GYANESH SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner has called in question the orders dated 13-10-2009 and 24-10-2009 said to be issued under the provisions of National Security Act, 1980 (hereinafter referred to as the 'Act' for brevity), detaining the petitioner under section 3(2) of the aforesaid Act, on the ground that no such grounds were available for detention of the petitioner. The orders passed by the respondents are beyond the jurisdiction of the authorities as the said detention order could not have been passed under the said Act. The petitioner has challenged the validity of the detention order mainly on three grounds. Firstly, that there was no sufficient material available with the competent authority to pass such an order on its subjective satisfaction as the material was not indicative of any offence or a threat to the National Security and, therefore, the order could not have been passed by the authorities. Secondly, such an order could not have been issued in exercise of power, in view of the explanation to sub-section (2) of section 3 of the Act and thirdly, the material facts which were required to be placed before the competent authority for reaching to a subjective satisfaction were concealed or withheld illegally by the authority.

(2.) Briefly facts giving rise to this petition are that the petitioner is said to be the owner of the land, the premises which was let out to one M/s. Hind Dairy Food Products at B-58, Industrial Area Maharajpura, District Gwalior. The petitioner was involved in dealing with the business of Real Estate, under the name and style of Aditya Akshar Infrastructure Pvt. Ltd. and, has nothing to do with M/s. Hind Dairy Food Products. Yet the respondent No. 2 on being informed about conducting a search, in the stores of said M/s. Hind Dairy Food Products, reached to the conclusion that a huge quantity of adulterated 'Ghee' was seized and found in the stores of said M/s. Hind Dairy Food Products, and that the petitioner has also committed offence and that a case was made out to issue a detention order against the petitioner under the Act. It is the case of the petitioner that on coming into know about these facts, he made a representation pointing out all the above facts. Yet the order impugned at Annx.P/2 was passed, communicated to the authorities and, the respondent No. 1 thereafter passed the impugned order of detention at Annx.P/1. Therefore, the petitioner was required to knock the doors of this Court by way of filing this writ petition. It is the case of the petitioner that firstly the petitioner was not involved in the business of aforesaid M/s. Hind Dairy Food Products, was nothing to do with the activities of his tenant; secondly, the petitioner was not to be prosecuted at all for any such offence and, thirdly the sample of alleged adulterated 'Ghee' sent for analysis was found to be positive and no adulteration was found in it. It is further contended by the petitioner that on two occasions, he was convicted, but in appeal such convictions were set aside and these facts were well within the knowledge of the proposing/prosecuting authorities, but the said information was withheld and, therefore, the order of detention could not have been passed against him.

(3.) Learned Senior counsel for the petitioner drawing attention of this Court to the decision of Apex Court in the case of Additional Secretary, Government of India v. Alka Subhash Gadia, 1992 Supp1 SCC 496, has contended that even before pre-detention, the order of preventive detention can be challenged and the validity of such an order can be examined in exercise of power of judicial review by this Court under Article 226 of the Constitution of India. Paragraph 30 of the aforesaid decision being relevant is reproduced thus :