SATYANARAYAN LUNIYA Vs. STATE OF M.P.

JUDGEMENT

(1.) Heard finally with the consent of both the parties. In this petition under Article 226 of the Constitution of India, the petitioner has assailed the illegality, validity and propriety of the order dtd. 22/9/2022(Annexure P-1) passed under the National Security Act, 1980(hereinafter referred to as the 'Act of 1980') by the respondent no. 3 whereby the petitioner has been ordered to be detained in the Central Jail, Indore.

(2.) The brief facts of the case are that the petitioner is a businessman and income tax payee and carrying on the business of transport and scrap through the registered firm namely S.P. Brothers. The firm is registered under the M.P. Shops and Establishment Act, 1958. The petitioner is also filing the GST returns. Moreso, he is an active member of a political party and due to political pressure from the ruling party, the respondent no.3 has passed the detention order under the Act of 1980. Earlier also, the order dtd. 17/7/2017 passed by the respondent no.3 was assailed in W.P. no. 6103/2017. This Court vide order dtd. 13/10/2017 had set aside the order and allowed the writ petition. Again on 28/1/2019, the respondent no.3 passed an order of detention under the Act of 1980 with the purpose of harassing him. The said order was also assailed by filing W.P. No. 3154/2019. Vide order dtd. 28/3/2019, this Court has quashed the order passed by respondent no.3 holding it to be illegal and against the rule of law and as also on the ground that the order of detention under the Act of 1980 cannot be passed for an indefinite period. The present impugned order is also issued by the respondent no.3 without following the provisions of the Act of 1980 and without there being any basis, therefore, there is no reason to believe that the petitioner is a threat for maintaining the public peace, law and order. Admittedly, the petitioner has not yet been arrested. Thus, the question which arises for consideration is that challenge to the order of preventive detention at pre-detention stage would not be maintainable.

(3.) Learned counsel for the petitioner contended that no affidavit of the District Magistrate, who had passed the detention order has been filed. This question was considered in the case of Usman Vs. State of M.P. and Others [ILR(2012) MP 1549]. Para 5 of which reads as under: