitioner did not possess valid licence for possession of non-metal oxygen medical grade. Thereafter, the Petitioner’s godown was inspected and 571 jumbo oxygen cylinders, 90 small oxygen cylinders and 28 LPG cylinders were seized from the godown of the petitioner and accordingly the FIR was registered. The Sponsoring Authority S.P. Satna report dated May 3, 2021 had informed the District Magistrate, Satna, to initiate proceedings of preventive detention under the Act of 1980.

Thereafter, the detention order was passed and the grounds of detention along with the material particulars were served upon the Petitioner on May 4, 2021 and receipt was obtained. The detention order was communicated to the State Government and the State Government had approved it on May 10, 2021.

The State Government had placed the preventive detention case of the Petitioner before the Advisory Board in the virtual meeting held on June 8, 2021 and the Advisory Board had opined that there exists sufficient cause for detention of the Petitioner and the order dated May 10, 2021 was passed by the State Government approving the order of detention and by the order dated June 14, 2021 passed under section 12(1) of the Act it was mentioned that the detention period will be from May  4, 2021 to August 3, 2021 for three months.

Counsel for the Petitioner submitted that the FIR was registered and the Petitioner was taken in custody on May 2, 2021 and at the time of passing the detention order the petitioner was already in custody and the fact that the petitioner was in custody and his likelihood of release on bail has not been considered by the detaining authority, therefore, the order of detention suffers from nonapplication of mind.

He has further submitted that the representation of the Petitioner has not been considered by the State Government as the order of approval dated May 10, 2021 does not even mention the Petitioner’s representation and that the Petitioner’s representation has also not been placed before the Advisory Board.

He has also submitted that the Petitioner has no criminal antecedents and all oxygen cylinders were empty and oxygen cylinders are not the essential commodities. In support of his contention he has relied on various judgments.

Opposing the prayer, Counsel for the State has referred to Schedule 1 of the National List of Essential Medicines, 2015, and has submitted that the oxygen is covered in the said list and referring to the order dated April 25, 2021, he has submitted that the use of liquid oxygen was allowed by the Government only for medical purposes keeping in view the Covid 19 Pandemic.

He has submitted that the complaint was received against the petitioner that he was selling the oxygen at an exorbitant rate, therefore, the raid was conducted and oxygen cylinders were seized and these cylinders were filled cylinders except 20 empty LPG.

He has further submitted that there is no proof of dispatch of representation by the Petitioner.

The Court noted that the first and foremost ground of challenge raised by the Counsel for the Petitioner is that the Detaining authority had not applied its mind about the custody and possibility of release of the Petitioner. The plea of the Petitioner that at the time of passing of the detention order, the Petitioner was in custody has not been disputed by the Counsel for the respondents. A minute perusal of the detention order dated May 3, 2021 as also the grounds of detention clearly reveal that there is no mention of the fact in the said detention order that the Petitioner was in custody and that he had applied for bail or there is his possibility of being released on bail.

From the aforesaid pronouncements it is clear that if the detenu is in custody at the time of passing the detention order then it is necessary for the Detaining Authority to mention this fact in the detention order and also consider the prospects of release of the detenu on bail and apprehension that the detenu would indulge in prejudicial activities in case of his release on bail. The non-application of mind by the Detaining Authority or non-recording of satisfaction in this regard vitiates the detention order. If the detenu is in jail then the compelling necessity justifying the detention must be reflected to sustain the order, the Court said.

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“Examining the case in the light of the aforesaid pronouncements, we clearly find that the order of detention suffers from non-application of mind by the Detaining Authority as the Petitioner was undisputedly in custody at the time of passing of the detention order; but, the Detaining Authority has not applied its mind to this fact and has also not applied its mind to the possibility of the Petitioner being release on bail,” the Court observed.

The Court further said that the Counsel for the Petitioner has also raised an issue that the petitioner’s representation has not been considered by the State Government.

“Hence, we are of the opinion that the impugned order cannot be sustained and is liable to be set aside on the solitary ground of non-application of mind by the Detaining Authority while passing the detention order in respect to the fact that the Petitioner was already in custody at that time and his possibility of being release on bail. Thus, writ petition is allowed and the impugned detention order dated May 3, 2021 and the order of the State Government dated May 10, 2021 affirming the detention order are set aside,” the order reads.

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